Relevant and even prescient commentary on news, politics and the economy.

The Public Learns Disaster Relief Was Etched Out of the Sketch. Uh-Oh.

MITT ROMNEY: “Every time you have an occasion to take something from the federal government and send it back to the states, that’s the right direction. And if you can go even further, and send it back to the private sector, that’s even better. Instead of thinking, in the federal budget, what we should cut, we should ask the opposite question, what should we keep?”

DEBATE MODERATOR JOHN KING: Including disaster relief, though?”

ROMNEY: We cannot — we cannot afford to do those things without jeopardizing the future for our kids. It is simply immoral, in my view, for us to continue to rack up larger and larger debts and pass them on to our kids, knowing full well that we’ll all be dead and gone before it’s paid off. It makes no sense at all.

Republican primary campaign debate last year

Slate’s Matthew Yglesias points to that today andcomments:

More prosaically, though the Romney campaign was understandably circumspect over the weekend about his spending plans the fact is that his overall budget requires sharp cuts in everything. The central issue is that Romney wants to cap government spending at 20 percent of GDP while boosting military spending to 4 percent of GDP and leaving Social Security harmless. That means a 34 percent across-the-board cut in other programs according to the Center on Budget and Policy Priorities. Unless, that is, Medicare is also exempted from the cuts in which case you’d need a 53 percent cut. …

If a storm damages basic physical infrastructure (power lines, bridges) and imperils human life it would be the height of penny-wise, pound-foolish thinking to suppose that the afflicted area should wait months or years to repair the damage. Ultimately, anyplace is going to go back to robust wealth creation faster if basic stuff gets fixed up faster. But that requires financing by an entity capable of rapidly financing expensive projects—i.e., the federal government. Left to its own devices a storm-ravaged Delaware or Louisiana is going to be squeezed between balanced budget rules and falling sales tax receipts and be forced into an increasing state of dilapidation.

How about a storm-ravaged Florida?  According to current polls, slightly more than half of Florida voters want their state to take over disaster relief, at least until arrangements can be made for the private sector to take it over.

And, about that question Romney asked: What should we KEEP?  Well, in addition to the Bush tax cuts for the wealthy and defense spending for private contractors, what DOES Romney think we should keep?

We cannot – we cannot afford to do things like disaster relief without jeopardizing the future of our kids.  We CAN, though, afford to give massive additional tax cuts to the wealthy, and huge additional contracts to Republican defense contractors, without jeopardizing the future of our kids.  Right?

What’s truly unconscionable is that it’s taking Hurricane Sandy to educate the public about the plans Romney and Ryan have stated so clearly.  I’ve been utterly unable to understand why the Obama campaign hasn’t been running video clips of Romney’s primary-campaign statements as the foundation of their ads.  I’ve thought all along that this is all Obama would need to do in order to win.  I think Sandy will prove me right.

And, here’s a shout-out to New York Time columnist Bill Keller for exposing for the absurd myth that it is the punditry’s “in” refrain that we don’t know what either of the two candidates would use the office to do in the next four years, because, well, neither has specified sufficiently.  As Keller says, actually both have specified sufficiently. 

And Romney’s already begun to reverse-sketch his etchings.  Suffice it to say that he’s not spent the last week promising “BIG CHANGE” because he plans to etch out of his sketch all those primary-campaign promises. 

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The Quiet Fact That Obama Should SHOUT About

Two articles published late yesterday in the New York Times, when juxtaposed with each other, pretty much encapsulate my frustration with this campaign.  One, titled “New Federal Rules for Debt Collectors,” by Edward Wyatt, reports:

Debt collection agencies, whose sometimes aggressive tactics have earned them scrutiny from consumer protection groups and state regulators, will come under federal supervision for the first time beginning Jan. 2, when the Consumer Financial Protection Bureau begins oversight.

The next several paragraphs of the article say:

In addition to companies that specialize in collecting money from consumers for personal, family or household debt, the consumer bureau will begin monitoring debt collectors that contract with the Education Department to collect overdue student loans. The department has more than $850 billion in student loans outstanding, officials said.

“Millions of consumers are affected by debt collection, and we want to make sure they are treated fairly,” Richard Cordray, the director of the consumer bureau, said in a statement issued before the public release of the bureau’s rules on Wednesday. “We want all companies to realize that the better business choice is to follow the law — not break it.”

The authority to oversee debt collection agencies comes under the portion of the Dodd-Frank regulatory law that deals with so-called nonbank financial companies.

The consumer agency will examine companies to ensure that they properly identify themselves to consumers and properly disclose the amount of debt owed. In addition, collectors must have a process to resolve disputes and communicate “civilly and honestly” with consumers.

Wow, I said to myself when I read the article last night.  Obama will mention this when he campaigns in Ohio, in Virginia, in Nevada.  Especially, please, in Ohio and Nevada. And all of us who are on the “list-serve” of the campaign will receive notice of the article.  Or at least of the fact that the article is about.

But we didn’t.  Instead, we received a lot of stuff about the Mourdock controvery and about Romney’s refusal to withdraw his support of Mourdock.  Which was fine, but not to the exclusion of the subject of the Wyatt article.

