Not Racial Profiling July 23, 2009
Posted by agnosticcrusade in Media, Politics.Tags: burglary, disorderly conduct, Henry Louis Gates, James Crowley, journalism, obama, profiling, race
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No matter whether you think Sergeant James Crowley was justified in arresting Henry Louis Gates, reporters and President Obama himself are wrong to bring up racial profiling in connection with it. There was no racial profiling involved. A neighbor reported two men (who happened to be black) trying to break into a house. The report was accurate—Gates admits that he and a taxi driver were trying to break into his house, either because the door was jammed or he forgot his keys, depending on which story you read. Sergeant Crowley arrived and found Gates, who fit the suspect description, in the house. Crowley had no way of knowing, at that point, that Gates owned the house, and Gates initially refused to provide proof of his identity or ownership of the house. Ultimately Crowley arrested Gates not for burglary, but for disorderly conduct because of his belligerent and uncooperative behavior.
Racial profiling occurs when an officer singles an individual out of a group for investigation, based at least in part on that individual’s race. That didn’t happen here. Crowley arrived to investigate a report of burglary, and naturally focused on the one individual he found at the scene. Gates was the one who raised the issue of race.
Windows’ Stupid Extrapolation July 20, 2009
Posted by agnosticcrusade in Computing, Humor.Tags: Windows, Zeno, cars
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Today’s cartoon.
Banks Suck July 17, 2009
Posted by agnosticcrusade in Humor, Politics.Tags: banks, black holes, finance, regulation
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Today’s cartoon.
Big Brother Deletes Books from Kindle July 17, 2009
Posted by agnosticcrusade in Media.Tags: 1984, Amazon, books, DRM, George Orwell, Kindle, MobileReference, Penguin
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It seems e-books sold by Amazon by a certain famous author were provided by a publisher that did not actually have the right to publish them. As a result, those who had already purchased the books saw them vanish from their Kindles this morning. (Amazon did refund their money.) The author whose books received this draconian treatment? George Orwell, author of 1984.
Correction: This post originally stated that Penguin Books, the legitimate publisher of Orwell’s works, had initiated the deletion. This statement was based on the initial report on the New York Times website, which in turn reflected the statement Amazon made to its affected customers. Amazon now says that the effected e-books were provided by MobileReference, which published them illegally. Penguin has never offered the books in an e-book format. Amazon promises that in the future, it will not remove already-purchased books from customers’ Kindles.
NSA Builds New Data Facility July 10, 2009
Posted by agnosticcrusade in Law, Politics.Tags: NSA, search and seizure, surveillance, terrorism
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The NSA is building an enormous new data collection and processing center inside a National Guard base in Utah. One reason is to decentralize their facilities to make them less vulnerable to terrorist attacks. But another reason is that there isn’t enough electric power available in Maryland, the home of their headquarters, to run the additional supercomputers they say they need. This is cause for concern, especially in light of today’s confirmation that the NSA’s secret surveillance operations during the Bush Administration went far beyond what has been publicly detailed, and were kept so secret only a handful of administration officials outside the NSA were aware of them.
Congress Not Addressing Health Care Costs July 10, 2009
Posted by agnosticcrusade in Politics.Tags: congress, health care
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David Brooks scathingly describes the “overwhelming, amazing failure” of Congress’ current health care proposals to address spiraling costs.
What Republicans Shouldn’t Do July 9, 2009
Posted by agnosticcrusade in Humor, Politics.Tags: obama, Republicans
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Today’s cartoon.
Fight Sotomayor July 9, 2009
Posted by agnosticcrusade in Law, Politics.Tags: conservatism, courts, discrimination, empathy, gun control, judicial activism, Republicans, Sonia Sotomayor
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Republicans in Congress are in an ugly position right now. It’s hard for them to find issues where they can stand firm against the Democratic majority without further injuring their popularity. On issue after issue—health care, the economy, financial regulation, global warming—the political winds are against them. Republicans failed to address growing problems in each of these areas when they were in power, and now each issue has reached a crisis stage where the people rightly demand bold action.
