"If States Don't Set Up Insurance Exchanges, Will 'Obamacare' Implode?"

Stuart Taylor Jr. explains the glaring problem with the federal exchanges. I'll just quote his parting shot:

And in the perhaps unlikely event that the dispute over the powers of federal exchanges reaches the Supreme Court, would Chief Justice John Roberts -- having made his uneasy peace with "Obamacare" in June -- have the stomach to resume hostilities based on a legal analysis that even lawyers find hard to follow?

The stomach to resume hostilities? I would not assume that Roberts "made peace" with Obamacare. He may believe he delivered a wound that escaped notice but will prove fatal.

As I said a month ago:



ADDED: "It's a slow-motion topple. We just haven't seen it go down yet.:

"The Shame of the Universities."

An alternate title that would work for 2 recently published books, according Michael Barone. (Both are books I've blogged about before: Greg Lukianoff's "Campus Censorship and the End of American Debate," and Richard Sander and Stuart Taylor's "Mismatch/How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It.")

Via Instapundit, whose own "Shame of the Universities" book is referred to in Barone's article.

The "mismatch" argument against affirmative action.

Explained by Richard Sander and Stuart Taylor Jr.:

The mismatch effect happens when a school extends to a student such a large admissions preference — sometimes because of a student's athletic prowess or legacy connection to the school, but usually because of the student's race — that the student finds himself in a class where he has weaker academic preparation than nearly all of his classmates. The student who would flourish at, say, Wake Forest or the University of Richmond, instead finds himself at Duke, where the professors are not teaching at a pace designed for him —  they are teaching to the "middle" of the class, introducing terms and concepts at a speed that is unnerving even to the best-prepared student.

Read the whole thing. It's odd that these observations are surfacing so late in our experience with affirmative action, but there's a new case pending in the Supreme Court, which creates an occasion for elaborating the policy pros and cons. I remember discussions about affirmative action, back in the 1980s, in which any attempt to make this argument would provoke a sharp rebuke.

With striking uniformity, university leaders view discussion of the mismatch problem as a threat to affirmative action and to racial peace on campuses, and therefore a subject to be avoided. They suppress data and even often ostracize faculty who attempt to point out the seriousness of mismatch.

It's a painful thought, that you are hurting the people you meant to help. The urge to repress ensues. It's much easier to justify imposing a disadvantage on the people you decided could bear the burden. That's something academics have long felt comfortable discussing openly.

Will the Supreme Court affirmative action case force the presidential candidates to talk about...

... a subject both of them would prefer to avoid? The oral argument is October 10th.

“I’ve got to believe at this point in the campaign neither the president or Governor Romney is going to want to give a quote on any of this,” said Richard Taylor, a business diversity advocate and former Massachusetts transportation secretary under Romney. “If I was preparing either candidate for the debate, this would be on the checklist, … but I don’t think either campaign will be anxious to talk about it.”...

“It took three long years to pull [a federal government policy statement on the use of race in education] out of the Obama administration. It was only after we pestered and cajoled them that they finally got it out,” John Brittain, a civil rights activist and law professor at the University of the District of Columbia, said in an interview soon after the document was released. “The administration had a paralysis of analysis. …. Overall, the Obama administration just has a reluctance to take on race and equality, and when they do so everything is so carefully sanitized and scrubbed to make sure it’s the least offensive thing possible.”

There’s almost no chance that Romney would take a strong stance against affirmative action, according to Stuart Taylor, a veteran legal commentator and author of a new book on the policy.

... “No major national political figure has attacked affirmative action publicly since 1996 or before. It’s kind of remarkable. The Republicans who during the ’90s for a while were seeing some political profit in attacking affirmative action given the polls, don’t do it anymore.”

So both candidates — like many Americans — exhibit a bland, uncommitted acceptance of the long-term practice of affirmative action, and they don't want to have to talk about it in crisp, clear terms, looking at all the arguments for and against, and scrutinizing the constitutional texts and precedents. But that's exactly what the Supreme Court must do and will do on October 10th.

