Category: Public Policy

Judicial Temperament

It will come as no surprise to those who know me, and those few who follow this blog, that the shameful, shameless decision of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization has been on my mind. As a participant in two unplanned pregnancies I am no stranger to abortion, and it’s fair to say that my life would be quite different in a world without the procedure. I’ve joked to my friends at Planned Parenthood that the so-called right to life movement (right to birth is closer to the truth — and “forced birth,” closer still) is the best friend they have: my monthly contribution increases every time a GOP Congress (or a benighted state legislature somewhere) approves repressive legislation. I have nothing but contempt for the contemptible men and the one woman who wrote and signed on to Dobbs. It upends long-established norms of personal liberty, effectively revoking a recognized right of individuals to make their most intimate decisions without state interference.

The Roberts court — whether the Chief Justice likes it or not — will forever be known as the place where individual liberty goes to die. The three most recent appointees flat out lied to the Senate when they said, “Roe v. Wade is settled law.” Settled law is settled: it’s not up for review. What they meant is, “It’s settled law until we have the votes to unsettle it.” Well, they have the votes. They have the power. And they have upended the very first thing every first-year law student learns about principles of judicial construction: stare decisis is the bedrock on which the common law is built; if people are going to rely on the rule of law (meaning, in no small part, what a judge says the law is) they have to rely on its consistency. It can’t change at the drop of a hat, or with the shifting winds, or when the balance of appointments to the Supreme Court reaches a tipping point. David Souter, when he met with the Judiciary Committee during his confirmation hearing, made exactly this point: I might not personally agree with the decision, he said, but it is the law and a rule by which people have been able to order their lives for decades; we can’t just overturn it because we don’t like it. If only Justice Souter were still on the bench.

Let it sink in: An arrogant group of unelected jurists decided to abolish a long-established individual right. They say that Roe v. Wade was “wrongly decided” — not for its conclusion (which they abhor) but for its logic. Trouble is, that’s an arbitrary metric when we’re fifty years in. They did what they did because they could, not because of any conviction that the logic of Roe was flawed (and in that much, I’ll agree — not so much as to Roe as to Griswold v. Connecticut, which found the right to privacy not in the Ninth Amendment to the Constitution (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) but in “emanations and penumbras” around, among other things, the Fourth Amendment (searches and seizures) and the Fourteenth (applying the Bill of Rights to the states).

Let this sink in, too: the Dobbs decision very directly jeopardizes other rights we take for granted. Much has been made of Justice Thomas’s concurring opinion, suggesting that decisions establishing other rights he disdains might also now be safely reversed. These rights include things that are by and large no longer controversial: same-sex marriage, interracial marriage, the use of contraception. May he Court begin, then, not with Griswold v. Connecticut (1965) — which ensured the right to use contraception — but with Loving v. Virgina (1967) — which struck down anti-miscegenation statutes. The arc of history is long, and it bends towards karma.

Public Service

An old friend — too long out of touch — contacted me the other day, out of the blue.

We are back in DC after 4 years in Santa Fe (which we miss every single day)

A post as a government official isn’t a dream job, it’s a call to service. Government is a machine, like anything else: it is one that can accomplish great things, or do great harm. The direction is set by whose hands are on the levers of power; the rate of progress, or the speed of the catastrophe, depends on the people behind the scenes. Thus the slow-moving train wreck of the previous administration, peopled at the top by incompetents, losers, and grifters. (In some notable cases, all three at once.)

This time around there are, in the White House and the OEOB, people who have put their lives on hold in order to be a part of something larger than themselves. My friend doesn’t need the experience, nor an added bullet point on the resumé, nice to have but unnecessary when you can already have your pick of jobs in your chosen profession.

We are, finally (if only temporarily) in the company of adults. We need more, at every level: it’s a thankless job, for which not everyone is well suited. You have to be a little selfless, and at least a little bit more idealistic than cynical. You have to believe that government can accomplish great things, and you have to understand, for example, that national health insurance is far cheaper than making the Emergency Room the provider of last resort.

If only that attitude were the prevailing one in the United States Congress, and especially in the Senate, where holding power is more important than using it for the purposes written into the Constitution: to provide for the common good and promote the general welfare. I for one am tired of seeing public service used for private gain.

The Jackboot of Government

In the face of a surging pandemic, with infections rising daily across the country, you’d think that people would practice some common sense self-discipline. You’d also like to think that local governments would applaud and encourage anything that might turn back the tide. You would be wrong.

