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Elena Kagan, Barack Obama, and the American Establishment

[ 105 ] July 21, 2010 |

This article addresses what should be a puzzling question: Why did Barack Obama nominate Elena Kagan to the Supreme Court? Not only has Kagan never been a judge, but, far more problematically, she has over the course of a 25-year legal and political career taken almost no public positions on any significant legal or political questions. This latter fact would, at first glance, seem to disqualify her from consideration for a lifetime appointment to one of America’s most powerful political institutions. That it has not tells us a great deal about deep-seated cultural myths regarding the possibility of separating law from politics, and about the elite institutions that have molded Obama, Kagan, and so many other members of America’s contemporary legal, political, and economic establishment. Ultimately, in one sense Kagan remains, on the eve of her confirmation by the Senate, as much of a blank slate as ever. Yet in another we, like Barack Obama, can venture a good guess regarding what sort of Supreme Court justice she will make. That we can do so reflects both the cultural and ideological power wielded by the elite institutions that are producing the contemporary American establishment, and the relatively narrow range of political views those institutions generate among those who go on to become part of that establishment.

The Elena Kagan story, as presented by both the White House and her supporters throughout the legal world, is that of a brilliant academic and administrative career, whose trajectory has been ever-upward, until it has placed her on the doorstep of the Supreme Court a few months after her 50th birthday. This story is actually a serious oversimplification: Kagan has gotten to her present position despite a series of early career reversals, which culminated in the loss of her position on the University of Chicago faculty, and a brief period in which she was almost frantically scrambling for a job. Her rather abrupt transformation from a soon-to-be unemployed former law professor to dean of the Harvard Law School, and her subsequent ambiguous track record in that position, is a tale that reveals academic politics at their most byzantine. The real story, in other words, is more interesting than the narrative being put forth for public consumption. In some ways it makes Kagan a more attractive figure than the almost robotic paragon of flawless professional advancement concocted by the public relations machine. Over the last few weeks I’ve spoken to a number of former colleagues of Kagan’s in Chicago, Washington, and Cambridge. On the basis of those conversations, as well as the public record, the following story emerges.*

Read more…



[ 11 ] July 21, 2010 |

Glenn Reynolds, breathlessly touting the latest in a series of pathetic no-there-there stories about JournoList at Tucker Carlson’s web rag, buys the claim that “journalists called for Fox News to be shut down” and then asserts:

Stalinist by instinct, aren’t they?

Obvious problem: the story quotes no journalist calling for the closing of Fox News. It did feature a law professor asking a question, which apparently generated not a single response indicating that shutting down Fox News would be a good idea. Heckuva job, Glennie!  Really, Tucker needs to fold up shop; Reynolds has long elevated hackery to an art form.

US and Israel To Avoid Burning (and Mock-Burning) Civilians in Conflict Zones

[ 5 ] July 21, 2010 |

Two good-news stories in the area of compliance with humanitarian norms this week:

First, the US military has revoked the deployment of the Active Denial System, a “less-than-lethal” weapon designed for crowd control, from the Afghan theater. The weapon works by vibrating the molecules below its targets’ skin, inducing the perception of being on fire. Not so surprisingly, the deployment of ADS has been opposed by various people, not least of which were the founders of Wired Magazine. While the DOD’s Joint Non-Lethal Weapons Directorate continues to tout the military utility of its pain beam in stability operations, other members of the defense establishment – notably those who must actually interface with the civilian population in Afghanistan – have a different sense of military necessity and proportionality.

Relatedly, BBC is reporting that Israel has agreed to restrict the use of white phosphorus in future conflicts:

The weapon has been used on battlefields to create cover for advancing troops and to flush infantry out of their positions, but human rights groups say international law bans its use in civilian areas. Burning phosphorus sticks to skin and will continue to burn flesh until the supply of oxygen is cut off.

The Israel Defense Forces used weapons containing white phosphorus during a 22-day assault on Gaza which began in December 2008. In its report to the UN, the IDF said steps would be taken in future to avoid civilian casualties.

The actual report, which I’ve not yet read, is here.

