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Thank You John Roberts!

[ 41 ] November 4, 2014 |

A good analysis of how many people have been denied access to medical care because of a ludicrously irrational Supreme Court decision:

In 2012, the Supreme Court ruled that a cornerstone of the Affordable Care Act — its expansion of Medicaid to low-income people around the country — must be optional for states. But what if it had ruled differently?

More than three million people, many of them across the South, would now have health insurance through Medicaid, according to an Upshot analysis of data from Enroll America and Civis Analytics. The uninsured rate would be two percentage points lower.

Today, the odds of having health insurance are much lower for people living in Tennessee than in neighboring Kentucky, for example, and lower in Texas than in Arkansas. Sharp differences are seen outside the South, too. Maine, which didn’t expand Medicaid, has many more residents without insurance than neighboring New Hampshire. In a hypothetical world with a different Supreme Court ruling, those differences would be smoothed out.

Fortunately, now that the Roberts Court has stood up for the Equal Sovereign Dignitude of the states and heightened the contradictions, freeing the poor from the burden of what might even be the ultimate evil of private health insurance, I would expect Tennessee and Texas to have single payer health care any year now.

Two Bad Tastes That Taste Worse Together

[ 40 ] November 3, 2014 |

An elected judiciary is a bad idea. An elected judiciary with virtually no campaign finance restrictions is an even worse idea. Charles does an excellent job of explaining why. Let me add this:


Varieties of Exploitation

[ 127 ] November 3, 2014 |

This account of Jian Ghomeshi’s dismissal from the CBC is fascinating and chilling reading. It’s not just that he apparently thought he could bully his CBC superiors like they were 21-year-old journalism students. What’s worse is that I suspect that in his infamous Facebook non-apology he was lying to himself but not to others — that he very sincerely believes he did nothing wrong. One of the striking things about his victims is that not a single one was in any kind of negotiated BDSM relationship with him. He was just entitled enough to think that if a woman consented to enter his house or kiss him they were therefore consenting to being punched in the face or slapped or choked to the point where one “gagged, couldn’t breathe, and felt she would vomit” without warning (let alone consent.) (Stepped Pyramid’s comments about the “kind of dime-store Bukowski worldview where degradation and desperation equal authenticity, and frustrat[ation] by the idea of treating their sexual partners as equals” seem relevant here.)

It’s probably not surprising, in light of this, that his treatment of unpaid interns involved rank economic exploitation even when they didn’t involve sexual harassment. His parting words to an unpaid intern who never saw the CBC offices and decided she no longer wanted to run personal errands and clean his house without compensation was particularly priceless:

My final interaction with him occurred when he was surprised I was leaving his apartment to go to a paying job. “What kind of future does catering give you?” followed by, “Is that all you care about, money?” Did he think helping him pack a suitcase was a bigger priority for me than eating? In my experience Jian was cordial and nice but entitled.

“WHY DO YOU WANT MONEY SO YOU CAN BURN YOUR GAMEBOY IN YOUR VCR YOU MINDLESS CONSUMER DRONE? Do you want to be like quintessential preppy Wall Street Republican Pat Buchanan? Now have clean my toilets and pick up my dry cleaning for free and maybe you’ll be authentic enough to move to Cuba. I will, ah, meet you there.”

Moxy Fruvous – Stuck In the 90s from Tim Hamilton on Vimeo.

I promise not to inflict that one you until the next time I inflict it on you. But I find it fascinating because while normally being a good/bad person and making good/bad art have little to do with each other, in this case his bad art provides a retrospectively excellent indicator of what makes him a bad person — a poseur and self-serving hypocrite. As a rule, if someone’s idea of heaven is country made of of people just like himself, you probably want to run very quickly in the other direction.

