Archives: 06/2009

And Your Freedom to Travel Takes Another Step Back

Yesterday, the Department of Homeland Security announced that it would begin a further attempt to implement the Western Hemisphere Travel (Restriction) Initiative.

WHTI is a congressionally mandated program to increase the documentation required for travel to and from neighboring countries. It’s a classic example of self-injurious overreaction to terrorism. The costs we incur for this program vastly outstrip the harms it averts. I have blogged about it here before. In a turn of phrase Orwell would love, a DHS blog post on the topic characterized the goings-on as “Boosting Border Security and Efficiency.”

In January 2008, I wrote about the border bedlam that would ensue when the DHS implemented WHTI as it had threatened to do, but the DHS was bluffing. A post on the Identity Project has a bevy of links and information, and an interesting take on things. It’s called “Today We’re All Prisoners in the USA.”

Parents Fact Check Ed. Secretary. MSM AWOL

Caroline Grannan, erstwhile editor at the San Jose Mercury News, just posted a fact check of a recent speech by Ed. Secretary Arne Duncan. The fact checking was actually done by Chicago watchdog group Parents United for Responsible Education, and Grannan laments her former media colleagues’ “unwillingness to question claims like Duncan’s.” You and me both, Ms. Grannan.

According to PURE, Duncan claimed that a startling turnaround at one Chicago public school was achieved after its original students returned following a major restructuring. Citing Chicago Public Schools’ own data, PURE claims only 12 of the original students actually returned (more details in an earlier letter cited here).

That’s an interesting model for school improvement… ditch the low performing kids.

Not sure that could be brought to scale.

New at Cato

For a weekly roundup of news and commentary from the Cato Institute, subscribe now to the Cato Weekly Dispatch.

  • In The Wall Street Journal, John Hasnas asks whether “compassion and empathy” are really characteristics we want in a judge.
  • Richard W. Rahn reports on the extreme changes about to occur in the British government in The Washington Times.
  • In Monday’s Cato Daily Podcast, Mark Calabria weighs in on “shadow banking” and the effort to regulate it.

GM’s Last Capitalist Act: Filing for Bankruptcy Protection

It’s not as if we didn’t know this was going to happen to GM for a long time now.

GM’s bankruptcy announcement today is perhaps the least shocking news we’ve heard about the company in more than seven months. It might well be remembered as the company’s last act of capitalism.

If GM emerges from bankruptcy organized and governed by the plan created by the Obama administration, it is impossible to see how free markets will have anything to do with the U.S. auto industry. With taxpayers on the hook for $50 billion (at a minimum), the administration will do whatever it has to – including tilting the playing field with policies that induce consumers to buy GM or hamstring GM’s competition or subsidize its costs – in order for GM to succeed.

Thus, what’s going to happen to Ford? With the public aware that the administration will go to bat for GM, who will want to own Ford stock?  Who will lend Ford money (particularly in light of the way GM’s and Chrysler’s bondholders were treated).  Who wants to compete against an entity backed by an unrestrained national treasury?

Ultimately, if I’m a member of Ford management or a large shareholder, I’m thinking that my biggest competitors, who’ve made terrible business decisions over the years, just got their debts erased and their downsides covered.  Thus, even if my balance sheet is healthy enough to go it alone, why bother?  And that calculation presents the specter of another taxpayer bailout to the tunes of tens of billions of dollars, and another government-run auto company.

Responses to My Comments About Sotomayor

As might be expected, I have received much email responding to my CNN.com commentary about Obama’s Supreme Court pick. Some of it has been favorable, some less so (and some simply incoherent). One particular email covered most if not all concerns – and quite thoughtfully at that – so I thought I would share this exchange with a reader who emailed me his comments:

I read  your piece “Sotomayor Pick Not Based on Merit”, where you write, “in over 10 years on the Second Circuit, she has not issued any important decisions”.

Granted that I’m a layman, not a legal scholar or anything - this list seems quite impressive, and, as a whole, pretty non-ideological.

In reviewing this list, I found myself disagreeing with her here and there, but I couldn’t find something that really irked me. Can you?

According to the authors, “Since joining the Second Circuit in 1998, Sotomayor has authored over 150 opinions, addressing a wide range of issues, in civil cases.” And that “To date, two of these decisions have been overturned by the Supreme Court; a third is under review and likely to be reversed.” 2 out of over 150, is not a bad record at all.

You also write that she’s “far less qualified for a seat on the Supreme Court than Judges Diane Wood and Merrick Garland or Solicitor General Elena Kagan.”

I did a bit of research on them, and I’m not sure why you reached that conclusion. They are all qualified, in some respects Wood and Kagan are a bit more impressive, but you give the impression that she’s not highly qualified, and I don’t see evidence for that. On the contrary, she seems highly qualified - she has a long judicial and academic record, she has dealt with a myriad of issues, and has authored a vast amount of rulings, which, as far as I’ve seen, don’t appear to be ideological or particularly “activist.” She strikes me as someone balanced and sensible, with a slight tilt to the left.

