Health Care Reform: What Now?

After all the work Democrats did getting health care reform through every veto point (five committees, a 60-vote Senate, House passage twice, the Senate again, presidential signing) it's sickening to think about having the Supreme Court just throw it out. The fact that the individual mandate was showing up in mid-1990s Republican health-care proposals won't give Scalia or Alito or Thomas any affection for it. Dahlia Lithwick says she doesn't know which way things are going to go, and if she doesn't, neither do I.

My guess has been that Kennedy is the decisive Justice, and we get a 5-4 decision. I've heard some people say that Roberts will vote with the majority if Kennedy does, which I guess I wouldn't rule out -- for all I know, Roberts might not care to vote with the right-wingers if the law is going to get upheld anyway. But that still makes Kennedy decisive.

If I have any idea how health care reform efforts should proceed if the Supreme Court strikes down the whole law, it's via Medicare expansion. Medicare for All should be a goal that our presidential candidates announce support for. (I could easily see the incentives in primaries supporting this -- if the other candidates aren't willing to go there, you should go there and people will like you better.) The reach is always further than the grasp, so next time we're in power, we end up having to make a bunch of compromises with interest groups and pass Medicare for people under 25 or something, and then a couple decades later the middle of the donut gets filled in.

Again, losing this court case will be an awful defeat. Scott Lemieux is right as far as I can tell -- there's no silver lining here. But the thing I tell myself about these things is that at one point, America had slavery. People were allowed to own other people, buy them, whip them, and sell their children. And somehow, that stopped. Having a disastrous health care system is going to be easier to fix than slavery. I don't even think we'll have to fight a bloody war with over a half million casualties. There might be setbacks that destroy millions of person-years of work, but what you do after the setbacks is start committing person-years to another shot at making things better.

ACA, SCOTUS, and Activist Legitimacy

J. kelly Wright isn't walking through that door,
at least not until activists start taking court
appointments seriously

I agree with Scott Lemieux that, should the Supreme Court overturn the Affordable Care Act (as I think seems likely at this point), the Court as an institution will not suffer a crisis of legitimacy. While the current polling on the Constitutionality of Obamacare is almost certainly a result of the public discourse on the subject, the end result means that a large portion of the electorate will be perfectly fine with a decision that overturns the law. As an institution, the public views the Supreme Court as one of the more trustworthy American institutions, certainly more trustworthy than Congress or even the Presidency, and Gen Y is considerably more deferential to authority figures than the Boomers or Gen X.

What should happen (and, if there is any justice in the world, will happen), whether or not we end up with a nakedly partisan ruling, is that liberal activists will start taking judicial appointments much more seriously. And I don't mean "get more lawyers to join the American Constitution Society" seriously. I mean rank-and-file activists need to start making support for progressive court appointments a sine qua non for political candidates. If courts are going to be a purely political institution, they need to be a purely political institution to both parties, not a political institution for one and a political-technocratic institution for the other.

Over the past three decades, the right has made devotion to the Republican (let's not call it conservative when it comes to court appointments) political agenda a prerequisite for judicial postings. This is not to say that Republican judicial appointees are incompetent partisan hacks; some are, but a great many are competent partisan hacks, well versed in the techniques of using the means of legal sophistry to achieve right-wing policy ends. It's time for Democrats to start doing the same thing. No more appointing mushy moderates to district courts because that's what the home state Senator is a Republican or a mushy moderate Democrat. The President's job will be to appoint the most progressive judges he can find; the job of the Senate Judiciary Committee chair and the Majority will be to round up votes from recalcitrant Western and Southern Democrats. And it will be the job of rank and file political activists to once again emphasize to their elected officials that this is a priority, the way it was a priority in the New Deal Era for labor unions, or in Civil Rights Era to African-Americans. If politics is the slow boring of hard boards, restructuring the courts may be the hardest board out there. It's time to get cracking.

What Digby Said

On expecting the Grown-up Republicans to act like Grownups.

This has been another edition of What Digby Said.

Not a Day to Feel Good About The World

Persuing SCOTUSBlog (be patient, it may not load immediately today) as well as veteran Courtwatchers Dahlia Lithwick and Jeffrey Toobin, it looks like opinions on oral argument range between "the individual mandate is totally hosed" and "there's some small chance that the mandate will survive".

Let's just say there are days I've felt better about the world.

