Fisking Arlen Specter on the "Nuclear Option"

Arlen Specter's comments in The Washington Post today deserve some fisking:

"Both parties are at fault," he said, even scolding Bush for "unheard-of" recess appointments of judges rejected by the Senate. "Each side ratcheted it up, ratcheted it up. . . . So the question is, where do we go from here?"

I don't think this is accurate as a matter of history. Republicans did not demogogue and ultimately defeat a patently qualified sitting D.C. Circuit Court of Appeals judge who had extraordinary academic credentials and scholary achievements, Robert Bork. Republicans did not demogogue (though ultimately unsuccessfully) a sitting D.C. Circuit Court of Appeals judge, Clarence Thomas, on the basis of sexual innuendo from an unstable and uncredible witness, Anita Hill. Republicans have never filibustered nominees for the Courts of Appeals who would otherwise be confirmed easily by majorities of the Senate. Democrats did all of these things, and they did them in the name of abortion "rights." Republicans, meanwhile, nominated and confirmed Sandra Day O'Connor and David Souter, who have, to the surprise of Republicans, been key votes on the pro-abortion side in the important cases that have come down in the past 15 years or so. Can you imagine the Democrats being "surprised" by a nominee of Bill Clinton for the high court who accidentally turns out to be pro-life? The mind boggles.... Democrats just don't nominate people for judgeships who deviate from their party line one iota. That fact by itself shows that Republicans have been more moderate on judges.

And Specter questioned the effort to strip the minority Democrats of filibuster power -- a move known as the "nuclear option." "If you were to flash ahead a hundred years from now, this controversy over judges . . . would not be a major matter in the life of the country," he said. "But minority rights are."

I think Specter is both right and wrong here. I think he's plainly wrong that the judges don't matter in the long term. I cite cases every day in my practice that were handed down decades ago, and some older than that. What judges do is the closest thing we have to laws being etched in stone. Put bluntly, had the Supreme Court acted differently 33 years ago in Roe v. Wade, there would be 40 million or so more living human beings. I have a hard time believing that wasn't a "major matter in the life of the country."

On the other hand, I am sympathetic to Specter's position on the filibuster, from a conservative position. From Edmund Burke on, conservatives have been concerned about "conserving" those traditions that have developed organically over time in our institutions, on the theory that the collective wisdom of the ages is smarter than the particular notions of a given time under the pressures of a momentary dispute. Conservatives have also been concerned at creating institutional structures that hem in the majority, which otherwise, in a pure democracy, could do what it wants, whatever it wants, whenever it wants.

In our own system, we have many such hedges against pure democracy, including the structure of the Senate itself (two Senators from each state, regardless of the size of the state, elected only every six years, with staggered elections of only a third of the Senators in each two year cycle); the judiciary (appointed, not elected, and given lifetime tenure in good behavior); the Electoral College (at least as originally conceived as a buffer between the voter and the ultimate decision on who should be President). One of the minor ways our system has evolved to frustrate the majority is the filibuster. I'm certain that it is being used inappropriately with regard to President Bush's judicial appointments. But I'm equally certain that the concept of the filibuster is probably a good thing in the long term for our society, because it can restrain the majority from doing the Big Bad Thing, whatever that may turn out to be at some unforeseeable point in the future.

Ankle Biting Pundits (fka Crush Kerry blog) and Polipundit are blogging on this topic too and doing their usual great job.

Thomas Redux

Here is the opening of Justice Thomas' dissent from today's Supreme Court decision in Johnson v. California, in which the majority decided that California's practice of briefly segregating prisoners by race as a means of deterring the formation of race-based gangs in prison requires strict scrutiny under the Constitution:

The questions presented in this case require us to resolve two conflicting lines of precedent. On the one hand, as the Court stresses, this Court has said that "all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized." Gratz v. Bollinger, 539 U. S. 244, 270 (2003) (emphasis added) (quoting Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 224 (1995)). On the other, this Court has no less categorically said that "the [relaxed] standard of review we adopted in Turner [v. Safley, 482 U. S. 78 (1987),] applies to all circumstances in which the needs of prison administration implicate constitutional rights." Washington v. Harper, 494 U. S. 210, 224 (1990) (emphasis added).