Wyatt is not a political reporter or pundit.  He’s a hard-news reporter, and in that article he reported hard facts.  Katharine Q. Seelye, who wrote the other Times article that got my attention, is a political reporter.  Her article is titled “Crucial Subset: Female Voters Still Deciding,” and it focuses on what she terms “waitress moms.”  Seelye’s report is from New Hampshire.

Indeed.  What Obama needs most in swing states such as Ohio, Nevada, Virginia and New Hampshire is to have white so-called working-class voters—men and woman—step into the voting booth and quietly, maybe even suddenly, decide to vote for him.  And the way to do that, at least with respect to those whose main concern is their own precarious economic situation, is to highlight concrete facts that actually could matter all-too-concretely in their lives. 

Like the Consumer Financial Protection Bureau and other important legislation and regulations that limits the power of banks and other financial institutions, and that Romney surely will try to reverse.  What about the law that became effective in the summer of 2011 that significantly limits bank fees, for example on checking account inadvertent overdrafts—something that matters even to people who are not waitress moms?

PrioritiesUSA, the pro-Obama PAC, has a new ad that I love.  But so many of the pro-Obama ads lately have left me really frustrated, because they mostly focus on some particular phrase rather than on making a point of fact.  Slate yesterday had an article about Romney’s infamous Nov. 18, 2008 “Let Detroit Fail” New York Times op-ed, and that a huge number of people accepted Romney’s and Obama’s Monday-night invitation to check out the op-ed itself.  In a comment to the Slate article, I wrote:

What bothers me even more than that Romney is lying about what his position is is that this is the guy who claims that his business expertise shows that he knows how to create 12 million jobs.  
 
This guy who thought a federal bailout by the Bush administration to tide the companies over, and who thought that the bailout in early 2009, would virtually guarantee the demise of the Big Three, is so adept at understanding business and how to create jobs that he should become president, on that basis??? 
 
Why on earth the Obama campaign isn’t putting up ads on this is a real mystery to me.

To which someone responded that the campaign was doing just that in Michigan and Ohio. To which I replied:

No, the ads focus only on the “Let Detroit go bankrupt” language–which lets Romney get away with doing an “It depends on what the meaning of ‘bankruptcy’ is” routine. That’s soooo not enough to make Obama’s point.

The polls now are looking like enough people are figuring this out for themselves; the op-ed speaks for itself, quite well, thank you very much.  And Obama’s current focus on trust—pointing out that the words “trust” and “Romney” are mutually exclusive—is terrific.

But Obama could put this election away within the next few days with a few clearly-stated, specific facts of this sort, in ads and in campaign appearances.  

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Jim Lehrer Wins the Debate?? Heaven Help Us.

And a debate is a perfect place to spit out numbers and plan names without a moderator fact-checking you.

—  Paul Ryan’s Word Salad, David Weigel, Slate, today

Indeed.

I was absolutely dumbfounded to read yesterday that the MSM is now buying Lehrer’s idea of what a debate should be. Do they not understand that these are not actually debates—that they are instead simply statements by each of the candidates? Yes, both candidates are on the stage. But they don’t get to talk to each other. They don’t get to question—to cross-examine—each other
How, then, is it a good idea to have a format in which the moderator just says, “Your turn to talk about your plan on taxes, Mr. Romney,” and lets him spout off nonsense, unabated by questions from anyone about specifics and about how what he says could possibly add up? 
Do tell, MSM pundits. Also tell, MSM pundits, why you are so stupefyingly gullible.  
I mean … good grace. 
In fact, Jim Lehrer did win the debate.  The one last Wednesday.  That doesn’t seem to me like a recommendation for his method, though.

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The Mad Hatter For President! (Pleeease, Obama campaign, do a Halloween Fun-House ad. Pleeeease.)

Have you heard the news? Mitt Romney met with editors of the Des Moines Register yesterday and dropped a bombshell. “Romney promises no abortion legislation,” says the Associated Press. “Romney: No abortion legislation,” says Politico. “Romney says no plans to restrict abortion,” says Agence France-Presse.

Nope. That isn’t what Romney said. This is a man with a long history of using technicalities to disguise his abortion views. You have to read his exact words, with attention to the loopholes. So let’s back up and listen to the full audio of Romney’s remarks.

Saletan goes on to summarize what he brilliantly calls Romney’s Massachusetts-pol-days use of escape-clause language on the abortion issue—how he would calculatingly appear to state a position and then, for the sake of political expedience,  renege and point to some hedge he’d included in the contract—er, the campaign promise. 

Saletan concludes his article by warning, “That’s why you need to spot the weasel words up front. In the end, with Romney, they’re all that matters.”

Well, yes. That’s true on every issue, not just on that one.  We’re dealing here with the Mad Hatter.

One of Romney’s sons, Josh, said yesterday in an interview that Obama had lied about Romney’s positions.  The son was restating, but even more clearly, the father’s debate claim that Obama keeps stubbornly claiming that Romney has proposed things that Romney hasn’t proposed.  Except that Romney in fact has, repeatedly, proposed those things—like cutting taxes (not just tax rate, replaced with the closing of loopholes, but tax payments) for the wealthy by 20%.

This Orwellian strategy of saying that the person who says you said something you said is an “obstinate child” (Josh’s phrase) who is “lying” (Josh’s word) is downright scary.  It’s a direct attempt to pervert democracy. 