You also write, “this does not a mean that Sotomayor is unqualified to be a judge — or less qualified to be a Supreme Court justice than, say, Harriet Miers” - but, c’mon, how can you even compare her to Miers? Miers was truly unqualified. She’s hardly intellectually impressive in any way, to put it mildly, and nothing about her record was impressive or even remotely suggesting she’s qualified to serve as a Justice. She was basically a manager of a law firm, with zero qualifications to serve as a SC justice. By even mentioning her name while discussing Sotomayor, you’re giving the impression there’s an analogy there, where there’s really none. Sotomayor is light-years ahead of Miers. You can’t be serious.

You also make a big issue over Ricci v. DeStefano. Well, I personally would side with the firemen, and it’s unfortunate that Sotomayor hasn’t, but to be fair, she hasn’t even written a decision about that.
We don’t know what her reasoning was. She merely signed, along with the rest of the panel, to uphold the lower court’s decision. It’s hard to build an entire case against her based on something like that. She has written over 150 other decisions, why not focus on them? Why pick one, that doesn’t even have any arguments in it, and make it the central issue, when there are over 150 reasoned decisions to analyze?
Why not review them, and give the public a deeper assessment, rather than focusing on ONE, which doesn’t even have any arguments or reasoning in it?

I’m generally a Cato fan, I get the mailings every day, I’m a moderate libertarian by philosophy, I’m just not sure why Cato is opposing her nomination. I like to think of Cato as non-partisan, just as I am, but on this issue your and Pilon’s opposition/criticism smacks from political partisanship and is not based on the evidence. So it seems to me.

Thanks for reading.

Here is my response:

Thanks for writing and for the thoughtful comments. A few points:

1. My argument is explicitly NOT that her opinions are disagreeable. I’ve waded through a fair number and read every public report on them produced thus far (including the very helpful SCOTUSblog summary you cite). Like you, some I agree with – most, actually, because most cases at this intermediate appellate level are not controversial (legally or politically), even if complex – some I don’t. But there’s just not much “there” there – intellectual depth, scholarly merit, etc. – at least by the elevated standards for elevation to the Supreme Court and in comparison to more accomplished jurists like Wood and Garland. She’s a competent judge, but we have 500 of those in the federal judiciary alone. (And none of this is to disparage her tremendous personal story; I write this from Princeton, where she had a truly impressive four years.)

2. Her reversal rate (I think there are six cases now) is a non-issue. The Supreme Court reverses over 60% of cases it hears and hears fewer than 2% of cases it is asked to review. So, statistically, we can say nothing about Sotomayor in that sense. A couple of her reversals are a bit strange, but on technical issues that, again, don’t lend much to the overall debate.

3. Yes, she’s much more qualified than Miers (though it’s a little unfair to say Miers was a mere “law firm manager” – she was White House counsel and apparently a decent lawyer in private practice).  I threw that line in there to show I can pick on Republican nominees too.

4. While Roger, whom I copy here, has discussed suspicions of Sotomayor’s activism or radicalness – and I think it’s clear she has more of those tendencies than Wood or Kagan – this is not the thrust of the my CNN commentary. We just can’t tell from her opinions, which are all over the map – other than the speeches at Berkely and Duke and then the Ricci case.

5. Ricci is important for two reasons: a) on the merits, the decision is blatant racial discrimination – and the Supreme Court looks likely to overturn Sotomayor’s panel; b) perhaps more importantly, the failure to grapple with the complex constitutional and statutory issues is a serious dereliction of judicial duty – as pointed out by Jose Cabranes in his dissent from denial of en banc rehearing. Regardless of the merits of the case, the way it was handled – as a per curiam summary affirmance released late on a Friday, meant to sweep the case under the rug – is outrageous. Sotomayor was 100% complicit in that.

6. In no way are my (or Roger’s) comments partisan. Cato’s interest here isn’t in any particular personality but rather: 1) that official appointments be made irrespective of racial/ethnic/identity politics, and 2) even more importantly, that the Supreme Court interpret the Constitution in a way that treats the judicial enterprise not as one of enforcing social justice or otherwise rewriting the law it when a result is inconvenient. The talk of “empathy” is disturbing precisely because it is the antithesis of the rule of law. And this is why Republican Judiciary Committee members must generate a public debate on judicial philosophy and not merely attempt to tear down this nominee. If they don’t demand substantive answers on serious constitutional questions, they will be complicit in the deterioration of our confirmation processes.

All the best,
Ilya

I look forward to following and commenting further as the confirmation process plays itself out.

Is Obama Making America like Sweden?

If only.

Just as the Obama administration takes over another once-great American company, Sweden is busy privatizing. As the Christian Science Monitor reported recently:

Last week, the country’s center-right government began selling off state-owned pharmacies, one of the country’s few remaining nationalized companies, as part of an ambitious program of liberal economic reforms started in 2006. In the same week, a study by the Swedish Unemployment Insurance Board revealed that almost half of the country’s jobless lacked full unemployment benefits. Many opted out of the state scheme when the cost of membership was raised last year; others were ineligible.

State pensions, schools, healthcare, public transport, and post offices have been fully or partly privatized over the last decade, making Sweden one of the most free market orientated economies in the world, analysts say.

Please, President Obama, send Larry Summers to Sweden to get some new ideas for economic reform.