AMERICAN CONSERVATISM IN 2008 AND BEYOND

The Sotomayor Hearings: The Good, the Bad and the Ugly
(By VIKRAM DAVID AMAR, FindLaw Commentary, July 23, 2009)

In this column, I offer some overall evaluation of the Senate hearings last week on President Obama's nomination of Judge Sonia Sotomayor to the Supreme Court. Perhaps the hearings weren't entirely useless; they helped educate the American public about a few important things, such as Judge Sotomayor's temperament and the importance of judging a person's words in context. But the hearings missed many opportunities to educate the public about many other important things " in particular, the contours of the many constitutional controversies that Sotomayor and the other Justices will continue to take up in the coming decades. And worse still, the hearings affirmatively miseducated the American people about one overriding thing " whether federal judges should and do ever "make law" and policy.

The Hearings' Positive Aspects

First, the positives. One question going into the hearings was whether Judge Sotomayor's judicial demeanor was sufficiently patient and controlled. Over the course of days of repetitive and sometimes pointed (if not accusatory) questioning by Senators, Judge Sotomayor was nothing if not patient and controlled. She was invariably deliberate and careful in the words she used, and she never once came close to losing her cool.

This was, of course, for her a job interview of sorts, and so a critic might worry that once she is confirmed on the high Court, she will revert to a more caustic and less respectful demeanor, at least as to the advocates who appear before her. But I rather doubt it. From now on, she will be on a much bigger stage than she has ever occupied before, and I think there will always be for her an incentive to be patient and careful in her public persona, including her questions and comments from the bench.

Another positive of last week's hearings was the way in which many of Judge Sotomayor's best responses " to questions about particular past cases she has decided and past speeches she has given " reminded Senators and observers that a person's words must always be looked at in context. If you want to know who someone is, you have to look not just at a particular sentence (even one uttered more than once), but also the entire paragraphs or documents in which the sentence occurs. Indeed, to be reasonable, you must look at the sentence or sentences in the context of an entire body of work spanning decades.

And context was key in winning over many Republican votes. The biggest reason Judge Sotomayor's comment about the judgment of a wise Latina being "better" than that of someone else didn't sink her was not that her defense of those words themselves was particularly strong; rather, it was that in her entire judicial career of a decade and a half, nobody could come up with many plausible instances in which even an argument could be made that she had put her personal sympathies above traditional legal analysis. For a sitting judge, especially one with a long career like Sotomayor's, case rulings speak louder than academic speeches.

The Hearings' Shortcomings

Now, the hearings' shortcomings. Perhaps most vexingly, Judge Sotomayor (like other nominees before her) was able to avoid talking meaningfully about her current views on most of the major constitutional questions of the day. When asked to weigh in on particular areas of law in which the Court has spoken, she responded by saying either that the question would be too abstract to yield a meaningful answer, or that it would be too specific for her to be able to answer and yet still be open-minded when the issue comes before her on the Court.

As I've written before at length, this response is unconvincing. I wish any Senator had directly challenged this response by asking her: "Then why can sitting Justices, who've obviously shared their current thinking in the course of authoring majority opinions, concurrences and dissents, continue to hear cases involving the same recurring issues?"

Don't get me wrong: I fully understand why Judge Sotomayor did what is in her best interests (and what I would advise her to do, were I in her inner circle): to say as little of substance as possible. And Senators, too, may have done what's in their best interests " coming off as Senatorial on TV and not boring the American people with meaningful discussion of constitutional doctrine. But as I've argued before, what is in the interests of the nominee and the Senators may not be in the best interests of the American public, and the only way to truly get a sense of the kind of Justice someone will be is to ask questions regarding her views of past controversial (often divided) cases from the Court itself. If we're not going to find out much about what kind of Justice a person will be, what's the point of the hearings themselves?

The Hearings' Worst Flaw: Suggesting Judges Never Are Required to Make Law, Only to Apply It

Indeed, the hearings may have been worse than simply an educational opportunity lost. In one important respect, they may have affirmatively misinformed the American people. I speak here of the dominant theme of Judge Sotomayor's testimony " from her opening statement, right through to the end " the theme that "[t]he task of a [federal] judge is not to make law. It is to apply the law."

However nice this sounds, it simply isn't true. As my friend (and fellow LATimes blogger on the hearings) Erwin Chemerinsky put it, "Every first year law student knows that judges make law." State court judges make new law in the areas of contract, tort and property law, among others. And the Supreme Court fashions law in virtually all of its rulings.