In the Granite State, Governor Chris Sununu has signed the “medical freedom” law ensuring that a COVID-19 vaccine can’t be required for entry to “access any public facility, any public benefit, or any public service.” This takes the state’s motto — “Live Free or Die” — to its logical extreme by making a mockery of those who just might want to live without the threat of contagion. “Live Free AND Die” might be more accurate.

In the Sunshine State, Governor Ron DeSantis — determined to show he’s got the chops to replace the former guy in the Oval Office — is trying to block any restriction on the cruise ship industry. The CDC thinks unvaccinated passengers should be barred from boarding a floating Petri dish; DeSantis disagrees, and would like the legislature to prohibit such restrictions by private companies, too. Not since Anita Bryant has any one person been such an embarrassment to Florida.

The Republican chorus decrying regulation has become farcical. If the market is going to decide, let it decide: the cruise ship industry isn’t asking to be free from CDC regulation and is perfectly capable of asking passengers to show proof of vaccine before boarding. It doesn’t need the jackboot of government regulators (the favored image of GOP antagonists to even sensible regulation) on its neck. Restaurants, concert venues, sports franchises — all can take sensible precautions, and should.

Indeed, as noted here, former GOP strategist (and McCain campaign manager) Steve Schmidt believes that such private pressure is the best way forward. And while I disagree with his assessment, I’ll also note the extreme irony of today’s straightjacketed Republicans: They can’t abide the idea of any public regulation, even those that protect the health of their own constituents; and now they can’t abide private actors who might have the temerity to suggest that hey, you can’t come in here if you might spread a deadly disease.

Did I say straightjacketed? They should be. Turns out the jackboot of government regulation fits them just fine.

Vaccine Mandates

A friend directed me to a thoughtful piece by Steve Schmidt regarding vaccine mandates. In this Twitter thread, Schmidt suggests that the way to achieve better vaccine compliance isn’t by vaccine mandate, per se; he prefers “incentives” such as barring admission to shows and restaurants, airline travel, public events and public spaces.

The piece presents as thoughtful to be sure, but when you cut through to the core it’s the same bullshit he’s been peddling for 30 years: freedom from regulation and let the market decide, because that fixes everything. It doesn’t and he knows it. He’s now caught in his own trap, and he’s desperate to get out without admitting he’s been worshiping a false god (free = unregulated) all this time.

As I’ve written elsewhere (here, and here, as well as here and here) the human capacity for cognitive dissonance is unlimited. Schmidt wants people to get the vaccine, but doesn’t want government to force them. Rather they should be persuaded by coercive forces — of government agencies like the FAA, of private parties like restauranteurs and producers. It seems to me that this is “regulation” by another name. But regulation bad, incentive good. This would be comic gold if it weren’t so deadly.

Schmidt decrees that, “NOBODY should be FORCED by the GOVT to take the vaccine. EVER…. That means never, ever.” Instead he’d coerce people to make the “right” choice by denying them access to public buildings, public spaces, public benefits… etc. That’s at best a distinction without a difference, and it’s utter crap. It’s the religion of “personal responsibility” and “freedom of choice” wrapped in fancy-dress, the same old whine in new bottles.

Schmidt and his ilk are all for “personal responsibility” and I am almost willing to take them at their word if, for example, I can deny them emergency medical care because they made the PERSONAL CHOICE to remain uninsured. They did so freely, after all, and (in Schmidt’s view) it was their choice to make: let them accept the consequences, and not come running to their fellow-citizens, the taxpayers of the United States, to be the insurer of last resort against their (objectively stupid) choices. Choices like going without health insurance, or building a house on a flood plain (and purchasing government flood insurance when private insurers turn them down, with reason), or rebuilding in the Rockaways after Hurricane Sandy took your home and everything in it out to sea.

Sure, Schmidt and Bill Kristol and a lot of others have been vocal for years about the former guy; and they’ve admitted they played a part in creating him and continue to express regret. It might be more helpful if they explained the role played by Newt Gingrich and his politics of personal destruction and demonization of The Other (i.e., anyone who stands in their path to power, mostly Democrats). Instead their road to Damascus conversions have only gone so far; they haven’t reconsidered their core beliefs, the things that made them Republicans in the first place and that (in my view) led us, inevitably, to the unhappy place we are now. When Ronald Reagan declared rhetorical war on the federal government, these folks took it a little too seriously and a little too much to heart.

