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February 28, 2008

Michelle Obama's Pride--Stuntz

A lot of ink has been spilled on Michelle Obama’s comment that “for the first time in my life, I am really proud of my country.” I’m a McCain man myself, but the criticism seems dumb to me. She isn’t running for office, and she’s entitled to feel what she feels and express it as she chooses, as long as she doesn’t insult anyone else along the way – as she manifestly didn’t. Her comments are part of (and an exceptionally mild instance of) a long tradition of moral self-criticism that may be Americans’ greatest attribute. In the mid-1850s, at the height of Know-Nothingism, Abraham Lincoln wrote more caustically about his country’s history and character than any candidate or candidate’s spouse would dream of writing or speaking today:

"Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that ‘all men are created equal.’ We now practically read it, ‘all men are created equal, except negroes.’ When the Know-Nothings get control, it will read, ‘all men are created equal, except negroes, and foreigners, and catholics.’ When it comes to this I should prefer emigrating to some country where they make no pretense of loving liberty – to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocrisy."

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March 3, 2008

Evangelicals and the Choice of Democratic Nominee--Skeel

The standard storyline about religion and the nomination process has been the failure of evangelicals to agree on a single preferred Republican candidate. But the choice of Democratic nominee has more momentous implications. If Clinton is the nominee, evangelicals will swarm to McCain (who, contrary to popular belief, has significant support among evangelicals– much more than among staunch, nonevangelical conservatives). Obama, by contrast, could win a sizeable slice of the evangelical vote.

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March 21, 2008

Should Obama Leave His Church?--Skeel

In the furor this week over the anti-American comments of Jeremiah Wright, the pastor of Barack Obama’s church in Chicago, the one question that’s gotten surprisingly little attention is the most obvious one: Should Obama leave his church?

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Angry Churches--Stuntz

Judging by Jeremiah Wright’s sermons, Barack Obama’s church seems to be an angry place—angry at white America for the many ways it has held back and held down the black community represented in its congregation. I want to write about one source of that anger—crime and criminal punishment—in another post. For now, I’d just note that one can see something similar in a lot of mostly white evangelical churches. There, the target of white believers’ anger is the secular culture that tolerates and even promotes all manner of evil.

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April 14, 2008

Obama's Multiple Audience Problem--Skeel

 There’s a clear pattern to Obama’s three biggest recent slip-ups– the controversy over his former pastor’s anti-American remarks, his economic advisor’s alleged assurance to Canadian officials that he doesn’t really mean the critical things he says about Nafta, and now his suggestion at a San Francisco fund-raiser that dire economic straits have caused small town Pennsylvania voters to “cling to guns or religion or antipathy to people who aren’t like them ...”  In each case, the original remarks seem to have been acceptable to their intended audience, but deeply disturbing to a different audience.

Speaking effectively to multiple audiences is one of the trickiest challenges of any political campaign.   Roughly speaking, there seem to be three strategies for pulling this off.

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May 6, 2008

Oil Politics--Skeel

I’m not an economist and don’t even play one on TV, so I didn’t get quite as worked up as my economist friends on Sunday when Hillary Clinton said, in defense of the gas tax holiday first dreamed up by John McCain, that there’s no need to listen to all of the economists who think it’s a wretched idea. But the fact that two of the three remaining candidates have endorsed the idea is depressing, to say the least. As the economists point out (see the succinct explanation on Brad DeLong’s blog here), because the short term supply of oil is essentially fixed, and the suspension of the tax would increase demand, gas prices might well stay right where they are. And even if they dropped a little, encouraging people to buy gas is just about the last thing we need to be doing right now.

In my view, Barack Obama deserves the kudos he’s received for declining to pander on this issue, but his proposal (also endorsed by Clinton) to tax the oil companies’ on their “excess” profits isn’t the answer either.

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June 4, 2008

Obama--Stuntz

I’m a registered Republican and will probably vote for McCain in November. Even so, yesterday seems to me one of the great days in American history. And it’s a great day in part because it all seems so ordinary: two candidates battled for a major-party nomination, and one of them came out on top, barely. That has happened before (mostly in Republican races—since, for most of its history, the Democratic Party required that its presidential nominees win two-thirds of all delegate votes, not a simple majority). But this time, the candidate who came out on top is a black man, and that hasn’t happened before.

I remember when Doug Wilder was inaugurated Virginia’s governor in January 1990: the first elected black governor in American history, inaugurated in the city that once served as the capital of a nation founded to preserve black slavery. Former Supreme Court Justice Lewis Powell, scion of Richmond’s white establishment, administered the oath of office. When Wilder had taken that oath, Powell leaned into the microphone and said: “It’s a great day for Virginia.” It was. Just as yesterday was a great day for the United States.

June 19, 2008

A Radical (?) Idea for Each Candidate--Skeel

Suppose that one of the candidates needs to shake things up a bit in the coming weeks, to take a surprising position that could unsettle his base a little but offers promise with other constituencies. What might the candidates propose, consistent with their own values? Here’s one possibility for each.

For Obama, my pick would be school vouchers. Obama is heavily dependent on the teachers unions, as are the Democrats generally, so it’s very hard to imagine him supporting vouchers. But suppose he endorsed a voucher proposal that combined vouchers with increased funding for public schools, perhaps a dollar per student in increased funding for every dollar per student in vouchers. The teachers unions wouldn’t be happy of course, but the increased funding for public education would soften the blow; and a proposal like this might be attractive to Catholic and evangelical voters, and more generally to the lower middle class voters that Obama had trouble attracting in the primaries.

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July 2, 2008

Obama's Faith-Based Initiative Proposal--Skeel

Barack Obama’s new faith-based initiative proposal has already been described as a Sister Souljah moment. In a sense it is. It’s a calculated jab at one group (the portion of the Democratic base that cringes at any overlap between religion and government) that demonstrates his bona fides to another (all those Americans who hold less separationist views). But the original Sister Souljah moment was almost purely symbolic. This one could have important practical implications if Obama becomes president.

Obama’s proposal differs from the version President Bush promoted at precisely the point where the Bush program met its Waterloo. President Bush insisted that religious charities should be able to discriminate on religious grounds in their hiring decisions. This aspect of the plan met fierce resistence early in Bush’s first term, both among those who are hostile to any government funding of religious organizations and among those who suspected that the program involved the government so deeply in religion that it would be struck down under the Establishment Clause. The initiative was quickly derailed, and has survived only as a tiny shadow of the original plan.

Obama’s proposal, by contrast, would not permit religious organizations to make hiring and firing decisions based on faith in any portion of the organization that received public funds.

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July 13, 2008

Tony Snow--Stuntz

I never met Tony Snow, the onetime White House press secretary who died of metastatic colon cancer yesterday. But I wept when I heard the news. Much to my surprise, Snow emailed me a few months ago after he heard about my disease—we must have a mutual friend or two, though there can’t be many: I’m not well connected in either media or political circles. He wrote to encourage me, and to offer some practical advice. The best advice was this: keep living. Cancer and its treatment can occupy every waking moment (while drastically increasing the number of sleeping moments). Don’t let it, Snow said. Live and work and, most of all, love—as much as you can, as often as you can. It was and is terrific advice. And it was an extraordinarily kind thing, the act of an uncommonly good and decent man—coming from one who, even then, was fighting the last stages of this awful disease. My heart and my prayers are with his family. May God bless each and every one of them in this hard time.