To see this clearly, consider two of the most contentious decisions from last Term " the New Haven firefighters case (featured so prominently in the Sotomayor hearings), and the challenge to the federal Voting Rights Act. In both cases, the Court read a landmark federal statute in a particular way, likely influenced by the Court's plausible --but by no means necessarily correct -- understanding of the Amendments to the United States Constitution adopted after the Civil War. In neither case could one argue with a straight face that the majority's reading of the law was undeniably compelled by the text of the statute or the words and history of the Constitution. Both cases were classic judgment calls, in which the judgment of conservative jurists carried the day.

My point here is not that the Court was wrong in the way it resolved these cases (although I do have my doubts); my point is simply that their resolution broke new legal ground and "made" " in every meaningful sense " new law and policy.

Why is it bad to deny that judges make law? Even if the idea that judges don't make law is untrue, can it be characterized as a "white lie" that makes us all feel better about government? I don't think so, because denying that judges make law derails us from educating folks about what we should be discussing: the ways in which legitimate judge-made policy differs from the kinds of policy decisions elected legislators and Presidents fashion.

Federal judicial policymaking, when done right, is, among other things, interstitial (that is, it is accomplished with the boundaries of statutory and constitutional parameters). It is also incremental (attendant to the size and speed of trends and currents in American law, history, economics and sociology). It is entirely transparent and explained in a published format that responds thoroughly to arguments on the other side. Finally, it is not particularly concerned with the next electoral cycle (even as it is properly aware of longer-term American attitudes and is responsive to whether, a generation after a ruling, its leadership has been followed or rejected.) These and other features distinguish judicial lawmaking from the more freewheeling and sometimes populist actions of the elected branches.

Ironically, by misleadingly suggesting that judges do not and ought not to make policy (and also by suggesting that nominees can't talk about specific past cases), and by saying these things because of concerns about the immediate perceptions of voters in the next election, recent Supreme Court confirmation hearings might undermine, rather than support, the idea that judges can be, and are in fact, different from other politicians.

But suppose the annual cost per person were $10,000. Then the total cost to taxpayers would be $300 billion. That's still a lot less than what the total annual cost of Obama's medical plan will cost taxpayers..

Lewin projected that the Obama proposal would increase federal spending by about $1.17 trillion over the 2010-19 period.[18]

The TPC projects the Obama plan would cost $1.6 trillion over 10 years. However, the TPC model did not account for any of the savings measures in the plan.

For the House Democrats' version, the CBO estimate tagged the 10-year cost of the plan at just over $1 trillion.

Our economic system consists of billions of different elements that include members of our population, businesses, schools, parcels of land and homes. A list of possible relationships defies imagination and even more so if we include international relationships. Miraculously, there is a tendency for all of these relationships to operate smoothly without congressional meddling. Let's think about it.

The average well-stocked supermarket carries over 60,000 different items. Because those items are so routinely available to us, the fact that it is a near miracle goes unnoticed and unappreciated. Take just one of those items -- canned tuna. Pretend that Congress appoints you tuna czar; that's not totally out of the picture in light of the fact that Congress has recently proposed a car czar for our auto industry. My question to you as tuna czar is: Can you identify and tell us how to organize all of the inputs necessary to get tuna out of the sea and into a supermarket? The most obvious inputs are fishermen, ships, nets, canning factories and trucks. But how do you organize the inputs necessary to build a ship, to provide the fuel, and what about the compass? The trucks need tires, seats and windshields. It is not a stretch of the imagination to suggest that millions of inputs and people cooperate with one another to get canned tuna to your supermarket.

But what is the driving force that explains how millions of people manage to cooperate to get 60,000 different items to your supermarket? Most of them don't give a hoot about you and me, some of them might hate Americans, but they serve us well and they do so voluntarily. The bottom line motivation for the cooperation is people are in it for themselves; they want more profits, wages, interest and rent, or to use today's silly talk -- people are greedy.

Adam Smith, the father of economics, captured the essence of this wonderful human cooperation when he said, "He (the businessman) generally, indeed, neither intends to promote the public interest, nor knows how much he is promoting it. ... He intends only his own security; and by directing that industry in such a manner as its produce may be of the greatest value, he intends only his own gain." Adam Smith continues, "He is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention. ... By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it." And later he adds, "It is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest."
http://economics.gmu.edu/wew/articles/09/EconomicMiracle.htm

How Cap and Trade Affects the Health Care Debate
Posted July 14th, 2009 at 11.04am in Energy and Environment, Health Care.
The Waxman-Markey energy tax plan will have all sorts of unwanted side effects. As the healthcare debate ramps up, it’s worth noting problems misguided global warming legislation can generate for medical care.

