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Judge Rules Texas Abortion Near-Ban Unconstitutional

[ 2 ] August 29, 2014 |

Under the radical theory that forcing the closure of most of the state’s abortion clinics through regulations that have no legitimate medical purpose is an undue burden on a woman’s right to choose to have an abortion. Evidently, the ruling is unlikely to survive 5CA but at least the opinion is strong.

Lame Duck Governor Decides To Stop Inflicting Needless Suffering on State’s Citizens

[ 62 ] August 29, 2014 |

Pennsylvania will be taking the Medicaid expansion. Not in an ideal form, although better than the Arkansas version (the administration was right to strike a harder bargain, with Corbett polling in the low 30s.) And, as Sargent says, the next government remains free to make the program more progressive, so it makes sense to let the state proceed now.

On Reclining Airline Seats

[ 293 ] August 29, 2014 |

This. Very much this.

One would think that a civilized society would, in time, come to some accepted standards for civilized behavior. We are not talking here about anything so crude as laws; we are talking about simple decency towards your fellow humans. We do not require laws to tell people to give up their seat for a pregnant woman, or help an elderly person across the street, or refrain from cursing at waiters. We expect people to do that out of common decency. Those who would refuse to follow such simple rules simply because they are not laws are known as selfish, antisocial monsters who will likely die friendless and alone.

An airplane is an enclosed environment. For most passengers, there is not very much extra room. Space is tight. No one can go anywhere. We are collectively trapped. It is simple decency not to crudely and selfishly recline your seat into the face of your unfortunate neighbor to the rear. Yes, you could recline your seat, legally; but that would make you a selfish, antisocial monster. I trust that you are not that. I trust that you are a good person.

The idea that if you want people to be polite and considerate you should pay should pay them for the privelege should be a reductio ad absurdum of consevervtarian logic, only they’re willing to make the argument themselves.

Now This Is An Unhinged Rant

[ 166 ] August 28, 2014 |

Shorter Andy McCarthy: “It’s outrageous that banks that committed widespread mortgage fraud should face any sanctions at all. Because ACORN!!!!!!!!!!! Why on earth are we even funding the Department of Justice at all? The DOJ trying to enforce the law is even worse than taverns that provide free food! I am not a crackpot!”

There Are No Shortcuts

[ 93 ] August 28, 2014 |

A distinguished, if long-dead, philosopher has dropped into our comment section to make a very important point:

Because multi-party systems are much more democratically responsive? Coalition building is at least as frustrating as the Democratic Party. In Germany, if you don’t like the too-centrist-and-neoliberal SPD, you get to vote for either a party that everyone else refuses to have anything to do with and has no measurable impact on public policy, or a party that’s not really big enough to form a majority coalition with the SPD! Good stuff!!!

The reason progressive change is hard is because progressive change is hard, not because of structural problems with the electoral system. And the structural problems in American government have much more to do with the Senate’s inherent small state bias and terrible traditions; and with the way the uneven distribution of population gives Republicans an advantage in the House; than it does with having two parties.

Exactly right. This is one issue I have with the focus on electoral reforms (particularly advocates of PR; approval or runoff voting would ensure that third party voting won’t produce irrational results but probably not produce much third party representation.) Again, I don’t see what problem this is supposed to solve. The fundamental issues with achieving liberal reform are that 1)there aren’t enough liberals, and 2)there are many structural features of American government that favor reactionary interests. Third parties do nothing about #1 and would probably make #2 worse. I’m not even sure that PR would provide much value to narcissists who don’t like to sully themselves by being part of a broader coalition. (Not that we should care anyway.) Either the Magic Pony party won’t be part of the governing coalition and will achieve nothing, which will prove the weakness and lack of will of individual members, or they will collaborate with more moderate parties, in which case they’re sellouts.

Jon Walker’s attempt to defend a version of Frank/West runs into similar problems:

While people often overstate the power of the Presidency, continuing to pretend the filibuster was an insurmountable hurdle is just plain silly. As we saw just last year when Democrats changed the rules regarding executive nominees, a simple majority of senators can easily amend or completely eliminate this minor procedural issue.

I’m not upset Obama couldn’t get Snowe to play nice — I’m disappointed he actively refused to go around her. For example Democrats could have used reconciliation to adopt a larger stimulus with only a simple majority, or just eliminated the filibuster. This is exactly what George W. Bush did to get his tax cut when a Senate minority tried to stand in the way.