The news media really, really, really should point that out.  Cleary.  But the Obama campaign needs to, too.  More effectively than it has in the last week. 

And what better than a Halloween fun house—ghosts suddenly jumping out of nowhere; the floor suddenly dropping out from under you; fake smoke and real mirrors that distort your body shape (or his)—to illustrate the point?

Oh, and Romney’s Halloween costume?  The Mad Hatter, of course.  Romney wearing it to go trick-or-treating while spouting lines written by Lewis Carroll.  And by Josh Romney.  Who’s now made himself fair game.

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A Kiss From a Used-Car Salesman—and why it’s important to tie Romney’s “47%” comment directly to his Orwellian lies

As for the second of those three questions—Is he a cold-hearted conservative or a moderate Republican from Massachusetts?—I think there’s a third possibility.  I think he’s George Orwell.

Or, rather, that he’s channeling George Orwell.  Not Orwell, the person.  Orwell, the writer.

Orwell, of course, is most famous for his book 1984, in which politicians and government officials say exactly the opposite of what they mean.  Thus, the term “Orwellian,” which is not limited to politicians’ statements, but which refers to the use of common language terms that have a fixed meaning, and using them to suggest exactly the opposite of what those terms actually mean—and exactly the opposite of what the speaker does mean.

Up means down, left means right, black means white.  You get the picture.  Some people will think that when you say “up,” you mean “up.”  Others will understand that when you say “up,” you mean “down.”  It’s sophistry, con artistry. 

It’s also a key tactic that dictators use to gain or keep power.  Hitler, of course, used it routinely.  But so did Mao Tse-tung.  In fact, another word for “Orwellian” was, during the Mao era, “Mao Speak.”  You just change the definition of common words to mean exactly the opposite of what the words have meant.  That way, you can continue to claim that you’re doing something in particular, or will do something in particular, when you’re actually doing or planning to do the opposite.

In democracies, when politicians do that, it has another synonym: lie.  Or at least that’s been so until now.  On Wednesday night, Romney changed the meaning of many words and phrases so that they mean the opposite of what they have meant.  Not the least are the words “win” and “debate,” at least as the former normally is applied to the latter, although it was largely the news media that redefined “win,” and of course Jim Lehrer helped with the redefinition of “debate.”

But another word that underwent a quick transition Wednesday night from its normal meaning to the opposite of it is “plan.”  As in, he has a plan to cover preexisting medical conditions.  The word “plan” normally means, y’know, a recommendation or intention to change something from its current status.  The phrase “a plan to cover preexisting medical conditions” normally means a requirement that insurance companies provide medical insurance to people who have preexisting medical conditions such as, say, multiple sclerosis or breast cancer, beyond what federal law already requires.  That is, beyond the status quo. 
Which is that people who have, say, multiple sclerosis or a malignant breast tumor and have had no healthcare insurance within the previous three months can get treated at the emergency room, and then maybe file for bankruptcy if the hospital actually does provide, um, treatment for these medical problems.  Then again, Romney had redefined the word “treatment” even before the Wednesday debate, so I guess we now have to understand the phrase “medical treatment” to mean something like, “But you have no insurance and you need the sort of medical procedure that isn’t done in emergency rooms.”  Romney already had redefined the word “plan” to mean promised goals rather than the specific, credible means of achieving them. 

But that redefinition had applied only to his economic plan—a plan that he said on Wednesday night might not work, and which—although it escaped the punditry—he seemed to be admitting that he (the successful businessman!) had devised without any actual economic basis for thinking that the revenue/tax-deduction ends could meet as designed.  But this second redefinition of the word “plan” was something else entirely, because by saying that he has a plan to provide healthcare insurance to people who currently are denied it because of a preexisting medical condition, he was telling them that he plans to something specific that he plans not to do.  And it concerns some truly fundamental things, in some cases life or death, in others financial security or instead financial devastation. 

What kind of person stands on a stage speaking to 67 million people, and just plain lies about something of that sort?  Dare I say it—the kind of person who speaks derisively about 47 percent of Americans, none of whom are Bain investors, have overseas bank accounts, hire PriceWaterhouseCoopers to tally their tax returns, and have their IRA accounts in the Cayman Islands.  Nor contribute to Republican PACs or attend Romney fundraisers in Boca Raton.  Or anywhere else.

Maureen Dowd, in her New York Times column today, uses humor to run through many, but by no means all (she’s only allowed a limited number of words per column, after all), of Romney’s bald debate-“winning” lies.  And she includes the preexisting-medical-conditions one.  But I think it’s Paul Krugman who, in his Times column on Friday, titled “Romney’s Sick Joke,” best highlights that this particular lie is particularly brazen and particularly pernicious.  And Ezra Klein points out that Romney’s mendacity about his plan for healthcare coverage—and in this context it is indeed a plan, as that word is defined the old-fashioned way—runs even deeper. 

It’s been said, accurately, many, many times now that this election will determine the basic nature of American government.  But until now, that’s meant budgetary, taxing and regulatory policy.  It now means something even more fundamental, in addition: Whether or not we allow a redefinition of the word “democracy.”  Romney asks us to believe in America.  It turns out that he means an America of the sort that George Orwell feared.

Or at least one run by a used car salesman.  Read the fine print on that contract.  And on that separate warranty you’ll be charged for. 

