Tag Archives: Supreme Court

Talking to Myself 1.

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Brett Kavanaugh has just been blind-sided at the last moment before the Senate Judiciary Committee votes on whether to approve his nomination to the United States Supreme Court.  He’s been hit by an accusation of “sexual misconduct” that is alleged to have occurred thirty-five years ago, when he was seventeen.  There is no corroborating evidence so far.  Apparently, sixty-five women who knew Kavanaugh at that time say he never mistreated women to their knowledge.

What to do?  It’s difficult to say because there are several different issues that over-lap in this case.

First, we don’t yet have any proof that this event occurred. It’s just “He said-She said.”

Second, if proven, would such behavior thirty-five years ago, followed by unstained behavior since then, disqualify Kavanaugh from the Supreme Court?  In the current environment, it certainly should disqualify him.  By “current climate” I mean that people (myself included) are finally starting to pull their heads out of their “culus” about an age-old problem.  With any luck, this isn’t just a phase that is going to pass.  It will become the new normal.  Certainly that would be unfair to Kavanaugh, whose alleged action would have occurred under a different morals regime.  Thirty-five years ago was, like, 1983.  (In January 1983, the Washington Redskins beat the Miami Dolphins in the Super Bowl.  That’s how long ago it happened.)

Third, Diane Feindstein holding onto the letter, then releasing word of it at the last possible moment is pretty slimy.  However, if you think that Senator Feinstein’s actions are wrong, then you must also think that the Republican majority refusing to hold hearings on Merrick Garland was wrong.  They didn’t have to approve Garland.  The Constitution doesn’t say that “The Senate must approve anyone nominated by the President-Emperor.”  Ask poor Harriet Miers.  The appointment of judges at all ranks has become politicized because people have taken to the courts to obtain what they can’t get through the legislative process.  As Mr. Dooley opined, “politics ain’t bean-bag.”

Fourth, what should happen?  Put the clutch down on the Kavanaugh nomination.  Thoroughly investigate the accusation.  Yes, if the Democrats regain the majority in the Senate before the investigation is completed, then Kavanaugh is toast.  He will lose any vote on a purely party-line vote.  It will not matter what the investigation discovers.  It could acquit him and he would still lose.  Even so, that would be better than having someone appointed to the Supreme Court under a cloud, especially this kind of cloud.

Reasoning by analogy, we’re all in the same boat as the Catholic priesthood.  You can’t solve the problem by saying “Sorry” and promising transparency in the future.  (Yes, there’s a certain comic element in Democrats going “zero tolerance!” on this issue, while rejecting it on other issues.  Hypocrisy is central to American public life.)  On the other hand, I’d be opposed to trying to strip Kavanaugh of his current position as an appellate court judge.  (Like I said, hypocrisy is central to American public life.)

Final thing.  Take a moment to recall the Duke lacrosse and Charlottesville frat cases.  Both were examples of liberal lynch mobs.  We can’t tell yet what is true about the Kavanaugh case.  So, everyone should take a deep breath and think about what is best for th republic.  Here endeth the sermon.

Memoirs of the Addams Administration 14.

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The historian Fernand Braudel distinguished between long term trends and the “mere history of events.”  It’s a useful concept to bear in mind when analyzing political developments.  However, Braudel would be the first to admit that events can illustrate trends.

As early as the 1950s, Democrats turned to seeking changes in the law through the courts when they could not obtain them through the legislature.  Two can play at this game.  Both parties have spent a great deal of effort getting “their” judges on the bench while blocking the other guys’ judges from getting on the bench.  Polarization has only made the problem more obvious.  In 2013, when last in the majority, Senate Democrats chose to get rid of the filibuster for all judicial appointments below the level of the Supreme Court.  When Justice Antonin Scalia died, President Obama nominated a highly qualified Democratic replacement; Senate Republicans refused to even hold hearings on the nominee.  Now in the minority, Senate Democrats chose to filibuster the nomination of Neil Gorsuch to replace the late Antonin Scalia on the Supreme Court and Republicans chose to do away with the filibuster.[1]  This unhappy event is merely the most recent phase in the politicization of the judiciary.  The mind reels at possible future developments.