First of all, we have a classic botch from the files of Drew Westen; the filibuster was irrelevant to the Bush tax cuts because budget bills can’t be filibustered. Republicans did not have to change any congressional procedures to get their tax cuts through. That aside, note the fancy shuffling here between “Obama” and “the Democratic Party.” What Obama can do to abolish the filibuster is “nothing.” Having someone who was very recently a backbencher make a public case that senior senators should give up their prerogatives could not have helped and almost certainly have been very damaging. The idea that the filibuster is a product of presidential will is a parody of green lanternism.

It is trivially true that the “Democratic Party” refused to abolish the filibuster. But this just re-states the problem. If there were 60 senators who were staunch liberals and unconcerned with their institutional self-interest, the filibuster wouldn’t be a significant barrier in the first place. (And remember that this is a multidimensional problem; there were/are senators like Leahy and Feingold who are institutional conservatives even if they aren’t ideological conservatives.) And if Walker has a magic formula for getting staunch liberals elected in Nebraska and Louisiana and Missouri etc. etc. he isn’t revealing it. Assuming can openers isn’t a solution to anything.

Red States Inflict Suffering on Their Citizens to Spite Obama

[ 46 ] August 27, 2014 |

The most direct consequence of states refusing to accept the Medicaid expansion is people suffering from avodiable death and/or suffering because they don’t have medical insurance. The problems are going beyond this as well:

While record numbers of Americans sign up for the larger Medicaid health insurance program for the poor, financial issues are emerging for medical care providers in the two dozen states that didn’t go along with the expansion under the Affordable Care Act.

Reports out in the last week indicate the gap between those with health care coverage is widening between states that agreed to go along with the health law’s Medicaid expansion and those generally led by Republican legislatures and GOP governors that are balking at the expansion.

The moves against expansion are “beginning to hurt hospitals in states that opted out,” a report last week from Fitch Ratings said. The U.S. Department of Health and Human services has said Medicaid enrollment in the 26 states and the District of Columbia that agreed to go along with and implemented the expansion by the end of May “rose by 17 percent, while states that have not expanded reported only a 3 percent increase,” HHS said in an enrollment update for the Medicaid program.

“We expect providers in states that have chosen not to participate in expanded Medicaid eligibility to face increasing financial challenges in 2014 and beyond,” Fitch said in its July 16 report. “Nonprofit hospitals and healthcare systems in states that have expanded their Medicaid coverage under the Patient Protection and Affordable Care Act have begun to realize the benefit from increased insurance coverage.”

I once again turn things over to Brad DeLong:

This is the piece of the article that leaves me most annoyed because of the absence of context. Why have 20 states refused to take part in Medicaid expansion? It’s not because of how the Affordable Care Act was written. All states currently participate in Medicaid–it is a good deal for a state to do so. The ACA changed Medicaid. But John Roberts rewrote the law from his post on the Supreme Court to give states the option of (a) simply continuing with Medicaid-as-it-exists-in-2013 in addition to the options of (b) participating in Medicaid-as-it-exists-in-2014 and (c) dropping Medicaid entirely.

When John Roberts rewrote the ACA from the bench, he did so very badly. The expansion of Medicaid meant that a great many people who used to show up at safety-net hospitals without any insurance at all will now be covered by Medicaid, so the rationale for the Disproportionate Share Payments to safety-net hospitals that treat the uninsured will go away, hence the ACA eliminates the no longer-needed DSP. But in states in which Medicaid isn’t expanded, the need for the DSP remains. When Roberts rewrote the law, did he rewrite the law so that the DSP remains for states that do not accept Medicaid expansion? No. Will safety-net hospitals in non-expanding states close as a result? Some of them, probably, without some other emergency fix. Did Roberts know what he was doing? Almost surely not. If you rewrite a law from the bench, shouldn’t you and your clerks first familiarize yourself with the law enough so that you know what you are doing? Next question!

Although the Medicaid portions of Sebelius used exceedingly unpersuasive reasoning to produce a horrible outcome, however, the states remain free to take the expansion. The fact that Republican-controlled ones generally aren’t tells you everything you need to know about the contemporary Republican Party.

Philanthropy and the Bucket Challenge

[ 99 ] August 27, 2014 |

I got sick of the means after about 10 minutes. But it’s worth considering the possibility that the ends are dubious as well. In particular, I agree with Salmon about the “raising awareness” point. Raising awareness about AIDS was valuable in itself because the disease was largely avoidable through changes in behavior. But being aware of ALS doesn’t actually solve anything.