A kiss is not a kiss when it’s described as one by someone with a forked tongue.  

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Romney Says He’ll Shoot Farm Price Supports, Draught Relief and Veterans’ Benefits, Right Along With Big Bird!

Slate’s William Saletan has a terrific article there today, with a terrific title: Tax Evasion: Romney’s preposterous arguments for not telling you which tax breaks he’d abolish.  And, yes, elsewhere, too, mainstream-media folks are showing some morning-after queasiness about their debate verdict, by getting into the “um … huh?” stuff now.
But in pointing out that Nixon really doesn’t have a plan to end the Vietnam War—er, I mean, that Romney doesn’t really have a plan to balance the budget—they’ve been talking mostly about Romney’s refusal to identify the tax loopholes and deductions he’ll end. They haven’t mentioned much Romney’s other demonstration of, um, willingness to be specific about extremely important budget matters: His statement that he’ll end all programs that, in his opinion, aren’t worth borrowing money from China for. 

Which include Medicaid and Sesame Street.  But what other programs?

The effective end of federally supported Medicaid is obviously too serious a subject to joke about, and it needs much more attention from the news media than it’s getting—as well as from the Obama campaign, which should put up ads featuring nursing home residents and nursing home owners; i.e., small-business owners who are jobs creators, to explain the issue.

But Obama also should say—yes, say—when he’s campaign in, maybe, Iowa, eastern Colorado, Wisconsin and North Carolina that Romney doesn’t think farm subsidies, flood insurance, hurricane and tornado disaster relief are worth borrowing money from China from. 

And when campaigning in North Carolina, Virginia, Ohio and, well, everywhere else, he should say that Romney doesn’t think veterans’ benefits are worth borrowing money for China for.  And that that might make it harder to recruit those additional 100,000 people into the armed services that he says he wants to add, although of course he might just have a military draft in mind.  You never know; he’s not all that keen on revealing specifics, after all.  (Does Romney ever think beyond the end of whatever sentence he’s mouthing at the  moment?)

Seriously. The only way to start to nail down Romney’s plans is to start actually filling in his blanks.  Say, outright, that Romney plans to end farm price supports, drought relief, disaster relief and veteran’s benefits.  Romney then will have to say that he has no such plans.  Great! Then say that Romney plans to shut down the FDA and the National Transportation Safety Board; a few hundred deaths from dangerous medications and airplane crashes each year aren’t worth borrowing money from China to prevent.  Not when you have more important needs, such as incessantly spiraling tax cuts for the wealthy. 

Which, despite his Wednesday protestations, he does think are worth borrowing money from China for.

Or here’s another idea: Let’s develop a contest in which the winner accurately predicts Romney’s selections for Programs Worth Borrowing From China For.  And a bonus contest in which the winner correctly calls the tax loopholes and deductions eliminated in Romney’s tax-code revision plan.

The winners will be announced on the same day as the announcement of the Publishers Clearinghouse winner for 2015. The prize?  We can have another contest to guess that.

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Justice Scalia’s Super Body (And, no, it has nothing to do with the Constitution’s Free Exercise Clause. Really.)*

First, Justice Anthony Kennedy wants to know what possible connection there is between Esther Kiobel, the wrongs she says unfolded in Nigeria, and the United States. The answer the plaintiffs’ lawyer, Paul Hoffman, gives is that his clients live here because the U.S. government gave them asylum. Also, Royal Dutch Petroleum does plenty of business here. 

Kennedy doesn’t like the sound of that. “Your position is that a U.S. company that allegedly commits a human rights violation could be sued in any court in the world?” he asks. Note the switch—now it’s our homegrown corporation, not a company called Royal Dutch, that’s the pirate.

Justice Antonin Scalia backs up Kennedy, asking whether it will be “some super body that decides what constitutes a violation” of human rights. This is not a superhero kind of super body. It’s the kind that usurps U.S. sovereignty. Hoffman tries to erase the image: The courts of nations around the world have long determined human rights norms, he says. But Scalia is with Kennedy: unhappy about a world in which U.S. corporations can be held liable for human rights abuses in foreign courts. Justice Samuel Alito doesn’t like Hoffman’s notion either, and Chief Justice John Roberts seems skeptical, too. 

Hoffman next addresses all the ways his clients could still get kicked out of court, even if they make it past today’s tangle with the Alien Tort Statute. They could be told to file suit in Nigeria, or the Netherlands or the United Kingdom, where Royal Dutch Petroleum is based. Hoffman concedes that it’s not clear from the record whether they’ve done so yet. (This is the doctrine called exhaustion, which is how it feels to be told to go back and start over somewhere else.) Kiobel and the other plaintiffs could also be told that another forum, outside the United States, is simply better. (This is the doctrine called forum non conveniens, the rare Latin phrase that makes sense without translation.)

Pardon me.  But it sure sounds like Scalia’s complaint is really with—Can this be?—the Founders, who, by enacting a statute that gives federal courts jurisdiction to hear claims by aliens for torts “in violation of the law of nations,” provided that it will be some super body that decides what constitutes a violation of human rights.  And (assuming that Scalia thinks there should be an “exhaustion” requirement, even though, clearly, there is not one in the language of the statute) who—those lame Founders!—failed to include an “exhaustion” requirement in the statute.