Though it would be nearly impossible to trace all the impacts of higher energy costs on medical services, one broad measure is the impact on the costs of medical care. By driving up energy costs, Waxman-Markey will drive up the costs of running hospitals, manufacturing medical equipment, producing drugs, driving ambulances, and virtually every other component of our healthcare system.

The Center for Data Analysis analyzed the economic impact of the Waxman-Markey energy tax legislation using the sophisticated Global Insight macro model. This model allows detailed analysis of the impacts by industry.

So what happens to healthcare? On top of all the other factors that will lead to higher prices down the road, Waxman-Markey will add an additional 11.6 percent to healthcare costs by 2035 (the last year of the analysis). So, though Waxman-Markey aims its economic bombs at global warming, healthcare will suffer hundreds of billions of dollars in collateral damage each year.
http://blog.heritage.org/2009/07/14/how-cap-and-trade-affects-the-health-care-debate/

Which applies to my post how?

Here is another example based on research from the Heritage Founation. Whether or not their numbers are 100% accurate, it is a fact that increased energy costs through Cap and Trade, if they get that one passed, will have far reaching effects over all of our economy including health care:

Quote:

How Cap and Trade Affects the Health Care Debate
Posted July 14th, 2009 at 11.04am in Energy and Environment, Health Care.
The Waxman-Markey energy tax plan will have all sorts of unwanted side effects. As the healthcare debate ramps up, it’s worth noting problems misguided global warming legislation can generate for medical care.

Though it would be nearly impossible to trace all the impacts of higher energy costs on medical services, one broad measure is the impact on the costs of medical care. By driving up energy costs, Waxman-Markey will drive up the costs of running hospitals, manufacturing medical equipment, producing drugs, driving ambulances, and virtually every other component of our healthcare system.

The Center for Data Analysis analyzed the economic impact of the Waxman-Markey energy tax legislation using the sophisticated Global Insight macro model. This model allows detailed analysis of the impacts by industry.

So what happens to healthcare? On top of all the other factors that will lead to higher prices down the road, Waxman-Markey will add an additional 11.6 percent to healthcare costs by 2035 (the last year of the analysis). So, though Waxman-Markey aims its economic bombs at global warming, healthcare will suffer hundreds of billions of dollars in collateral damage each year.
http://blog.heritage.org/2009/07/14/how-cap-and-trade-affects-the-health-care-debate/



And that isn't factored into the CBO's analysis or in any other of a multitude of theories or analyses no matter however people try to spin those numbers:

Obama's '47 Million Uninsured' Claim Is False

President Barack Obama claimed during his Wednesday night press conference that there are 47 million Americans without health insurance.

A simple check with the U.S. Census Bureau would have told him otherwise.

Obama said: "This is not just about the 47 million Americans who have no health insurance."

That assertion conflicts with data in the Census Bureau report "Income, Poverty, and Health Insurance Coverage in the United States: 2007." The report was issued in August 2008 and contains the most up-to-date official data on the number of uninsured in the U.S.

The report discloses that there were 45.65 million people in the U.S. who did not have health insurance in 2007.

However, it also reveals that there were 9.73 million foreigners " foreign-born non-citizens who were in the country in 2007 " included in that number. So the number of uninsured Americans was actually 35.92 million.

And of those, "there were also 9.1 million people making more than $75,000 per year who did not choose to purchase health insurance," CNSNews stated in a report based on the Census Bureau data.

That brings the number of Americans who lack health insurance presumably for financial reasons down less than 27 million.

The Census Bureau report also shows that the number of people without insurance actually went down in 2007 compared to the previous year " from 47 million to 45.65 million " while the number with insurance rose from 249.8 million to 253.4 million.

The next Census Bureau report disclosing health insurance data, with 2008 numbers, is scheduled to be released in August, and could figure in the healthcare reform debate.

Yes, Group 3 should be excluded. I wonder how many of them are among the alleged 50 million who do not have health insurance.

