• SUPPORT CATO
• FOR STUDENTS
• FOR MEDIA
• FREE NEWSLETTERS

• HOME

• ABOUT

• BLOG

• BOOKSTORE

• EVENTS

• EXPERTS

• MULTIMEDIA

• PUBLICATIONS

Books

Reviews & Journals

Public Filings

Policy Studies

Opinion & Commentary

• RESEARCH AREAS

• SPEAKERS BUREAU

• SUPPORT CATO

• CATO UNBOUND

• DOWNSIZING
  GOVERNMENT.ORG

• ELCATO.ORG

Cato Dispatch for July 17, 2009

Subscribe to the Cato Dispatch via email

(Links to outside sources were active as of the date of this dispatch; however, not all news sources maintain links to current stories indefinitely. Some links also may require registration.)

Sotomayor Faces Her Critics
Health Reform Bill = $500 Billion in New Taxes
Thinking Clearly about Economic Inequality

Sotomayor Faces Her Critics

Supreme Court nominee Sonia Sotomayor spent the week facing criticism and questions from the Senate, as Democrats and Republicans questioned her record, her beliefs, and how she will judge on key issues as a member of the Supreme Court.

Writing in Forbes, Cato adjunct scholar Richard Epstein expresses his concerns about Judge Sonia Sotomayor's nomination to the Supreme Court:

In a previous Forbes column, I decried President Barack Obama's insistence that empathy would weigh heavily in the scales when it came to his next Supreme Court nominee. And reading the arguments that were put forth to justify the nomination of Sonia Sotomayor of the Second Circuit to the Supreme Court, it appears that all the bad chickens have come home to roost.

Evidently, the characteristics that matter most for a potential nominee to the Supreme Court have little to do with judicial ability or temperament, or even so ephemeral a consideration as a knowledge of the law. Instead, the tag line for this appointment says it all. The president wants to choose 'a daughter of Puerto Rican parents raised in Bronx public housing projects to become the nation's first Hispanic justice.'

Obviously, none of these factors disqualifies anyone for the Supreme Court. But affirmative action standards are a bad way to pick one of the nine most influential jurists in the U.S., whose vast powers can shape virtually every aspect of our current lives. In these hard economic times, one worrisome feature about the Sotomayor nomination is that the justices of the Supreme Court are likely to have to pass on some of the high-handed Obama administration tactics on a wide range of issues that concern the fortunes of American business.

Ilya Shapiro, Cato senior fellow in constitutional studies, covered the nomination hearings for Townhall's blog, offering dispatches with commentary and analysis throughout the week.

On Sotomayor and "secret law:"

Sotomayor didn't have much to say in response to Senator Feingold's inquiries regarding national security law and civil liberties post-9/11, but the Wisconsin lawmaker's questions about "secret law"—on which he didn't press the nominee's non-answers—made me think of the following: Both Ricci (the infamous firefighters race discrimination case) and Didden (the property rights violation case I mentioned in my previous post) were "unpublished" summary dispositions.  If Sotomayor had not been nominated to the Supreme Court, causing hundreds if not thousands of lawyers to comb through her judicial opinions, would anyone have uncovered these blatant attempts to sweep controversial legal issues under the rug?  Are Ricci and Didden Sotomayor's secret law?

Her judicial philosophy:

The more Sotomayor speaks, the more it becomes clear that these types of nonanswers, this inability to see (or lack of desire to express) a big picture view, is her own essence. It continues a pattern that is evident from her judicial opinions, which are mostly unremarkable and, in the neutral sense of that term, unimpressive. For all her career success and a personal story we should all celebrate, she is an average judge who apparently gives little thought to the broad swath of law and where her rulings fit into that. …For all her bluster about being a 'wise Latina,' she is little more than a left-leaning empty robe.

Her views on property rights:

The hearing began after lunch with Senator Grassley probing Sotomayor's views on Kelo v. New London and the Fifth Amendment's protection of property right—one of the questions I would ask her.  The nominee apparently thought the senator (who's not a lawyer) needed a lesson in what went on in Kelo and how the Court ruled.  Grassley, having been briefed by counsel, didn't seem to care for that, pushing Sotomayor on whether she thought Kelo was correctly decided and how she views constitutional property rights generally.