Contrary to St. Ronald’s assertion, government is not always the problem and is often the solution, a fact easily demonstrated when (for example) an uninsured individual receives medical care in the ER, or when FEMA brings much-needed relief — food, water, medicine, temporary housing, and more — to flood and fire victims. Many of the beneficiaries — indeed, most of the beneficiaries — of such government largesse are people who resemble the people who stormed the Capitol far more than they do Rep. Alexandria Ocasio-Cortez or George Floyd. The politics of resentment and fear play an outsize role, distorting public policy and thwarting goals everyone can agree on, like pandemic recovery.

I should (and do) welcome Schmidt to the majority that acknowledges, unequivocally, that what happened January 6 was an insurrection and EVERYONE responsible should be brought to justice. But his argument about vaccine requirement fails to convince me. Government REQUIRES a measles vaccine, a mumps vaccine, a rubella vaccine, a polio vaccine; not many years ago a smallpox vaccine, too, was required. Why is this any different?

Government requires us to purchase auto insurance. It requires us to wear seatbelts; it requires cyclists to wear helmets. I could go on and on. These are not controversial obligations. They protect us from others and — to a lesser extent — from ourselves. Isn’t that the purpose of government? To institute the rules of a civil society?

Mr. Schmidt, I applaud your efforts; really, I do. But governments are instituted among men, as Jefferson had it, to secure our unalienable rights — life, liberty, and the pursuit of happiness. It’s not a stretch to suggest that life itself is easier without the threat of deadly disease, and that happiness is easier to pursue when we’re not worried about whether our neighbor has done the bare minimum to ensure his own health AND MINE. 

I’ve been fond of saying that there are very few things a national government must provide, but there is something much more fundamental than army, currency, or post office. Governments “derive their just powers from the consent of the governed,” and they exist to create, promulgate, and enforce the simple rules by which we all must live if we are to be a cohesive nation. Seatbelt laws were once controversial, but are no longer — and were instituted with the consent of the governed: that is, by simple majority. “Conceived in liberty and dedicated to the proposition that all men are created equal” is a noble ideal but it doesn’t give due respect and even homage to the more mundane aspects of self-governance. Like making sure we don’t kill each other through thoughtless, selfish, and stubborn refusal to consider our neighbors. Most of us think vaccine and mask mandates are a good idea. Get over it.

Bipartisanship

Questions for Senators Joe Manchin and Kirsten Sinema (and fifty Republicans): is it “bipartisan” to suggest that Joe Biden is not the President of the United States? To hold on to the fiction that the election was “rigged,” “stolen,” or “corrupt”?  To buy into the lie, or seem to, that Trump didn’t actually lose? To pretend that GOP senators will compromise on legislation in any meaningful way? To insist, year after year after year, that asking wealthy individuals and corporations to pay their own way, constitutes class warfare?

No, I didn’t think so, either. Senators, do the right thing: kill the filibuster, or amend the rules to require an actual filibuster. If Ron Johnson wants to thwart the will of the people, make him hold the floor to do it. Arguing that the filibuster increases bipartisanship — when all recent experience points the other way — is akin to saying that the Civil War wasn’t about slavery. It’s myopic, historically inaccurate, and — at best — naive. Such naïveté should be disqualifying for anyone running for, or holding, public office.

What Leadership Looks Like

President Biden does not have the rhetorical gifts of Barack Obama. He isn’t a natural teacher like Bill Clinton, who can explain — ex tempore, no less — the most abstruse concepts in clear and unpatronizing language. He can’t twist congressional arms to pass legislation the way LBJ could like no other before or since. But anyone who paid close attention to his first address to Congress would have recognized real leadership. If it went unnoticed, perhaps that’s because for too long we have been without it.

The opinion pages and TV pundits and bloviators have all had their say; I’ll wager that few if any noticed this gem, tucked into his introductory remarks:

Universal public schools and college aid opened wide the doors of opportunity. Scientific breakthroughs took us to the moon. Now we’re on Mars, discovering vaccines, gave us the internet and so much more. These are investments we made together as one country. And investments that only the government was in a position to make. Time and again, they propel us into the future. That’s why I propose the American Jobs Plan, a once-in-a-generation investment in America itself. This is the largest jobs plan since World War II.

[Emphasis added.] Investments that only the government [can] make: This is a subtle rebuke to Republicans and free-marketeers. There are in this world some things that only government can do. It isn’t enough to hope that ambitious capitalists will undertake the basic research that leads to so much more; it isn’t sufficient to believe that government regulation is ipso facto oppressive and that corporations can better regulate themselves, with no ill public effect.