"It's comforting that liberals now understand that there are worse things than having a divided Supreme Court disagree with your position."

"I understand that supporters of Judge Sotomayor are claiming that she has been 'vindicated' by the fact that four dissenting judges in Ricci adopted something resembling the position she took when the case was before her. It's comforting that liberals now understand that there are worse things than having a divided Supreme Court disagree with your position. During the Bush years, when a divided Supreme Court would strike down this or that Bush anti-terrorism measure, some liberals were quick to declare the president 'lawless.' They did so despite the fact that there was little precedent on the subject, and such precedent as there was often supported the Bush administration's position. Fortunately, liberal commentators seems to be 'growing in office.'"

Quality snark from Power Line, which links to this Stuart Taylor piece explaining why, in fact, the 4 dissenting Justices were not on the same page as Sotomayor:

[E]ven Justice Ruth Bader Ginsburg's 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven's decision to dump the promotional exam without even inquiring into whether it was fair and job-related.

Justice Ginsburg also suggested clearly -- as did the Obama Justice Department, in a friend-of-the-court brief -- that the Sotomayor panel erred in upholding summary judgment for the city. Ginsburg said that the lower courts should have ordered a jury trial to weigh the evidence that the city's claimed motive -- fear of losing a disparate impact suit by low-scoring black firefighters if it proceeded with the promotions -- was a pretext. The jury's job would have been to consider evidence that the city's main motive had been to placate black political leaders who were part of Mayor John DeStefano's political base....

[W]hile Ginsburg at least required the city to produce some evidence that the test was invalid, the Sotomayor panel required no such evidence at all. Its logic would thus provide irresistible incentives for employers to abandon any and all tests on which disproportionate numbers of protected minorities have low scores.

"Koh's writings—especially when exaggerated—will add to charges from the right that Obama is a closet socialist."

Stuart Taylor Jr. and Evan Thomas examine Harold Hongju Koh, Obama's choice for the top legal adviser to the State Department.

Excerpt:

Koh argues that American law should reflect "transnational" legal values—and that in an interconnected world it inevitably does to some extent already. In his writings, Koh has campaigned to expand some rights guaranteed by the U.S. Constitution—and perhaps shrink some others, including the First Amendment's guarantee of free speech—to better conform to the laws of other nations. He has, for instance, pushed for a more expansive view of what constitutes "cruel and unusual punishment" under the Eighth Amendment. Koh's views are in tune with—if bolder than—those of a majority of the Supreme Court on some issues....

Were his writings to become policy, judges might have the power to use debatable interpretations of treaties and "customary international law" to override a wide array of federal and state laws affecting matters as disparate as the redistribution of wealth and prostitution. He has campaigned to write into U.S. law the United Nations "Convention on the Elimination of All Forms of Discrimination Against Women," signed by President Carter in 1980 but never ratified by Congress. A U.N. committee supervising the treaty's implementation has called for the "decriminalizing of prostitution" in China, the legalization of abortion in Colombia, and the abolition of Mother's Day in Belarus (for "encouraging woman's traditional roles"). In 2002 Senate testimony, Koh stressed that these reports are not binding law, and he dismissed as "preposterous" the notion that the treaty would "somehow require the United States to abolish Mother's Day." Still, the reports are very much part of the "transnational" legal process that Koh celebrates.

"How smart is it for a woman with such a bad reputation for truthfulness and veracity to put those character traits at the center of the campaign?"

Stuart Taylor, Jr. asks the classic I-thought-you-were-supposed-to-be-smart question of Hillary. He notes her ridiculous citation of Obama's "I Want to Become President" kindergarten essay and proceeds to enumerate the Clintonian dishonesty:

Gennifer and Monica. ... Although well aware of her husband's philandering history, Hillary backed his squishy denials, famously asserting on "60 Minutes" that she was not "some little woman standing by her man like Tammy Wynette." More deceptively, she suggested to ABC's Sam Donaldson that Bill's contacts with Flowers were just an example of how he loved to "help people who are in trouble" and "listen to their problems."

