Matt Yglesias

Scalia: Apartheid is Democracy Bizarre Newspaper Misquote Leads to Unfair Denunciations of Scalia

Justice Antonin Scalia comes out and says Brown v. Board of Education was wrongly decided:

Legal issues aside, what always strikes me about these majoritarian critiques of judicially-mandated desegregation is that people seem to forget that black people couldn’t vote in the south. This was not a small part of the civil rights controversy. There was no question of “democracy” here one way or another.

Ignatius’ “Grand Bargain”

David Ignatius was last seen arguing that we can’t hold CIA operatives accountable for breaking the law because if we do that might dissuade future lawbreaking. Yesterday, though, he came up with an innovative new idea for a “grand bargain” one of whose terms is that intelligence operatives will agree to follow the law:

Omand argued that the intelligence community must accept a “paradigm shift.” The old “secret state,” in which intelligence agencies could do pretty much as they liked, is gone. In its place is a “protecting state,” in which the public gives the intelligence agencies certain powers needed to keep the country safe. It’s a “citizen-centric approach,” Omand explained, based on the reality of mutual dependence. The spies need information from the community (especially the large Muslim population in Britain), and the public needs protection.

In this new “grand bargain,” Omand stressed, the public must understand that if it decides — for moral and political reasons — to limit certain activities (as in interrogation or surveillance techniques), it also accepts the risk that there will be “normal accidents.”

On one level, who could disagree with this? On another level, how is it that we’re having this conversation? This isn’t East Germany. Of course intelligence services are supposed to be “citizen-centric” rather than have the ability to “do pretty much as they liked.” But what’s the bargain here? My general understanding of the bargain between the law and citizens is that citizens are supposed to follow the law and in exchange they don’t get subjected to criminal penalties. That’s the bargain I have. And people who work at the CIA are also American citizens, right? Subject to the law, right?

Jim DeMint’s Selective Tentherism

(cc photo by mar is sea Y)

Aaron Wiener has an interesting report on Senator Jim DeMint’s curious view that the constitution prohibits Obama’s health care plan, and that this prohibition also applies to Medicare, but we should overlook that fact, presumably in the interests of political opportunism since (as depicted at right) an awful lot of socialized medicine’s biggest detractors are also its biggest fans:

Asked whether states should use the 10th Amendment to prevent health care reform from taking effect, he replied that an assertion of states’ rights was “probably the only way we’re going to stop this reckless spending.” He continued, “There’s no constitutional authority for the government to actually do [the reform proposed by Democrats], but whether the courts take it up is a different matter.”

The rules change, however, when it comes to Medicare.

DeMint expressed doubts as to the legality of Medicare under the Constitution, but said, “Regardless of constitutionality, it is a promise that we have to keep. … I think Medicare and Social Security have to be protected.”

People counting on folks who think Medicare is unconstitutional to protect their Medicare might want to think harder about the situation.

Medical Malpractice and Health Costs

The President, in an effort to demonstrate his desire for bipartisanship, has repeatedly tried to offer conservatives a deal on the issue of medical malpractice lawsuits since according to conservatives making malpractice litigation more favorable to defendants is key to reducing health care costs:

Politics is about the art of the deal, but it is worth looking at the actual policy issue and wondering if it’s true that malpractice lawsuits are actually driving health costs. As Igor Volsky says “the short answer is no”:

Malpractice costs represent less than half of 1% (0.46 percent of total health care expenditures) and malpractice settlements have grown modestly with inflation. In fact, in states that have adopted caps on jury awards, doctors are prescribing too many aggressive and intensive treatments that increase costs, but don’t improve outcomes.

When Texas capped non economic medical malpractice damages to $250,000 in 2003, most conservatives argued that the reform would free doctors from having to prescribe unnecessary treatment. It didn’t happen. According to the Dartmouth research on disparities in health care spending, many Texan doctors are still prescribing aggressive treatments that don’t improve outcomes. In fact, as of 2006, Texas was still at the top of the list of high-spending states.

There are certain perverse incentives inherent to fee-for-service medicine that can lead health providers to systematically err on the side of ordering tests and treatments whether or not there’s good reason to think they’ll be beneficial. Capping lawsuit awards doesn’t really change that.

To me the main point about malpractice lawsuits in health reform is that the prominence of this issue is one of the perverse consequences of our tattered social safety net. Medical treatment is complicated, and it’s inevitable that things will sometimes go wrong. Sometimes because of bad luck, sometimes because of an error in judgment, and sometimes because of a mistake that’s perhaps so bad as to truly constitute malpractice. But irrespective of the reason the treatment’s gone awry, what the patient needs is medical care to fix the problem and possibly financial support to cope with a disability. In a country where medical treatment is paid for by the state, then it doesn’t really matter why the additional treatment is necessary. If it’s necessary it will be done and paid for. Instead in our system, there needs to be a controversy over who will foot the bill for the extra treatment, and that requires the assigning of blame and culpability in a very specific kind of way and thus lots of essentially negative-sum litigation.