The Supreme Court v. Accountability

[ 40 ] August 27, 2014 |

Good piece by Erwin Chemerinsky on how judicial doctrines of immunity make it difficult to get effective remedies for abuses of power by local authorities:

Because it is so difficult to sue government entities, most victims’ only recourse is to sue the officers involved. But here, too, the Supreme Court has created often insurmountable obstacles. The court has held that all government officials sued for monetary damages can raise “immunity” as a defense. Police officers and other law enforcement personnel who commit perjury have absolute immunity and cannot be sued for money, even when it results in the imprisonment of an innocent person. A prosecutor who commits misconduct, as in Mr. Thompson’s case, also has absolute immunity to civil suits.

When there is not absolute immunity, police officers are still protected by “qualified immunity” when sued for monetary damages. The Supreme Court, in an opinion by Justice Antonin Scalia in 2011, ruled that a government officer can be held liable only if “every reasonable official” would have known that his conduct was unlawful. For example, the officer who shot Michael Brown can be held liable only if every reasonable officer would have known that the shooting constituted the use of excessive force and was not self-defense.

The Supreme Court has used this doctrine in recent years to deny damages to an eighth-grade girl who was strip-searched by school officials on suspicion that she had prescription-strength ibuprofen. It has also used it to deny damages to a man who, under a material-witness warrant, was held in a maximum-security prison for 16 days and on supervised release for 14 months, even though the government had no intention of using him as a material witness or even probable cause to arrest him. In each instance, the court stressed that the government officer could not be held liable, even though the Constitution had clearly been violated.

Taken together, these rulings have a powerful effect. They mean that the officer who shot Michael Brown and the City of Ferguson will most likely never be held accountable in court. How many more deaths and how many more riots will it take before the Supreme Court changes course?

The Thompson case is a particularly good example of this shell game — people can have their rights clearly and willfully violated by state authorities, but courts can nonetheless invent reasons why nobody can be held accountable. It’s a serious problem.

Indefensible Arguments Fare Poorly In Federal Court

[ 93 ] August 26, 2014 |

I almost feel bad for the attorneys representing the states here. I can’t say I’d want to come before Richard Posner with nothing but empty tautologies either:

Judge Richard Posner, who was appointed by President Ronald Reagan, was dismissive when Wisconsin Assistant Attorney General Timothy Samuelson repeatedly pointed to ‘tradition’ as the underlying justification for barring gay marriage.

“It was tradition to not allow blacks and whites to marry — a tradition that got swept away,” Posner said. Prohibition of same sex marriage, he said, is “a tradition of hate … and savage discrimination.”

Posner frequently cut off Indiana Solicitor General Thomas Fisher, just moments into his presentation and chided him to answer his questions.

At one point, Posner ran through a list of psychological strains of unmarried same-sex couples, including having to struggle to grasp why their schoolmates’ parents were married and theirs weren’t.

“What horrible stuff,” Posner said. What benefits to society in barring gay marriage, he asked, “outweighs that kind of damage to children?”

I’m guessing these bans will not be upheld…

Today In Green Lanternism

[ 100 ] August 26, 2014 |

Via Chait, who engages in some entertaining mockery of the embarrassing bad faith summit between Frank and West, we can see a somewhat more measured argument in the same vein from Michael Kazin. To be clear, it’s not nearly as bad as Frank’s Salon hackwork. Nonetheless, my jaw remained on the floor for some time after reading this:

Why has Barack Obama—one of the most eloquent and thoughtful of recent presidents—become such a terrible politician? Midway through his sixth year in office, his ineptitude is pretty clear. He frustrated and demobilized the huge base he built during his campaigns and, unless the polls turn around quickly, will be watching from the White House as the GOP takes full control of Congress this fall. On Tuesday, the Times offered some new evidence in an article about his frosty relationship with Senate Democrats.

[...]

But it also helped him win the 2008 Democratic primary, and then boosted minority and young voter turnout to give him an easy victory in the general election. And if Obama is indeed as arrogant some say he is, then so were some of the more consequential chief executives who preceded him—Andrew Jackson, Woodrow Wilson, Lyndon Johnson, and Ronald Reagan.

Each of those four presidents—as well as greater ones like Lincoln and FDR—built loyal followings and retained them for nearly their entire time in office.