Just this past week, Senator Marco Rubio (R-FL) opined that, “No policymaker would allow a company to dump toxic waste into a river upstream of a thriving town he is charged with governing.” This is like saying that no company would ever prioritize its profits over the interests of its customers by, say, cutting corners on workplace safety or using poisonous food additives. Except that it happens all the time. Rubio represents a political party ideologically opposed to government regulation of any kind. The only part of his statement that rings true is its cognitive dissonance.

Things only government can do. This gets at the very purpose of government, of good government. Republicans might be fond of quoting Jefferson — “That government is best, which governs least” — but they emphasize least while paying little or no attention to best. They know quite well that “least” doesn’t mean, as little as humanly possible; it means, just enough to get things right. There are things only government can do: provide for the general welfare and common defense, for example.

But really, that isn’t enough: good government should be aspirational — “We choose to go to the moon”1; good government should rise to the occasion; and good government should set new goals for itself as a nation, for its people’s betterment. Some great things aren’t ever going to be done by the private sector; some things, these things, only government can do.

  1. John F. Kennedy, address at Rice University, Sept. 12, 1962.

The Unthinkable

My Apple News feed includes headlines from Fox, to the mild consternation of my children. “Why do you want to do that to yourself?” Because I want to know what they’re saying; because it can be entertaining (in a Jerry Lewis kind of way); because the tenor and content help illuminate the why and how of our riven social fabric.

A few days ago the clickbait headline screamed: “A woman was angry because of the long wait at the Burger King drive-thru window. Then she did the unthinkable.” Hoping to be surprised, I clicked. I was not surprised that she opened fire through the window. Nor did I think this in any way unthinkable. It was, in fact, all too thinkable: it was in fact exactly what I thought.

A very modest suggestion: Let’s start using words to mean, well, what they actually mean.  An angry woman who arrives at the drive-thru window and pays for the next ten cars? As unthinkable as it is unlikely. That woman shooting into the store? Neither surprising nor unimaginable. This kind of event has become so common it’s not just not unthinkable, it barely attracts any attention any more. We are benumbed: a mass shooting in Boulder is neither unthinkable nor unimaginable.

A woman opening fire through a fast-food drive-thru doesn’t move the needle on our emotional, intellectual, and political outrage. That is precisely the problem — and precisely what the NRA wants.

The Party of Stupid

Eight years ago Louisiana governor Bobby Jindal addressed the Republican National Committee at its winter meeting. Barack Obama had just been reelected, defeating Mitt Romney in an Electoral College blowout: 332-206. Jindal exhorted his fellow Republicans to “stop being the stupid party” and to “stop insulting the intelligence of voters.” RNC chair Reince Priebus conducted an “autopsy” of the GOP’s 2012 defeat.

Young people and minorities, the report concluded, viewed the GOP as a bunch of cranky old white men. The party could change its image by deemphasizing social issues and coming out in favor of immigration reform. A set of tactical recommendations got less attention but may have been more consequential: Based on the report’s ideas, the party shortened the primary calendar, reduced the number of debates, and began a huge investment in data and ground operations.

“The Final Humiliation of Reince Priebus” (The Atlantic 7/30/2017)

Over the last eight years the Republican Party has reemphasized social issues and rejected immigration reform. Rather than develop policies that might win more votes, the Republican Party has moved to suppress votes — the votes of minorities, especially. Rather than embrace the idea that among the rights of all Americans is the right to vote, and that exercising that right should be easy, the Republican Party promotes laws and policies that make voting more difficult: removing polling stations, restricting absentee voting, requiring voter ID — these are nothing more than poll taxes and eligibility tests by another name.

In today’s Republican Party, Bobby Jindal is out; Marjorie Taylor Greene is in. Science is out and Jewish space lasers are in. Big-tent rhetoric is out; xenophobia is in. And of course imaginary threats to American sovereignty, security, and stability are all the rage, while actual Russian threats to national security are ridiculed, denigrated, or ignored. And while Mitch McConnell and other “establishment” Republicans would like us to believe that this is an aberration, that the Party of Lincoln has not become the Party of Trump and that rebirth of a vibrant and sane — if conservative — party is not only possible, but inevitable, I have to disagree.