Emphasizing the former line of cases, the majority resolves the conflict in favor of strict scrutiny. I disagree. The Constitution has always demanded less within the prison walls. Time and again, even when faced with constitutional rights no less fundamental than the right to be free from state-sponsored racial discrimination, we have deferred to the reasonable judgments of officials experienced in running this Nation's prisons. There is good reason for such deference in this case. California oversees roughly 160,000 inmates, in prisons that have been a breeding ground for some of the most violent prison gangs in America, all of them organized along racial lines. In that atmosphere, California racially segregates a portion of its inmates, in a part of its prisons, for brief periods of up to 60 days, until the State can arrange permanent housing. The majority is concerned with sparing inmates the indignity and stigma of racial discrimination. California is concerned with their safety and saving their lives. I respectfully dissent.

I am not concerned here with whether Thomas's argument is right and the majority is wrong. Rather, I just want to note that Thomas's prose is extraordinarily clear about setting up the terms of the argument. The penultimate sentence is classic in its juxtaposition of the two competing world-views represented by the two duelling legal conclusions of the majority and minority.

Harry Reid, any comments?

Reeducation at Harvard

Lawrence Summers, the President of Harvard, has been pilloried for his rather innocuous comments at a conference to the effect that the reason that there may be more male than female mathematics, physics and other hard science professors at high-end research institutions may have something to do with innate differences between the sexes. The New York Times article from today is Orwellian in its calls for Summers to go through sensitivity retraining so that he "gets his mind right." Summers, for his part, and somewhat shamefully, appears perfectly willing to eat as much crow as he has to in order to maintain his position. The whole episode is a sad commentary on just how far away from "free" the expression of ideas is on elite campuses. As someone who attended Princeton and Duke and has followed academic politics for more than two decades, this is par for the course.

But let's consider how confusing this must be to actual consumers of the educational product Harvard sells, the undergraduates who come from all over the world and pay $40,000 a year for a Harvard diploma. How many times do you think terms or phrases like "openness," "diversity," "celebrate difference," "open mind," "free inquiry," "challenge assumptions," etc. are used in the first week you arrive on campus as a freshman? But now the very professoriate that preaches being open to "new ideas" crucifies its own President for having the temerity to say what any casual honest observer of actual human beings (or even non-casual, scientific observers) must admit. What gives?

Hmmmm.... the freshman thinks. There are, in fact, innate physical differences between men and women. Everybody knows this, at least on some level. That's why male athletes at the margins perform at higher levels than female athletes. It's not a big difference -- Amanda Beard of Duke's women's basketball team is bigger, stronger, quicker and better than 98% of the boys on Duke's campus. She can play one-one-one and be competitive against the very best of the remaining 1.9% of boys who constitute the elite of Duke's campus intramural teams. She might even be able to be competitive in a game against walk-ons from Duke's men's team, high school basketball players and even stars who weren't good enough to receive a scholarship from a college like Duke. But there is no way she can compete at the margin against Duke's scholarship athletes who are recruited from all over the because they are among the top 10 or 20 or 50 high school basketball players in the whole country. The same thing is true in other sports. Marion Jones can beat me and 99.9% of men in the 100 meters. She can't beat a world-class male sprinter, can't beat a NCAA-level male sprinter, and probably would lose to a significant number of state-championship level high school male sprinters. She's great, but at the margins, where only the elite go, she can't compete because of innate physical differences between the sexes.