Both these developments are very good signs from a laws of war perspective. Read more…

Fatherhood II: A Couple of Thoughts on Pregnancy

[ 23 ] July 20, 2010 |

Brief note before we continue: No part of this series should be thought of as an authoritative statement about pregnancy, parenthood, or anything else.  Rather, it should be understood as expressive of my own personal reactions to the birth of our children, with associated vague thoughts about those reactions.  With that out of the way…

Before my wife’s pregnancy, I had never been in close proximity with a pregnant woman for an extended period of time. While I had a certain intellectual understanding of what pregnancy entailed, I had no direct, sustained experience of being around a pregnant woman.  Thus, while I had heard of morning sickness and the variety of other ills, I had no sense of the magnitude of disruption that pregnancy itself, as opposed to having actual children, posed.  To be sure, I never doubted the difficulty of pregnancy, but I lacked even second hand experience of its overall impact on a person and on a family.

During the thirty-eight weeks of that experience I learned an overwhelming but profoundly simple truth: Pregnancy sucks. Maybe not all pregnancies suck equally (obviously, Davida was carrying twins), and maybe it’s worth it, but in general I think that the proposition holds. The body expands in a series of different directions, nausea ensues, parts move and never move back, and a variety of pains, aches, discomforts, and inconveniences manifest themselves at various times during the course of the term. Pregnancy presents a tremendous medical problem, the more so because it is apparent that medical professionals do not view the health and comfort of the mother as their central priority. The concerns aren’t ignored, but they’re certainly sacrificed to preserve the health of the fetus. Our doctor explained this to us in blunt terms; I didn’t blame him personally, as he was clearly conveying the profession’s understanding of its responsibilities.  This understanding reaches its unfortunate apogee in extraordinarily appalling cases like this. Pregnancy also takes an inevitable toll on a woman’s professional life (not the least of which results from discrimination, although we were spared any overt discrimination). The time missed is important, but it goes beyond that; pregnancy itself is a time-consuming project, what with the variety of visits to the doctor, planning requirements, and so forth. Moreover, pregnancy often makes other work more difficult by draining energy and focus. We were fortunate enough to know several other pregnant women during the course of my wife’s pregnancy, and the discussions we had tended to confirm the deep unpleasantness of the experience. Most frustrating of all, there seems to be a widespread societal need to deny or ignore the fact that pregnancy tends to be pretty awful; roughly a million people told us how we needed to “save up on sleep, because you won’t get any once the babies are here,” which was deeply frustrating given that Davida was largely unable to sleep for the last month and a half of the pregnancy.  Allowing that many women aren’t really offered much of a choice, I don’t understand why anyone would want to have such an experience a second time.  This shouldn’t be understood as a critique of women who do decide to have two (or three, or four) children, merely astonishment at the willingness to sacrifice.

I had an intellectual sense of all this, but experiencing it first (second) hand really brought the issue into stark relief.  Neither of the following points will be terribly revelatory for any reader of this blog, or indeed for anyone who has gone through such an experience themselves, but nevertheless:

  1. It is deeply troubling that, after enduring nine month of pregnancy, women are still more often than not expected to bear the brunt of child-rearing duties. For women with partners this varies a great deal from marriage to marriage, but there’s no question that, on average, the work of raising children falls more heavily on women than on men. At best, we seem to accept this as a grim reality, and endeavor to develop a division of partnership labor that is as egalitarian as possible. Considered from an original position, however, I suspect that even the most egalitarian of partnerships is shockingly unequal.  A bit more on that tomorrow.
  2. I was resolutely, vigorously pro-choice before this pregnancy, and I am even more vigorously pro-choice now that the girls are born. The freaks outside the local Planned Parenthood typically display (alongside the picture of the aborted fetus) several posters that say “Adopt!” That’s all fine and well, but of course adoption and abortion aren’t equal; the first is deeply disruptive of a women’s life and health, and the second not so much. If anyone ever tries to explain to me that Planned Parenthood is concealing the health risks of abortion, I suspect I’ll punch them in the face. The “emotional damage” argument, in addition to infantilizing women and generally being downright stupid, suffers from a similar flaw; pregnancy itself, not to mention the process of raising children (even if those children are given up) is emotionally quite costly.  Moreover, from what I witnessed the third trimester of a pregnancy is particularly damaging and disruptive, a fact that is rarely if ever discussed in the context of late term abortion.