Ditto for Kennedy, who’s angry because he thinks that the very first Congress’s position was that a U.S. company that allegedly commits a human rights violation could be sued in any court in the world, even though the statute actually only provides for lawsuits in U.S. federal courts, not for lawsuits in other countries’ courts.  Or at least, he later explains, he’s angry, and worried, that if the United States Congress can pass a law that allows aliens to sue foreign corporations in United States courts for torts “committed in violation of the law of nations or a treaty of the United States, that might encourage other countries to retaliate and enact a similar, mirror statute.  And then, woe is Exxon Mobil. 

Repeatedly during yesterday’s argument, Kennedy raised issues with such a policy.

Why didn’t President Washington veto that law, for Chrissake!? Instead, the jerk, and that Congress, left it to a future generation of justices to rewrite the statute to limit it to lawsuits against U.S. companies and foreign companies that commit torts against a U.S. alien in violation of the law of nations or a treaty of the United States. (A generation of justices that includes four who, only three months ago, railed against their five colleagues for what the four railers said was an unconstitutional rewriting of a statute, no less. A very high-profilestatute.)

Oh, but wait. That original Congress actually did write the Alien Tort Statute to say that. Verbatim. Even though the statute could encourage other countries to retaliate and enact a statute of their own that allows a U.S. company that allegedly commits a human rights violation to be sued in a court in that other country for violations of the law of nations, as defined by some super body.

Other countries haven’t done that yet. But they could. Whether or not the Supreme Court rewrites the Alien Tort Statute to discourage them from doing so, they could. Too bad that didn’t bother President Washington enough for him to veto the statute.

Also repeatedly yesterday, Samuel Alito reiterated his own demand at the earlierargument to know what, pray tell, connection the events at issue in the case have with this country.  But a better question is, why is that any of the Supreme Court’s business?  As the Court’s conservatives—led obsessively in recent years by Kennedy and Thomas—repeatedly remind at the robotic urging of state attorneys general, the Constitution grants Congress, not the courts, the authority to determine what types of cases the lower federal courts have “subject-matter jurisdiction,” i.e., the legal authority, to hear.  
This congressional power is subject to the constraints of other parts of the Constitution—for example, the Fourteenth Amendment and the Supremacy Clause, which Kennedy, et al., forget (or pretend to forget) apply to limit state courts’ free rein lest those insignificant parts of the Constitution infringe upon the sovereign dignity (their words, not mine) of states, by which they mean the sovereign dignity of state courts.  But the Fourteenth Amendment was added to the Constitution by a new set of framers, not the vaunted ones of the late 1700s, so that part of the Constitution doesn’t matter very much to the state-courts’-rights-to-violate-the-constitutional-rights-of-individuals crowd.  Unless of course some state legislature has, say, infringed upon the equal protection rights of an upscale high school student in Texas who graduated just below the top 10% of her high school class.  Or some other state legislature has limited the rights of corporate people to buy state politicians. 
The defendant oil company in Kiobel v. Royal Dutch Petroleum doesn’t claim that the ATS would violate the Constitution if it is interpreted to allow lawsuits against them, by aliens, in federal court.  They just argue that the statute shouldn’t allow this, because, well, the events at issue have no connection with the United States and no other country has a similar law.  This appears to be good strategy, since, at least when state-court criminal defendants raise constitutional challenges in separate habeas corpus proceedings in federal court, the defendants almost always lose because the Supreme Court has interpreted a 1996 “jurisdictional” statute as effectively delegating to state courts the authority to violate the Constitution’s many guarantees in criminal cases.  This requires the federal courts to ignore not only the Fourteenth Amendment and the Supremacy Clause but also the provision in the Constitution’s provision that bars the suspension of the right of habeas corpus.

Kennedy’s incessant refrain in these cases is that, well, this is what Congress intended, and under the Constitution it is Congress that has the authority to enact federal-court-jurisdiction statutes.  But, setting aside whether the Supreme Court’s interpretation of that 1996 statute is even conceivably an accurate reflection of the intent of that Congress in enacting it, and the expectation of President Clinton in signing it—It was an election year, but still … really?—Kennedy & Co. never appear concerned with the many, many, many policy problems caused by, say, thedramatic difference between the right of a federal-court criminal defendant or prisoner, and the right of a state-court criminal defendant or prisoner to effectively assert constitutional rights.  That is, by the fact that the Supreme Court has interpreted that statute as effectively eliminating that right by state-court defendants or prisoners.   

Or, say, by the utterly unexplained privileging of state judicial branches, which now are virtually free to violate individuals’ constitutional rights, at least if those individuals are criminal defendants, and the other two branches of state governments: the legislative and the executive branches.  Professional courtesy is, well, courteous, but there really legitimate reason to make it a constitutional principle?

Tomorrow, the Court will hear a case in which that very issue will be addressed.  Seven years ago, almost to the day, in a unanimous opinion issued in a case called Dye v. Hofbauer, without full briefing and oral argument, the Court interpreted that 1996 statute, known as the Antiterrorism and Effective Death Penalty Act (AEDPA), as requiring the state appellate courts to actually acknowledge the existence of a federal constitutional issue raised by the criminal defendant in the appeal, and then to actually analyze and rule on that federal constitutional issue, if the state courts were to be entitled to the “deference” that AEDPA requires the federal courts to accord the state courts when the state court ruling is challenged in federal court as unconstitutional.  A “deference” that in recent years has morphed into abdication—into a blatant flipping of the Constitution’s Supremacy Clause.  The case to be heard tomorrow is Johnson v. Williams, and in it, the Court will decide whether to overrule Dye—explicitly or, more likely, in effect without saying that that’s what it is doing.