Sotomayor said Kelo was a judgment of the Court that she accepts, but that any future case she would have to judge on its own merits. … In short, according to Sotomayor, if something is unconstitutional, a judge can't allow it.  The technical term we lawyers use for this kind of sophisticated reasoning is "circular"—with the judge here getting to decide based on no discernible criteria whether something is constitutional.

Special bonus link: From the newest edition of Regulation magazine, read Richard Epstein's devastating review of Robert H. Bork's collected writings.

Health Reform Bill = $500 Billion in New Taxes

House Democrats released their 1,018-page health care reform bill, "America's Affordable Health Choices Act of 2009" on Tuesday. The bill would impose a mandate on individuals, requiring every American to buy a government designed insurance package or pay a new tax equal to 2.5 percent of their income. Cato scholar Michael D. Tanner comments, "This bill is a dog's breakfast of bad ideas paid for by more than $500 billion in new taxes. ...This is a health care 'reform' under which Americans will pay more for worse care."

The new plan won't offer easier access to your doctor, either. As Cato health care analyst Michael C. Cannon explained on the Glenn Beck program, reaching your doctor will be more difficult if this health care reform package passes.

A free-market approach to health care would move away from employer-provided insurance and increase competition among both insurers and health providers.

In The Los Angeles Times and many other newspapers, Tanner describes how a free-market plan would work:

So what exactly would a free-market approach to reform look like? Quite simply, it relies on those time-tested building blocks of marketplace efficiency: competition and choice.

There are two key components to any free-market healthcare reform. First, we need to move away from a system dominated by employer-provided health insurance and instead make health insurance personal and portable, controlled by the individual rather than government or an employer. …The other part of effective healthcare reform involves increasing competition among both insurers and health providers. Current regulations establish monopolies and cartels in both industries. Today, for example, people can't purchase health insurance across state lines. And because different states have very different regulations and mandates, costs can vary widely depending on where you live. …The choice facing us now is not between Obama's plan for healthcare micromanaged by the government or doing nothing. Rather, it is a choice between government control, regulation and rationing on one hand, and free markets, choice and competition on the other.

That is the real healthcare debate.

Thinking Clearly about Economic Inequality

The public discussion of inequality in the United States, and no doubt elsewhere, is marked by a lack of clarity and precision. Few commentators — even those who are professional economists — speak clearly about what the various measures of economic inequality do and do not tell us. In a new study, Cato scholar Will Wilkinson challenges many common assumptions about equality and political morality that appear again and again in textbooks, media reports, and public discussions. Wilkinson's study was profiled by online writers for The Washington Post, The Atlantic, The Economist, National Review and more.

Wilkinson writes:

Income inequality can indeed be reduced in a stroke by taxing the wealthy more heavily. It was, very likely, reduced in a stroke by the recent financial collapse. But just as there is no point in wanting less income inequality just for its own sake, there's no point in cheering when the income gap narrows, since the income gap was never the problem.

The problem is that too many people in our society do not have reason to be glad that they live under these institutions rather than others. Too many Americans struggle to find decent work, and struggle to raise their families without a toxic sense of physical and economic insecurity. Too many Americans are held captive by the state for acts that should not be crimes. Too many migrant workers are abused because our laws leave them vulnerable to abuse. Too many live in fear of losing what they have achieved by courageously venturing far from home to find opportunity. Too many children are denied the opportunity to develop the intellectual skills and habits of mind necessary to take advantage of the stupendous variety of opportunities that would otherwise be available to them.

This is not okay. And it is not okay for intellectuals and policymakers to waste time and energy worrying that some people, who have had the opportunity to make the most of our institutions, have done too well. It doesn't help. Nor does it help to encourage people to concentrate on differences in income, or to resent them. Demoralization and resentment are not what people need.

Chris Moody, editor, cmoody@cato.org