Justice Sotomayor on the Traditions in the High Court

I happened to catch C-Span's special on the Supreme Court, and was struck by the newest member of the Court's comments regarding tradition:

"[T]raditons anchor us in a process that's greater than ourselves; they remind us that the role that we are playing is not a personal role, not a role that should have a personal agenda, but one that has an institutional importance and that institutional importance is bigger than us."

There are so many aspects of life that this resonates with. Whether religious practice, national governance, school tradition, family ritual, or even corporate culture, traditions do anchor us and do remind us that we are but a part of something much larger than ourselves. This is not a revelation, but I did appreciate being reminded of it and I appreciated hearing Justice Sotomayor express it.

Just a Drunken Stoner?

A man charged with murder for beating his girlfriend's two year old daughter to death told his social network on MySpace that he was misunderstood and that society was to blame. While he was at it, he stated: "It's just a C felony. I can beat this."

After his conviction and sentence to life without parole, he appealed on grounds that the evidence of his character lifted from his MySpace page should have been excluded. The Indiana Supreme Court held that because he testified at trial that his actions were only reckless not intentional, he opened the door for evidence of his character.

The opinion is here. I don't think they'll have MySpace where this guy is going.

Federalism Strikes Again

For those looking for healthcare solutions, the benefits of Justice Louis Brandeis's "laboratory" federalism may be of assistance. The states provide microcosms of the larger macrocosm in which to test out political and, dare one say, social ideas.

As Massachusetts has been a laboratory for universal healthcare, Minnesota looks to become a laboratory for market-based reforms. Gov. Tim Pawlenty has suggested, among other things, that Minnesotans be able to purchase health care across state lines. It will be interesting to see what happens to health care costs in MN if the Governor has his way.

We now know from Tim O’Brien, senior vice president at Blue Cross Blue Shield’s headquarters in Boston that "[Mass.] health care reform . . . costs have been much higher than what were anticipated when health care reform went into effect in 2007." The Boston Globe's 9/16/09 headline reads "Health costs to rise again." The report continued: "[P]rompting many employers to reduce benefits and shift additional costs to workers."

Campaign Finance Status Quo May Not Hold

Marc Ambinder has written an excellent article in The Atlantic about the Supreme Court's rehearing of oral arguments in Citizens United v. FEC and the current landscape of campaign finance law. The article leaves its reader with a basic knowledge of an area of the law that does its best to deny that apprehension.

The relevant history of campaign finance law starts with the Supreme Court's 1976 Buckley v. Valeo decision, which found contribution limits of a certain amount placed on individuals constitutional but expenditure limitations of any magnitude on candidates or campaigns unconstitutional. Those versed in constitutional law know that placing a restriction on so fundamental a right as making a political contribution has to be justified by a compelling state interest; and one permissibly satisfied (I learned this again, incidentally, from the great and beloved Chemerinsky, who I watched via Bar Bri video this summer, and who therein appeared always in present need of shuffling off to the nearest bathroom). That interest in the Valeo case was asserted to be protecting the political process from the corrupting influence of too much money coming from a concentrated source. And too there was the related matter of our developed organizing and leveling ideology, where the pauper cannot be seen to be effectively disenfranchised by the disproportionate influence of the millionaire, or billionaire. So the static decree was handed down to a dynamic world.

One result has been the viability, recruitment, and election of billionaire politicians. Another result, which lends credibility to Freud's hydraulic model, has been 'soft money'. Soft money is the money that individuals, unions and corporations give to political organizations and entities, which is then used for issue advocacy. Such issue advocacy has been transparently used to influence elections, thus frustrating the intent of Valeo. Hence the McCain-Feingold legislation, which, among other things, prevents the use of such funds within 120 days of an election to directly influence that election. The FEC interpreted corporate contribution law pre-existing and consonant with McCain Feingold to forbid the showing on television of Citizens United's (unflattering) movie about Hillary Clinton during last year's Democratic primary season. Citizens United brought suit, and that is the matter currently before the Supreme Court.

I yield to the Ambinder article as the place to get the more complete story on this history. But Ambinder asks a question which is prompted by his article, and he leaves it purposefully and wisely unanswered. It is an important question: Is money inherently corrupting? Ambinder notes that if so, we should not want the Supreme Court to loosen any of the extant restrictions on political contributions. If no, then we should.

And maybe that's right. But if I were to bet on what McCain the man, for example, objected to about money in politics, it would be the unequal influence its unequal ownership affords to some individuals and entities relative to others. Less charitably, McCain might lament the unequal desire to spend money on political activity. I say less charitably because disparate desires in that regard is a reflection of priorities and an aspect of free association. Whatever the case, the unequal influence objection does not depend on the nature of money, but on the reality of its distribution. And it is that egalitarian impulse which animates every American heart to a greater or lesser degree. It is an impulse which may not find expression in a Supreme Court decision (depending on whether or not they have the empathy turned up that day), but may well in a Congressional response, or preemption.

Mac N Cheese Seeks Chocolate Egg

Reading the financial news today, I experienced an unexpected Pavlovian response. Cadbury, maker of the exquisite Cadbury egg, rejected Kraft Foods' $16.7 billion bid. Not sweet enough, said Cadbury management. News of the snub sent Cadbury stock up by almost half to 783 pence per share, easily topping Kraft's bid of 745 pence per share.

Market watchers think the deal will happen and provide a carbo blast to the dragging mergers and acquisitions market. I'm feeling better already.