Yes, I’m afraid that as an example of someone who was (unlike Barack Obama) able to retain the strong support of his party, Kazin is citing…Lyndon Johnson. You know, the sitting president presiding over a party so united he did not seek a nomination for which he was eligible. If only Barack Obama had that kind of unifying force. (That “nearly” is sure doing a lot of work.)

In addition, it’s worth noting that in the 1938 midterm elections, the Democrats lost 7 seats in the Senate and 72 seats in the House.  And, perhaps even more to the point, these elections marked a point at which Congress was controlled not so much by the nominal Democratic majorities as by a coalition of Republicans and conservative Democrats.  If FDR had some kind of magic formula that allowed Democrats to maintain support in midterm congressional elections, he apparently declined to use it.

Midterm elections tend to be bad for the party that controls the White House, and this is a particular problem for Democrats, whose less affluent constituencies generally have lower vote turnout. This isn’t a trend caused by Barack Obama being a “terrible politician.”

For a comic conclusion, Maureen Dowd has still “learned” far too much about politics from Aaron Sorkin. And is she in on the ultra-hacky “Obama, unlike any other president ever, plays golf!” trend? I think you know the answer to that.

Area Hack Fires Popgun, Shoots Self Repeatedly In Foot

[ 140 ] August 25, 2014 |

A conservative writer has options. They could, for example, pursue journalism. Alternatively, they could join with Tucker Carlson and do whatever it is that the Daily Caller does. One of the latter is Jim Treacher, the Daily Tucker blogger for people who find Mickey Kaus too highbrow. For some reason, he showed up in my Twitter mentions today:

While racial discrimination in law enforcement is a problem, it would obviously be foolish to think that white people have some sort of blanket immunity from police violence, justified or not. (Let’s leave aside the fact that Treacher, natch, takes the most authoritarian interpretation of the Michael Brown shooting.) So he could not have “learned” this from me, since I don’t believe any such thing and have never written any such thing.

Truly the hack’s hack, Treacher would not identify from which post he “learned” the thing he just made up. But I assume he meant this post, which I now reprint in its entirety:

I don’t know about you, but I’m pretty confident that if a unarmed white kid from suburbs was shot dead by the police we wouldn’t be informed by the Paper of Record that he was “no angel” because of a minor alleged shoplifting. And this!

He had taken to rapping in recent months, producing lyrics that were by turns contemplative and vulgar.

But were his jeans too baggy?

It’s not just that Treacher is making his accusation up out of whole cloth. It’s that the post is not even about disparate treatment of African-Americans by the police at all. (My hypothetical, you’ll notice, assumes that a white person from the suburbs could be subject to being killed by the police.) The post is about the disparate treatment of Michael Brown by the media. Even funnier is that the target isn’t even a conservative media outlet. Indeed, a remotely competent conservative hack could have written something about how eventheliberal Scott Lemieux thinks that the New York Times is using strange racial stereotypes in a story about the Brown shooting. Only Treacher 1)is really not at all competent, and 2)he would presumably see nothing objectionable about the Times story if he read it.

Verdict: Jesus Christ, what a pathetic operation Tucker Carlson is running.

Summing Up On Salaita and Academic Freedom

[ 30 ] August 25, 2014 |

Earlier this year, the Regents of the University of Kansas ended academic freedom in the state, making something called the “improper use of social media” a firable offense for tenured faculty. But give them this: they were honest about what they were doing. Phyllis Wise and the Board or Trustees at the University of Illinois at Urbana-Champaign, conversely, are almost comically dishonest about what they just did:

Since this decision, many of you have expressed your concern about its potential impact on academic freedom. I want to assure you in the strongest possible terms that all of us – my administration, the university administration and I – absolutely are committed to this bedrock principle. I began my career as a scientist challenging accepted ideas and pre-conceived notions, and I have continued during my career to invite and encourage such debates in all aspects of university life.

A pre-eminent university must always be a home for difficult discussions and for the teaching of diverse ideas. One of our core missions is to welcome and encourage differing perspectives. Robust – and even intense and provocative – debate and disagreement are deeply valued and critical to the success of our university.

If academic freedom means anything, tenured academics cannot be fired solely for expressing political views. And yet, if you look carefully at Wise’s letter, you will see not a single word about Salaita’s teaching record or his scholarship. To fire him for reasons not related to either is a definitive denial of academic freedom. Trying to square the circle, Wise attempts to argue that some isolated tweets suggested that Salaita is unfit as a teacher:

A Jewish student, a Palestinian student, or any student of any faith or background must feel confident that personal views can be expressed and that philosophical disagreements with a faculty member can be debated in a civil, thoughtful and mutually respectful manner. Most important, every student must know that every instructor recognizes and values that student as a human being. If we have lost that, we have lost much more than our standing as a world-class institution of higher education.