There is one key issue where Republicans can improve their political situation by emphasizing their fundamental differences with Democrats. That issue is the nomination of Sonia Sotomayor for the Supreme Court. While she is qualified for the job on the basis of her resumé, her key opinions (or lack thereof) suggest that she lacks the passion for legal theory possessed by the best appellate judges. And the way she has decided controversial cases shows a judicial philosophy most Americans are uncomfortable with, not so much because of which sides she chose, but because many times she showed more interest in choosing a side than in advancing a legal justification.
Of all Sotomayor’s rulings on the Second Circuit Court of Appeals, the one that has received the most attention is Ricci v. Stefano, where she allowed the city of New Haven, CT to deliberately discriminate against white firefighters who aced a promotion exam, in order to avoid accusations that the exam itself accidentally discriminated against minorities. The Supreme Court recently overturned that ruling on a vote of 5–4, which helps show that the legal issues in the case are complicated and controversial. Yet Sotomayor and the two other judges on the appeals court panel apparently saw no legal issues deserving clarification or careful analysis—they announced their decision not with a scholarly legal opinion but with a brief, unsigned, unpublished summary order that carried no precedential force. Facing criticism, most notably from Judge Jose Cabranes, who asked the whole 13-judge court to rehear the case, Sotomayor and her two colleagues changed their minds and published a brief, unsigned per curiam opinion, which made their poorly justified decision a binding precedent. Sotomayor succeeded, by a single vote, in preventing the full court from rehearing the case.
Another case that has received more recent attention is Maloney v. Cuomo, in which Sotomayor upheld New York’s ban on the possession of nunchakus despite the Supreme Court’s recent ruling in DC v. Heller that the Second Amendment guarantees an individual right to keep and bear arms. Again, Sotomayor and two colleagues resolved a controversial legal question with a brief per curiam opinion, this time relying on a 123-year-old precedent from Presser v. Illinois, which stated that the Second Amendment only applies to the federal government. The trouble with this is that Presser v. Illinois was decided before the courts established that the Fourteenth Amendment’s due process clause bars states from infringing on key civil rights codified in the Bill of Rights. In view of the Supreme Court’s recent ruling that the Second Amendment codifies such a key individual right, Sotomayor’s blind reliance on an archaic precedent suggests she was more interested in disposing of the case than in addressing the questions of legal theory it presented.
These two cases fit a pattern that spans Sotomayor’s ten years on the Second Circuit. When controversial legal questions came before her, she almost always decided them without writing a signed legal opinion. In virtually every such case, she joined opinions written by others or collaborated with others in unsigned joint opinions. Her legal philosophy is the subject of speculation because we have very few written words in her own voice that express any legal philosophy.
Some have argued that Sotomayor avoided putting her name to controversial legal opinions precisely because it served her political ambitions. I don’t buy this argument. Sotomayor seemed too nervous and overwhelmed during her acceptance speech to be someone who had been anticipating and maneuvering for a Supreme Court nomination for years, especially in view of her public speaking experience as a district attorney.
It seems to me the reason Sotomayor has so little to say on key theoretical questions is that she just isn’t very interested in legal theory. Perhaps her celebrated empathy for the individual parties in her courtroom distracts her from the globally applicable precedents set by her rulings. Perhaps her notorious remark in front of the cameras that appeals courts “are where policy is made” was more revealing than she would have us believe.
But appeals courts, and the Supreme Court in particular, should be where legal theory is advanced. Democracy cannot function without the rule of written laws, which ensure everyone has the same rights and responsibilities, and enable everyone to know in advance what those rights and responsibilities are. Critical to this process is a court system that clarifies ambiguities and resolves contradictions in the law, that publishes its clarifications for the people to read, and that applies the law evenhandedly, without regard to the parties’ identity or background.