There are also at least some cognitive differences between men and women. Everybody knows this too. But, strangely, the freshman thinks, we're only allowed to talk about it when they are negative about men. Again, what gives? Innate differences between men and women's brains are why men tend to be more violent. That's why men tend to have more schizophrenia and depression. That's why men tend to have more anger-management issues. That's why men tend more often to be loners. That's why boys tend more often to have ADD. At least that's what my psychology teachers says. And, if there weren't innate brain chemistry differences, why is there a differential in the level of drugs our medical community prescribes to men and women for these types of maladies? Heck, half the boys in middle school were on freakin' Ritalin! If there were no differences, the level of prescriptions would be the same, wouldn't it? But it's not. Again, at the margins -- in this case in the relatively small part of the bell curve where people have serious mental problems -- men are different than women. Aren't they?

So.... there is no reasonable, plausible, logical reason why these types of differences couldn't translate into different outcomes in terms of the ability of men and women at the margin to achieve success in high-level, high-powered sciences. I'm not saying that there necessarily is such a connection. I'm just saying that there could be. Again, I must stress that we're talking about the margins, where only the elite of the elite succeed. For us garden-variety folk, there are, of course, many many women who are highly trained and qualified mathematicians, engineers, physicists, and scientists of all stripes, and one would be a fool to judge a book by its cover. But at the Harvards of the world, where the most cutting-edge, difficult science and math is undertaken, the marginal male may have innate advantages over the marginal female. This is not to say that gender should form a basis for deciding whom to hire -- Harvard obviously shouldn't say that they aren't going to hire a female physics professors simply because she's female. But why can't the differences be honestly used as an explanation -- tentative, hypothetical, subject to refutation by experiment or other data-gathering over time -- after the fact for why there end up being more men? Isn't that all that Summers did? Isn't that what universities are supposed to do? Gather facts? Test hypotheses? Move us toward a truer picture of why things are? Provide reasonable explanations for what otherwise can only be viewed as a "conspiracy so vast"? Or else disprove proffered hypotheses with newer, better data and newer, better reasoning?

Anyway, that's what I thought universities were supposed to do. Apparently it isn't true at Harvard anymore, at least not with regard to this one taboo issue. Now, we shoot the messenger. Now, we shout down the voices that challenge our preconceptions.

Mark Steyn is a genius.

Here is the inimitable Mark Steyn on the ostensible thaw in relations between America and Old Europe:

In the broader sense vis-à-vis Europe, the administration is changing the tone precisely because it understands there can be no substance. And, if there's no substance that can be changed, what's to quarrel about? International relations are like ex-girlfriends: if you're still deluding yourself you can get her back, every encounter will perforce be fraught and turbulent; once you realise that's never gonna happen, you can meet for a quick decaf latte every six – make that 10 – months and do the whole hey-isn't-it-terrific-the-way-we're-able-to-be-such-great-friends routine because you couldn't care less. You can even make a few pleasant noises about her new romance (the so-called European Constitution) secure in the knowledge he's a total loser.

Europe is to America what CBS is to the Internet... a tired old fart that doesn't know that he's past his prime. Vital, young, virile and moral cultures like America should do to Europe what vital, young, virile and moral men do to washed-up old cranks: humor them and be kind. Don't cost nuthin'.

Thinking about the Supreme Court

Two decisions were issued by the U.S. Supreme Court today. In the first action, Stewart v. Dutra Const. Co., Justice Clarence Thomas wrote the majority opinion concluding that a dredge used to dig a trench beneath the Boston Harbor known as the "Super Scoop" was a vessel under the Jones Act, permitting an injured marine engineer to sue the company as a "seaman" under federal law. Justice Thomas wrote for a unanimous court. In the second action, Smith v. Massachusetts, Justice Antonin Scalia wrote the majority opinion concluding that a trial court judge who had dismissed a firearms charge at the close of the State's evidence could not reconsider such a ruling when additional evidence (of the barrel length of the pistol) was submitted in relation to other charges tried in a second phase of the trial, because doing so violated the Double Jeopardy clause of the Constitution. Scalia was joined in his opinion by Thomas and O'Connor from the Court's conservative wing, but also by liberal justices Stevens and Souter, while conservatives Rehnquist and Kennedy dissented together with liberals Ginsburg and Breyer.