August 5, 2008

Solzhenitsyn--Stuntz

Sixty years ago, Joseph Stalin was the most powerful man in the world: not only was he the absolute ruler of one of the world’s two superpowers; he led a movement that seemed about to take the world by storm. Sixty years ago, China was falling; the next year, Mao would proclaim the People’s Republic. Sixty years ago, Jan Masaryk fell—or was pushed—from a bathroom window in Prague, and Czechs’ freedom died with him. Individual freedom seemed a small idea; it was the age of the powerful state. Orwell saw that, and described the future that beckoned in “1984,” published sixty years ago: a future of Big Brothers ruling over billions of drones.

Sixty years ago, Aleksandr Solzhenitsyn was one of those drones: one more inmate in one more camp lost in the middle of the world’s largest empire, ruler of its largest prison system. To the state that punished him for an inopportune comment about its leader, Solzhenitsyn must have seemed a surpassingly trivial creature: not even important enough to kill, in a time and place where killing was routine.

Yet it was this solitary man at the bottom of the world’s most brutal pecking order who shaped the future. Stalin’s world is as dead as the dictator himself. Solzhenitsyn’s lives, because Solzhenitsyn lived. Freedom won, because this one man decided to write the truth. One free mind proved more powerful than Stalin’s massive state, more powerful than any state. States, armies, even gulags are temporary things. Individual souls endure. Thanks be to God for this one.

August 10, 2008

Judge Not!--Skeel

Like many Americans, I spent the weekend judging John Edwards. Edwards’ presidential campaign was steeped in morality-- a populist condemnation of the rich and a promise to fight for those left behind. In retrospect, his judgment on the wealthy looks like a case of seeing the speck in others’ eyes without recognizing the log in his own, exactly the kind of self righteousness that Jesus warned against in Matthew 7:1-5. (The full passage is here).

Only later, after I had been thinking about specks and logs for some time, did it occur to me that Jesus’s warning to “Judge Not!” applies to me too. Judging our politicians is only one of many ways our culture seems to encourage subtle and not so subtle condemnation of those around us. Nearly every reality show on TV derives its popularity from the opportunity it gives to its viewers to cast judgment on the hapless people in the show. Watching dysfunctional families and clueless celebrities enables us to exalt ourselves, at least a little and at least in our own minds. In a real sense, ours is a judgment society.

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August 16, 2008

Alan Wolfe on Rick Warren--Stuntz

One of my favorite people is Alan Wolfe, a sociologist and political scientist at Boston College who knows American evangelicals better than we know ourselves. Here are Alan’s thoughts on Rick Warren, and on the significance of the Obama-McCain event that Warren is hosting tonight: [link is here].

August 18, 2008

Abortion, Fighting Evil, and the Saddleback "Debate"--Stuntz

Two comments about the excellent speaking event (I don’t know what to call it) at Rick Warren’s church:

First, as many bloggers have pointed out, Obama was wrong to say that the abortion rate hasn’t fallen on George W. Bush’s watch. [Link: here] But the commentaries I’ve read on this issue ignore a crucial point: the abortion rate also fell—and fell more—during Bill Clinton’s administration. [Link: here-- scroll down til you see the graph.] That fact matters: it suggests that Bush’s pro-life policies aren’t driving the abortion rate down, since that rate was falling when those policies weren’t in place. Large cultural forces are at work here, and conservatives of all people should not be optimistic about the government’s ability to steer those forces in its preferred direction.

The second comment concerns McCain’s answer to the question whether evil exists and, if so, whether we should ignore it, negotiate with it, contain it, or defeat it. McCain’s answer was simple and powerful: “Defeat it.” But that answer is also deeply troubling, and doesn’t seem particularly Christian. In a world corrupted by the Fall, the scope of evil is beyond any government’s capacity to “defeat.” I’m pretty sure that my religious forebears would have been appalled at the misplaced confidence—they would have called it “pride,” the heart of all sin in Christian terms—that answer suggests.

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August 22, 2008

Eastern Christians and Environmentalism--Skeel

Some of our earlier discussion on this blog about evangelicals and the environment prompted a email from my colleague Stephanos Bibas that may be of interest to those who are following this issue. The email argues that there is a connection between evangelicals' "uneasy relationship with environmentalism" and their relationship with the Republican party, and is informed throughout by Stephanos's Orthodox faith.

Rather than trying to restate his comments, no doubt much more poorly, I'll simply quote from his email:

"Christianity should naturally (excuse the pun) embrace environmentalism. The first few chapters of Genesis make it clear that while man is the crown of creation, he is also to be a steward of it, because all of creation bears God's imprint as His handiwork; as God created each thing, he saw that it was good. Francis of Assisi, St. Seraphim of Sarov, and many other holy men and women have been so attuned to creation that they befriended wild animals, reflecting their love for His creatures.

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August 23, 2008

The Obama-Biden Ticket and Business Reform--Skeel

Most of the commentary on Obama's decision to tap Senator Joseph Biden as his V.P. pick has focused on the foreign policy expertise that Biden brings to the ticket. But I think the implications for some of Obama's business reform proposals are at least as important.

Obama has suggested that he will support more federal regulation of corporations. And he has signaled his support for bankruptcy reform that would allow borrowers to write down the value of their mortgages in bankruptcy. He also has sharply criticized the major bankruptcy reforms passed in 2005, which made bankruptcy more difficult for consumer debtors.

Biden has been on the other side of most of these issues.

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August 29, 2008

Palin, Obama, and the Experience Issue--Stuntz

Everything is faster in the internet age.  It took about ten seconds from the time McCain announced Sarah Palin as his running mate for the conventional wisdom to congeal:  Palin forfeits the experience issue and opens the way for attacks on McCain's judgment.  South Carolina Congressman James Clyburn analogized her to Dan Quayle, but the better analogy--if the CW view is right--is Spiro Agnew, who had served one four-year term as Baltimore County Executive and a year-and-a-half as Maryland's Governor when Richard Nixon picked him in 1968.  And the population of Baltimore County exceeds Alaska's population.

 

But I wonder whether the CW is right.  Seems to me, this year's election puts in play three different definitions of "experience."  One is the Washington time-serving kind.  Joe Biden and John McCain have both been in the Senate for decades without making complete fools of themselves (well, not on a regular basis anyway); that makes them qualified for the presidency on this definition.  Barack Obama is more of a stretch, since his time in Congress is much shorter.  And Palin is wholly unqualified, since she has never worked for the federal government.

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September 4, 2008

The Bible in Palin's Speech--Skeel

I found myself listening for Biblical echoes in Sarah Palin's speech last night after hearing the familiar cadences of Ecclesiastes in its opening paragraphs, when she said that the voters rallied behind McCain in the primaries because he understands "there is a time for politics and a time for leadership ... a time to campaign and a time to put our country first." These lines are of course an allusion- a deft one, to my ear- to the book of Ecclesiastes ("For everything there is a season ... a time to be born, and a time to die." Eccles 3:1-8).

The only other distinctively Scriptural note came much later in the speech, when Palin said "we are expected to govern with integrity, good will, clear convictions, and ... a servant's heart."