All in the name of the Constitution, y’know.  The very same Constitution that is about to allow the justices to rewrite a jurisdictional statute written by the Founders, so that it complies with the policy preferences of the current Supreme Court majority.

When I read the transcript of tomorrow’s argument in Johnson, I’ll be looking for inquiries by Kennedy and Alito about the many policy problems with AEDPA, especially as the flip-the-Supremacy-Clause interpretation of it has metastasized over the years.  I won’t be holding my breath waiting to read that in the transcript, though, because I don’t want to turn blue.

Dye, by the way, was the first opinion issued by the Court, in the early fall of 2005, after John Roberts was sworn in.  But that was then, and Kennedy hadn’t yet fully gained his sovereign-dignity-of-state-courts sea legs.  Nor had he yet managed to convince the sycophantic so-called liberals to quietly join him in this juggernaut.  All the better for them to go along to get along when it’s a case that—bet on it—will get no mainstream-media attention.  

It’s not like Johnson is a noisy culture-wars case, after all.  Not at all like it is. 

—-
UPDATED: Scotusblog’s Lyle Denniston posted an excellent pre-argument rundown on Johnson v. Williams this afternoon.

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Is Romney a Habitual Liar? Or Is He Instead Something Even More Dangerous: God-Awful Stupid? [Updated]

At his press conference, Romney accused Obama of “having that embassy reiterate a statement effectively apologizing for the right of free speech.” Romney claimed that the embassy had said, in his paraphrase, “We stand by our comments that suggest that there’s something wrong with the right of free speech.” This, too, was a Romney lie. The embassy had declared five times in writing that free speech was a universal right.

What made Romney’s statement and press conference disturbing, however, was his repeated use of the words sympathize and apology to conflate three issues the Cairo embassy had carefully separated: bigotry, free speech, and violence. The embassy had stipulated that expressions of bigotry, while wrong, were protected by freedom of speech and didn’t warrant retaliatory violence. Romney, by accusing the embassy of “sympathizing with those who had breached” the compound, equated moral criticism of the Mohammed movie with support for violence. In so doing, Romney embraced the illiberal Islamist mindset that led to the embassy invasion: To declare a movie offensive is to authorize its suppression.

“The Embassy of the United States issued what appeared to be an apology for American principles,” Romney asserted at the press conference. “It’s a terrible course for America to stand in apology for our values. … An apology for America’s values is never the right course.” Lest anyone miss his buzzwords, Romney called the embassy’s comments “a disgraceful statement on the part of our administration to apologize for American values.”

What, exactly, does Romney mean by “American values”? The embassy never apologized for free speech or diplomatic sovereignty. The only American offense it criticized was the movie’s “bigotry” and “efforts by misguided individuals to hurt the religious feelings of Muslims.” Does Romney regard this criticism as an “apology for American values”? Is bigotry an American value? Is it weak or un-American to repudiate slurs against Muslims?

I don’t know where you were born, Mr. Romney (just kidding!), but where I come from, there’s nothing more American than recognizing the idiocy of a man’s views and, at the same time, his right to express them. If you can’t tell the difference between those two things, the main threat to our values right now isn’t President Obama, the Egyptians, the Libyans, or our diplomats in Cairo. It’s you.

— William Saletan, Slate, today

The political punditry and news media is finally catching on that Romney’s bizarre modus operandi of habitually mischaracterizing the meanings of basic statements of others (mainly, of course, of Obama) pose the question: Is Romney a habitual liar, or is he instead so dumbfoundingly stupid that he regularly misunderstands even completely clear statements and the definitions of common English-language words, and that he habitually conflates separate concepts and therefore misinterprets even the clearest of statements or comments?

I’ve hoped for a long time that the Obama campaign would pretend to take Romney at his word: Rather than suggest that Romney’s a habitual liar; just point out that, taking him at his word, he’s profoundly, dangerously stupid.

I mean … good grace.

I read somewhere last night—I can’t remember where—that members of Romney’s campaign team told reporters that he was genuinely outraged on Tuesday night by the Cairo embassy’s criticism of “efforts by misguided individuals to hurt the religious feelings of Muslims,” and that it was phrase “hurt the religious feelings” that really set him off.

This focus by Romney on a single word or short phrase, removed from its context and redefined—this treatment by Romney of serious issues as cutesy word play—has been a real hallmark of Romney’s campaign throughout.  Hopefully, Obama and the news media will now point out truly dangerous it would be to have a president who either can’t understand and accurately interpret basic words, statements and concepts. Leave it up to Romney to protest that, no, he’s not really that dumb; he’s just playing games about the most serious of matters, presuming that a majority of voters won’t notice. 

The most important aspect of what has transpired in the last two days is that now a majority of voters are likely to notice.

I’m pretty sure that the game’s over, and that Romney lost.