If this report is accurate, Chief Justice Rehnquist may retire from the bench within the next few months. Everyone expects a great conflagration to ensue, with the liberal media and Democratic pols pursing "any means necessary" to take down President Bush's nominee to fill the Chief Justice slot. When that happens it would be great if someone would remember that much of the Court's work, like lawyers' work generally, involves specific cases and controversies that are determined on the basis of specific law and specific facts, and do not generally involve much by way of politics at all. Thus Thomas writes for a unanimous Court in Stewart. (I'll bet none of the other justices thought his opinion was poorly written, by the way.) Thus Scalia writes for a divided court in Smith, but a court that isn't divided in the way the media generally understands it, i.e., not on political grounds, but on the grounds of principled, reasonable differences of opinion regarding difficult legal questions.

I have been a lawyer for a number of years now. I have found lawyers and, particularly judges, to be generally of the highest integrity, with very few exceptions. The struggle in the law is almost never over politics, but almost always a struggle to do what is right based upon an imperfect (necessarily so) system of laws that have developed piecemeal (a good thing too) over centuries, as applied to sets of facts that are peculiar to individual cases. It is a wonderful system and a necessary one, if the rule of law which underlies all our freedoms is to be maintained. I hope that the media and politicans understand this when they consider Justice Rehnquist's replacement for confirmation.

I doubt that they will.

Noonan on Bloggers

Peggy Noonan has a great piece in the Wall Street Journal about blogging entitled "The Blogs Must Be Crazy." But then Ms. Noonan is always great. However, I think she misses a larger set of points about the “qualifications” of bloggers to provide both accurate reporting and insightful commentary and context for stories.

First, bloggers are not just people who didn’t go to J-school, i.e., high school or college graduates, although there are many who fit that description. They are also often people with different, and sometimes significantly more rigorous post-graduate training. The notion that someone with a journalism degree is somehow more qualified to report on or opine about a story having to do with, for instance, the actuarial trends of the Social Security system’s solvency, than, for instance, an actuary-blogger, or an ERISA attorney-blogger, or a CPA-blogger, or an economist-blogger, strikes me as a very silly proposition indeed. A journalism degree in this light is somewhat like a primary education degree… sure you can write (or teach) at an eighth-grade level about basic facts, but for an understanding of what those facts mean and how to make decisions about those facts in the real world, grown-ups turn to experts and specialists, not to journalists (or grade-school teachers).

Second, many bloggers are lawyers, like Instapundit and Powerline (and yours truly). One thing this gives such bloggers is a significant advantage in understanding what does and doesn’t (or shouldn’t) count as evidence. Lawyers (and particularly litigators) operate under codified rules of evidence. Do “journalists” have such a code? No. (I've previously written at length about this topic here in a post entitled "What is a Journalist?".)

Finally, and perhaps most importantly, bloggers are most often people with JOBS apart from their “reporting” or punditry. Does this make them less professional? Probably a little. (One of the reasons I haven't posted much this month, for instance, is that I've been freakishly busy traveling, taking depositions, etc.) But it also provides an advantage… bloggers aren’t people who spend their day talking to other journalists or pundits in New York or Washington or Los Angeles or San Francisco or Chicago. Because they have jobs, and because they aren’t necessarily(because of the wonders of the Internet) located in the big cities, they almost always have very different experiences than the MSM, and have bumped up against very different people. I’m not saying necessarily that bloggers have broader or deeper experience of the “real world” than most journalists, although I think I could make that case. I’m just saying that their experience is different, and fills in gaps in the collective experience of the MSM. As Noonan says, that’s a public service.

