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The Teleological Fallacy

[ 74 ] July 22, 2014 |

K-Drum makes a good point about the recent Thomas Frank Salon article that I neglected to:

But if it’s so easy to see this conservative delusion for what it is, why isn’t it equally easy to recognize the same brand of liberal delusion? Back in 2009, was Obama really the only thing that stood between bankers and the howling mob? Don’t be silly. Americans were barely even upset, let alone ready for revolution. Those pathetic demonstrations outside the headquarters of AIG were about a hundredth the size that even a half-ass political organization can muster for a routine anti-abortion rally. After a few days the AIG protestors got bored and went home without so much as throwing a few bottles at cops. Even the Greeks managed that much.

Fearless navigator of our new comment system JeremyW puts it well:

[W]hat strikes me about this article is that he seems to have replaced the institutional status quo bias of our current political system with something that works the opposite way. Rather than a system where actual progressive change is difficult to win support for and subject to several veto points, he seems to think we have one where radical changes are constantly on the cusp of occurring and the whole neoliberal enterprise must be held together by a dastardly sellout president who can subvert the will of the people.

The most crucial underlying premise of Frank’s argument is that the American political economy was on the verge of a radical transformation in 2008, and this was prevented from happening because Barack Obama saved neoliberalism’s bacon. This is a rather problematic for his argument given its transparent falsity. It’s simply not true that most Americans drew the same conclusions from the financial meltdown that Frank did, and even they did the elites who control or strongly influence many key veto points in the American system certainly didn’t. As someone capable of being elected president of the United States Barack Obama is not a radical critic of capitalism, but in terms of whether American capitalism was going to be “put out of business” this is neither here nor there anyway.

Similar premises are also generally seen on attacks on the ACA from the left. To argue that the ACA isn’t better than the status quo ante from a progressive standpoint would be ridiculous, so the strategy is to change the baseline and compare the ACA to another alternative. In policy terms, this isn’t challenging, since you could throw a dart at a map of Western Europe and get a health care system preferable to the ACA. But it’s also completely irrelevant, because the choice wasn’t between the ACA and the French health care system but the ACA and nothing or almost nothing. To get around the obvious political reality, left ACA critics smart enough not to argue that Barack Obama could have forced the Senate to pass single payer through such brilliant strategery as promising senators that he would campaign for them in states where he’s enormously unpopular turn to assertions that the American insurance industry was on the verge of collapse before Barack Obama saved it. And, again, this is sheer lunacy. The American health care system circa 2008 was grossly inefficient and disastrous for many Americans, but for the most politically powerful vested interests — insurance companies and their executives, medical professionals, affluent customers, people over 65 — it works perfectly well or better. (To people who confuse American politics with the Oxford debating society, the success of Medicare should make Medicare for all highly popular. In reality, the overwhelmingly conservative white beneficiaries of Medicare are much more likely to take the lesson of “I’ve got mine and to hell with you.”) The American health insurance industry wasn’t going anywhere had the ACA not passed.

And what’s going on with Republican statehouses and the Medicaid expansion should draw a line under that. The typical Republican state politician is willing to turn down huge pots of free money from the federal government to validate the principle that if the working poor get sick it should be left to the Great Market in the Sky to sort things out. To believe in this context that the collapse of the private American health insurance industry was inevitable absent the ACA is to enter a land of fantasia.

Dan Markel

[ 22 ] July 21, 2014 |

Absolutely horrible news about one of the most valuable legal writers in the known blogosphere. R.I.P. and condolences to his friends and family.

Why Didn’t Obama Use the Power of the BULLY PULPIT to Cause the Republican Party to Spontaneously Combust? A Great Historical Puzzle

[ 143 ] July 21, 2014 |

Embedded in a gag about the Obama presidential library that is, how shall I put this, not funny, Thomas Frank has some penetrating questions:

Why, the visitors to his library will wonder, did the president do so little about rising inequality, the subject on which he gave so many rousing speeches?