—–

UPDATE: Just to clarify, I want to repost here a comment I made in the Comments thread in response to reader PJR about whether Romney is a liar or instead just stupid.  I wrote:

Romney’s a liar, PJR. A casual, habitual liar.  That’s his modus operandi; it’s what he thinks gets him the love of the Tea Party folks—his bald willingness to regularly lie as a matter of campaign strategy.

My point, though, is to encourage Obama and the media to decide to take Romney at his word—that he’s not lying; he’s just stating things as he understands them.  Which, if so, is a HUGE problem. Even George Bush wasn’t as jaw-droppingly stupid and routinely confused about the meaning of words and statements as Romney either is or feigns. 

The bottom line, I think, is that Romney is a liar and is also too stupid to recognize that eventually people were going to figure that out.

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Yglesias Misses the Point. Again. [with correction]

Rules requiring firms to restrict employment to their country of origin would be hideously inefficient if applied on a global basis, and they would be every bit as devastating to American employees of foreign firms as offshoring by American firms is to workers who lose their jobs here. (One might also ask where the borders of corporate patriotism ought to be. If it’s wrong for a Michigan-based car company to have a supply chain that extends to Mexico, why is Ohio OK? After all, it hardly makes a difference to a laid-off worker where exactly his job went—the bad news is that he lost his job.)

Over the long run, we’re all going to be more prosperous if we live in a world where firms are allowed to locate work where it’s most efficient to locate it. This is exactly why, despite some tough ads, the Obama administration has not proposed any policies to restrict firms’ freedom to shift work across state or national boundaries.

Romney’s unwillingness to make the case for outsourcing reflects, in part, political timidity. But more broadly, it underscores that although he’s been an eager participant in contemporary capitalism, he’s not willing to mount a policy response to its vicissitudes.

Offshoring Is Fine. Why won’t Mitt Romney defend Bain’s record?Matthew Yglesias, Slate, yesterday afternoon.

It’s surely true that rules requiring firms to restrict employment to their country of origin would be hideously inefficient if applied on a global basis, and they would be every bit as devastating to American employees of foreign firms as offshoring by American firms is to workers who lose their jobs here.

But, to my knowledge, the only one who’s equated the absence of* government policy (of necessity on this issue, statutes) that would restrict corporate employment to the country of the corporation’s origin, and a private equity firm’s investment in companies that specialize in assisting American corporations with offshoring employment, is Yglesias.  Even Romney apparently recognizes the distinction. Not sure why Yglesias doesn’t.

It’s one thing to argue that utterly unfettered globalization of employment by corporations worldwide ultimately has a positive effect on the American economy—as Yglesias does. But it’s another thing entirely to actually convince a majority of the public that this is so even in light of current trends and actual facts. 

And it’s one thing to argue that laws that forbid companies from relocating jobs from the company’s home country to another one would have a negative side to it because of possible retaliatory laws in other countries, and another thing to equate that with decisions by corporations themselves about whether to offshore or not. (And, setting aside the obvious constitutional bar to prohibiting a corporation’s relocation of jobs from one state to another, it’s a lot easier for families to relocate from Michigan to Ohio than from Michigan to Mexico.)

The thing that Yglesias doesn’t get is that Romney’s claiming that his private-sector career demonstrates his ability to create not just wealth for investors but jobs en masse for the public. There’s really no way for him to make that claim persuasively, because it plainly isn’t true. He can defend offshoring as a corporate strategy, but corporate strategy is a different matter than economic strategy.

Unless, of course, Romney wants to argue that encouraging offshoring by American corporations is good government policy. Hope he does.  But then, I’m a Democrat.

*Sentence corrected to insert the words “the absence of”.

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Matthew Yglesias, Slate’s Boy With a Little Curl

Lost in the shuffle here is the question of what it is Romney is denying he’s responsible for. Stipulate that Romney somehow had nothing to do with running a company of which he was the CEO and sole shareholder. Does he think, in retrospect, that his subordinates did something wrong by offshoring jobs? Clearly he didn’t, which highlights the absurdity of his claims not to have been responsible. It’s true that he wasn’t running the country [sic] on a day-to-day basis, but he really was titular CEO and had Bain been doing something he deemed outrageous he could and should have stepped in to stop them. But he doesn’t believe that. And what’s more, all indications are that Barack Obama also doesn’t think Bain was doing anything wrong. [Emphasis in original.] As president he’s made no moves to make it illegal for companies to shift production work abroad and has publicly associated himself with a wide range of American firms—from GE to Apple and beyond—who’ve done just that to varying extents. And we all remember what happened to Obama’s promise to renegotiate NAFTA after taking office, right?

In my view both Obama and Romney are quite right about this. I’ll say more on this during the workweek, but one quick test is do you think there’s something immoral about the fact that Toyota and BMW have manufacturing facilities located in the United States? Should the Japanese and German governments be stopping Japan- and Germany-based firms from locating production offshore?

I posted a comment to it, saying:

Well, when Obama starts claiming that one of his key qualifications for reelection is that he’s helped create jobs in China—or when Romney starts saying that Bain invested in companies that specialized in moving jobs overseas in exchange for promises by German and Japanese companies to open, or keep, factories in this country—Yglesias’s equivalency argument might be less ridiculous. 

