Requiescat in infernus

Today Obama's personal approval rating has sunk to 47%, a larger percent disapproves of his performance, and nearly 50% more poll respondents reject the healthcare plan than want it. Lieberman and Nelson seem on the verge of scuttling the healthcare bill, Obama's cap and trade law seems DOA, and the merger between the Republican Party and the Teabaggers is being consummated. It seems like a good time to take stock.

As far as I can tell, the Great American Voter (GAV) reasons as follows: (1) The Republicans left the country in the biggest mess since the Republicans last messed up the economy in 1929. (2) Th Democrats have failed to clean it up, thanks to Republican obstructionism. (3) Therefore the GAV should support the Republicans.

It is entirely possible, even likely, that this reasoning will prevail next November, and even more in 2012. Apart from the crazy logic, there may actually be a coherent philosophy behind these developments, and it is worth considering whether, in fact, most of the GAV doesn't actually subscribe to that philosophy.

That philosophy denies that we share a national community in the normal sense of the term. Tony Judt noted in the NY Review of Books, December 17 2009, "And indeed, it is not by chance that social democracy and welfare states have worked best in small, homogeneous countries, where issues of mistrust and mutual suspicion do not arise so acutely. A willingness to pay for other people's services and benefits rests upon the understanding that they in turn will do likewise for you and your children: because they are like you and see the world as you do. Conversely, where immigration and visible minorities have altered the demography of a country, we typically find increased suspicion of others and a loss of enthusiasm for the institutions of the welfare state."

The Republican/Teabagger view sees Americans as a highly diverse federal union whose citizens hold in common only a minimal number of common interests: defense against foreign attack or interstate internal disorder; protection of commercial interests and interstate commerce (but not of citizens from commerce); the creation and maintenance of interstate public works; the management of US government property; the protection and promotion of traditional social values; etc. In this view, many of the federal programs that now exist or are proposed have no legitimacy at the federal level. Social security, medicare and medicaid, welfare, tax subsidies for the poor, and other programs to assist the weak or afflicted are for private charity or local efforts. The federal government's obligations in this regard run only to its own employees or veterans.

In this conception, we are on the national level a competitive and individualistic society in which the successful or lucky ones have no obligation toward the rest. As Margaret Thatcher reportedly said (see Judt, above), "there is no such thing as society. There are only individual men and women and families." Another foundational belief seems to be that largely unregulated businesses will efficiently meet all our needs, or at least the needs of those who count, the ones able to pay, in a free market; and yet another is that a claim for the existence of externalities or interstate consequences must be taken with great skepticism since those who make it have suspect personal motives. The federal government should do no more than is necessary to satisfy the selfish needs that are common to ALL its citizens.

This is a coherent point of view, heavily drawn from libertarian thought, and its basic theory--that government has no business acting where it is unnecessary or unwanted--can hardly be disputed. Unfortunately, it is also premised on a false view of how society, the physical environment, and the world economy now work. It ignores realities that largely negate the effect of purely local action, such as the ease of travel and communication, the interconnectedness of things, the short-sightedness of business, and the impacts of technology. One might compare this view to Newtonian physics: an admirable intellectual achievement, and highly functional under circumstances that prevailed in the 17th century and in some places today; but no longer a realistic or usable framework for understanding or working with the world as we now know it.

Obama's Nobel Prize Speech

I have heard fine and noble talks, JFK's "ask not" speech, MLK's "free at last" speech, but I believe that Obama's Nobel Prize speech was the greatest of all. It was brilliantly constructed, starting with gracious acknowledgements of his famous and unsung predecessors and of the controversial nature of his own selection at such an early point in his public life. He then used the apparent irony of his selection while leading the US in fighting two wars as the launching pad for a searching discussion of the uses and abuses of war. Recognizing that there is evil in the world, and that nonviolent resistance could not have stopped Hitler's armies, he persuasively made the case for the use of force. But he also made the case for doing so justly, only as a last resort, to the degree necessary, in compliance with the Geneva Convention, and in a way that as much as possible avoids injury to innocent bystanders. This led to another point, that acting to bring about peace is a very difficult task that goes far beyond the mere assertion of its desirability or the blanket condemnation of war. He stated that despite its 60 year history of protecting the world from a 3rd world war, the US can no longer act alone. The changing nature of war requires concerted action if malefactors are to suffer the consequences for their evil behavior. As war has become increasingly hard on civilians it has also become increasingly important to reduce nuclear arsenals, an effort that the President said was the centerpiece of his foreign policy. The President made many other important and thought-provoking points as well. To choose just one example of the brilliance and originality of his thinking, he noted that while we rightly glory in the bravery, accomplishments, and self-sacrifice of the soldiers who fight in war, war itself is Hell. I am writing this before having heard all the rest of his speech, but this was enough. I am proud of our President, and of our nation for having elected him. Whatever the difficulties with democracy, and they are many, the election of Obama and the continuing support for him as he navigates the incredible mess that Bush et al have left vindicate the democratic idea.