Sonia Sotomayor is not that kind of judge. While her rulings are not radical in terms of the legal positions and policies she favors, she is a pure judicial activist in that she decides cases more by which outcomes she prefers than by carefully deducing what the law requires. In this sense, she is arguably more of an activist than any Supreme Court justice. This kind of activism is unpopular with the moderate suburban and rural voters Republicans must win back in order to rebuild their coalition.
The Democrats’ 60-vote supermajority makes it almost inevitable that Sotomayor will be confirmed. But if Republicans explain to middle America how Sotomayor’s philosophy differs from theirs and why it’s important, they will dramatically strengthen their position for the next nomination fight and for the next election.
(Correction: The original version of this post stated that Frank Ricci requested a rehearing by the whole Second Circuit Court of Appeals. I later learned here that Judge Cabranes requested the rehearing.)
Health Care Cartoon July 1, 2009
Posted by agnosticcrusade in Humor, Politics.Tags: congress, health care, leeches, lobbyists, obama
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Health Care Reform in the U.S. June 27, 2009
Posted by agnosticcrusade in Politics.Tags: bureaucracy, conservatism, greed, health care, tort
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The time for conservatives to oppose national health care reform has passed. The existing system is a hopeless jumble of public and private bureaucracies, and its costs are outrageous and rising with no end in sight. A majority of Americans want reform, and will continue to want reform. Conservatives now should work to shape the reform to maximize the cost-effectiveness and minimize the bureaucracy in the coming national health care system.
For a long time, I was staunchly opposed to a national health care system. As one inclined toward the libertarian wing of conservatism, I insisted that it was not constitutionally within the federal government’s jurisdiction. I said it would cost too much, that it would create unprecedented bureaucratic inefficiency. I said it would inflate the demand for unnecessary care, leading to snowballing cost increases. When I was feeling really cynical, I imagined national health care would consume the whole economy—younger workers would be taxed into poverty to pay for extravagant efforts to sustain the growing ranks of the elderly and the terminally ill. Or alternatively, I said national health care would arbitrarily deny people the care they needed in order to control costs. Here the dystopian vision in the corner of my mind was a Soylent Green scenario of forced euthanasia.
I started to change my mind in the mid-’90s, when my grandmother was hospitalized with dementia, and physiological problems created by her inability to care for herself properly. For many years afterwards, she lived in a series of rehabilitation centers, “assisted-living” facilities, and nursing homes, broken up with occasional hospital stays. The cause of her dementia was never firmly diagnosed—it could have been Alzheimer’s, or something else, and since at least 1950 she had never been very healthy, mentally or physically. Anyway, when she was hospitalized it was clear to all of us in the family that she was on an inevitable, slow decline into helplessness, followed by obliviousness and death.
The relevant thing that struck me then was the way her doctors and caregivers made decisions about how to treat her, when to admit her to a hospital and when to release her, and when to send her to other institutions. They often made these decisions not based on what was best for her health, not based on what it was worth doing for a patient who was terminally ill, but based on following arcane rules to maximize the number of Medicare benefits for which she would qualify.
Eventually I realized that the political question of national health care wasn’t whether or not the government should impose a giant bureaucracy on the health care system. We were already there. The question wasn’t whether or not taxpayers should pay many of the medical costs of the elderly and the sick. We were already there. The question was whether the government should step in with both feet and try to keep the costs of health care from growing without limit, as they have been since the failed Great Society of the 1960s.
The trouble with the U.S. health care system now is that it is neither private nor national. Control is divided between numerous federal agencies, state agencies, giant manufacturers of drugs and medical equipment, giant insurance companies, HMOs, and corporations that run chains of hospitals and other care facilities. Very little control is left for doctors and patients. The corporations and government agencies often ally with one another to serve their own interests in money or power, showing little consideration for the health or finances of the patients they claim to serve.
The conservative in me would still like to see the government get out of the system and repeal its volumes of regulations that only sizeable corporations have the capacity to keep track of (and the lobbying funds to influence). It would be nice to see a return to an old-fashioned system where individual doctors serve small communities out of small offices with little supporting staff, where insurance companies are also small and close to the communities and individuals they serve, where communities band together and make sure the poor get the care they need.