Human-caused climate change is a reality.  So, too, is the halting effort by industrial countries to limit the further emission of pollutants that cause that climate change.  So, too, are the social and economic costs of fighting climate change in industrial societies.  When interest groups resist the threats to their immediate well-being, governments can either bend before the resistance, or seek to off-set those costs, or seek to circumvent the resistance by other means.  Thus, President Barack Obama insisted that the Paris climate agreement to which his administration adhered not be a treaty.[2]  He knew he could never get such a treaty through the Senate, as required by the Constitution.  Nor could he get the policies needed to implement the Paris agreement through Congress.  So, he resorted to a “Clean Power Plan” issued by the Environmental Protection Agency (EPA).  The Trump administration ordered a re-write of the Plan and “requested” that the EPA lighten up on other regulations.[3]  Most observers found this to be ridiculous pandering to his core voters.[4]  In this view, coal is a dying industry, climate change has to be resisted with energy,[5] and renewable energy is a key technology of the future economy.

American social values and the deficiencies of the American education system have challenged the growth of the high-tech industries for many years.[6]  In brief compass, America doesn’t produce enough techies to meet the needs of growing industries.  The solution appeared in the hiring of many (85,000 new people a year) from foreign countries.  The granting of H-1B visas plays a key role in this process.  Now the Trump administration has issued orders intended to hinder the issuing of such visas.[7]  The empty spots aren’t likely to be filled by displaced coal miners.

[1] “Senate showdown over Gorsuch nomination,” The Week, 14 April 2017, p. 5.

[2] “Climate change: Can Trump revive coal?” The Week, 14 April 2017, p. 17.

[3] Relax the rules on emissions by power plants to be constructed in the future; allow new coal mining on public lands; and ease restrictions on the emission of methane in the course of “fracking.”

[4] As an employer, the whole of the coal industry ranks behind some fast-food chains.  Coal mine employment has fallen by almost 50 percent since 1990, long before the Clean Power Plan was even a twinkle in Barack Obama’s eye.  “The bottom line,” The Week, 14 April 2017, p. 35.

[5] HA!  Is joke.

[6] See Bruce Cannon Gibney, A Generation of Sociopaths: How the Baby Boomers Betrayed America (2017).

[7] “Tech: More scrutiny for skilled-worker visas,” The Week, 14 April 2017, p. 35.

Affirmative Action.

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Between 1940 and 1965 the Democratic Party slowly shifted from relying on anti-black racism to a forthright advocacy of “equality as a fact and as a result.”[1] Since the end of the Civil War, opportunities for African-Americans within the modest federal government had bounced around, with the appalling Woodrow Wilson doing much to roll-back advances made under his Republican predecessors. However, after 1932 the dramatic expansion of the size of the federal government and the turn to employing private contractors to execute its will created new conditions. In 1965, President Lyndon Johnson signed an executive order that required government contractors to identify and eliminate obstacles to the employment of minorities (by which Johnson meant African-Americans). This basic commitment to justice swiftly became the consensus in American politics. In 1969, President Richard Nixon issued his own executive order that required contractors to hire so as to reflect the racial composition of their area. Many states followed the lead given by the federal government. Ten years of expanding affirmative action initiatives followed.

For every action, there is an equal and opposite reaction.[2] For one thing, there were people who saw “affirmative action” as “reverse discrimination.” If one kind of discrimination is wrong, then all kinds are wrong. So, there was a principled opposition to affirmative action. For another thing, affirmative action disrupted and devalued a well-established system of apportioning opportunity.[3] At all levels of American society, some people get things because of patronage or connections. That’s true of “legacy” admissions to Ivy League universities; it’s true of family firms; and it’s true of union hiring halls. Increasing minority representation gored somebody’s ox in many of these cases. For yet another thing, some people are racists. They assumed that African-Americans were innately less capable than were whites. For liberals of this stripe, inferiority meant that African-Americans needed to be protected and guided by an expanded state, rather than left to their own devices. For conservatives of this stripe, inferiority meant that nothing achieved by any African-American came by way of merit, but only by manipulation.

In 1975 Allan Bakke, denied admission to medical school at the University of California at Davis, sued. In 1978 the US Supreme Court found for Bakke, rejecting the use of quotas to apportion opportunity. The case touched a nerve among conservatives in particular. In 1980, former California governor Ronald Reagan won the presidential election. He issued his own executive order ending the affirmative action requirement for federal contractors.

The American system of federalism means that the policy of the federal government is not necessarily the policy of the individual states. Hence, a sustained effort has been made to persuade the Supreme Court that affirmative action is un-constitutional. In 2003, without much enthusiasm, the Supreme Court upheld the basic constitutionality of affirmative action. It’s easy to find people who feel wronged by affirmative action. So, it’s still on the docket.