LIBERTY AND TYRANNY
A CONSERVATIVE MANIFESTO
BY MARK R. LEVIN
PAGES 202 " 203

7. ENTITLEMENTS

Social Security is going bankrupt. Medicare is going bankrupt. Medicaid is going bankrupt. These programs and others have accumulated more than $50 trillion in IOUs due and payable by subsequent generations. Educate the young people about the intergenerational trap the Statist has laid for them"which will steal their liberty, labor, opportunities, and wealth"and build a future electoral force for whom the elixir of entitlements is understood as poisonous snake oil. These programs were created in politics and will have to be addressed in politics. Only in this way can they be contained, limited, and reformed.

Fight all efforts to nationalize the health-care system. National health care is the mother of all entitlement programs, for through it the Statist controls not only the material wealth of the individual but his physical well being. Remind the people that the politicians and bureaucrats, about whom they are already cynical, will ultimately have the final say over their choice of doctors, hospitals, and treatments"meaning the system will be politicized and bureaucratized. Remind them that this human experiment has been tried and has failed in places like Britain and Canada, where patients have been subjected to arbitrary treatment decisions, long waiting periods for lifesaving surgeries, antiquated medical technologies, the denial of high-cost pharmaceuticals available elsewhere, and the inefficient rationing of health care generally. And remind them that despite past utopian promises, the Statist rarely delivers.

Published Monday July 27, 2009
Nebraska legislators seek to assert state sovereignty
By Martha Stoddard
WORLD-HERALD BUREAU

LINCOLN " At least three Nebraska lawmakers want to send a message to the federal government:

Butt out of state business.

Next year they will see if a majority of their colleagues agrees.

The senators are working on resolutions asserting Nebraska's sovereignty under the 10th Amendment of the Constitution.

Congressional powers
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Among the powers given to Congress by the U.S. Constitution:

>>To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

>>To borrow money on the credit of the United States.

>>To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

>>To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.

>>To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures.

>>To establish Post Offices and Post Roads.

>>To constitute Tribunals inferior to the supreme Court.

>>To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.

>>To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.

>>To provide and maintain a Navy.

>>To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Nebraska wouldn't try to secede from the union under their proposals but would go on record objecting to federal laws that they say go beyond constitutional authority.

“My goal here is to shine light on the fact that the federal government is overstepping its bounds,” said State Sen. Tony Fulton of Lincoln. “We would be making a statement on behalf of Nebraska.”

The tension between states' rights and federal authority has been a repeated theme in U.S. history, starting with arguments among the founding fathers.

The struggle turned bloody when Southern states seceded, citing states' rights on the question of slavery, and the Civil War ensued.

Critics say the current measures amount to little more than political posturing " passing resolutions doesn't mean that states refuse to comply with federal law or send back federal funds that come with mandates.

State Sen. Bill Avery of Lincoln said the proposals sound disturbingly similar to the states' rights arguments made in defense of racial segregation and laws blocking blacks from voting.

“The history of this movement is rife with racism in the name of states' rights,” he said. “I'm not saying that the people making the case now are racist, but I don't think Nebraska needs to be getting in bed with these kinds of resolutions.”

Colleagues denied links to that history. Fulton, an Asian-American, said he has no intention of promoting racism or segregation.

Interest in states' rights is spreading as the federal government has taken over businesses, mandated driver's license security measures and proposed a public health care program.

Seven states passed resolutions this year affirming their sovereignty, and resolutions were introduced in 30 others. Some states have filed lawsuits or taken legislative action to challenge federal laws.

MORE HERE:
http://omaha.com/article/20090727/NEWS01/707279958

My question to you as tuna czar is: Can you identify and tell us how to organize all of the inputs necessary to get tuna out of the sea and into a supermarket?

Your allegedly quoted projected costs for Obama's healthcare plan are much lower than is currently projected. And some think that even the current projections are much lower than will actually be experienced.

http://www.foxnews.com/politics/2009/07/15/house-make-health-care-right/
...
"On a preliminary basis ... the proposal's provisions affecting health insurance coverage would result in a net increase in federal deficits of $1,042 billion for fiscal years 2010 through 2019," the report said, citing additional expenses for Medicaid and other federal subsidies.

One Democratic aide said the bill would add up to $1.5 trillion over the next decade. But the CBO estimate showed that even if the price tag holds to $1 trillion, more than 80 percent of the costs will hit in the last five years. This indicates that after 2019, taxpayers could be hit with a rising tidal wave of health care expenses resulting from the shift in health care coverage from the private to public sector.
...