“Everybody wants something for nothing…I’m old! Gimme gimme gimme!”

[ 84 ] July 20, 2010 |

Although we often focus on what divides us, it’s important to remember that the “we demand Swedish level of social services with Mississippi levels of taxation and we could get it if it wasn’t for all of the waste, fraud and abuse at the state capital!” ethos that dominates American’s suburbs can also be found in the heartland:

Judy Graves of Ypsilanti, N.D., voted against the measure to raise taxes for roads. But she says she and others nonetheless wrote to Gov. John Hoeven and asked him to stop Old 10 from being ground up because it still carries traffic to a Cargill Inc. malting plant. She says the county has mismanaged its finances and badly neglected roads.

Just because I wouldn’t pay for road maintenance doesn’t mean I don’t want magic pixies to provide us with perfectly maintained roads. Damn those bureaucrats in Bismarck!


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“You may run like Hayes, but you hit like shit.”

[ 12 ] July 20, 2010 |

James Gammon, R.I.P.

And since I forgot, allow me also to note the passing of Bob Probert.

What I Ended Up Reading In Between World Cup Matches Abroad

[ 22 ] July 19, 2010 |

Last month during the Greece/South Korea World Cup game, my eight-year-old son noticed the players speaking to one another in English, and asked me: “Mom, is English the official language of soccer?” As with so many of his astute little queries, I didn’t know the answer at the time. But while in Asia, I read three fabulous books that kept bringing me back to this question and finally not only answered it, but helped me see why it matters.

First: How Soccer Explains the World: An Unlikely Theory of Globalization by Franklin Foer: sort of an empirical, if anecdotal, validation of FIFA’s claim that the world’s language is not English, but soccer itself.

This is a great read, if a bit simplistic. I know professors who have their students read this book freshman year, and Jon Western’s discussion of traveling in the Middle East over the past few weeks of WC finals echoes some of Foer’s insights. But Foer doesn’t actually explore the relationship between the English language and the globalization of soccer. Read more…

For What It’s Worth

[ 1 ] July 19, 2010 |

It appears while I was away, my earlier post on shift breaks and human rights was regrettably interpreted by some local readers as a critique of Amherst Coffee, rather than of the absence of federal legislation on shift breaks and its potential connection to smoking habits.

I’ve updated the original post to make my meaning clearer. Read more…

God Doesn’t Want Me to Get Tenure…

[ 10 ] July 19, 2010 |

How can I expect to prevail in the face of this?

Fatherhood I: The Health Care Bit

[ 17 ] July 19, 2010 |

Friday will be the girl’s first birthday, and in honor of one year as a parent I thought that I would toss together a few things I wrote on the topic (some from way back) and try to make a series of it.  The first installment has to do with health care; the wife’s pregnancy was the first time that I had to deal at length with America’s health care bureaucracy. We also had to deal with the fact that my wife changed jobs shortly before the birth of the girl’s, meaning that we needed to shift between health care providers. This post is more about health care than fatherhood per se, but the experience of having kids brought me to a series of revelations about our health care system.

So, last June I was a more or less happy human being with health care supplied by the University of Kentucky.  We knew that my wife would soon leave her job, and we knew that pregnancy often involves a variety of health complications, so I decided to change from the cheap-but-adequate plan to the expensive-but-a-good-idea-if-you-might-get-sick plan.  I discovered in the process of making this change that, because of a computer error, I’d actually been uninsured for about a year.  Fortunately, I failed to get sick.  In any case, I filled out the form and added Davida to the plan.  When the little dependents arrived, I added them to the plan.  Shortly after the LIFE CHANGING EVENT, we moved to Baltimore for the wife’s new job.  The insurance plan offered by the University of Maryland was marginally better than the long distance plan offered by UK, so we switched the wife and kids to UM, while I stayed at UK.  This required numerous additional forms.  In January, we moved back to Ohio, and switched back to the UK plan, incurring reams of additional paperwork.  Finally, in May we arrived at the “Open Enrollment” period at UK, in which I was able to change from the super-expensive plan back to the reasonably-priced plan.