"Stand Your Ground"

Let me give an example of the phenomenon Jonathan Bernstein talks about here -- the limits of the advantages that poll-tested words give you. The "Stand Your Ground" laws implicated in allowing George Zimmerman to shoot Trayvon Martin without consequences are now facing widespread ridicule, and the opponents of these laws are calling them by that name. "Stand Your Ground" actually strikes me as a pretty good poll-tested phrase, but the negative publicity the laws are getting will eliminate the value of the phrase pretty quickly.

Perhaps the classic example of this is "welfare", which was considered a positive phrase when it was initially used for social programs that gave money to the poor. You can see why -- it involves people faring well, which sounds pretty nice. But when people came to have views about the laws themselves (driven in no small part by negative attitudes towards poor black people) the term got the pejorative connotations it has today.

All It Takes Is Five Votes

This Slate essay by Dahlia Lithwick previewing this week's Supreme Court argument on the health care sums up my fears perfectly:

The law is a completely valid exercise of Congress’ Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won’t put us back in those days as if by magic. Nor does it amount to much of an argument.


So that brings us to the really interesting question: Will the Court’s five conservatives strike it down regardless?

If you look at the legal precedents, the case for the constitutionality of the Affordable Care Act is close to open-and-shut. The idea that the ACA's regulation of the "inactivity" is a novel and unconstitutional use of the federal government's power under the Commerce Clause doesn't really pass the smell test. But when has that stopped the courts conservative Justices when they really wanted to do something? The Justices and Court clerks have tremendous ability to use the tools of legal reasoning to achieve a desired result; they just choose to exercise that ability sparingly. You see their talents on display most clearly in the abortion cases that have reached the post-O'Connor Court, but arguably one can see it in Parents Involved and other contentious decisions. And the stakes here are high enough that the Justices will almost certainly be influenced by the political atmosphere surrounding the case.

Another way to put this is that after Bush v. Gore, I'll believe anything.

Malaria Is Deadlier Than Kony

Lots of people are talking about this Kony / Invisible Children business. Facebook was blanketed with status updates criticizing it before I had any idea what it was. I'm still not sure whether I think money given to the anti-Kony effort is better for the world than money spent on any number of other things. My guess is that it's better than spending the money on a box of Twinkies or making a donation to Mitt Romney's presidential campaign, but still well below lots of other stuff on the list of good things you could spend money on.

Anyway, one thing I'm pretty confident about is that you'll get better consequences out of money given to Deworm the World, to whom I gave $8000 last year, or the Against Malaria Foundation. The people at Giving What We Can, who work hard on figuring how how many years of life you can save for a given amount of money (and how many years of that life will be fully healthy), have selected and recommended these groups.

If you need a human-sized bad guy to get you interested, they may not have anything quite as perfect as a brutal African warlord who created an army of child soldiers. But creatures that spread terrible diseases by sucking human blood or which eat the food out of poor children's bellies are villains I'm happy to spend money against.

Presidential Persuasion: Not Usually A Thing

I'm liking Ezra Klein's piece in the New Yorker on how presidential rhetoric only convinces the president's party, and anti-convinces the other party. From the way Ezra describes the academic debates in political science, it looks like the people who focused on the power of presidential speechmaking were paying undue attention to factors whose salience was amplified by heavy media coverage. The debate has turned towards a focus on less-salient but more important facts about partisan incentives.

While agreeing with the general drift of the research, I wonder how it addresses the time between 9/11 and the onset of the Iraq War. A large minority of House Democrats and half the Democrats in the Senate supported Bush's Iraq War. I don't think it's straightforwardly that Bush persuaded them, but his administration was very happy to promote a way of understanding the conflict that led to major Democratic support for his disastrous proposal. Perhaps part of the problem is that partisan forces in our system were dulled by the rally-round-the-flag effect of 9/11, with Bush having the highest Gallup rating ever for a sitting President. And part of it may be that House Democratic leader Dick Gephardt was hoping to advance his Presidential campaign by supporting what he thought would be a popular war, so he co-authored the Iraq War resolution with Joe Lieberman rather than following the partisan incentives to oppose Bush.

I haven't done much Nancy Pelosi blogging lately, so let me share this anecdote from the article:

Karl Rove, President Bush’s deputy chief of staff, recalls discussing the Social Security privatization plan with a sympathetic Democrat on the House Ways and Means Committee. He says that the representative told him, “You wouldn’t get everything you want and I wouldn’t get everything I want, but we could solve the problem. But I can’t do it because my leadership won’t let me.” Rove says, “It was less about Social Security than it was about George W. Bush.”