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September 9, 2008

The McCain-Palin Salvo on Fannie Mae--Skeel

I may be over-reading the McCain-Palin op-ed in the Wall Street Journal on Fannie Mae and Freddie Mac this morning, but it seems to me to mark a sharp break from the Bush administration on the subprime crisis. Not on the bailout itself. Just about everyone seems to agree that bailout was inevitable, and that the question was simply when it was going to take place. The break, it seems to me, is in the proposals for mortgage lending going forward. The Bush administration has relied almost entirely on jawboning and voluntary measures. McCain-Palin seem to be advocating substantially more governmental intervention. They suggest that they would establish a minimum downpayment requirement for loans guaranteed by Fannie Mae or Freddie Mac, and would impose new disclosure requirements for derivative securities.

I wonder if this means we'll be hearing a little less about tax cuts in the next two months, and more about Teddy Roosevelt-style corporate and financial reform.

September 13, 2008

Sarah Palin's Faith, and Mine--Stuntz

I didn't like Mike Huckabee's campaign in the Republican primaries, because Huckabee argued, sometimes explicitly, that Christian voters should support him because he's a Christian.  I wouldn't have voted for him anyway, but that sealed the point for me.  I won't vote for any candidate because of that candidate's faith, or lack thereof.  Often, I don't know anything (and don't try to find out) about the religious convictions of the candidates I support.  I'm sure I've voted for candidates with a wide range of religious commitments, including some--probably a lot--with no more than nominal religious affiliations, or none at all.

 

Though you won't read it in the New York Times, I'm pretty sure that most of my fellow Christians follow a similar practice.  We vote for and against candidates' political programs, not for and against their religious practice.  That is as it should be in a society as religiously diverse as ours is.

 

But there's a flip side to that proposition.  While my faith should never be treated like a job qualification in a political campaign, neither should its absence.

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September 17, 2008

The Candidates and the Crisis--Skeel

I wasn't among those who were disturbed about the increasingly trivial bickering between Senators McCain and Obama until the tumultuous events in the financial services markets over the past several days. I'm now greatly disturbed, because I fear that a great opportunity for better government may be lost.

When Franklin D. Roosevelt campaigned for the presidency in 1932, he promised to do whatever it took to counteract the financial effects of the Depression. When he came to Washington, many of the best minds of the generation came with him or advised him. (Hard as it may be to imagine now, this included numerous law professors, people like Felix Frankfurter, James Landis, William Douglas, and others). They experimented with many different forms of regulation, at times contradicting themselves, but emerged with the securities and banking framework that governed the markets for the next seventy years, as well as our social security system.

In my view, we are in an increasingly similar position now.

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September 19, 2008

McCain's Age--Stuntz

Like millions of my fellow citizens, I have a bad back; I take prescription pain medications for it.  Three years ago, I had a long conversation with a doctor who, in addition to his clinical work, does research on chronic pain.  He told me that pain's effect on the brain is basically identical to the effect of aging, only accelerated.  Which suggests that there is some science behind one of my favorite movie lines--in the first Indiana Jones movie, Harrison Ford says to Karen Allen:  "It's not the years, honey; it's the mileage."  Experiences that traumatize the body play havoc with the mind.  Consequently, some of us are old beyond our years.  I certainly am.

 

Which leads me to John McCain's age.  McCain's body suffered horribly over an extended period, far more than mine and more than I imagine.  That might have a significant effect on McCain's mental acuity and flexibility, his ability to think through complex problems.  As a general matter, electing a 72-year-old President seems fine to me.  Healthy 72-year-olds are not as mentally sharp as when they were 40 or 50--on the other hand, they know more and have probably acquired more wisdom than most 40- or 50-year-olds.  The tradeoff seems reasonable.

 

But McCain is not a typical 72-year-old:  on the one hand, he's more talented than most (also more courageous); you don't reach the upper levels of American politics without substantial talents.  On the other hand, his body has suffered more and worse than most.  If that pain researcher is right, McCain may have the mental makeup of someone a decade older.

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October 2, 2008

Bailout Stories--Skeel

One reason the current financial crisis seems so mystifying is, I think, the absence of a simple, coherent story that explains what the crisis is about. The Enron and WorldCom scandals earlier in the decade could be distilled to a plausible story about greed and the failure of the accounting firms and other gatekeepers who are supposed to police Wall Street. With the current crisis, by contrast, three main narratives seem to be competing for attention. And each is deeply flawed.

The first, which has been offered by Senator Bernie Sanders and others, attributes the crisis to Wall Street greed, and demands that Wall Street be punished and ordinary Americans helped. Wall Street greed certainly is a major factor in the crisis, most visibly in the pushing of exotic, mortgage-related securities that now have come back to haunt many financial institutions. But the greed story has at least two problems.

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October 4, 2008

Where are the Burkeans?--Stuntz

Along with Friedrich Hayek, Edmund Burke is among the intellectual fathers of American conservatism.  Hayek taught conservatives to love freedom.  Burke taught conservatives to respect tradition even when its rationale seems obscure, for tradition often represents the accumulated wisdom of generations past.

 

Burke gave us another set of ideas that seems to have fallen by the wayside in contemporary American politics, and in contemporary American conservatism:  the value of prudence and judgment in public life, and along with those virtues, the merits of republicanism rather than plebiscitary democracy.  Written in 1777, Burke's letter to his electors at Bristol remains the classic statement of the elected representative's duty:  to exercise his best judgment--to bring all the knowledge and experience he has to bear on the votes he must cast.  The negative form of the proposition is just as important:  elected representatives must not be mere wet fingers testing the political winds.  Such representation amounts to voting by poll numbers and focus groups.  If that is representative democracy in action, the adjective has disappeared and the noun is doing all the work.  One might as well drop the middleman, and simply vote for legislation by phone-in poll.

 

Over the course of the last week, House Republicans--allegedly, the keepers of the conservative flame in the federal government--have behaved in a manner that should leave all true Burkeans appalled.

 

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October 12, 2008

Is Government Ownership the Right Strategy?--Skeel

We now have yet another switch in the Treasury's strategy for stabilizing the markets. Plan A with the $700 billion rescue plan was to use the money to buy some of the questionable mortgage-related securities that are held by the nation's troubled financial institutions. Treasury Secretary Hank Paulson now wants to take a direct stake in the banks, to buy stock rather than simply buy some of banks' assets.

The most obvious reason for the shift is that, unless the government overpays, buying a bank's questionable securities doesn't necessarily improve its balance sheet. It replaces one asset- the securities- with another one- cash. If the government buys stock, on the other hand, the cash directly increases both the bank's assets and its net worth, potentially increasing the likelihood the bank will remain solvent.

That's the good news. But there are at least two potential problems.

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October 13, 2008

Teachers, Professors, and Obama Buttons--Skeel

Stanley Fish has an interesting op-ed in this morning's New York Times about whether a school or university can prohibit its teachers from wearing a button advocating a particular candidate in the classroom. Fish argues that such a rule would be upheld under the First Amendment, and he suggests that such a ban would be appropriate given that a teacher's views can have a coercive effect on students- shaping, for instance, how they answer an exam question.

I don't think I would be enthusiastic about a formal ban on buttons at the college or graduate school level (in elementary or high school, on the other hand, I would be inclined to ban them from classrooms). But I also don't think professors should wear them, for precisely the kinds of reasons that Fish suggests.