Changing the legal system while leaving the health care financing system intact is basically just a way of pushing costs around—onto the shoulders of patients—without really addressing the underlying topic of equitably financing health care and preventing medical errors.

Tim Pawlenty Calls for Nullifcation of Health Reform

It seems that Minnesota Governor Tim Pawlenty has picked up the crazy bug from Michelle Bachmann or something, and according to Minnesota Public Radio thinks the Tenth Amendment makes universal health care unconstitutional:

“Depending on what the federal government comes out with here, asserting the 10th Amendment may be a viable option,” Pawlenty said, when asked about it by a caller on a Republican Governors Association conference call. “But we don’t know the details. As one of the other callers said, we can’t get the President to outline what he does or doesn’t support in any detail. So we’ll have to see, I would have to say that it’s a possibility.”

Pawlenty made it clear that he and other Republican governors will be more assertive about the 10th Amendment: “I think we can see hopefully see a resurgence in claims and maybe even bring up lawsuits if need be.”

As my colleague Ian Millhiser points out there’s a kind of longstanding sentiment on the conservative fringe that the Tenth Amendment actually means almost everything the federal government does is unconstitutional. The question for practical politicians embracing this “tenther” doctrine is how far do they push it. I can see a reading of the Tenth Amendment such that Obama’s health proposals are unconstitutional, but that same reading implies that Medicare and Medicaid and sundry other uncontroversial programs are also unconstitutional. If Pawlenty wants to make his stand on that idea, more power to him. But one senses a lot of opportunism and silliness in these sporadic invocations of state sovereignty.

Also note that the broad view that the federal government has no authority to do anything other than field a military and establish post offices and post roads doesn’t exactly seem like the kind of innovative, “Sam’s Club conservatism” that we’ve occasionally been told Pawlenty represents. This is old-school, John Calhoun conservatism.

Executing the Innocent

The grim business of executing criminals has long been haunted by the specter of killing someone innocent. Common sense and the fact that a number of people on death row have been exonerated suggests that it’s happened, but no specific case has ever been widely acknowledged. Now it looks like David Grann, writing for The New Yorker, has our man Cameron Todd Willingham accused by Texas of setting a fire that led to the deaths of three children. The case, as Grann argues, is a mess. It’s founded on forensic evidence that’s not backed up by any real science, a mentally unstable semi-repentant jailhouse snitch, and some badly flawed eyewitness testimony.

You should read the story for yourself. The tragedy inherent in executing an innocent man is pretty clear. But it’s sobering to note that these death penalty cases are more heavily litigated than other kinds of charges that might lead to “only” ten or fifteen years behind bars. Given the staggeringly high number of people in prison in the United States, it stands to reason that we have thousands of innocent people behind bars. Part of the problem is simply that no system is foolproof. But part of the problem is a mentality among law enforcement and prosecutors that convicting the innocent is a workable second-best alternative to convicting the guilty. This leads to enormous and irrational resistance to ever rethinking “successful” prosecutions.

“Tenther” Activists Take Aim at Interstate Transportation

My Wonk Room colleague Ian Millhiser has been tracking the recent upsurge in “tenther” thinking—conservatives who basically think that the Tenth Amendment renders everything the federal government does unconstitutional. He’s got a great new example as Representative Carol Shea-Porter (D-NH) offers up the banal observation that the federal highway system is permitted under the constitution:

Author and historian David Barton, the president of WallBbuilders, [sic] says Shea-Porter’s comments reflect her view that Washington government should run everything. He notes that both the Ninth and Tenth Amendments say anything that is not explicitly covered in the Constitution belongs to the states and to the people.

“All of those issues belong to the states and the people. Healthcare is not a federal issue. It is a state and people issue — the same with transportation. The Constitution does say that the federal government can take care of what are called the post roads — those on which the mail travels — but outside of that, states are responsible for their own highways, their own roads, their own county, local, state roads,” he notes.

I bow to no man in my dislike of federal highway spending. But the legitimacy of federal expenditures on interstate transportation projects was settled back in the days of John Quincy Adams and Henry Clay. I suppose you could choose to read the “post roads” clause as requirement the construction of separate, hermetically sealed mail routes with no other purpose, but that’s never how that’s been construed and it’s hard to think of any good reason to start doing it.