Either We Hang Together or We Hang Separately

The Nov 2009 elections have little significance in themselves, but they do suggest that if the Democrats fail to enact significant healthcare and climate change legislation, they will face severe defeat, Blue Dogs first. With bad candidates and a depressed economy, the NJ and VA Democratic base hardly bothered to vote, leaving the field to right-wing ideologues and people hoping for change, any change. The Democrats had nothing to offer, and their control of Congress made it seem all the worse.

In reality, on the same day as the election, the business news made it clear that the Obama measures to deal with the economy are working, but as the President has repeatedly said, it takes time. It now seems likely that the economy will be visibly improving by the November 2010 elections.

But if the Democrats get distracted by passing uproars manufactured or capitalized upon by Republicans and the broadcast media, they could still lose. There is a repeating pattern here, folks: Republican Presidents screw up the economy, then Democrats spend all their effort and credibility fixing it up again, with Republican opposition forcing them to sacrifice their other agenda goals to that end. Happened to Carter and Clinton, now Obama.

Preventive Detention

After reading Adam Serwer's good article in the September 2009 issue of The American Prospect, I realize that the fundamental issue in preventive detention is political risk management. Obama can't just release all the detainees who can't be convicted or sent away, because one of them might do something for which the Limbaugh Republicans could beat up the Democrats. If we did not have a Constitution and a Bill of Rights the same reasoning would lead to the detention of half the country, or at least everyone in NY and SF (Limbaugh and Beck presumably excepted). Given the current mad dog nature of the Republican Party's leadership, Obama's best choice is probably what he seems to be doing: trying to make the problem disappear by sending all these people far away.

Will health reform pass?

As I write, at the end of July 2009, the fate of Obama's health bill seems uncertain. Listening to public commentary, the most likely outcomes are either outright defeat of anything, or passage of something that just rearranges the deck chairs on the Titanic. But quite possibly something better is being forged behind the scenes; we won't know until we see it.

If the result is a debacle, I believe that it will again illustrate a hard truth about popular democracy. Liberals, and intelligent conservatives, tend to look at trends, forecast future consequences, and advocate action to deal with those consequences. But most voters do not operate that way; their forward vision stops at the tip of the nose. Given the desire of vested interests to preserve the status quo that enriches them, and the persuasive power of propaganda, this voter orientation towards the immediate makes change very difficult. Change happens only when the problems with the present course of action hit home broadly and forcefully. That's why the villainous Bush and Cheney team got close enough to re-election in 2004 that Kerry's blunders put them over the top. While any thinking person could see how terribly they were governing, the robust stock market and high employment at the time kept their evils from hitting home broadly and forcefully enough.

In other words, if the health plan loses, it will not be due to Obama's errors. He has in fact proceeded with enormous care and skill, building on the brilliant Clinton White House's effort and correcting its errors. The loss, if it occurs, will be due to timing: the fact that not enough voters have suffered sufficiently from the present setup, so that they remain susceptible to the mendacious scaremongering of the Republicans and the special interests who wish to maintain the present lucrative system.

Perhaps the loss will politically cripple Obama. Whether it does or not, though, it will mean that health reform must wait a while longer: until more employers drop the coverage, more obese people lose their insurance, and more people are turned away from overwhelmed emergency rooms to die in the streets.

Health Insurance

Costs and Revenues
For whatever reason, US ideology makes it impossible to have a single payer system. In addition, the major players in the for-profit health system are too powerful to attack directly. That is why we have this repellent spectacle of the Democrats dancing around trying to make fundamental improvements in outcome by snipping and tugging at the system's edges.

Everybody knows that a number of measures, if seriously pursued, would sharply reduce costs. I would start by beefing up enforcement to prevent the endemic fraud in Medicare, Medicaid, and other gov't programs. There are plenty of other good ideas around.

Dealing with malpractice would also have a major impact. The basic problem is that medical communities don't police themselves, government won't, so the lottery-like litigation system is all we have. I suggest that states create boards consisting of retired professionals (doctors, lawyers, accountants, actuaries, etc.) to review every malpractice claim in what would be essentially an arbitration hearing. The board's opinion would be appealable, and if reversed a board with different members would hear the case all over again. A worker's comp system of valuing such intangibles as pain and suffering could be created as well.

One of the striking things about the debate on revenues is how much everyone seems to ignore Obama's clear and simple point: that of all the possibilities, doing nothing is the most expensive. So if the CBO says this plan will "cost" x billion, that's without subtracting the cost of the present system; it's comparing the new cost, not with the higher one currently in place, but with no cost at all. Idiotic!

There are also various ways of generating revenue that don't seem to be on the table at all. For example, increase the Medicare copay. Or, since so much of the cost falls in the last 6 months of life, require a copay by the estates of the deceased.

Sotomayor Hearings

These disgraceful hearings have allowed the Republicans to define what constitutes appropriate judicial behavior, framing the issue in an extremely false and childishly simplistic way, as Professor Gerken notes. This has seriously misled the viewing public about judges and the Constitution. These hearings have allowed Justice Roberts’s simplistic and misleading baseball umpire analogy to become the dominant image of judging. If that’s all judging amounts to, as the Republicans have loudly claimed, then why shouldn’t we elect know-nothing judges rather than have high-level committees select qualified appointees? Why should the American Bar Association have a say? Why should they be paid so much? And if big corporations and political ideologues want to waste their millions getting sympathizers elected, what’s the harm? These hearings have publicized and legitimized a bufoon’s idea of the judicial function, in place of the traditional American understanding that sees the judge, particularly the Supreme Court justice, as one who applies to difficult issues a wisdom rooted in high intelligence, broad experience, and deep learning.