Well, he accomplished at least one very important thing on this score, but we’ll return to it.

Why did he do nothing, or next to nothing, about the crazy high price of a college education, the Great Good Thing that he has said, time and again, determines our personal as well as national success?

What, precisely? And how?

Why didn’t he propose a proper healthcare program instead of the confusing jumble we got?

Um, because he wanted to pass comprehensive health care reform rather than attempt to impress a minority of pundits, and he understands the elementary point that opening proposals far outside the expected negotiating space are guaranteed to fail? And isn’t this a particularly sound choice, since when the “proper” proposal failed said critics would not give him credit for fighting but accuse him of “making soaring speeches” while doing nothing, which you just did?

Why not a proper stimulus package?

Well, he did — the stimulus package that passed was far larger than those passed by European countries that didn’t have Madisonian institutional constraints or a major party controlled by nihilist fanatics to deal with. I would also observe that while it’s fair to say that Obama had an excessive faith in bipartisanship and the possibility of consensus, his faith pales next to Frank’s, since Frank apparently thinks there were multiple Republican votes in the Senate for a trillion-dollar stimulus.

Why didn’t he break up the banks? Or the agribusiness giants, for that matter?

This is a real puzzle to anyone whose first day paying attention to American politics was today.

Well, duh, his museum will answer: he couldn’t do any of those things because of the crazy right-wingers running wild in the land. He couldn’t reason with them—their brains don’t work like ours! He couldn’t defeat them at the polls—they’d gerrymandered so many states that they couldn’t be dislodged!

The layers of sarcasm in the second sentence act to cancel out any discernible meaning, although I can understand Frank not wanting to come out and say that Republican control of the House is imaginary and/or irrelevant in so many words. On the third sentence, 1)dismissing gerrymandering as a thing would be more persuasive had the Republicans not just retained control of the House while receiving fewer votes, and 2)right, the first Democratic candidate to carry Indiana since Lyndon Johnson has no capacity to defeat right-wingers at the polls.

The Labyrinth of the Grand Bargain, it might be called, and it will teach how the president bravely put the fundamental achievements of his party—Social Security and Medicare—on the bargaining table in exchange for higher taxes and a smaller deficit.

We finally have something that Obama can be fairly criticized for, although suggesting that Obama put Social Security and Medicare “on the table” is highly misleading — Chained CPI is bad policy but it’s not a proposal to end Social Security, as the language seems to imply. Still, the proposed Grand Bargain was a terrible idea and Obama should indeed be criticized for it. I must observe, however, that according to Frank’s logic as there are no real constraints on Obama’s power and the failure of something to pass Congress is evidence that Obama didn’t want it, he couldn’t have really favored it. (Green Lantern critiques are inevitably selective, and proposals that go nowhere are part of Obama’s record only when the proposals are bad.)

There is, however, one core Great Society program that Frank doesn’t mention — Medicaid. If it weren’t retroactively written out of liberalism one might have to conclude that massively expanding the American single-payer program for the poor was a “proper” health care reform policy that addressed a major element of American economic inequality. One might also have to notice statehouses and courts controlled by Republicans and conclude that the constraints they put on federal policy are not figments of Barack Obama’s imagination.

And now, going back a little, the punchline:

In point of fact, there were plenty of things Obama’s Democrats could have done that might have put the right out of business once and for all

Yes, Obama could have caused American conservatism to vanish entirely using his fearsome ability to Bully Pulpit the Overton Window on Steroids, but he didn’t. even. try. That’s the kind of hard-hitting truth the Obama presidential library won’t tell you! In conclusion, Obama is just too naive about American politics and thinks that you can just wish political conflict away.

…more from Kilgore, Boo Man, and No More Mr. Nice Steve.