Without the work of the Democratic leadership, which Pelosi took over just before Bush started pushing Social Security privatization, these "sympathetic Democrats" and their sympathy for the devil would've sent American retirement security to hell. That's where they sent Iraq when Gephardt was House Democratic leader. Our political system is a two-party system, and Pelositheism is a Manichean faith. I'm a believer.

Draghi And The Banks

Simon Thorpe notes that Mario Draghi is printing money and lending it to banks instead of directly lending it to Greece. This is supposed to stabilize Greece by having the banks buy their debt, and that seems to be happening. He asks, "So, can somebody explain to me why all of these central banks throw this freshly minted money at commercial banks, rather than lending the money to governments and allowing them to use the money to pay off national debt?"

The answer I'd offer is that this is the only politically feasible option, since direct loans to Greece are considered unacceptable in Germany and Northern Europe. If your cover story to the Germans is that you're just loaning money to banks, however, you can sneak some aid to Greece by them. I don't want to disagree too strongly with his suggestion that the ECB wants to line the pockets of commercial bankers by letting them be middlemen, but this is still a reasonable way to do things given the generally dysfunctional politics of the Eurozone. And this is why I'm quite happy with Mario Draghi -- even if he has to make tactical concessions to the pathological German obsession with inflation and to the prejudices dividing Northern and Southern Europe, he doesn't allow them to utterly dominate European central banking.

In the Romney v Santorum Counterfactual, Romney Still (Probably) Wins

While it's not an exact science, Nate Silver tries to estimate what would have happened if Newt Gingrich had simply not run for President at all. The answer seems to be that his support would be split between and Santorum and Paul, with Santorum getting the lion's share, but that Santorum would still be far, far behind Romney. In this scenario, Romney's delegate lead would be due entirely to taking 100% of the delegates in Florida, Virginia, Massachusetts, Arizona, and Idaho.

To believe that Santorum could have won the nomination had Newt simply not entered the race, you have to believe that his win in South Carolina would have propelled him into competition with Florida; that Romney's avalanche of negative ads would have been less effective against Santorum, who has higher favorables among Republicans than Gingrich; and that he would have been able to hold Romney to below 50% in Arizona. And even then, Santorum would still trail Romney in delegates.

While the map favors Santorum over the next week—Alabama, Mississippi, and Missouri aren't exactly friendly territory for Romney—we're getting much closer to the end.

Cato And The Kochs

The Koch brothers are trying to take over the Cato institute, and Cato is fighting back to try to preserve its independence.

I hope Cato survives, because there are good people doing good work there on issues I agree with, and I want them to keep their jobs. I've read articles by Chris Preble and Justin Logan off and on over the years, and they're consistently making sensible points against various foolish military activities. Here's Preble's book calling for a smaller military, and Logan's paper from 2006 against attacking Iran. The pro-peace side of Cato is small but real, and I wish the best to those people.

I mostly agree with Julian Sanchez' recent post that there's nothing interestingly ironic about libertarians being annoyed that big money is buying out their think tank. It's about as ironic as somebody who believes that you've got to stop for red lights being annoyed because they got stopped by a red light. Which is to say, not very ironic at all. Cato people are unhappy about what's happening, but they don't ever begrudge anybody in their situation the right to be unhappy. They just think the government shouldn't get involved in stopping rich people, and they're not asking it to. (Julian's excellent work against excessive intellectual property regulations is one of many reasons why I'm hoping Cato remains a hospitable environment for him.)

But there's another side to the ledger. Cato has a somewhat independent reputation -- it's not Heritage or Americans for Prosperity. And there are people at Cato who don't really deserve to be under that kind of banner. You get a pretty solid example in Randal O'Toole, who is willing to abandon libertarian views on transportation policy issues when it'll annoy left-wing urbanists. That guy belongs in some kind of hack tank where everybody will know he's not a principled libertarian. There were times when it might've made sense for Cato to pick up Nat Hentoff, but shortly after he supported the Iraq War and decided not to vote for Obama on anti-abortion grounds?