[1] “The origins of affirmative action,” The Week, 28 June 2013, p. 9. Between 1865 and 1965 much of the Democratic voter base consisted of Southern whites, who upheld the system of “Jim Crow.” Indeed, it seems likely that at various points in its history, every single member of the Ku Klux Klan was a Democrat. Dis-franchised Southern blacks were nevertheless counted for the purposes of apportioning representatives just as if they had the right to vote. This inflated Democratic numbers in the House of Representatives and in the Electoral College.

[2] Isaac Newton, Third Law of Motion. But maybe not, at least not in politics, society, and the economy. Otherwise we’d be stuck in the same place for millennia. This shows the perils of applying the lessons of physics to the less reliable world of human activity. So does the Reign of Terror in the French Revolution. But I digress.

[3] Indeed, that was the idea.

The Affordable Courts Act (ACA).

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The Affordable Care Act offered the states the opportunity to create health insurance exchanges, but then set up barriers to states actually creating such exchanges insurance. To create its’ own exchange, a state had to create a new state-paid staff to set up and operate the exchange: run a call center to explain the plans, regulate the plans offered by the private insurance companies, and set up the web-site through which people select their insurance. All this would cost money[1] and require some horse-trading in the legislature that could mess up other deals. Recognizing this, the federal government created a pool of money to subsidize the creation of state exchanges. The continuing costs would fall on the states. Moreover, many state legislatures were in the hands of Republicans who were opposed to the whole thing to begin with. It should surprise no one that thirty-four–about two thirds–of state legislatures opted to let the federal government carry the weight. Thus, most people buy their insurance through federal exchanges, rather than through state exchanges.[2]

Recently, the Supreme Court has agreed to hear a challenge to one provision of the ACA. The case of King v. Burwell turns on the meaning of the language in the ACA regarding subsidies for people who purchase insurance through the exchanges. Do subsidies go only to people who purchase insurance on state-created exchanges or do they go to all exchanges, state and federal alike?[3] The Supreme Court will issue an opinion on the case in June 2015.

In a subtle bit of propagandizing the court, Margot Sanger-Katz recently penned a story in the New York Times that explains the likely consequences of a Court decision restricting the subsidies to state-created exchanges.[4] First, subsidies would end in the thirty-four federal government-created exchanges. This would drive up the cost for many insurance consumers beyond what they could afford. The individual mandate to purchase health insurance, a corner-stone of the ACA, could not be maintained if insurance costs rose dramatically. Second, any effort to replace the federal exchanges with state exchanges would involve an immense amount of work in a restricted period of time.

The Court will probably issue its opinion in June 2015. October is the enrollment month, so states would have from June to October (about four months) to create exchanges. Only eight states will have legislatures in session in June. This may cut down the time for legislative action to the extent that is necessary. It took three years to create the original exchanges. They turned out to be plagued with what the Obama Administration is pleased to call “glitches.” Doubtless people have learned a lot from the first round of experiences. The trouble is that one of those lessons is that it isn’t possible to create an exchange over-night. States will have to hire teams of people to create and manage the exchanges. They will have to find the additional money (see fn. 1 below) somewhere in the middle of a fiscal year. They will have to find the people somewhere. (I foresee a big money harvest for Massachusetts health insurance professionals.) Then computer programs will have to be purchased and adapted to suit the needs of each new state exchange. There is a good chance that chaos will reign for a time if the Court overturns subsidies for federal exchanges.

This leads me to believe that Chief Justice John Roberts will side with the Democratic appointees on the Court and against the four Justices who have always opposed the ACA.

Or, already existing state exchanges could start enrolling residents of other states as well. You can go to another state’s public colleges and universities if you pay out-of-state tuition. Why can’t insurance customers pay out-of-state premiums? Not a lot higher. Just enough to create a positive revenue stream.

[1] One current estimate of the cost to establish a single state exchange is about $40 to $60 million. Then the annual operating cost would be added on that. Obviously not the end of the world, but a hard sell to state legislatures in the middle of a recession.

[2] President Obama’s unilateral abandonment of the “public option” looks worse and worse all the time—in retrospect. Lots of human decisions look worse in retrospect.

[3] To an ignorant—Republican—layman like myself, the answer is clear. Congress did not pass an enormous and complicated piece of legislation with the intent that it should fail. Congress did not intend that subsidies be restricted to the state-created exchanges when it was creating the federal exchanges as a back-up system. Congress intended both forms of exchanges to receive subsidies. End of story.

[4] Margot Sanger-Katz, “Many States Unprepared to Set Up Health Exchanges,” NYT, 11 December 2014.