Vive La Difference

Is She a He? Athlete Forced to Take Gender Test - International News News of the World Middle East News Europe News - FOXNews.com

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Here is an interesting story from the world of sport, where apparently one is free to suppose men and women differ in certain respects without being sued.

They say the complex gender test will take a few weeks to come back. This means they are doing something more sophisticated than looking to eyeball a full set of tackle, and also that they have to.

The story makes relatively clear that this woman, and the wider world that knows her, could believe in good faith that she is a woman. That is why the complex test is required. Here is a question (and I am seriously asking): If she appears, in terms of sexual organs (and I'm guessing this is the case), to be a woman, but is in some other respect a man, can she be a man completely? And if not, what would be her scientific designation? And if forced to compete as a man, would she be disadvantaged, at the very highest levels of competition, to the extent some quantum of her is female?

On S'engage; Et Puis, On Voit

That was a favorite saying of Napoleon’s. Later, Lenin adopted it as his own. Rendered in English it reads, “You commit yourself; and then, you see. It is a romantic notion, fitting for men of action. And it is revealing of each man’s monomania that it never gave them pause that they were committing everyone else.

Now the United States is on the verge of committing itself to nationalized health care, the results of which, should we go through with it . . . we will see. The debate on the business is just getting started, though tragicomically, the enabling legislation is well-advanced. The bumper sticker opposition to the idea writ large is that health care will be rationed. No one even casually acquainted with economics, and so with the notion that economics is the study of alternative uses of scarce resources, would find that news. Steven Singer could not abide the rationing chorus, and so wrote this pointing out that rationing is currently and of course afoot. Whatever his Logan’s Run enthusiasms (I have long thought that Singer’s best eventual exit will be to feed himself to hungry but otherwise healthy and sound young people), Singer is a serious intellectual force. He does a service to the extent he buries the ‘no because health care will be rationed’ opposition to government controlled heath care. The issue, of course, is who, or what, will do the rationing going forward.

Singer almost apologizes for the imperfections of his solution (grey souls in grey suits counting life years and handing out money to the potentially longer lived, all else being equal), but justifies it as the best we can do. He cites Churchill’s defense of democracy as ‘the worst possible form of government except for all the others’ as an analogous rallying cry for his proposal. Singer thinks Americans will accept such centralized rationing provided they can opt for supplementary private insurance and that the cost of care rationed the current way (e.g. by what you can afford) is brought home to us all. This ability to buy supplementary insurance is a big deal. An even bigger deal is the ability to simply pay through the nose for something if it comes to that. As Thomas Sowell has pointed out, the integrity of a government controlled system may depend on making some services and goods unavailable, regardless of an individual’s ability to pay. And don’t think such restrictions can’t be imposed. Again, as Sowell has pointed out, the FDA, although for other reasons, currently prevents us, even those of us with a very different risk profile owing to advanced disease, from buying drugs deemed safe enough for Europeans. As for Americans understanding the true cost of their health care, it seems the higher unemployment rate, coupled with our nation’s informal system of employer provided health care, has brought that cost home to many Americans who until recently were blissfully unaware.

There are two principal concerns I have with government run health care, exclusive of cost (the CBO covered that). First, Singer mentions the high costs of prescription drugs in this country as a source of rationing. He points to the reasonable costs of these drugs in other countries with nationalized systems, which will only pay a certain price for the drugs. The idea is that a nationalized system will bargain for lower-priced drugs, producing savings. But it seems clear that the cost of the development of the drugs will not go down by the act of a nationalized system demanding sale at a certain price. Rather, it seems currently that the American market is paying the loin’s share of the tab, which renders tolerable the risk that the R&D investment into new drugs will be profitable. If the United States institutes universal price controls on drugs (in addition to what goes on in the current government-run health care programs) we may well see R&D by major pharmaceutical companies go down. And we are likely to see more incremental progress via copy-cat drugs that simply tweak side effects, and less true innovation. Note that we see this even now because any industry will seek to minimize its risk and maximize its profit (see, e.g., the practice in both the publishing and motion picture industries to stay with winners, be it Doctor Phil’s fortieth book or Spiderman 20). Government-imposed (read lower) profit margins would surely make the pharmaceutical industry more risk adverse and less innovative.

Second, I am not confident that official rationing, once started, can be acceptably cabined. Singer goes into some detail in his essay about counting life years as the key to his rationing regime. That’s the practice of judging that this teenager should get the instant procedure or drug and that this senior citizen should not. The rationale is that the teenager will continue to live for many decades, whereas the senior…well, the end is nigh. But in practice, it seems unlikely that the teenager would be much featured in the analysis conducted by the grey suits. In practice it seems that what would be before the grey suit would be the senior and his need. And the grey suit would say no; not no as between the senior and a similarly situated teenager, but just plain no. That is to say, because young people are not often in need of expensive medical care, and in any case because identical needs by opposing class members will seldom be coincident in time, the rationing conducted would be in the form of a denial of a single need, not as between a need and a greater need. Or, put another way, the greater need referenced would be that hoary need that has been the benevolent altar baptized by so much human misery down the years. And it is insatiable.

Regarding the way forward, I find myself in agreement with Charles Krauthammer. He advocates radical tort reform and a stark move away from the employer-provided health insurance paradigm. But however you come down on the health care issue, it seems folks of good faith (i.e. not those ideologues who view government run health care as a tool for realigning the American people into dependency on the government, and so are for it regardless of content; nor again those who seem to be using the extant debate as an excuse to riot) can agree at least to this: that the legislators actually read and understand whatever final thing they end up voting on. They will be, after all, one way or the other, committing all of us. They should be charged with a better explanation than “we’ll see” when asked what they have done.