"Hillary's words uncannily foreshadowed her insistence six years later to ... a White House aide that Bill had 'ministered' to [Monica] Lewinsky because she was a troubled young woman," Sally Bedell Smith writes in her fine new book about the Clintons, For Love of Politics. Hillary has continued to insist that she believed what she said about Lewinsky. But friends and former aides have told Smith and others that she knew her husband was lying all along.

Travelgate. ... [H]er statements were contradicted by evidence, including a long-concealed memo to McLarty and a written chronology prepared by White House aide David Watkins that came to light years later....

While saying that no provable crime had been committed, Robert Ray, who had succeeded Kenneth Starr as independent counsel, reported in October 2000 that Hillary's statements had been "factually false" and that there was "overwhelming evidence that she in fact did have a role in the decision to fire the employees."

Cattle futures. ... Hillary's first explanation (through aides) of this extraordinary windfall was that she had made the investment after "reading The Wall Street Journal" and placed all the trades herself after seeking advice from "numerous people." It was so preposterous that she soon had to abandon it.....

Removal of Vince Foster documents. ...

Castle Grande. .... Castle Grande was a sewer of sham transactions... Hillary told federal investigators that she knew nothing about Castle Grande. When it turned out that more than 30 of her 60 hours of legal work for Madison Guaranty involved Castle Grande, she said she had known the project under a different name. A 1996 Federal Deposit Insurance Corp. report said that she had drafted documents that Castle Grande used to "deceive federal bank examiners."...

Billing records. ....

Taylor lays it out crisply.

First, fire all the law clerks.

Stuart Taylor Jr. and Benjamin Wittes think the Supreme Court Justices have too much free time -- what's with O'Connor taking 28 junkets in '04 and publishing 3 books in 4 years? -- and it's making them arrogant. (Link for subscribers to The Atlantic... or use this link, which is good for 3 days.)

Eliminating the law clerks would ... make them more “independent” than they really want to be, by ending their debilitating reliance on twentysomething law-school graduates. Perhaps best of all, it would effectively shorten their tenure by forcing them to do their own work, making their jobs harder and inducing them to retire before power corrupts absolutely or decrepitude sets in.

No justice worth his or her salt should need a bunch of kids who have never (or barely) practiced law to draft opinions for him or her....

Justice Harry Blackmun’s papers show that, especially in his later years, clerks did most of the opinion writing and the justice often did little more than minor editing, as well as checking the accuracy of spelling and citations. Ginsburg, Thomas, and Anthony Kennedy reportedly have clerks write most or all of their first drafts—according to more or less detailed instructions—and often make few substantial changes. Some of O’Connor’s clerks have suggested that she rarely touched clerk drafts; others say she sometimes did substantial rewrites, depending on the opinion.

There’s no reason why seats on the highest court in the land, which will always offer their occupants great power and prestige, should also allow them to delegate the detailed writing to smart but unseasoned underlings. Any competent justice should be able to handle more than the current average of about nine majority opinions a year. And those who don’t want to work hard ought to resign in favor of people who do.

I heartily agree!

"The claims that Alito is a 'far-right activist' are laughable, except to far-left activists."

Stuart Taylor weighs in on the treatment of Samuel Alito. (Via How Appealing.)

He richly deserves the praise that he has received from colleagues and friends across the political spectrum for his powerful mind, intellectual honesty, and fairness.

The American people will figure this out. Any effort to filibuster Alito seems very likely to fail, and likely to backfire against Democrats.

That's what I've been saying too.

Alito will try as hard as anyone -- and far harder than O'Connor -- to be intellectually honest and analytically rigorous, and to keep his political preferences out of his legal rulings. He will therefore disappoint the most passionate political conservatives and horrify many liberals.

The notion of an apolitical justice may seem preposterous to academics and journalists who see judges as politicians in black robes, and view their opinions and citations as camouflage for preconceived ideological agendas. But Alito's opinions show that he takes the ideal of judicial restraint very seriously. Both conservative and liberal colleagues confirm this.