Great Moments In Authoritarianism

[ 41 ] November 2, 2014 |

I’m teaching Redding v. Safford School District tomorrow.   As many of you know, this was the the 2009 case in which the Supreme Court ruled the strip search of a 13-year-old girl based on an uncorroborated accusation that she possessed prescription ibuprofen unconstitutional.  One amazing aspect of the case was the response of various school authorities — i.e. to complain that it would have a “chilling effect” on their ability to perform arbitrary strip searches for drugs. Er…what’s supposed to be the problem here again?  And then there was the Clinton-appointed 9CA judge who took us on a funhouse mirror tour of authoritarian illogic, arguing that each search of Redding that didn’t turn up anything justified subsequent searches.  Everything about the case was a window into the ability of the War (On Some Classes of People Who Use Some) Drugs to act as a solvent dissolving civil liberties in their wake.  The extent to which some people were willing to go to in order to justify strip-searching a 13-year old girl based on accusations (that were neither corroborated nor particularly credible) she was guilty of a trivial offense was remarkable.

I’m also teaching National Treas. Emp. Union v. Von Raab,  a particularly poor Kennedy opinion upholding the suspicionless drug searches of Customs Service officials. I know I’ve quoted from Justice Scalia’s dissent before, but since it’s my damned blog and they’re among my favorite passages in the United States Reports, I will again:

I decline to join the Court’s opinion in the present case because neither frequency of use nor connection to harm is demonstrated, or even likely. In my view, the Customs Service rules are a kind of immolation of privacy and human dignity in symbolic opposition to drug use.


To paraphrase Churchill, all this contains much that is obviously true, and much that is relevant; unfortunately, what is obviously true is not relevant, and what is relevant is not obviously true. The only pertinent points, it seems to me, are supported by nothing but speculation, and not very plausible speculation at that. It is not apparent to me that a Customs Service employee who uses drugs is significantly more likely to be bribed by a drug smuggler, any more than a Customs Service employee who wears diamonds is significantly more likely to be bribed by a diamond smuggler — unless, perhaps, the addiction to drugs is so severe, and requires so much money to maintain, that it would be detectable even without benefit of a urine test. Nor is it apparent to me that Customs officers who use drugs will be appreciably less “sympathetic” to their drug interdiction mission, any more than police officers who exceed the speed limit in their private cars are appreciably less sympathetic to their mission of enforcing the traffic laws. (The only difference is that the Customs officer’s individual efforts, if they are irreplaceable, can theoretically affect the availability of his own drug supply — a prospect so remote as to be an absurd basis of motivation.) Nor, finally, is it apparent to me that urine tests will be even marginally more effective in preventing gun-carrying agents from risking “impaired perception and judgment” than is their current knowledge that, if impaired, they may be shot dead in unequal combat with unimpaired smugglers — unless, again, their addiction is so severe that no urine test is needed for detection.

What is absent in the Government’s justifications — notably absent, revealingly absent, and, as far as I am concerned, dispositively absent — is the recitation of even a single instance in which any of the speculated horribles actually occurred: an instance, that is, in which the cause of bribetaking, or of poor aim, or of unsympathetic law enforcement, or of compromise of classified information, was drug use.

If only Scalia consistently heeded his own powerful words in his subsequent Fourth Amendment jurisprudence.

The Pernicious Myth of the Moderate Republican

[ 142 ] November 1, 2014 |

There was a lot of interesting discussion in last week’s “is New York New York City + Alabama” thread. Before moving on to my broader point, let me address a couple specific issues:

  • I obviously understand that the assertion that upstate New York is like Alabama is a rhetorical exaggeration.  It nonetheless fails on any possible level on which it could mean anything.  The “Pennsyltucky” line is an obvious exaggeration, but there’s at least some truth the label is getting at — the non Philadelphia/Pittsburgh parts of the state are solidly Republican, solid enough that Romney could come within 5 points of Obama and Republicans like Rick Santorum and Pat Toomey can win statewide federal office.  In New York, conversely, Obama carried the counties outside of NYC/Long Island/Westchester/Rockland/Putnam by a margin greater than his national share of the vote.  So the assertion that upstate is like the South either has to be scaled back to utter silliness and/or banality that describes pretty much every state in the union (“upstate New York is more conservative than Manhattan!” “Except for the many liberal areas, upstate New York is conservative!”), or it’s simply wrong.
  • It is absolutely true that there is a substantial problem with residential segregation in the urban areas of upstate New York.  The idea that residential segregation is an “upstate” problem, however, might be the most ridiculous example of urban provincialism since the NYT Styles section assumed that tattoos and yoga studios are unique features of exotic Brooklyn.  As it happens, both Buffalo and Syracuse are top 10 metro areas in terms of black/white segregation…and both trail New York City, which is #3 in the country (just behind Milwaukee and Detroit, but worse than Chicago.)  Stay for next week’s lecture, “not everyone who voted for Guiliani or rioted against busing in South Boston is a racial egalitarian,” at least if your system can handle the shock after you found out that the Easter Bunny isn’t real.

Transparently erroneous factual claims aside, there’s another question about whether there’s any value in describing Obama as really a “moderate Republican from the 80s” rather than the “moderate liberal Democrat” he in fact is.  I cannot tell a lie: the most valuable pundit with space on a major op-ed page went back to this well recently:

It’s an amazing thing: Obama is essentially what we used to call a liberal Republican, who faces implacable opposition from a very hard right. But Obama’s moderation is hidden in plain sight, apparently invisible to the commentariat.

I still don’t see it. Just like the claim that upstate New York is like Alabama, it’s either meaningless, or it’s false.

Saying Obama is like a “liberal Republican” can mean a couple of different things. It could refer to a long-ago period in which American party affiliations were so loose that some actual northeastern liberals were Republicans. In this sense, describing Obama as a “liberal Republican” isn’t exactly false but it’s also completely irrelevant and meaningless. So Obama is a “Nelson Mandela Republican” in the tradition of Bob LaFollette and John Bingham, what does this tell us about his politics that “Obama is a moderate liberal Democrat” doesn’t? Nothing. If we move it up and compare Obama to moderate Republicans of the 80s, the claim might have some bite, but the problem is that it becomes false — misleading about Obama and far too charitable to moderate Republicans. Remember, for example, that even John Chafee’s decoy health care alternative didn’t have a Medicaid expansion in it. Moderate Republicans of the 80s could live with the basic parameters of the New Deal, but they certainly didn’t want to expand major federal programs for the poor. They wouldn’t have wanted a new consumer protection bureau or to tighten regulation on Wall Street or appointed pro-labor officials to the NLRB.

This rhetorical move is similar to comparing the ACA to the Heritage Plan even when you know that they aren’t similar — the idea is to rebut claims that Obama or his policies represent some kind of radical leftism. But outside the very narrow context of making fun of the ad hoc constitutional challenge to the individual mandate, I just don’t see the value. First of all, it’s simply false. And I don’t see any rhetorical advantage to be gained from the lie. If it was intended to stop Republicans from attacking the ACA as a radical far-left takeover of ONE-SEVENTH OF THE NATIONAL ECONOMY, it’s been a massive fail. And the myth of moderate Republicans it perpetuates serves to obscure what the actual Republican offer on health care has always been: nothing. Nuts to this kind of defensive crouch. Democrats want to insure the uninsured; Republicans want them to suffer. That’s the point that should be made, not “don’t be mad at the ACA! It’s really kind of Republican! Stop making fun of me!”

Obviously, the description of Obama is a moderate liberal is more complicated. The ACA is far better than the status quo ante and a major liberal accomplishment, while some elements of Obama’s record are solidly liberal and some aren’t. But the same thing is true of LBJ and FDR, and nobody would think to say that they were really “what used to be called liberal Republicans” or whatever. It’s a bad, pernicious argument. Obama’s not any kind of Republican; he’s squarely a part of the New Deal/Great Society tradition of the Democratic Party, the end. There’s nothing to be gained by pretending otherwise.

The Senate

[ 35 ] November 1, 2014 |

It doesn’t look good, although not entirely hopeless. Sam Wang on how to watch Election Night. And all the best of health to Ruth Bader Ginsburg and Stephen Breyer.