But this raises an interesting question. Given that ninety percent or more of the buttons would be Obama buttons, given the well-documented political tendencies of teachers and professors, does it really matter whether they announce this with a button?

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October 18, 2008

Is the Era of Big Government Back?--Stuntz

Everyone seems to think so, thanks to the financial crisis.  I wonder.  I have a short article about to come out in The Weekly Standard suggesting otherwise.  The link is here.

 

Early in his first Administration, Bill Clinton turned to his economic advisers and said: "we're all Eisenhower Republicans here"--because the need to bring down the deficit was driving his budget and tax policies in directions he didn't like.  Seems to me, the forces driving a future President Obama or McCain in the same direction will be a good deal stronger in 2009.

October 26, 2008

The California Anti Gay Marriage Referendum--Skeel

Reading the daily updates on the prospects of the California Anti-Gay Marriage referendum, I find myself quite conflicted. Like the two presidential candidates, I am not in favor of gay marriage, but I have long been troubled by the tenor of the campaigns to stop gay marriage (and even more about the campaigns against gay rights generally), which have often seemed unloving, to put it charitably. Two thoughts on the gay marriage issue.

First, gay marriage strikes me as a much better issue to leave to the states than abortion, the other hot button issue on which it is often proposed. If states had varying laws on gay marriage and other family law issues, as they currently do, people could make their decisions where to live based in part on a given state's rules on these issues if the issues are particularly important to them. To be sure, this approach would only work if a state's marriage or partnership rules were limited to that state and states that chose to recognize them. This raises some tricky constitutional issues, but my impression (subject to correction by those who are more expert in constitutional law that I am), is that any constitutional impediments are not insurmountable and that it's essentially what we have now.

This leads to the second thought. What if the new president proposed "minimum standards" legislation on the gay partnership and marriage issues?

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October 29, 2008

Health Care and the Election--Stuntz

Health care may be the most heavily covered domestic issue in the current presidential race.  But the coverage has been lousy.  E.g.:  If I understand correctly, McCain's health care proposal would make employer-provided health insurance much more costly (by taxing the relevant benefits), but would also make individually purchased health insurance much cheaper (by providing a substantial tax credit).  Is it a good idea to shift from employer-provided care to the purchase of insurance by individuals and families?  You won't find the answer in the New York Times or on cable news shows.

 

I can think of one reason why the answer might be a resounding "yes."  We're entering an economic slowdown.  Anything that spurs job creation is a big plus.  And shifting the cost of health care away from employers makes the creation of medium-to-high-income jobs substantially cheaper.  That has to be good news for the economy, and good news for the competitiveness of American businesses.

 

Could be, there are good responses.  And maybe the issue has been well covered, and I've just missed it.  If not, this may be one more piece of evidence that the press is in the tank for Obama.  Seems to me, this is a lot more important than Sarah Palin's clothing budget.

October 31, 2008

McCain or Obama?--Stuntz

This Stuart Taylor column captures half of my frustration with this presidential election. Taylor argues that, if Obama governs as a centrist, he could have a spectacularly successful presidency. If he governs from the left, Taylor says, he will fail as badly as George W. Bush did governing from the right.

Most of Bush's mistakes were not due to ideology, but that's a quibble. Taylor's basic point is sound.  The country is centrist, not leftist.  Problem is, Obama's track record is more left than center.  Based on the candidates' records, the centrist in this race is John McCain.

But McCain has a problem of his own:  He seems unable to persuade anyone who isn't already on his side.  Watching and listening to his stump speech reminds me of the times I watched Bob Dole on the campaign trail in 1996.  That wasn't a pretty sight.  Like McCain now, Dole then was a wise old man who had run for president one too many times; either through old age or too much time in the Senate, he had lost the ability to persuade voters, much less inspire them.  And were McCain to win on Tuesday, he would have to do a lot of persuading in order to govern with a left-leaning Democratic Congress and a public nearly half of which would be enraged at a third consecutive Republican victory.

So one candidate has a genuinely rare talent for inspiring followers from a wide range of backgrounds--but that candidate's ideological stance is hard to pin down.  His political past suggests he's a leftist; his campaign rhetoric suggests he's somewhere near the political center.  Trusting the rhetoric over the record seems to me dangerous.  The other candidate has a far more impressive record--but an almost Bush-like inability to convince those not already in his camp.  One might lead in bad directions; the other may be unable to lead at all.  Not an easy call for centrists like Taylor, and like me.

November 5, 2008

Obama's Victory--Skeel

A little over a month ago, just as it was becoming clear that Barack Obama would win the election, I happened to be reading several commentaries on the Civil Rights Movement written by the theologian Reinhold Niebuhr, whose theology was an important influence on Martin Luther King Jr. The final paragraph of one written in 1963 puts last night's election results in perspective as well as anything I've seen:

"Attorney General Robert Kennedy was probably too optimistic in his recent analogy between the history of the Irish and the Negroes in America. After pointing out that an Irish Catholic was elected President less than a century after the anti-Irish riots of the 'know nothing' movement, he predicted that a Negro could be elected President in another half century. But the analogy is not exact. The Irish merely affronted us by having a different religion and a different place of origin than 'true' Americans. The Negroes affront us by diverging from the dominant type all to obviously. Their skin is black. And our celebrated reason is too errant to digest the difference."

Bobby Kennedy was right. To echo comments Bill made when Obama won the Democratic nomination, whether or not one agrees with Obama's policies, he ran a brilliant campaign and has achieved a victory that would have seemed unfathomable even a few years ago. His election is monumental in the most literal sense. Two small illustrations: yesterday afternoon I watched a middle aged black man videotaping his trip to the polling place to cast his vote. And this morning, driving my children to school, I passed a McCain-Palin sign in someone's front yard, now partially covered by a handwritten sign on which the McCain supporter had written, "Congratulations, Mr. Obama."

November 6, 2008

Five Things I Love About This Country--Stuntz

Speaking as a conflicted McCain voter, I'd say Obama's election captures the five things I love most about my country.  In no particular order:

1.  Not counting his years living abroad, the President-elect has lived in Hawaii, California, New York, Massachusetts, Illinois, and Washington, D.C.  The United States is far from the world's only geographically immense nation--Russia, China, Canada, and Brazil likewise cover vast territories.  But the United States is the only nation whose citizens' lives regularly reach across the vastness.  Ours is not a nation of in-bred communities.  Rather, we are a nation of strivers, and our striving regularly carries us across boundaries of all sorts, geographic and otherwise.  Obama embodies that spirit.

2.  The soon-to-be President is the son of a Kenyan.  Where else in the world is it even imaginable that the child of a foreigner would win the nation's highest office?  Here, it isn't just imaginable--it happened, and it happened because nearly all Americans are descended from foreigners.  Ours is a country founded not on ethnicity but on an idea--and a country that is open to people from all over the world who share that idea.

3.  The President-elect is also the son of a single mother who, for a portion of his childhood, was poor enough to qualify for public assistance.  Where else in the world is such a rise in station possible in a single generation?  Truly, ours is a land of enormous possibility, where no child is bound to live the life his parents lived.

4.  Not only does Obama belong to a different race than the majority of Americans, he belongs to a race that, for most of our history, was despised and persecuted by a majority of Americans.  That fact does not mean that the ugly history of white racism in this country is over--though the worst of that history IS over, thank God.  But that fact does mean that Americans change, grow, evolve.  Our worst flaws can be corrected, our most awful wrongs made right.  Neither human beings nor the nations to which they belong are perfectible.  But part of what defines Americans is the belief that we can do, and be, better.