Dept. Of Corrections, Franklin Pierce Was Horrible Edition

[ 40 ] July 21, 2014 |


The last few weeks, I’ve read What Hath God Wrought by Daniel Walker Howe, an engrossing history of the United States from 1815 through 1848. This is a period known — to the extent that Americans remember much about it at all — as “the Age of Jackson,” but Howe argues that this label is a mistake. America was not so much unified by Jackson as it was polarized in a way (this is my view superimposed on Howe’s history) we would find highly recognizable today. America was split, geographically and sociologically: Red America favored militaristic foreign policy, the maintenance of existing racial and social hierarchy, and fiercely opposed big government; Blue America favored a more restrained foreign policy, a more amicable treatment of racial minorities, and activist government support for economic growth.

The Jacksonians favored the gold standard and believed the Constitution prohibited the federal government from any program not specifically delineated. “I cannot find any authority in the Constitution for making the Federal Government the great almoner of public charity,” declared Zachary Taylor, in terms reminiscent of modern conservative objections to the individual mandate. Blue America was more culturally effete and enamored of public education; Red America suspicious of centralization and steeped in a culture of violence.

As longtime readers know, I agree with Howe and Chait that the Jacksonian Democrats have far more in common with today’s Republicans than today’s Democrats. To this end, I should note that the “great almoner” line was not uttered by the inevitably doomed Spinal Tap drummer Whig president, but Franklin “Kansas-Nebraska” Pierce. I think my list of presidents who were worse than Pierce would include “Andrew Johnson” and “there is no number 2.”

Great Moments In Post-Accountability

[ 46 ] July 20, 2014 |

120713-graham-spanier-jerry-sandusky-2pm.photoblog600There is a passage towards the end of Michael Sokolove’s NYT Magazine cover story about Graham Spanier that is darkly comic if you’ve read the entire article:

Graham Spanier was eager to be interviewed for this article and persuaded his lawyers it was a good idea (or at least won their acquiescence). He wants to tell his story and clear his name. On the first day we were together, he said: “In all of my sleepless nights, really every night for a couple of years, when I was lying in bed, all I was doing was imagining being on the witness stand. I was telling the truth and laying it out there.”

Sokolove implies that it’s unusual that Spanier is enthusiastic about talking to him. For those who have already read Sokolove applying somewhat less of a critical eye to Spanier’s story than Richard Cohen applied to Colin Powell’s UN speech, the mystery will vanish.

Spanier, as most of you know, was indicted on eight counts related to Jerry Sandusky’s serial child molestation. Is it possible that this indictment of a very powerful figure was a baseless product of prosecutorial overreach? Sure, but it should also be clear that the bare assertions of the person under indictment are not very compelling evidence of this. Which is unfortunate, because that’s pretty much all Sokolove has.

It’s frankly a disgrace that this article was published, let alone made a cover story. Much of it is irrelevant padding inserted to bring an article with maybe 500 words of relevant content up to feature length. There’s a lot of material about how tough the indictment has been on poor Graham. There are multiple paragraphs about how Penn State is awesome at doing the things that impress people who issue arbitrary rankings of universities (especially using money to build stuff rather than keeping tuition affordable.) There is the inevitable reminder that whatever else you want to say about the program Penn State football was above average at ensuring that players were exploited according to NCAA specifications. There is a lengthy discussion of whether the NCAA had the legitimate authority to levy sanctions that you may or may not find convincing but is fundamentally irrelevant to whether the indictment of Spanier has a legitimate basis. The space the article devotes to his central thesis — Spanier is the victim of a witch hunt and should be left alone — is instructively small. This is pretty much it:

“This approach is acceptable to me,” Spanier wrote in response. “The only downside for us is if the message isn’t ‘heard’ and acted upon, and we then become vulnerable for not having reported it. But that can be assessed down the road. The approach you outline is humane and a reasonable way to proceed.”

Spanier told me that his meetings about Sandusky were brief, came amid the crush of other university business and coincided with another troubling issue — allegations that a Penn State employee had embezzled money.