And yes, that brings us to abortion, an issue on which Cato has been incredibly disappointing. This ought to be the ultimate libertarian issue. Can the government force an unwilling woman not to remove an organism from her abdominal cavity for nine months until its incredibly painful emergence? Look, this is the stuff of science fiction dystopias. And as Thomson has famously argued, on strict libertarian assumptions it doesn't matter even if the fetus is a full person. If you can't be required to pay for someone else's health care, you certainly can't be required to carry them around inside your body and nourish them with your internal fluids. But searching the Cato archives for abortion mostly turns up horrific failures to appreciate the magnitude of the issue. If David Boaz ever thinks to himself during this crisis, "Why didn't the left support us more?" part of the answer is "because you went around making ridiculous comparisons between public arts funding and the government forcing someone to go through with a pregnancy." That's the sort of thing that makes it really hard to get emotionally involved in being on Cato's side.

I talked up the good foreign policy people at Cato a while ago. It's worth mentioning that at the most important moments in the last decade, things weren't entirely that way. Brink Lindsey was making the case for the Iraq War in October 2002 in exactly the way that a Bush Republican would. I think they've gotten better on this -- the foreign policy people there seem more strongly antiwar now -- here's Malou Innocent doing good. But the past wasn't a good time.

And here's Cato promoting climate change denialism. This doesn't have to be the libertarian position, as the carbon you put into the atmosphere could be conceived as damaging others' property. But instead of making that point, they'd rather confuse people about the science.

So let me do this like Abraham. I think there are

probably 10 people on Cato's 50-strong

"experts" list who are devoting some substantial amount of professional effort to promoting libertarian views on the large range of issues where I and my left-wing allies would agree with a principled libertarian position. I count Logan, Preble, Innocent, and Sanchez so far. And I know they have some people who oppose the War on Drugs. And for their sakes, may Cato be saved! But really, given the other stuff going there, it's the sort of thing where you have to beg the Old Testament God pretty hard.

The Easy Virtue

The pushback against Rush Limbaugh is going strong, with lots of advertisers and some radio stations dropping him. And that makes me very happy.

I've come to regard promiscuity as a positively virtuous trait, at least when people are taking care to practice safe sex. Character traits that contribute to the pleasure of others are generally regarded as virtuous, and promiscuity is a trait of that kind. As far as I know, this is holds in an especially strong way for female promiscuity, as a promiscuous woman may dramatically improve the lives of many lonely men. Sex has diminishing marginal utility, so if you're spreading it around to more people, you're probably generating a better distribution than if you're having it all with one person. (If women find it easier to attract short-term sex partners, a promiscuous man isn't likely to help lonely women quite as much, since they're likely to already have what they need.) Like being generous to the poor or courageous in dangerous situations, this isn't the sort of virtue that everybody has to include in their lives, but those who exhibit it should be admired.

There's an argument to be made that women who want the large array of publicly funded medical services to include birth control shouldn't be seen as promiscuous. Sounds right to me, and I'll let others talk about that if they want. I want to make the further and more fundamental point that an interest in having safe promiscuous sex with lots of men is a thing we ought to find admirable in a woman. Other behaviors with the tendency to improve others' lives are admired, and this ought to be no exception.

It's especially satisfying when villains meet their unexpected downfall in attempting to do something particularly dastardly. Rush was trying to make people ashamed of doing admirable and socially beneficial things. We probably won't see him get driven off the air entirely for this, but if it were to happen, it'd be sweet justice.

News Of The Day

Is Andrew Breitbart really dead? After the ACORN and Shirley Sherrod stories turned out to be shams, I tend not to trust news involving that guy.

House Of Lords Watch

Olympia Snowe's decision not to run for re-election may be a bigger story than anything remaining in the GOP presidential primary (well, assuming that Romney wins). Democrats are pretty well-positioned, having two Congresscritters contending for the nomination -- Chellie Pingree and Mike Michaud, as well as former Governor John Baldacci. I don't know anything beyond what I've seen on their Wikipedia pages, but Pingree seems to be more progressive than Michaud. Susan Collins is up for re-election in 2014, and if Snowe's decision is any kind of suggestion that she'll do the same thing, it's something for Democrats to celebrate.

Bob Kerrey's decision to run for his old Nebraska Senate seat is also good news, but I'd still expect the Republicans to carry that one. I'm pleased to see Mazie Hirono up big over Ed Case in a recent poll, though it's a Hirono campaign poll and earlier polling hasn't been so strong. I'm less happy to see Tommy Thompson leading Tammy Baldwin in Wisconsin -- Baldwin is one of the most left-wing people in Congress and I'd love to see her win.