Marriage Equality Rulings and Public Opinion

I think people don’t spend enough time dwelling on tests of hypotheses that don’t really pan out. So I was interested in this chart from Patrick Egan and Nathaniel Persily seen over at the Monkey Cage looking at how judicial decisions in favor of gay marriage claims impact public opinion on marriage equality:

The answer seems to be . . . not much happening here. If you just look at Vermont, you can tell a story about how judicial ruling in favor of marriage equality lent the cause legitimacy. But if you look at Iowa or Connecticut it seems like a story of a surge in public support for marriage equality leading to judicial action.

The moral of the story, if there is one, is that there’s no real evidence here for any handwringing concerns about backlash. The opinion trend in favor of marriage equality is pretty strongly favorable, and courts should do the right thing.

On Activist Judging

I’ve got a new column up at the Daily Beast arguing that the Sotomayor hearings show that conservatives love activist judging as long as it’s done on behalf of white people.

Ricci and “Activism”

This is hardly an original-to-me point, but you don’t need to look any further than conservatives’ fury at Sonia Sotomayor’s participation in the Ricci appellate decision to see how hollow their complaints about “judicial activism” are. Conservatives just really don’t like Title VII of the Civil Rights Act and they think the situation in New Haven illustrates the injustice of the law as written. So they want the judiciary to reverse its earlier precedents and change things around.

Maybe they’re right or maybe they’re wrong. But this is what judicial activism just is. They could be mounting a campaign in congress to change the law. But instead they’re trying to get the courts to do it for them. You saw the same thing in the other big conservative judicial outrage of recent years, the Supreme Court’s ruling in the Kelo eminent domain case. Here, again, what happened was that some lawyers had dreamed up a fairly clever and somewhat plausible argument as to why the court ought to step in and overrule the policy decisions of some elected officials. And what the court did was decline to step in and do that. In response, many jurisdictions passed some different laws putting more restrictions on the use of eminent domain.

In both Ricci and Kelo, in other words, you have courts acting how conservatives say they want courts to act—applying the law-as-written and not inventing new constitutional doctrines to justify wading into political controversies.

The Hard Cases Are Hard

Ramesh Ponnuru takes issue with what I think is a fairly banal David Brooks point about how judges’ background and experience will probably alter their thinking about cases:

Without wishing to take issue with the abstract point Kahan is making—surely it’s true that different judges come to different conclusions because they assign different weights to the various facts involved—couldn’t a third judge “perceive” that the Constitution, properly interpreted, doesn’t actually empower him to balance, or say anything at all about, the schools’ concerns about security and the girl’s psychic needs? And wouldn’t Brooks’s observations about judicial psychology apply a lot less to a justice with that mental “model”?

I appreciate that the rhetoric of embattled conservative judges waging a lonely battle on behalf of “the law” against a cohort of subjectivists is politically useful, but I wonder if folks on the right really believe this stuff.

The whole essence of controversial appellate decisions is that the constitutional or statutory provisions at issue aren’t clear. The super-clear issues don’t get litigated at all. Congress isn’t going to pass a bill saying “Christianity is now the established religion of the United States.” But questions arise that people disagree about because legal standards are full of abstract terms. There are protections from “unreasonable” searches. Thanks to the existence of precedent, judges don’t start de novo asking individually weather or not any given search is reasonable. But new, difficult cases arise when circumstances arise that aren’t covered by the precedents in an unambiguous way. What “the Constitution” says is going to turn on how a judge balances the different considerations in play.

Spanish Prosecutors Moving Forward With Torture Investigation

Scott Horton reports that the wheels of justice continue to move forward in Spain:

Spanish prosecutors have decided to press forward with a criminal investigation targeting former U.S. Attorney General Alberto Gonzales and five top associates over their role in the torture of five Spanish citizens held at Guantánamo, several reliable sources close to the investigation have told The Daily Beast. Their decision is expected to be announced on Tuesday before the Spanish central criminal court, the Audencia Nacional, in Madrid. [...]

But prosecutors will also ask that Judge Garzón, an internationally known figure due to his management of the case against former Chilean dictator Augusto Pinochet and other high-profile cases, step aside. The case originally came to Garzón because he presided over efforts to bring terrorism charges against the five Spaniards previously held at Guantánamo. Spanish prosecutors consider it “awkward” for the same judge to have both the case against former U.S. officials based on the possible torture of the five Spaniards at Guantánamo and the case against those very same Spaniards. A source close to the prosecution also noted that there was concern about the reaction to the case in some parts of the U.S. media, where it had been viewed, incorrectly, as a sort of personal frolic of Judge Garzón. Instead, the prosecutors will ask Garzón to transfer the case to Judge Ismail Moreno, who is currently handling an investigation into kidnapping charges surrounding the CIA’s use of facilities as a safe harbor in connection with the seizure of Khalid el-Masri, a German greengrocer who was seized and held at various CIA blacksites for about half a year as a result of mistaken identity.