Now, all of this sounds reasonably easy and straightforward; however, anyone who’s ever actually dealt with the multiple bureaucracies that make up the US health care system understand that the story could never be so simple.  Every change involved negotiation with at least two, and often three, bureaucracies.  The first interactions with UK were difficult, but went very well once someone at UK HR took an interest in our case and effectively became an advocate.  This person (who deserves nothing but our eternal thanks) really went the extra-mile, giving out her office phone number so that we could have pharmacists call her in order to find out how much our prescriptions should cost.  Had we not been so fortunate in finding someone interested in helping us out, we might have been in real trouble.

We had lots of other interactions with these bureaucracies, and not all of them went as smoothly as the UK…

Trying to get ahold of your insurance company means negotiating a bewildering maze of phone trees and webpages.  I use Humana, but I don’t have any reason to believe that any other insurers are any different.  The key point to remember is that your insurance company DOES NOT want to talk to you.  Maintaining a call center is expensive, and the company will undertake whatever means it can in order to force you onto an automated system or, barring that, attrite you into submission.  Moreover, the question you have, if answered properly, might cost the company money.  This is bad, and the insurance company is going to do its darndest to make it difficult for you to get the information you need.  On a couple of occasions I was forced to repeatedly enter my policy ID# in order to move on to the next phone tree, all with the carrot of a “patient care representative” dangling in front of me.  At one step, the system insisted that I verbalize my ID#, birth date, and zip code. No matter how clearly I said any of these, I was then forced to punch them into my phone keypad.  I was told at one point to represent any letters in my ID# with the star key.  I was then dragged through the agonizingly slow process through which the automated system tried to figure out exactly what letter a star represented (“Press 1 for G.  Press 2 for H.  Press 3 for I”).  At another stage in the phone tree, the automated voice refused to accept any number I pressed before it was done speaking.  If I made the error of pressing a number before the sentence was finished (and the robot, for some reason, favored long, pregnant pauses), then the system would stop for about 15 seconds before telling me that it didn’t understand what I was trying to say.  It would then repeat its entire spiel.  When you finally reach “waiting for the next patient care representative” stage, you are invariably treated to ridiculously terribly music punctuated by a voice patiently explaining how useful the website or the automated system would be, with the implication that you’re a moronic ingrate for needing an actual operator.  On one occasion, I made it through the phone tree only to be told that the call center was closed.

Perhaps my favorite roadblock was on the (otherwise useless) Humana website.  Shortly after creating your account, the website insists that you read a series of statements about the confidentiality of your health care, and that you click “I agree” at the bottom of each statement.  If you don’t scroll down and read the entire statement, it refuses to let you move on.  Ingeniously, one of the statements didn’t show any scroll bars on the page.  It simply didn’t allow you to move forward.  Clicking on “I agree” only makes you more angry, with the eventual (I assume) purpose that you will hit your keyboard so hard that your computer will break, thus saving the insurance company any additional difficulty.

None of this is accidental.  The point is to irritate and confuse the customer so much that he or she eventually hangs up.  It works, too.  We would all like to think that we have the wherewithal to fight through the system, but often we don’t.  We run short of phone minutes, or we get another call, or we have to do any one of the myriad things that amount to normal, everyday life, and we end up hanging up.  This is what the insurance company calls “a win.”

So, all of that was pretty frustrating.  Living through the experience made the health care debate (“People in Europe have to wait!  In the emergency room!  For service!”) some combination of surreal and absurd.  Of course, nothing about the health care bill that we actually passed does anything to solve any of this.  I can say, however, that if I ever had the choice, I would absolutely leap at the prospect of a public option program; the state bureaucracies were invariably easier to deal with than the private ones.  I suppose if there was real competition with a public option the private programs might get better, but I can’t say for sure.