“The life of a university president is you have things coming at you all day long,” he said. “It’s one crisis after another, one issue after another.”


Shouldn’t this background have made him more alert to Sandusky even if the reports he heard were nonspecific or couched in euphemism? Shouldn’t he have at least pressed for more information? He said he would have if he had been told more to begin with. “I’m an intervener,” he said. “If I see something going on in the street, in the community, I intervene. . . . If Gary Schultz or Tim Curley had said to me anything about child abuse, sexual abuse, anything criminal, even had hinted about that possibility, of course we would have said something.” The encounter in the shower, he said, was described to him as “horseplay,” which he believes came from Paterno, relating what he heard from McQueary. “I can hear Joe Paterno using that word,” he said. “I don’t think Tim and Gary made that word up. I think Joe used it.”

He said he had no memory of writing the email in response to Curley in 2001, but now regrets that he used the word “vulnerable,” which many have taken to mean that he already knew that something inappropriate or criminal had occurred. “I didn’t,” he said. “I think what it meant was that if he didn’t get the message and stop bringing boys into the locker rooms, we could be open to criticism. Obviously, in retrospect, using the word was a bad choice. But who would think that 13 years later someone would focus in on that one word?”

The shower took place in a coaches’ locker room; Spanier said he was told that it had occurred in one of Penn State’s more public locker rooms. Even so, he said: “We decided we don’t want him bringing kids into the shower again. It doesn’t look good. It doesn’t feel right.”

Spanier is still incredulous that he has been charged criminally. “What does this have to do with me?” he said at one point. “I never saw anything. I never spoke to a kid, a witness, a parent, Sandusky, McQueary, Paterno.”

As Sokolove grudgingly concedes towards the end of the article, the final point is hardly a defense of Spanier’s actions. He was at a minimum informed that Sandusky had not only showered with a young boy he was not related to on a weekend at the university but had engaged in “horseplay.” By his own admission, even under the most innocent explanation Sandusky’s actions were highly unusual and highly inappropriate. And the consequences if the explanation turned out not to be innocent — i.e. that there was a pedophile running a foundation for children at large in the community — were horrifying. And Sandusky, as Spanier seems to have known, had already been investigated once. For Spanier not to have made any effort to follow up with McQueary under these circumstances was certainly morally reprehensible, and it’s entirely possible it was also inconsistent with his legal obligations.

Spanier’s arguments about the word “vulnerable,” which Sokolove seems to buy, are similarly feeble. I’m reminded of a student who complained to a fellow TA after his answer of “Lochner v. NY” to the question of “name a case where the Supreme Court upheld a use of the state police power” was marked wrong — “how can credit for an answer be based on just one word?” A lot is being made of the word because the use of the word is highly damning. How could failing to report Sandusky make one “vulnerable” unless it was wrong?

Sokolove’s other line of defense is windy philosophizing via third parties:

Prosecutors make decisions all the time on whether to bring charges. Some are obvious — body on the street, a man standing over it with a gun. The Spanier case seems less so. He did not ask questions or show any curiosity, and only he knows why. No one went looking for the boy in the shower in 2001 or even tried to find out his name. Maybe Spanier, Schultz and Curley were as squeamish as McQueary and just as afraid to look more closely. Whatever the reasons, they did not cover themselves in glory. Whether that equates to criminal behavior is yet to be determined.

Wes Oliver, a law-school professor at Duquesne, in Pittsburgh, provided television commentary on the Sandusky trial and has been following the proceedings against Spanier. “I don’t even know what guilt means in this case,” he told me. “What exactly does it mean to fail to supervise a former coach who you happen to know brings kids to your campus? What kind of duty exists there? If anything, it’s a sin of omission. There are sins of omission for which people are punished, but I don’t know if that will happen here or if it should happen.”