5.  That leads to perhaps the most important quality of all:  Americans are self-critical.  Were that not so, a politician like Obama--who sees much that he dislikes in the nation's culture, its government, and its posture in the world--could never win a national election.  This is a key source of our optimism:  we do not seek to return to some golden age, nor do we cling to a glorious past.  Americans look to the future.  Because we are our own worst critics, we are also the biggest believers in our own potential.

These are marvelous qualities that deserve celebration.  No other country in the world shares them.  Barack Obama's election reminds us of them.  May God bless him, and may God bless America.

November 21, 2008

For Larry Summers--Stuntz

It would be an exaggerated piece of name-dropping to say that I know Larry Summers.  I'm one of thousands of people who've had contact with him over the years.  For me, that contact consists of two hour-long conversations with him that just included the two of us, a half-dozen more that included another half-dozen people each, plus a steady diet of the speeches that one sees university presidents give.  More than all that, I watched him govern a mostly ungovernable university.  Think running the Treasury Department during a world-wide recession is a tough job?  Come to Cambridge and try running Harvard:  not administering it while raising gobs of money and telling all your faculty bosses (that's how the real lines of authority work here) how wonderful we are, but actually running the place, bending it to your will as the best managers do.  Treasury is a piece of cake by comparison.

The conventional wisdom is that Summers' presidency of Harvard was a failure.  It isn't so.  Undergraduate education is better than it was when he took office, because he made it important--which it wasn't before, and isn't at most research universities.  Some of the weaker units at the university--the Law School was one of them--are also better than when he took office, because he refused to settle for mediocrity and pushed them to do better.  (And, in the Law School, because he hired a great Dean, Elena Kagan, who understood his agenda and had the judgment and political skills to make it her own.)  Best of all by my lights, he pushed against the Ivy League admissions culture that has made America's best private universities what they were generations ago:  finishing schools for the children of America's upper class.  Talented kids from the bottom half of the income spectrum have a shot at going to school here because Larry Summers believed in giving them that shot.  Good for him.

For all those reasons and several more besides, I loved working for Summers; it made me proud to be an academic, and proud to teach at Harvard.  And the guy did a terrific job at Treasury in the waning days of the Clinton Administration.  But those aren't the reasons I'm hoping to see him in soon-to-be President Obama's cabinet.  Two other reasons matter vastly more.

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Clinton and Geithner, not Holbrooke and Summers--Stuntz

According to news reports, Timothy Geithner, chair of the Federal Reserve Bank in New York, will be the new Treasury Secretary--not Larry Summers. Perhaps Hillary Clinton and Summers in the top two slots was one ex-Clinton official too many: as if George W. Bush had picked Colin Powell and Nicholas Brady, rather than Powell and Paul O'Neill. (Come to think of it, that would have been an improvement.) If so, I fear Obama chose the wrong one.

I look forward to reading, someday, the backstory behind what now looks like the inevitable Hillary Clinton appointment. It astonishes me that Obama stood up to pressure to name Clinton as his running mate, at a time when the election might have turned on his choice--and then turned around and offered her his top cabinet slot. All the reasons why the VP slot didn't go to her would seem to apply to the Secretary of State position as well--plus one more: A Vice President pretty much can't resign even if he or she is out of sorts with the Administration, but a Secretary of State can. Cyrus Vance did, and Colin Powell probably thought about it. Think that gives Clinton some leverage over her ostensible boss? I bet so, and I bet she thinks so too. This turn of events seems strange, and not reassuring. I'd be a lot happier if it were Richard Holbrooke and Summers rather than Clinton and Geithner. I hope the financial markets and our allies abroad disagree. . .

November 29, 2008

Paris--Skeel

I've been in Paris this week for a wonderful conference at the University of Paris-Nanterre.  It's my third visit to Paris, separated by twenty years from my second (a short visit during my honeymoon) and twenty-four from my first (a month here during a year I spent wandering through Europe after college).

One of the books I brought to read was a journal I kept during my first visit.  According to the journal, I arrived with only 20 British pounds and no job.  I did, however, have Ernest Hemingway's A Moveable Feast, which enthused about being young, poor, and happy in Paris.

I expected to be constantly questioned about Barack Obama this week, but he's come up less often than I would have thought.  To be sure, the bookstores prominently display books about his election with titles like La Victoire Historique and Les Secrets dùne Victoire.  But there's been surprisingly little quizzing about him, which has made me wonder if we`ve been a little too obsessed with the significance of Obama`s victory back in the US.

The economic crisis, by contrast, has come up constantly, and I find myself thinking about it at odd times.  Walking down the Champs Èlysses, which is decorated with beautiful violet lights for Christmas, I wondered how much the ritzy stores (and a Peugeot showroom, where a car with gull wing doors was surrounded by tourists taking pictures) have been affected by the crisis.  This morning at the Louvre, as I looked at an angel hovering above the crucified Christ in a Giotto painting, his hands covering his face in dismay, it occurred to me that I've seen that same expression on the faces of the beleaguered stock traders on the front page of the newspaper every few days this fall.

In a strange way, the crisis may do more than anything else (an exciting new president, a new foreign policy) to create a renewed sense of common, international bonds.  At least if it doesn't spur a round of protectionism-- which so far, thankfully, it hasn't.

December 18, 2008

Rick Warren at the Obama Inauguration--Skeel

The New York Times noted in a small article this morning that President-elect Obama has invited Rick Warren to give the invocation at his inauguration, and called this an "olive branch" to evangelicals. Two thoughts on the choice.

First, as the article suggests, the pick confirms that Rick Warren is the new Billy Graham- the obvious choice for this kind of honor. The contrast between the Warren and Graham as leading public evangelicals is striking. With a couple of exceptions, Graham resolutely avoided social issues, whereas Warren has made them a centerpiece of his ministry. This is dramatic testimony, it seems to me, of the extent to which some of the emphases of evangelicalism are changing. In some respects, Warren has less in common with Graham than with the early twentieth century evangelicals (such as John R. Mott of the YMCA and Student Volunteer Movement) who treated social issues and evangelism as inextricably intertwined.

Warren's prominence does not necessarily mean, however- and this is the second point- that evangelicals will be an important part of the Obama era. Evangelical political influence may well have peaked. Evangelicals played surprisingly little role in the election- and not because Obama made significant inroads; although he won a higher percentage of young evangelical votes than John Kerry in 2004, the overall percentages were nearly the same, with McCain winning well over 70%.

I suspect the most noteworthy development in Protestant Christianity in an Obama era may be at least a temporary reversal of the decades of decline in mainline Protestantism in America. Although Obama hobnobs with a few prominent evangelicals, and his first memoir prominently featured a conversion story, his instincts seem much more in line with mainline Protestantism than with evangelicalism. The frequent comparisons to Lincoln and Roosevelt are fully consistent with this- and Obama also seems to me to have some similarities to the young Woodrow Wilson. In historical terms, Obama is a Progressive, not a Populist, and this may bode well for the mainline Protestant denominations that are the Progressives' principal religious heirs.