I should also note that I appreciate how fortunate we were to actually have jobs, and for those jobs to have decent enough health care programs.  I cannot imagine having done all of this without the level of security that even…. complicate coverage provides.  We got the drugs we needed, were able to take the girls to the doctor when we needed to, had Elisha’s helmet (mostly) paid for, and so forth.  Taking the girls to the doctor was never a difficult choice for us, as it is for some.  When we were concerned about Miriam’s weezing and barfing, we were able to take her to the emergency room without worrying too much about paying for it.  All of that was (and is) nice, but it doesn’t require the infuriatingly complicated system that we currently have.  I don’t think that we properly factor the complication, aggravation, and genuine irritation of that program into the costs of the system that we currently have, in part because it’s so hard for Americans to properly imagine a different system.

Dick Cheney robot heart watch

[ 21 ] July 19, 2010 |

Evidently, the man no longer has a pulse, thanks to the new $200,000 continuous-flow Left Ventricular Assist Device (LVAD, image here) that Americans have generously purchased for the vasculopathic former VP. For the chronic gambler in your family, the following information may or may not be relevant:

Dr. [O.H.] Frazier [who did not perform Cheney’s implant] said he had implanted a total of 170 such pumps as of June 1, more than any other surgeon. Of those, 24 were in patients 65 and older and 11 of the 24 were in patients older than 70. The oldest was 76. Nine of the 24 have died, and seven of the nine did not leave the hospital. Six of the 15 survivors received heart transplants. The remaining nine are living with the pump. The longest survivor at his hospital had an implant in his 30s and has lived five and a half years.

Cheney’s options at this point are:

  1. Live with the new pump forever, so to speak.
  2. Throw his 69-year-old name into the pool for a human heart transplant.

A randomized trial in the New England Journal of Medicine recently put the odds of surviving 2 years with a continuous-flow LVAD at about 58 percent.  European researchers have found similar results, with one study finding that nearly 70 percent of patients last until “transplantation, recovery or ongoing device support” (though the results of that paper are a little trickier to interpret, since a significant percentage of patients received a device within 6 months of the study’s conclusion.)  Best I can tell from scanning the published research, most patients receive an LVAD (continuous-flow or pulsatile) with every intention of eventually receiving an actual heart transplant, though it’s not uncommon for LVADs to be used as “destination therapy” (i.e., a permanent fix).

And in case anyone is wondering, if Cheney did eventually receive a transplant, the organ would come from the Extended Criteria/Alternate Donor list, which means he wouldn’t be redirecting one from the waiting chest cavity of a 20-year-old.  Though he’d probably do that if he could. Actually, what I wrote earlier doesn’t seem to be entirely correct; the use of EC-AD lists seems to depend on the center doing the transplant.  Regardless, it looks like Cheney would likely be a terrible candidate for a new heart mainly due to his age; the upper limit for those seems to be around 72 years old, and given Cheney’s history of health problems (including kidney malfunctions, aneurysms in his knees, high cholesterol, hot dog fingers, etc.), it would take an especially optimistic surgeon to see Cheney lasting more than a few months with a new heart (and even less so for one drawn from an extended criteria list).

Even so, if/when Cheney croaks on Obama’s watch, we can look forward to a whole new species of wingnut paroxysm.

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“Decent Attempt”?

[ 16 ] July 19, 2010 |

As any Mets or Giants fans among our readership are aware, Phil Cuzzi put on an umpiring display of the kind I haven’t seen since the late Charlie Williams left the game.   Well, actually, it was worse; it sort of combined Williams’ seemingly random strike zone and safe/out calls with Joe West’s even temper.     The culmination was a ludicrously blown call at the plate on what should have been the winning run for the Giants.    What makes it really special is the justification, which takes attempts to justify the de facto “every play is a force play” rule employed by lazy umpires to a whole new level:

Cuzzi said that he had not yet seen the replay. “I’ll look at it, but I figured I’d eat first,” he said, laughing.  “He made a decent attempt to put the tag on him. That’s what it looked to me, and that’s why I called him out.

What is this, a t-ball game?   “Well, OK, the runner was actually all the way across the plate by the time the tag went down, but Henry just tried so hard to rescue that awful throw!   I couldn’t let him down!”   Christ.
And, yes, Cuzzi is the same clown who made that ridiculous foul call in the Twins/Yankess ALDS game last year. I actually think there are good reasons (in terms of flow) to be skeptical about increased replay in baseball, but it would help if there was actually some accountability.   I really have no idea how Cuzzi keeps his job.