The First Look Mess

[ 99 ] October 31, 2014 |

I never really understood what Pierre Omidyar was doing with his non-Intercept project, which seemed to involve hiring interesting writers and not letting them write anything. Now we know:

Matt Taibbi, who joined First Look Media just seven months ago, left the company on Tuesday. His departure—which he describes as a refusal to accept a work reassignment, and the company describes as a resignation—was the culmination of months of contentious disputes with First Look founder Pierre Omidyar, chief operating officer Randy Ching, and president John Temple over the structure and management of Racket, the digital magazine Taibbi was hired to create. Those disputes were exacerbated by a recent complaint from a Racket employee about Taibbi’s behavior as a manager.

The departure of the popular former Rolling Stone writer is a serious setback for First Look in its first year of operations. Last January, Omidyar announced with great fanfare that he would personally invest $250 million in the company to build “a general interest news site that will cover topics ranging from entertainment and sports to business and the economy” incorporating multiple “digital magazines” as well as a “flagship news site.”

One year later, First Look still has only one such magazine, The Intercept.

It’s obviously hard for an outsider to judge. It obviously wouldn’t be the shock of the century if Taibbi had gender-related management issues, and it certainly sounds like the meddling from upper management was intolerable:

Taibbi and other journalists who came to First Look believed they were joining a free-wheeling, autonomous, and unstructured institution. What they found instead was a confounding array of rules, structures, and systems imposed by Omidyar and other First Look managers on matters both trivial—which computer program to use to internally communicate, mandatory regular company-wide meetings, mandated use of a “responsibility assignment matrix” called a “RASCI,” popular in business-school circles for managing projects—as well as more substantive issues.

Ugh. Hopefully Alex Parene will be employed by someone who’s actually paying him to write things soon.

Vote Suppression Laws Suppress Vote

[ 22 ] October 31, 2014 |

How about that — racially discriminatory poll taxes have the effect of stopping eligible voters from voting:

A Texas voter ID law considered to be one of the most restrictive in the country is doing exactly what Supreme Court Justice Ruth Bader Ginsburg warned it would do: stopping Americans from voting.

A disabled woman in Travis County was turned away from voting because she couldn’t afford to pay her parking tickets. An IHOP dishwasher from Mercedes can’t afford the cost of getting a new birth certificate, which he would need to obtain the special photo ID card required for voting. A student at a historically black college in Marshall, who registered some of her fellow students to vote, won’t be able to cast a ballot herself because her driver’s license isn’t from Texas and the state wouldn’t accept her student identification card.

There are plenty of stories like this coming out of Texas in the early voting period leading up to Election Day. Texas’ tough voter ID law, signed by Gov. Rick Perry in 2011, requires voters to show one of seven types of photo identification. Concealed handgun licenses are allowed, but college student IDs are not, nor are driver’s licenses that have been expired for more than sixty days.

Republicans will stop at nothing to stop imaginary voter fraud, except anything that might affect significant numbers of Republican voters.

The Roots of a Disaster

[ 52 ] October 31, 2014 |

Path dependence in Mississippi:

Where they existed, public services were sparse and utterly segregated. Anything public had to be kept separate from blacks, or degraded, if that wasn’t possible. To get a sense of the scale of white resistance in Mississippi, consider this: During the civil rights movement, white supremacists built a network of state and private agencies to wreak havoc on black activists with surveillance, economic reprisals, and extreme violence. One of them was the Mississippi Citizens Council, and it, writes historian Joseph Crespino, “[P]oliced a white racial authoritarianism that ran roughshod over the civil and political rights of white and black Mississippians both. Because of the Council’s influence, no place in the United States … came closer to resembling the repressiveness of apartheid South Africa than did Mississippi.”

More than a half-century later, and all of this is dead. But the ideas and culture it built are not. And why would they be? For nearly a 100 years, Mississippi was a white supremacist police state. Of course this made a mark on its culture. Of course these ideas of exclusion—and specifically, of racial hostility to outside interference and public goods—are still embedded in the structure of its politics.