First of all, Spanier is not just accused of sins of omission. Perjury is a sin of commission, and Spanier is accused of “blatant mischaracterizations to employees, board of trustee members and eventually a grand jury about his knowledge of the situation, most of it refuted by testimony from his own university attorney.” Sokolove has nothing but Spanier’s own word to refute these charges. And second, when it comes to the welfare of children some “acts of omission” are in fact clear violations of Pennsylvania law. Whether Spanier is guilty of violating these requirements has yet to be determined, but it is clearly possible for him to be guilty of a “sin of omission” and to be criminally liable, and I have no idea why it shouldn’t be.

The one serious potential argument raised by Sokolove is the delay in the proceedings against Spanier. This may be a real issue, but it depends on some factors — is the delay unusual by standards of the relevant court? Could it have been caused at least in part by defense motions? Sokolove, although he has time to write the umpteenth paragraph about the bucolic isolation of State College, can’t be bothered to actually address these questions, so it’s impossible to know whether the claim has merit or not. As he does consistently, Sokolove leaves an implication out there but doesn’t do the work to justify it.

Let’s conclude with this:

When I was in State College, Sandra Spanier was just back from Cuba, where she has been involved in restoring Hemingway’s house. “In some ways, my life is still good,” she said. “But you wake up in the morning and you look outside and think, It’s a beautiful day. And then it hits you. It’s still here. This is all still happening. You can’t get away from it.”

And how! Another figure Sokolove doesn’t mention — the 3 million smackers Spanier walked out the door with on top of his many years of high compensation. That will ease the pain. You’d think that this pay should entail more accountability — but for America’s broken elites, that’s somehow never how things work.

JFK Stole the Election But Dick Nixon Let It Go For the Good of the Country!

[ 162 ] July 20, 2014 |

The only problem with this well-worn myth, which is not just advanced by those on the right, is that every underlying premise is false.

The Radio Raheem Award For Deadly Excessive Force

[ 68 ] July 18, 2014 |

Summary execution for suspected cigarette sale would seem to qualify.

Murphy’s Hamdi Botch

[ 68 ] July 18, 2014 |

Last month, a tweep asked me what I thought about arguments made by the National Review‘s Ed Whelan about Bruce Allen Murphy’s new Scalia bio. I had forgotten to look into it, but taking some time to finish the book I came across a dumbfounding passage that I immediately knew must have been the one under discussion.

As many of you already know, Scalia’s dissent in Hamdi v. Rumsfeld is one of his finest hours on the Court, the bizarro version of his Bush v. Gore stay opinion. Scalia, joined by Stevens, argued that as an American citizen Hamdi had habeas corpus rights unless the writ was suspended, a power Scalia’s opinion locates in Congress. That Scalia wrote an opinion cutting against his both his general ideological and partisan preferences because he believed the law bound him to do so in this case was admirable, and the dissent is therefore both interesting in itself and an opinion that anyone writing about Scalia’s jurisprudence needs to pay careful attention to.

Murphy, however, portrays Scalia’s dissent as arguing “in favor of a ‘blank check’ on behalf of total presidential power.” According to Murphy, for Scalia “Hamdi was a traitor who was working with the enemy in times of war, and thus was not afforded [habeas corpus] protections.” (Both p. 319 in my uncorrected proof; apparently, this argument hasn’t been modified in the final version.) Whelan has further grim details, but…it’s every bit as bad as he says. We all make mistakes, but this is like saying that Dred Scott found all state slave codes to violate the 5th Amendment or that Lawrence v. Texas reaffirmed Bowers v. Hardwick. It’s mystifying. (When I read the “blank check” sentence my first thought was that Murphy was confusing Scalia’s Hamdi dissent with his Hamdan dissent, but he quotes from the former directly so that can’t be it.) It’s the kind of mistake that forfeits a reader’s trust.