The Woes of California

Responding to a discussion of CA's woes at http://www.truthout.org/060909T#comment-58675, I wrote:
As another ex-resident who loved CA in the 70s, I have thought a lot about what's up there. The question is not why 12% of voters voted as they did, but why so few turned out. I think there are two factors at work: 1. The voters are silently revolting against the pay and benefits that the public sector receives, enormous, non-negotiable and relentless costs, since the state employee unions won't budge, that can only be reduced by the bankruptcy of the state. I think that's what a lot of people really want. 2. The wealthy who live in their gated communities have not yet been touched by the financial distress hitting everyone else. They have no concept of what the destruction of the state will do to them personally, and they believe, I think mistakenly, that their private measures can largely protect them. Until they get a reality check, CA will continue to see their $ and votes aligned against the public interest.

Israeli Settlements

Israel’s problem is that, confronted by a terrifying situation, its political leaders and opinion-makers have for decades mostly followed the dictates of their gibbering guts rather than the promptings of their rational minds. Fear-mongering is good politics, but when it leads to treating the Palestinians in needlessly humiliating fashion, blatantly disregarding the UN and other international bodies, and looking to all the world (except its diehard defenders and apologists) like a neighborhood bully, it’s lousy diplomacy. And for Israel that could be fatal, given that time is not on its side. Bush was like an alcoholic’s drinking buddy (”Hey, I’m with you all the way. You want another shot? Go for it!” Obama is Israel’s best friend, not its drinking buddy, and probably its last hope.

Response to WSJ letter attacking Sotomayor

Professor Graglia,
It is a sad thing to see a lawyer, a law professor at that, so strangely distort logic and language as you do in your unfortunate letter. You misquote Judge Sotomayor (she said she would HOPE that...). You compare her noting a lack of Hispanics in heavily Hispanic states to the lack of Italians or Greeks in those same states, a logic that totally escapes me. And you abuse the respect and deference that would normally be due to a law professor when you write for publication such a prejudiced and misleading letter.

For shame, sir,

Due Process for "Dangerous" Guantanamo Prisoners

The essence of the problem with detaining allegedly dangerous prisoners is the endless nature of the terrorism war. When we fought Germany we detained prisoners, dangerous or not, until the war ended. No problem. But when the war doesn't end, whether because the opposition is not politically legitimate, or cannot reasonably be expected to control its warriors after a "peace" is agreed (such as, say, Hamas), then fundamental fairness requires some process for judging the dangerousness of battlefield prisoners, and those found to pose risks must be endlessly detained. To release them is suicidal.

What I think Obama wants to do, as do I, is to ensure that the judging process be as fair as possible--due process. But what is due process under these circumstances? We know what due process means for people accused of crimes. And as Sen. Whitehouse recently noted, we even have due process standards for citizens facing endless detainment in civil proceedings. But those standards work here because they apply to people living in a reasonably ordered civil society where there exists a great deal of information about people who have been observed under normal circumstances, and witnesses who can testify under oath. Those circumstances don't usually exist in the case of battlefield prisoners. Consequently, we must create a different set of procedures to provide as much due process as possible under the circumstances of their capture. To summarize: our notions of due process simply don't apply to battlefield prisoners facing endless imprisonment. We need to develop the best notions possible to fit the circumstances of those battlefield prisoners.

Guns in National Parks

Plainly, no Republicans or friends or relatives of Republicans use the National Parks. Should anyone be shot by some crazed carrier of a concealed gun permit, the Republican senators and NRA lobbyists who made concealed guns in the parks would rightfully be guilty of felony-murder.

Roots of the Financial Crisis

Many conservative people share a concern about the recent level of borrowing, and blame excessive borrowing and lax credit standards for the current financial crisis. What seems to trouble them is not just the borrowing itself, but the lack of prudence suggested by the vast increase in borrowing from historical standards. The underlying suggestion is that a greatly increased flow of credit means that there's something seriously wrong; probably, that someone isn't watching the store. But this reading of the data is mistaken. It doesn't take into account the fact that there are excellent reasons why both lenders and borrowers can now expect repayment with far more good reason than was the case a generation ago, and accordingly lend and borrow more than used to be possible. Both lenders and borrowers today enjoy a vastly improved ability to predict financial behavior and to reduce the risk of failure.

It probably sounds idiotic to say this now, but the reality is that even the improvements that make a greater flow of credit reasonable, even those improvements, cannot overcome the kind of faults that created the current mess. Those faults come down to 3: the improper alignment of financial incentives within the financial industry, particular the part dealing with mortgages; the massive growth of key financial institutions, which renders them at the same time "too big to fail" and too big to govern; and the decline of regulation for ideological reasons since Reagan's presidency, culminating of course in the ideologues of W. Bush.