December 30, 2008

Inaugural Poets--Skeel

            After poet and Yale professor Elizabeth Alexander was announced as the inaugural poet, fellow poet Paul Muldoon was quoted as saying he was confident the choice was due to literary merit.  I hope there was a twinkle in his eye when he said this.  Literary merit surely was one consideration, but one doesn't have to be a cynic to suspect it wasn't the only one. 

 

Inaugural poets, like other inaugural speakers, have always been chosen for symbolic reasons as well.  John F. Kennedy's choice of Robert Frost as the first inaugural poet was the closest to entirely merit based.  When John F. Kennedy chose him, Frost was something like our national poet.  He was beloved, had carefully tended his reputation as the people's poet, and was widely (though sometimes grudgingly) admired by other poets.  (The closest poet to this status today is probably Billy Collins, but he does not have Frost's status among fellow poets and does not seem quite so all- American).  Although Frost was an obvious pick, he also symbolized the old fashioned (implicitly Protestant) traditions of rural America, a constituency Kennedy wanted to reach.  Bill Clinton's choice of Maya Angelou in 1993 reinforced his sympathy for minorities, and 1997 Miller Williams represented homespun Arkansas wisdom--Clinton as a man of the people. 

 

A key attraction of Alexander to Obama, it seems to me, is that her poetry is intensely race conscious, but in a way that is less hostile to mainstream American culture and less anchored in grievance than the work of many of the best known black poets of the past generation.  She is, in a sense, a bridge between that past and post racial politicians like Obama himself.  (More on this, hopefully, in a follow up post on Alexander's poems once I've read more of it).

 

Two more thoughts on inaugural poetry. 

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January 3, 2009

Policing and Stimulus Packages--Stuntz

Obama and his underlings have emphasized, rightly, that federal spending designed to pump up the economy should do more than that: spending should rebuild needed infrastructure, invest in cleaner energy, and the like, so that money spent now would yield economic returns years later.

There is one kind of spending that would do just that: federal aid for local police. The number of urban police officers per unit population held steady through the 1970s and 1980s, while urban violence steadily rose. In the 1990s, that number rose 17%, and violent crime fell sharply. In this decade, nearly half of the gains of the 1990s have been wiped out during this decade--and that was true before the collapse of the credit markets this past fall and the broader recession that is now taking hold. Urban violence is rising again. If the federal government doesn't subsidize police spending, we will see more cuts in local police budgets, and probably more crime.

Police spending has another large benefit: over time, it reduces prison spending. Take a look at this graph--the blue curve is annual change in the number of urban police officers per unit population with a one-year delay; the green curve measures annual change in the number of prison inmates per unit population. The inverse relationship between the two curves is hard to miss:

Imprisonment and Urban Policing Rate Graph

Less crime, fewer prisoners, and more cops is a rare policy trifecta. This is an opportunity not to be missed.

January 16, 2009

What Will Bush Do Next?--Skeel

Listening to President Bush’s short, somber farewell speech last night, I found myself wondering what he will do next. (It has been striking how much less speculation about Bush’s future there has been than with Bill Clinton, due to the failures of the Bush presidency). My guess is that Bush will set up a think tank, as Clinton did, and that he will focus on three issues. The first is promoting democracy around the world. This, and having protected the nation from a reprise of 9/11 for seven years, obviously will be Bush’s legacy, and I suspect he will spend a great deal of energy on democracy-related issues. The second issue is immigration.   Obama no doubt will take up immigration reform in a year or two, and I suspect that will send Bush around the country to promote a proposed overhaul that includes a prospect of citizenship for America’s 12 million illegal immigrants. In the meantime, Bush probably will speak frequently about immigration, which is clearly an issue he cares deeply about.  I would expect him to argue (and would personally agree)he that immigration and democracy are closely linked: more democracy outside America’s borders would remove some of the pressure for low skilled immigrants to escape their homeland and come to the US.

The final issue is faith based initiatives. Given how quiet things have been on this front recently, I was surprised to hear the President mention faith based initiatives last night. I suspect Bush will end up on the boards of one or more faith-based programs, and that he will promote these initiatives actively. Here, I suspect Bush may part ways with Obama a bit. Obama is likely to prohibit organizations that receive federal money from limiting hiring to those who share those beliefs. I suspect Bush will criticize this policy– though not in the first year or two of the Obama administration. Whatever else he is, President Bush is a true gentleman, and I suspect he will be solely a cheerleader for President Obama in the coming months.

January 20, 2009

God Bless America--Stuntz

I never much liked the Ronald Reagan rhetoric treating the United States as the new Jerusalem, the “shining city on a hill.”  It struck me then and, most days, strikes me now as idolatrous.  But I can’t help feeling that the rhetoric fits this day.  Thanks be to God, who has blessed this country lavishly.  May those blessings abound in the new President’s administration.

 

A small P.S.: Rick Warren’s invocation was very good, but I thought Joseph Lowery had the prayer of the day.

 

 

The Inauguration--Skeel

A few immedate thoughts on the inauguration:

President Obama's speech: I didn't think this was his most memorable, but no one delivers a speech like Obama.  The highlight for me came when he explicitly referred to scripture, and said "The time has come to set aside childish things."  This was the first of two points in the speech where Obama shifted into the cadences of Martin Luther King.  He then shifted out, as if to remind us and himself whose shoulders he stands on, but also to suggest he's another person and this is another time.

Rick Warren's prayer:  I was especially interested to see whether Warren would speak as "we," as if  all Americans share his evangelical views, or as "I," especially given the criticisms he's received of late.  I thought he handled this issue deftly and honestly.  Most of the prayer was addressed to the sovereign God, but he introduced the conclusion by saying "I ask in the name of the one who changed my life"-- not presuming to speak for everyone, but also acknowleding where his hope comes from. 

Elizabeth Alexander's poem: For a literary poet to write a public poem is an almost impossible task.  I didn't think the poem was a great poem, but I thought it had some lovely passages, and I thought the coordinating motif of language as the place where we encounter one another was a nice choice.  There were a few clunker lines, but I liked the early line saying something to the effect that we have
"each one of our ancestors on our tongue."

John Lowery's benediction:  Like Bill, I thought Lowery stole the show (and his humorous rhyming couplets were a pleasing jolt from the seriousness of Alexander's poem).  He verged on irreverence and political incorrectness (if "yellow will just be mellow ...etc"), but added a nice note of warmth and humor-- just the thing a ceremony like this needs.

January 24, 2009

Obama's Abortion Order--Skeel

Ever since Ronald Reagan first banned funding to international organizations that promote or provide abortions in developing countries and elsewhere in 1984, this executive order has been the most visible culture wars prize of our presidential elections. Like many culture wars battlegrounds, it has heavy symbolic significance. Unlike many, it also has significant real world consequences.

My wife asked me if I felt as though I’d been kicked in the stomach, as she did, when I heard that President Obama had rescinded the order (which had been reinstated by Bush after having been removed by Clinton) yesterday. I didn’t, since there was never any doubt that this would be one of Obama’s first actions if he was elected.

For me at least, President Obama’s order didn’t bring a kick in the stomach so much as a seeping sense of sadness. Obama softened the effect slightly by waiting until the day after the anniversary of Roe v. Wade, rather than trumpeting it on the anniversary. But the fact is that our government will be funding organizations that facilitate the deaths of unborn children in other countries. The order wasn’t unexpected, but that doesn’t make it less saddening.