As I’ve said earlier, and as Timothy Burke has explained at devastating length, the problems with this argument are manifest and fatal. Salaita has an extensive record of university-level teaching. If there was any evidence that Salaita did not conduct himself in a “civil, thoughtful and mutually respectful manner,” it would presumably have surfaced during the many courses he’s taught. But there is no such evidence, and to assume that you can infer how someone will teach from how someone tweets is obvious nonsense. And to expand on Burke’s point, Wise’s unfounded assumption is not only insulting to Salaita, it’s insulting to the members of her faculty and administration who were allegedly unable to see that a candidate does not “value students as human beings.” This is an extraordinary claim, and given the paucity of the evidence to support it is a deeply offensive accusation.

Evidently, academic freedom is not absolute. If there was real evidence that Salaita was an anti-Semite, it might warrant an exception (although inferring it from 140-character bursts on social media requires a very high burden when this alleged anti-Semitism has not appeared in his teaching or scholarship.) But people making this allegation just don’t have the goods. The tweets that use the term “anti-Semitism” clearly assume that anti-Semitism is a bad thing if read in context (and even in isolation when given a remotely charitable reading.) Anti-semites generally do not tweet things like “[t]hat particular look has been used to dehumanize Jews for many centuries, to nefarious ends” and “I believe that Jewish and Arab children are equal in the eyes of God. Equal rights for everybody, Jewish, Muslim, Christian, etc.” And if his firing is to be consistent with academic freedom, that’s the whole ballgame. Some of his tweets, particularly the eliminationist one about Isaraeli settlers, are offensive, but that cannot be a firable offense if academic freedom is to retain any content.

One interesting thing about Wise’s statement, however, is that it does not seem to rely on the fact that the hiring process was not formally complete. The op-ed by Cary Nelson set the basic template for most UIUC apologists: set up a rhetorical shell game where a terrible argument that firing Salaita is consistent with academic freedom is paired with a terrible argument that he wasn’t really fired (even though he would have been teaching for at least a month prior to receiving pro forma approval.) When the weaknesses of one become apparent, just shift back to the other. While I’m sure their lawyers will be making different arguments, Wise’s logic suggests that Salaita could have been fired if he had a tenured position at UIUC formally rather than just de facto. (This should be terrifying to faculty there.) And I think there’s a reason for that. As Ben Alpers has argued, if taken seriously the assertion that Salaita wasn’t really fired would create chaos in academic job markets:

IANAL, but it seems to me that if Hoffman is correct about the labor law here, the entire academic employment system will be disrupted. If faculty are forced to see regents’ approval of hires as something other than pro forma, either hiring schools will have to wait an extra semester or year to bring faculty aboard or schools from which faculty are hired will be faced with tons of last minute course cancellations. The point is that this is not simply about a single letter sent to single faculty member: the academic employment system as currently constituted is absolutely reliant on what are widely seen as rubber-stamp stages of the hiring process being rubber-stamp stages of the hiring process. If Salaita’s hirefire stands, it will, at the very least, make it much harder for the University of Illinois to hire senior faculty (not because of boycotts, but because of due diligence on the part of potential hires) and may well affect other institutions as well.

I assume that Wise does not want to think that senior faculty she’s trying to attract that she will start arbitrarily overturning dean-approved hires at the last minute as a routine practice. But if I were in that position, I think it’s pretty clear that UIUC cannot be trusted.

But the problems the precedent creates for the academic job market are just the beginning. There are serious First Amendment problems here. Salaita may well have a good argument in civil court. And it’s hard to believe it’s a coincidence  that Salaita was fired after pressure was brought by the development office.

But perhaps it will be shown in court that UIUC was within its formal legal rights when it discarded the basic norms of the profession and callously destroyed someone’s career on false implicit pretenses. And ultimately it doesn’t matter whether Salaita was fired because Wise disagreed with his political views, the Board of Trustees disagreed with his views, wealthy donors disagreed with his views, or any combination thereof. His firing was a disgraceful attack on academic freedom no matter what motivated it, and reflects a situation that’s probably only going to get worse.

…Claire Potter has more.

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