Social Security Reform and Risk

As a lawyer, I have represented clients in disputes involving corporate and public pension funds on numerous occasions, so I guess I know a little bit about how large-scale planning for retirement works, and I think it's applicable to a couple of questions people may have about the President's Social Security reform package.

1. Isn't it risky to permit people to invest their retirement funds in the stock market?

Threshold point -- of course it's "risky" if by risky you mean that stocks can and do go down as well as up. Business ideas fail, business plans run aground, businesses go under, technology makes some businesses obsolete (the buggy whip industry, the electric typewriter industry, etc.). But the same "creative destruction" that makes investing in business enterprises risky also gives them the possibility of rewards. If there wasn't any risk to them, there wouldn't be any upside reward either. So don't let anybody tell you that investing Social Security money in the stock market won't be risky. The fact that it's risky is precisely why you want to do it!

That's why a huge public employee pension fund like the California Public Employees Retirement System (CALPERS) has 60-70% in equities. Its trustees know that, over time, taking that risk will enable them to grow the fund, pay higher benefits, etc. In a given year, they may take a "hit." But, in the long term, they'll be better off by having put their money at risk.

2. How risky is it really?

In the short term it's of course a little risky. If you were retiring next year, you'd want to have less exposure to equities in your overall portfolio, depending on how much you have, how much you want to pass on to your children, how much you need for basic living expenses in retirement, etc. You'd probably still want to have some, to make sure your assets appreciate over the actuarial course of your life to beat inflation.

But, if you're not retiring for 25-45 years (the target audience for President Bush's plan), it's much, much more risky not to be in the stock market. There is no 25 year period over the past century where equities didn't do substantially better than cash, money markets, bonds, T-bills, etc. Again, that's why corporate and public pensions -- which have to consider the probable lifespans of their employees through actuarial modeling -- will invest substantial portions of their assets in equities. (That's also why any investment advisor worth his salt asks a prospective client "What's your time horizon?", i.e., when will you need this money to be liquid for your living expenses? If the answer is never, you can take a lot of risk and reap, over time, commensurate rewards. If the answer is tomorrow, you can't take risk and need to keep your money in risk-free investments like Treasury bills. But if the answer is 10 years, or 20 years, or 30 years, or 40 years, the answer is that you can take on a significant amount of risk, and will end up reaping a significant reward for having done so.)

Moreover, if the stock market somehow doesn't do well over the 25 or 30 or 40 year period prior to your retirement, what makes you think that the economy will have done well enough during that same time to support the Social Security system anyway? The stock market is ultimately tied to corporate profitability and corporate profitability is tied to employment and employment is correlated with government revenues, both in income taxes and payroll taxes for Social Security. If the stock market tanks for an entire generation or more, we'll have a lot more to worry about than whether our Social Security payments are a little less than we thought they'd be.

3. But what about the "transition" costs?

Estimates of what it will "cost" to transition the system to some use of private accounts (the amount of diverted funds that would otherwise have been paid into the system during the transition period) are about $2 trillion. OK, that's a lot of moolah. But what they don't tell anybody is that the long-term liabilities of the system will be cut by something on the order of $10 trillion, because the younger workers now who are diverting those funds into their private accounts will get less in Social Security payments from the government when they retire in 25 or 30 or 40 years. (They'll make up for it by the wealth they will have amassed in their private accounts.)

Pension funds do this all the time. A company (or a county) will offer early retirement incentives like lump sum payouts for the purpose of reducing overall future liability -- they'll pay now so that they won't have to pay as much later. There is literally nothing wrong with this idea, except that no one has adequately explained that the long-term liabilities of the Social Security system will go down, not up, under the President's plan.

Just some thoughts. I've been out of the loop for a few days on business.

Peace, out.

Victor Davis Hanson

... is the smartest political writer in America. Always clear, always forceful. Always a must read. Today's offering in National Review Online, entitled "The Global Throng" -- Why the World's Elites Gnash Their Teeth," takes apart liberal "intellectuals" (so-called) with a stiletto.