January 27, 2009

Obama and Roosevelt--Skeel

            The most frequent worry I’ve heard about the new administration is that President Obama will get swept up in the messianism surrounding his historic presidency, and he will take advantage of it to pass a vast legislative agenda that is already mapped out in his mind. This seems to me exactly backwards:  President Obama seems to be the one person who hasn’t gotten swept up in the messianism, and while he obviously has a few pet issues, he doesn’t seem to have a grand scheme in mind.  

            I just finished “The Defining Moment,” Jonathan Alter’s page turner about Roosevelt’s first hundred days (which Obama apparently read during the transition). The similarities at the outset of Obama’s and Roosevelt’s presidencies are uncanny, and surely not accidental. One obvious similarity is the messianism. After Roosevelt was elected in 1932, there was serious discussion about the need for a dictator. Roosevelt seems to have been tempted by this talk (Alter’s prologue recounts how he initially planned to tell a veterans’ group that “I reserve the right to command you in any phase of the situation which now confronts us” but deleted the language from his speech). But he resisted the temptation, much as Obama seems to be wary of the excesses of the current adulation in the press and elsewhere.
 
            Second, Roosevelt revolutionized communication between the president and the American people, most famously with his “fireside chats.” Roosevelt harnessed radio to speak directly to the people, in a way previous presidents had not. President Obama’s release of his weekly message in video form on Youtube, and his use of the internet throughout his campaign, seems designed to revolutionize presidential communication in the internet era in much the same way.
 
            The third issue brings me back to the question of a grand plan. Roosevelt clearly didn’t have a grand solution for the Depression when he entered office. His principal theme was the need for immediate action (“This Nation asks for action, and action now,” he said in his first inaugural), and for experimentation. President Obama seems to have brought the same attitude to the White House—the sense of a need for decisive action, rather than a particular plan.

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February 15, 2009

Weekly Standard Article--Stuntz

I have an article in this week’s TWS. The link is here. The subject is the need for a policing “surge.”

Stimulus Spending--Stuntz

There is a lot of talk these days about America’s, and the world’s, lurch to the political left.  Seems to me, that talk gets things backward. Given the massive public debt that Congress is creating, in the near future—that is, before Obama’s first term is over—the federal government will be forced to cut spending massively. Tax hikes are coming, and substantial ones, but taxes alone will not be able to pare down the deficit to reasonable levels. Government is expanding today. Soon, government will shrink. Obama’s Administration may usher in not a new New Deal, but an era of Coolidge-style austerity. Life is full of ironies.

February 25, 2009

Brooks on Burke and Obama--Stuntz

 This column perfectly captures my own sentiments—both the hope that the new Administration would succeed, and the growing concern that its confidence is misplaced.

 
One unpleasant surprise in the Administration’s economic plans, at least to me, has been Obama’s lack of empiricism. When discussing stimulus packages, I expected the President to say something like: We will take this approach and, if it works, we’ll do more of it; if not, we’ll try something else. Instead, the new President usually exudes confidence that his experiments will succeed—all of them. Can he really believe that? If not, isn’t he setting himself up for failure? When he first took office, FDR promised “bold, persistent experimentation.” Obama promises that all our problems will be solved. The gap between those promises is worrisome.

March 16, 2009

American Politics Through Italian Eyes--Skeel

I’ve been in Rome for a week, with ten days to go, and have asked people what they think of the Obama administration and of the Berlusconi government in Italy. I should note that I’ve been talking to Italian academics, so my sample is hardly representative.

Everyone I have talked to sees Obama’s election as a great triumph of American democracy. The most surprising thing I’ve heard—surprising to me, at least—is a view that President Obama has already shown a willingness to make courageous decisions, as exemplified by his plan to reverse the limitations on stem cell research. This struck me as an odd illustration, both because a significant majority of Americans agree with the administration’s stance, and because is unrelated to the urgent economic crisis.
 
The people I have talked to so far are not Berlusconi enthusiasts. Perhaps their greatest worry is that Berlusconi has significant control over the media. He owns three of the handful of major television channels, and can use the government’s purchase of space in newspapers (e.g., for notices of various kinds) to influence newspaper coverage. These concerns seem to me to make complaints about media bias in the 2008 U.S. election appear trivial by contrast.
 

March 23, 2009

Reforming the Health Care System--Stuntz

It’s often claimed that other Western nations achieve as good or better outcomes from their nationalized health care systems as Americans achieve with our strange mix of private and government-funded health insurance—and at far less cost. Assuming that claim is true, it might be true for a reason policymakers haven’t considered. Right now, a hugely disproportionate share of the world’s medical innovation happens at the high end of America’s health care market. People like me benefit hugely from that innovation: I’m a well-insured cancer patient living near Boston, which may have the world’s highest per capita concentration of medical talent outside Rochester, Minnesota. 

But we’re not the only ones who benefit. The most successful of those medical innovations soon filter down to the rest of America’s unsystematic health care system, and then to other parts of the rich world. Those nationalized health care systems in Canada and Western Europe achieve such good outcomes partly by relying on American medical research, much of which is funded by that high-end medical market.
 
Why does any of this matter? It matters because we are about to take a large step toward nationalizing our own health care system. The funding has to come from somewhere, and the most natural “somewhere” is the money that now flows from companies that insure patients like me to institutions like Massachusetts General Hospital, the Mayo Clinic, or Sloan-Kettering. One must tap the money at the top of the market in order to have enough to “spread the wealth around.”
 
But that ignores the character of the medical market we have now. The best-off patients don’t get better care than everyone else; they get the best care sooner than everyone else. Take away the high end of America’s medical market, and a large fraction of the life-saving innovation that market produces may disappear. That will hurt all of us—in the United States and abroad.
 
Let me be clear: I don’t believe I have any moral entitlement to the extremely high-quality (and extremely expensive) health care I’ve gotten. I’d happily sign on to a health care system that distributed its benefits more equitably, even if I lose out in such a system. I’m less willing to go along with a system that doesn’t protect this most innovative sector of America’s economy. I hope some of the key players in the Obama Administration share that concern. I fear they don’t.
 

March 27, 2009

The Geithner Proposals--Skeel

Treasury Secretary Geithner finally sketched out the administration's blueprint for new financial regulation yesterday.  Many of the proposals, such as a new registration requirement for hedge funds, strike me as sensible.  But I think the proposal to give federal regulators the power to take over troubled investment banks and hedge funds is a serious mistake.  A colleague and I criticise the proposal in this op-ed piece.

March 29, 2009

Weekly Standard Article--Stuntz

Here is the link to a magazine piece I wrote.  The subject is a model of domestic policymaking that is usually ignored in public discussion: Lincoln’s model. While fighting and winning the Civil War, Abraham Lincoln also shepherded through Congress one of the most ambitious and successful legislative programs in the nation’s history. It deserves comparison with FDR’s New Deal. But Lincoln’s program was more successful than FDR’s, because the key pieces of legislation were designed to create opportunity, not to fine-tune economic incentives and direct economic affairs. Statutes of the former type depend for their success on the energy and talent of American workers. Statutes of the latter type depend on the wisdom of American politicians. The workers are a better bet. Would that the Obama Administration thought the same.