One of Obama’s spot-on arguments against Romney’s claim that his Bain experience was a successful jobs-creation experience rather than merely a successful wealth-creation-for-investors experience is that there’s a huge difference between experience in creating wealth for private investors, by any means available and at whatever expense to others, and creating good for the country’s overall economy and general welfare.  This offshoring issue is a classic case in point. Setting aside whether the federal government has the legal authority to prohibit private companies from offshoring—and I don’t think the government has any such legal authority, except in certain limited national security or foreign policy circumstances—there’s an obvious critical difference between not trying to stop this country’s companies from offshoring, for fear of retribution by other countries’ companies, similar to trying to avoid a tariff war, and aggressively aiding offshoring by American companies irrespective of any up-side for the general American economy. 

Add to that that, as several other commenters have pointed out, the German and Japanese companies that offshore in this country do so mainly in manufacturing products or parts for products that will be sold in North America, mostly in this country.  GM, Ford, Chrysler and some U.S. auto-components manufacturing companies have factories in Europe, but the products and components made there are sold in Europe.  Like the German and Japanese auto companies that Yglesias equates with Bain’s offshoring-specialist companies, the American auto-industry companies continue to make the parts and cars sold in their home country in factories in their home country. 

Which, of course, would not be the case any longer had the Bush and Obama administrations taken Romney’s advice and let Detroit fail.

That said—and for the same reasons—Yglesias is wrong in saying that unless Romney thinks there’s something wrong with offshoring, it’s absurd for him to deny responsibility for Bain’s investments in offshoring-specialist companies during the three-year period beginning in early 1999.  If in fact Romney was no longer associated with Bain during that period, he would have every right to correct the record, whether or not he thinks there was anything wrong with what Bain did during that time.  But the question of whether Bain did anything wrong in investing in offshoring-specialist companies—during the period between 1993 and 1999, when (at least as I understand it) it apparently was doing so at Romney’s clear behest, or during the following three years—depends on what is meant by “wrong.” 

It was not illegal.  But many voters think that, while it clearly was helpful to Bain’s investors and to Romney (who has continued since then to receive large payments from Bain), it was not helpful to the larger American economy and to the middle class.  It did not create jobs in this country; instead, it eliminated them.  And Romney is running for president virtually entirely on his claimed credential of being a jobs creator and of knowing how to create jobs—in America.

I’m hesitant to be too critical of Yglesias for his rather obvious conflations here.  He was, after all, not just the first pundit but also one of the very few even yet to point out a stunning, absolutely jaw-droppingproposition of law stated by four of the nine Supreme Court justices in their joint dissent late last month in the Affordable Care Act case, the part of the dissent concerning the issue of the severability of the part of the Medicaid provision in the Act that the Court’s majority struck down, in which the dissenters, while claiming that the majority was rewriting the Medicaid provision in order to save much of it, wanted to rewrite, rather dramatically, the Constitution’s separation of powers between Congress and the Court. Only four hours after the release of the opinion, when almost no one except the journalists covering the Court had yet read the dissent, Yglesias wrote:

As I’ve noticed previously, there’s lots of other stuff in the Affordable Care Act besides the new regulation of insurance companies, including a move to deregulate dental services. So I was curious to see why the dissenters in the Supreme Court thought that not only was the individual mandate and the provisions related to the individual mandate unconstitutional, but also all this other stuff.

The answer is that they appear to have made up a new Christmas Tree Doctrine under which legitimate acts of Congress are held null and void if Antonin Scalia thinks they were part of some kind of unseemly horse-trading:

Some provisions, such as requiring chain restaurants to display nutritional content, appear likely to operate as Congress intended, but they fail the second test for severability. There is no reason to believe that Congress would have enacted them independently. The Court has not previously had occasion to consider severability in the context of an omnibus enactment like the ACA, which includes not only many provisions that are ancillary to its central provisions but also many that are entirely unrelated—hitched on because it was a quick way to get them passed despite opposition, or because their proponents could exact their enactment as the quid pro quo for their needed support. When we are confronted with such a so called “Christmas tree,” a law to which many nongermane ornaments have been attached, we think the proper rule must be that when the tree no longer exists the ornaments are superfluous. We have no reliable basis for knowing which pieces of the Act would have passed on their own. It is certain that many of them would not have, and it is not a proper function of this Court to guess which.

That all seems fine except I would have thought it was the prelude to the opposite ruling. It’s not the proper function of the court to guess why different provisions were enacted, just to rule on the constitutionality of laws. Since there’s plainly no constitutional problem with regulating interstate chain restaurants, the law is the law until Congress repeals the law. Instead, Justices Scalia, Alito, Kennedy, and Thomas have decided that rather than pick and choose it would be better to strike everything.

This is far, far more newsworthy than the teensy bit of attention it has received suggests.  Four Supreme Court justices think legislative logrolling is improper and that therefore the Court can strike down full pieces of legislation that a majority of justices don’t like whenever they decide that some provision, however small, in the full piece of legislation is unconstitutional.  After all, y’know, maybe the rest of the legislation would not have been enacted without the quid pro quo votes.  Presumably, this also would apply to state laws as well as to federal laws—but, of course, as with federal laws, only to laws that the conservatives don’t like.

I’d been meaning to write about this truly radical part of the dissent in the ACA case, but hadn’t gotten around to it.  Now I have.

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