Today, Mississippi is politically polarized along racial lines. Whites are Republicans, blacks are Democrats, and the former controls state politics. Public investment isn’t just disdained, it’s attacked as racially suspect.

Which makes it all the more awesome that one of our two major parties is currently organized around the principle of bringing the Mississippi Miracle to the rest of the country.

Look, You Can’t Pretend To Care About Trivial Problems Without a Lot of Abuse Directed Almost Exclusively At Women

[ 48 ] October 30, 2014 |

Shorter Christina Hoff Summers: “It’s about ethics in gaming journalism.”

Easy For You To Say

[ 31 ] October 30, 2014 |

Since Michelle Martin’s excellent essay produced expected victim-blaming reactions, it’s worth noting that Anna North is also excellent on the question of why victims of this kind of abuse feel they can’t come forward:

“Each of the women accusing Ghomeshi cite the case of Carla Ciccone as a reason they desire anonymity. Last year Ciccone wrote an article for the website XOJane about a ‘bad date’ with an unidentified, very popular Canadian radio host whom readers speculated to be Ghomeshi.

“In the days that followed, Ciccone received hundreds of abusive messages and threats. An online video calling her a ‘scumbag of the Internet’ has been viewed over 397,000 times.”

In her 2013 XOJane piece, Ms. Ciccone writes that a man she calls Keith, who “has a successful radio show in Canada,” repeatedly tried to touch her when they went to a concert together, even after she asked him to stop.

Those who speak up about sexual harassment or violence have long been subject to public scrutiny and criticism. But an onslaught of online abuse and threats has become a strikingly common response to women’s public statements — see for instance the threats Anita Sarkeesian and others have received when they speak publicly about misogyny in video games.

Brianna Wu, a game developer, details her harassment in an essay at XOJane, describing death and rape threats as well as threats to her career:

“They tried to hack my company financially on Saturday, taking out our company’s assets. They’ve tried to impersonate me on Twitter in an effort to discredit me. They are making burner accounts to send lies about my private life to prominent journalists. They’ve devastated the metacritic users’ score of my game, Revolution 60, lowering it to 0.3 out of 100.”

Of the effects of this abuse, she writes:

“I woke up twice last night to noises in the room, gasping with fear that someone was there to murder me. I can barely function without fear or jumpiness or hesitation. I’ve been driven from my home. My husband says he feels like he’s been shot.”

It’s easy for armchair warriors who aren’t in this kind of vulnerable position to demand courage from others. Easy, and wrong, and deeply offensive.


A Partial Defense Of Martha Coakley

[ 35 ] October 30, 2014 |

Brother Pierce makes two eminently fair points here. First of all, while there’s no excuse for a Democrat losing a statewide election for federal office in Massachusetts, Republican governors have been more the exception than the rule in the Bay State. So, it’s entirely possible that she’s running a decent campaign this time in a way she didn’t in 2010; Charles says she is and I’m obviously in no position to contradict him.

In addition, none of my previous snark should be construed as an argument that Democrats should abandon Coakley or reflect any sympathy for the Globe endorsing her opponent. As Tomasky said in re: the 2000 campaign:

Second, some voted for Nader because they just weren’t inspired by Gore personally. Fine. But it should be obvious today that a candidate’s personality is one of the last things serious people ought to be thinking about…And that’s only the stuff you hear about. In every agency of government, at every level, there are political appointees who are interpreting federal rules and regulations and deciding how much effort will really be put into pursuing federal discrimination cases, for instance, or illegal toxic dumping. These are the people who are, in fact, the federal government. The kinds of people who fill those slots in a Democratic administration are of a very different stripe than the kinds who fill them during a Republican term, and the appointments of these people have a bigger effect on real life than whether Al Gore sighs too heavily or speaks too slowly.

Yes, yes, the stakes are lower in a state election. But a lot of people get hurt when Republicans are in charge of enforcing laws even if a Democratic legislature can limit the statutory damage.

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