But the pragmatist in me sees that it’s never going to happen. The political reality now is that a majority of the population wants national health care. They don’t want the personal hassle of dealing with insurance companies, their employer’s benefits departments, and starting all over again every time they change jobs, or get married, or have a child, or retire. They want health insurance that’s universal, lifelong, and transparent. People won’t stand for any rollback of federal health benefits—they want an expansion of federal benefits. Besides, the level of technology, expense, and complexity in medicine today is such that large organizations—either government or powerful corporations—will necessarily play a central role. Given the choice between relying on a government accountable to the people to provide health insurance, or a cartel of corporations accountable only to their stockholders, I have to choose government.
Many of those on the left, who have been pushing for national health care for decades and preaching that health care is a fundamental human right, would have the government provide care of unlimited extravagance for everyone. They will have little concern over the cost, and will happily expand the federal bureaucracy to achieve it even if they must satisfy the insurance companies by preserving their private bureaucracies too. Opposing this tendency is where conservatives must find their role in the legislative debate. In order to succeed, health care reform must reverse the incentives and inefficiencies that have made care as costly as it is today.
Three examples:
1. Health care providers, insurers, and manufacturers of drugs and medical equipment too often are large corporations driven more by greed than by any sense of professional responsibility to patients. Through deceptive marketing that preys on the ignorant, these corporations artificially inflate demand for needlessly expensive products and health care techniques. In particular, drug companies spend millions of dollars advertising prescription drugs in the mass media, not to the doctors who prescribe them, but to patients, most of whom cannot possibly make an informed decision about which drug will be most effective for them.
To address this problem, we should make sure public funds or subsidies cannot be used to pay for drugs or treatments advertised in this manner, and should consider banning mass-media ads for prescription drugs altogether. We should reduce the financial incentive for care providers to use more expensive treatment methods, by making sure that publicly funded health insurance reimburses providers with only a fixed dollar-amount margin above their cost for each treatment, rather than a percentage. And finally, the government should provide incentives for researchers and manufacturers of drugs and medical equipment to lower costs, by awarding grants to those who develop new products that cost less than older equivalents.
2. Malpractice insurance has become enormously costly to doctors, and they must pass this cost on to their patients. The optimal solution is not to interfere with the judiciary by imposing arbitrary caps on damage awards, but to change tort laws to adopt a sensible definition of what constitutes actionable malpractice in the first place. Those, like doctors, who make a good-faith effort to help someone in need should only be assessed damages if their efforts display true negligence or incompetence. Doctors who, in the heat of a crisis, make an informed, reasonable decision that later turns out to be wrong should not be liable.
3. Health care providers spend a lot of excess time and must hire excess staff to deal with myriad intersecting bureaucracies. Too often, they make treatment decisions based more on gaming the bureaucratic rules than on the patient’s needs. The federal government is a primary contributor to the situation with its patchwork of health care programs for different constituencies. Comprehensive reform intended to guarantee health insurance to all is a unique opportunity to unify and simplify the bureaucracy. There is no reason why we should have Medicare for retirees, Medicaid for the poor, CHIP for children, the VA for veterans, and yet another separate program for uninsured workers, each providing insurance and imposing its own regulations. Each of these groups of people needs similar care, and each should be insured under the same set of rules.
With an issue as complicated and involving as many interest groups as health care reform, it can be easy to get caught up in the mechanics of exactly who has how much control over what and exactly who and what to tax to pay for it. But if the government creates intelligent incentives for private providers and manufacturers to cut costs, while making sure that government itself doesn’t contribute unnecessarily to costs and inefficiency, the mechanics will take care of themselves. If medical care becomes more affordable, more efficient, and easier to use for the society as a whole, everyone involved will be happier in the end, no matter what shape the bureaucracy and the tax structure end up taking.