Trump didn’t co-opt the party or turn it to his own use; he didn’t create the infection nor did he drive it deeper: he is, rather, the apotheosis of the intellectual rot that began in 1980 when Ronald Reagan ran on the risible theory of supply-side economics: lowering tax rates will increase tax revenue. This demonstrably false idea — forty years of experience have proved, over and over and over again, that it just isn’t so — refuses to die. Economist Paul Krugman refers to it as a zombie policy, something which should be dead but isn’t; George H.W. Bush, running against Reagan for the 1980 nomination, rightly called it Voodoo Economics. As realized policy it has been an abject failure each and every time; and yet each and every time tax cuts fail to deliver the promised boom the GOP doubles down. Intellectual honesty would have inspired at least a little soul-searching, a reevaluation of the premise and (one would hope) the repudiation of a false god. Instead the rot spreads, a cancer on the party, devouring its adherents’ ability to think for themselves.

Trump is a symptom — a virulent, violent, repugnant, and highly infectious symptom. So is Marjorie Taylor Greene; and so too are the many elected officials who really do know better — but whose small, craven, pitiable need for approbation directs their legislative conduct. “The American President” provides a little insight here, as it so often does:

Lewis Rothschild : People want leadership, Mr. President, and in the absence of genuine leadership, they’ll listen to anyone who steps up to the microphone. They want leadership. They’re so thirsty for it they’ll crawl through the desert toward a mirage, and when they discover there’s no water, they’ll drink the sand.

President Andrew Shepherd : Lewis, we’ve had presidents who were beloved, who couldn’t find a coherent sentence with two hands and a flashlight. People don’t drink the sand because they’re thirsty. They drink the sand because they don’t know the difference.

Boys and girls, you were elected to lead: so, lead. Don’t take people where they want to go: explain to them, teach them, guide them to where they need to go. Leadership, real leadership, is hard. Maybe that’s why magical thinking and doubling down on demonstrably bad ideas are so rampant.

Cognitive Dissonance (GOP Encore Edition)

Senator Josh Hawley (R-MO) has announced that come Wednesday (6 January 2021) he will object to the certification of the Electoral College result. Purportedly 140 Republican members of the House will do the same. This is not simply madness, it is shamelessly attempting a coup d’etat. Here. In the United States of America, where we fancy ourselves a beacon of liberty to the world, champions of democracy and justice. Does it get any worse than this? One wants to believe, desperately, that it does not. One is certain, after the egregious anti-democratic behavior and unabashed self-dealing of the last four years, that it does, it can, and it probably will. With just over a fortnight left in this worst of all possible administrations, the damage gets worse every day.

The immediate damage is deliberate, and seeks to hamper and hinder the incoming Biden administration even before it gets started (as described here by Dana Milbank in the Washington Post). But the more lasting damage will be to our body politic generally, and — ironically, fittingly, and most deservedly — to the Republican Party specifically. The intellectual rot appears irreversible: when elected officials question not simply the legitimacy of an election, but the legitimacy of their own election, something is very wrong indeed. Apparently “democracy” and “free and fair election” are malleable terms. Fair elections are those in which “our guy wins” whereas any other result is ipso facto the result of unimaginable corruption and conspiracy.

But now come Hawley and with him Ted Cruz and ten more fully Trumpified senators who say they will not accept the outcome, as will 140 Republican members of the House. These people were elected on the very same ballots as Biden, and the inconsistency of their own twisted logic seems to bother them not one whit. We are forced to contemplate two, and only two, alternatives: that these elected officers are too stupid to realize the full implications of their false claims; or too craven to care. And which is worse in a public servant? Do we prefer them feeble-minded, or unscrupulous? Each of these dozen senators was invited to explain on television why they will not accept Biden’s clear victory; each and every one refused the invitation or declined to answer it. To dimwitted and unprincipled we evidently must now add rude. (That a sitting senator would refuse an invitation to appear on television is in itself another oddity.)

Forty years ago the GOP threw its principles overboard in order to win elections: in the place of conservative policy ideas that could be discussed, tested, and adopted (or discarded) as appropriate, the party adopted slogans and demonstrably false claims — the language of ad agencies and mountebanks. Tax cuts will increase revenue! Competition is a magical cure-all for all things political, economical, and educational! New immigrants — to this literal nation of immigrants — are coming to take your jobs! Politics became, in other words, a game. It was no longer about compromising to improve the lives of citizens and constituents; it was about winning elections and achieving, holding, and keeping power.

Decades of empirical evidence haven’t been enough to wipe away these failed ideas, emotional triggers masquerading as  public policy. Our society, our country, our world have all suffered needlessly as a result. We should all hope that the GOP’s most recent self-inflicted wounds prove at long last to be fatal.