I’m glad to see this happen, as I think the Spanish tradition of moving aggressively to find rationales to prosecute violators of international humanitarian law has had a good impact on the world. But as Hilzoy says, it’s a bit ridiculous that we can’t have this investigation in the United States. Torture is illegal in the United States, and we have obligations under treaties we’ve signed to investigate and prosecute cases of torture. Besides which, there’s no reason the scope of investigations should be arbitrarily limited to cases that have a Spanish angle.

Recall that Bush administration officials have stated, in public, that they have ordered waterboarding. And waterboarding has traditionally held to be torture by both the United States government and international law. The defense has several arguments to make on its behalf. One is that tradition is mistaken, and waterboarding isn’t really torture because it doesn’t lead to permanent organ damage. Another is that the illegality of torture is a sham, because neither congress nor international treaties can bind the president’s inherent power to torture. A third is some kind of exigent circumstances defense related to ticking time bombs or some such. I don’t, personally, take any of those arguments very seriously.

But a lot of people blogging for National Review or on talk radio seem to. And they deserve to have their day in court, to be put before a judge and a jury so we can have a proper decision about what is and isn’t illegal in the United States. Instead this issue has kind of lingered in the political chattering classes where if you say that the “extreme interrogations” were wise and good you count as a proper conservative motivated by Christian values while if you rant on about torture and international law you’re fitted for a tinfoil hat, and the sober-minded and sensible position is to be hand-wavingly against both torture and the investigation of torture. Thus, it all winds up in the hands of the Spanish, which is nuts.

Arab Parties Back In

Israel’s Supreme Court is doing the right thing and re-instate the right of Israel’s Arab parties to contest the forthcoming Knesset elections. Obviously, I lack expertise in the fine points of Israeli law, so it’s possible that this is being wrongly decided, but it certainly looks to me like a triumph of good sense.

Thomas Tamm

The Bush administration and the congress have seen to it that nobody who broke the law and conducted illegal, secret surveillance of Americans will be punished for it. But Thomas Tamm, the whistleblower who brought the illegal activity to public attention, is still being hounded by the FBI.

That’s via Hilzoy.

Stuart Taylor: Obama Should Conduct Illegal Surveillance

A pretty stunning Stuart Taylor column in the National Journal:

Civil libertarians are rightly outraged by the brutality of some Bush administration interrogation methods; by Bush’s denial of fair hearings to hundreds of suspects at Guantanamo and elsewhere who claim that they are not terrorists; and by his years of secretly and perhaps illegally defying — rather than asking Congress to amend — the badly outdated Foreign Intelligence Surveillance Act.

But the civil libertarians’ outrage does not stop there. Indeed, the prospect of anyone in the U.S. being inappropriately wiretapped, surveilled, or data-mined seems to stir the viscera of many Bush critics more than the prospect of thousands of people being murdered by terrorists. This despite the paucity of evidence that any innocent person anywhere has been seriously harmed in recent decades by governmental abuse of wiretapping, surveillance, or data mining.

On these and similar issues, Obama will have a choice: He can give the Left what it wants and weaken our defenses. Or he can follow the advice of his more prudent advisers, recognize that Congress, the courts, and officials including Attorney General Michael Mukasey have already moved to end the worst Bush administration abuses — and kick the hard Left gently in the teeth. I’m betting that Obama is smart and tough enough to do the latter.

Kicking the term “Bush critics” around is a huge red herring in this context. Bush is going to be out of office on January 20th. If anyone conducts illegal (or “inappropriate” to use Taylor’s newspeak term) surveillance of anyone, it’s going to be Barack Obama. Similarly, nonsensical talk of giving “the hard Left” a gentle kick in the teeth is neither here nor there. For years now the sensible center has engaged in the weird conceit that dislike of illegal violations of Americans’ constitutional liberties is some kind of odd symptom of possessing unduly vocifierous dislike of George W. Bush. But the issue, of course, extends far beyond Bush. The issue is whether or not we’re going to have meaningful limits on the power of the federal executive to conduct surveillance. Taylor thinks we should be so petrified of the risk of terrorist attack that we say “no.” After all, being illegally wiretapped never killed anybody.

I, for one, don’t want to live in that country. We already saw in the middle of the twentieth century where unlimited surveillance power leads — to massive politically motivated abuse. And of course it’s true that nothing J. Edgar Hoover or Richard Nixon ever did with their unlimited surveillance power ever “seriously harmed” anybody in the way that being killed by a terrorist harms you. But it still wasn’t a good idea to let them do that. American democracy can — and in fact has — survived a large-scale terrorist attack. But it can’t survive if the threat of terrorism is taken to mean that there should be no meaningful restrain on executive power.