I didn’t encounter another mistake of this magnitude, but in an extreme form it illustrates why Scalia: A Court of One is a major disappointment as a follow-up to the excellent Wild Bill. Murphy’s Douglas bio had two major advantages: 1)the subject lived an unusually interesting and eventful life for a Supreme Court justice, and 2)we have a lot more access to the inner workings of the Courts Douglas served on that we do of the contemporary Court. Dealing with a subject whose personal life isn’t particularly interesting, a lot of the book is taken up with Murphy’s analysis of what Scalia contributes to the United States Reports, and this really isn’t Murphy’s strong suit. Again, the hash be makes of Hamdi seems to be an outlier, but he’s sometimes shaky on basic concepts (“the Court defers to a state’s laws because a rational person would agree with them” isn’t really what the “rational basis” test means) and even when his doctrinal analysis is unobjectionable it’s pedestrian. So what you’re going to get out of the book depends on how interested you are in Murphy’s extensive discussion of Scalia’s Catholicism and its impact on his jurisprudence, and for me a little goes a long way. It’s a book I expected to be a lot better.

“And Does Someone Have Judy Miller’s Number if the Replacement Doesn’t Work Out?”

[ 128 ] July 18, 2014 |


Ayman Mohyeldin, the NBC News correspondent who personally witnessed yesterday’s killing by Israel of four Palestinian boys on a Gazan beach and who has received widespread praise for his brave and innovative coverage of the conflict, has been told by NBC executives to leave Gaza immediately. According to an NBC source upset at his treatment, the executives claimed the decision was motivated by “security concerns” as Israel prepares a ground invasion, a claim repeated to me by an NBC executive. But late yesterday, NBC sent another correspondent, Richard Engel, along with an American producer who has never been to Gaza and speaks no Arabic, into Gaza to cover the ongoing Israeli assault (both Mohyeldin and Engel speak Arabic).


Despite this powerful first-hand reporting – or perhaps because of it – Mohyeldin was nowhere to be seen on last night’s NBC Nightly News broadcast with Brian Williams. Instead, as Media Bistro’s Jordan Chariton noted, NBC curiously had Richard Engel – who was in Tel Aviv, and had just arrived there an hour or so earlier – “report” on the attack. Charlton wrote that “the decision to have Engel report the story for ‘Nightly’ instead of Mohyeldin angered some NBC News staffers.”

Indeed, numerous NBC employees, including some of the network’s highest-profile stars, were at first confused and then indignant over the use of Engel rather than Mohyeldin to report the story. But what they did not know, and what has not been reported until now, is that Mohyeldin was removed completely from reporting on Gaza by a top NBC executive, David Verdi, who ordered Mohyeldin to leave Gaza immediately.

In fairness, Mohyeldin was naive to think that reporting actual news was a way to advance your career working for a major network newscast.

Comment Section Changes: A Brief Q&A

[ 516 ] July 17, 2014 |

Rather than applying to a bunch individual comments, I thought I’d make a few points as we ponder changes to the comment section.

Q: Why change?

A: Trolls destroy potentially interesting comment threads.  Registration will not eliminate this problem but it will attenuate it.

Q: Why not delete troll comments?

A: In addition to time issues, since even the laziest pro forma trolling is guaranteed to immediately generate several comments deletions destroy comment threads by unraveling the threads.

Q: Why not disemvowel trolls/moderate comments?

A: Send me a check for $60 grand and we can consider this for a year.  Otherwise, I already have a full time job.

Q: Are you going to switch to Facebook commenting? That sounds horrible!

A: No.

Keep the feedback coming!

Getcher Hot Links

[ 6 ] July 17, 2014 |

Things to click on and possibly read:

“And, In Conclusion, KU’s Teams Will Now Be Known As the Kansas Reagans.”

[ 158 ] July 16, 2014 |

Shorter Sam Brownback: “My crazy Democratic opponent thinks that raising taxes is a way to solve the disastrous fiscal meltdown caused by the tax cuts I favored. But everyone knows this solution is insufficiently Reagan because Reagan, and in addition Reagan. Note: this “Reagan” bears no resemblance to the actual Reagan.”

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