I devoutly hope so.

The Court and the real world.

Stuart Taylor argues in the September Atlantic that lack of any real world legal experience has led the Supreme Court to make head-in-the-clouds decisions that make trying cases, doing business, and running the government terribly difficult for the rest of us. (The link is for subscribers, but for the next three days you can get to it here.)

Now that Sandra Day O'Connor has announced her retirement, how many remaining justices have ever held elected office? How many have previously served at the highest levels of the executive branch of government? How many have argued big-time commercial lawsuits within the past thirty-five years? How many have ever been either criminal defense lawyers or trial prosecutors? How many have presided over even a single criminal or civil trial? The answers are zero, zero, zero, one, and one, respectively. (David Souter was a New Hampshire prosecutor once upon a time, and later served as a trial judge.)

The Court fusses around producing ten opinions and 140 pages of inconclusive nattering about a couple of Ten Commandments displays. Meanwhile:

[A]ccording to Michael Greve, the head of the American Enterprise Institute's Federalism Project, this Court has "resolutely refused to tackle the inconsistencies and absurdities that, after decades of neglect, afflict nearly every area of commercial litigation." One reason, Greve argues, is that with the exception of Justice Breyer, "the Court has absolutely no idea what business litigation in America now looks like."

I'm not convinced the background of the Justice is what would make a difference. After all, as Greve notes, it's Breyer, not Souter, who brings practical common sense to the table. (Though, ironically, it's Breyer's vote that made the two 10 Commandments cases go in opposite directions.) I realize there's a push in some quarters to get President Bush to pick a person with political experience to replace Justice O'Connor, but I'm very wary about that. You're not just importing political experience into the Court, you're introducing one individual politician, with the particular set of political commitments that got him (or her) elected.

Chaos without the filibuster?

In The Atlantic, Stuart Taylor writes from the imaginary perpective of post-election 2008 and sees disaster for the Republicans -- all following from abandoning the filibuster:

The Republican Party's stunningly swift swoon from controlling the presidency, the House, and the Senate to losing all three is rooted in what conservatives saw not long ago as their greatest triumph.

That was the use of an unprecedented parliamentary power play in April 2005 to ban filibusters of judicial nominees and the subsequent takeover of the Supreme Court by Bush-appointed justices bent on rolling back decades of liberal precedents....

With Democrats thus neutered, the Senate narrowly confirmed in near-party-line votes all of Bush's choices to succeed Rehnquist, O'Connor, and Stevens. Once on the Court, the three new justices allied with Antonin Scalia and Clarence Thomas to form the most cohesive, conservative majority bloc in seven decades....

[T]he specter of a conservative Republican steamroller taking over the judicial as well as the executive and legislative branches—and then engineering sudden, sweeping change in previously settled interpretations of the Constitution—eclipsed debate over the individual merits of the Court's decisions. A lot of voters found the whole business scary.

Stuart's nightmare scenario has the Court suddenly overruling all sorts of cases -- bringing back "The Constitution in Exile" and so forth. Is the filibuster all that keeps us from tumbling into a chaotic, frenzied remaking of constitutional law? Supreme Court nominees would still need a majority vote in the Senate, and surely at least some Republican Senators would worry about extreme Justices, if for no other reason than the effect it would have on the party's future. The new Justices themselves would be wary about excessively disrupting settled expectations. And don't be so sure that Justices Scalia and Thomas would not see the value of adhering to precedent. In what is regarded as one of Thomas's most extreme federalism opinions, his concurring opinion in United States v. Lopez (which struck down the Gun-Free School Zones Act), Thomas wrote:

Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years. Consideration of stare decisis and reliance interests may convince us that we cannot wipe the slate clean.

So Stuart's scenario strikes me as the opposite of David Brooks' overly rosy prediction of how things would play out if Roe v. Wade were overturned (which I critiqued here). Stuart's exaggerated picture does not adequately take into account how other players in the system would respond at each step.