April 25, 2009

Torture--Stuntz

I have several reactions to the torture memos and the frenzy that has erupted since their publication. On the one hand, some of the behavior at issue—like pushing a prisoner against a wall designed to yield to pressure—seem far too mild to deserve the label “torture.” Using that word to describe such tactics cheapens the concept. On the other hand, two of the tactics described in Jay Bybee’s memo—waterboarding and extended sleep deprivation—seem to me qualitatively different. Those tactics strike me as transparently evil, the sort of thing civilized societies should not tolerate in others and should never do themselves. When governments practice such evil, they should be called to account. That is the great benefit of the rule of law: rulers are held to the same standards as those they rule. On yet another hand (I’m hearing the music for “Fiddler on the Roof” as I type this), there is something grossly unfair about punishing people who were striving to do right in extraordinarily difficult circumstances. Mercy is a virtue not much seen in America’s legal system these days. This setting seems to me a good place to begin practicing that virtue. 

But my dominant reaction does not run along those lines; its origin is neither legal nor political. For the past nine years, my back and right leg have hurt. For the past five years, the pain has been both constant and, usually, severe. Every day, I have periods when I hurt in a measure that, not so long ago, would have left me screaming. Sometimes, pain of that sort and worse must be inflicted on others. Soldiers shoot enemy fighters; doctors set broken bones, sometimes without adequate anesthetics on hand. But the idea of inflicting such pain not out of necessity but by choice horrifies me.
 
Why, exactly? The question is harder to answer than you’d think. One thing I’ve learned the past few years is that pain conscripts the mind. My wits are no longer mine; cancer and sciatica rule mental territory once put to other, better uses. In my case, that is no one’s fault: pain and disease are arbitrary villains; they strike without reason or cause. The notion of producing such effects deliberately—not because one must but because one can—seems monstrous. I still would decline to prosecute all those involved in this ugly business. But I want the ugliness acknowledged and condemned. And I certainly don’t want my government doing such things, ostensibly for my benefit.
 

April 30, 2009

The First Hundred Days--Skeel

At his press conference last night celebrating his first hundred days, the President referred again to the need for a “house built on rock,” as he did in his speech on the economy at Georgetown last week. The reference is, of course, to the parable of the man who built his house on rock, not sand, at the end of the Sermon on the Mount. (Matthew 7:24-27). 

Although Obama is using the parable in an entirely secular context, I personally think his choice of Biblical reference is both apt and effective. (I also thought the press conference was masterful—including his handling of the abortion question). But to truly lay a solid foundation for the future, especially for the economy, I think the next hundred days will need to rely less on new spending and more on the kinds of hard regulatory choices that haven’t been made thus far. 
 

The Chrysler Bankruptcy--Skeel

T.S. Eliot famously wrote that “The last temptation is the greatest treason: to do the right deed for the wrong reason.” 

I’m not sure if it’s doing the right deed for the wrong reason, or doing the wrong deed for the right reason, but I found myself thinking of Eliot as I read the terms of the Chrysler bankruptcy filing this afternoon. There’s no question that it made sense for Chrysler to file for Chapter 11, as also is the case with GM. But the U.S. government is essentially planning to commander the bankruptcy process, by pushing through a sale of most of Chrysler’s assets (not to a true third party, but to “New Chrysler”) early in the case. The only thing standing in the way of the government’s stratagem is the bankruptcy judge who will be forced to decide whether to approve the sale. It will be awfully hard for a judge to say no to the deal that’s about to be thrust on him or her.  The end result may well be desirable, but the means are worrisome.
 
 

May 2, 2009

Pam Karlan and Souter's Seat--Stuntz

If Obama wants to appoint a Scalia for the left, he should choose Pam Karlan, a longtime colleague of mine at Virginia who now teaches at Stanford. Pam is (1) brilliant, (2) broadly knowledgeable — Cass Sunstein aside, I can’t think of anyone who knows so much about so many different legal fields — and (3) a spectacularly gifted writer. The last point matters enormously. Robert Jackson served only thirteen years on the Supreme Court, but his opinions remain influential today because of his talent with language. Many judges and justices leave their mark on the law because of their votes. Only a few have influence that lasts beyond their lifespan, and the common thread in those judicial careers is an uncommon ability to capture a complicated argument in a memorable phrase. Henry Friendly, Learned Hand, Louis Brandeis, Oliver Wendell Holmes, John Marshall — all had that talent, and many of those phrases survive and shape legal doctrine today. Intellectual horsepower helps, but horsepower alone isn’t enough to produce a lasting impact on the law. David Souter is a perfect example: he may be among the smartest Justices to serve on the Court, but he seems incapable of producing clear, tight opinions. A couple decades hence, few will cite his work.

 The opposite is true of Justice Scalia, whose outsized influence stems from his ability to write captivating, scathing, and often funny opinions. Of the names I’ve seen mentioned, Pam and the D.C. Circuit’s Merrick Garland are potentially in that league; my former boss Elena Kagan may be as well. I’m not sure who is the wisest of the three, but Pam is the best writer. I know no one else who can turn out so much work that is so pleasing to read. Plus, she can be devastatingly funny. That is a recipe for the kind of influence that lasts.
 
Most presidents miss this point. One hears a lot about the smarts and experience of judicial appointees, but rarely about their language skills. The same is true in my line of work: productivity and intelligence count far more heavily in academic hiring decisions than a knack for the perfect turn of phrase. That is a mistake. The legal and academic markets are filled to overflowing with smart opinions and law review articles. The ones that stand out are fun to read — and those are few and far between.
 
 

May 7, 2009

Kagan, Karlan and Empathetic Judges--Stuntz

My post about Pam Karlan as a potential Supreme Court nominee (see below) got more play than I expected. (I’m always surprised when someone reads something I write. Usually, I think: this can’t be a good use of readers’ time . . .) Which is all to the good: I think Pam would be marvelous in that job. But Pam isn’t the only first-rate candidate under discussion. My former boss Elena Kagan would likewise be terrific. A big part of the reason why goes to an idea that has attracted a lot of attention of late: empathy. 

Most of the talk about empathy and judging is silly. Roughly speaking, empathy means a combination of passion and understanding. Does anyone want Justices who don’t understand how some important piece of the world works? Should we fill the Supreme Court with Justices who are less than passionate about doing justice? These questions answer themselves. In any event, Karlan and Kagan share an important virtue in this regard: both have professional experiences that are unusual among candidates for this job—and both have exhibited the combination of understanding, detachment, and passion that the best lawyers bring to the table. Karlan may be the best voting rights litigator in the country; she knows the world of Southern black politics like few others. (She also knows Bill James. How cool is that?) Valuable as that is, this is more valuable still: Karlan genuinely loves her clients, and she is zealous about the business of protecting and enforcing their rights. Good for her. Kagan knows how a White House works from her time in the White House Counsel’s office under Bill Clinton, useful information for one who sits in judgment of presidents’ actions. More important still, Kagan has run the equivalent of a medium-sized business—and she ran it with a combination of cool-headed detachment and genuine devotion, for the institution she ran and for the people who work here. Good for her too. I’d still pick Pam first, but it’s a close call.

One more observation on this subject: Whenever these openings happen, there is a tendency to root for the appointment of the candidate who most nearly shares the writer’s ideology. That tendency is natural, but it ought to be resisted. All Americans benefit when Supreme Court Justices are high-caliber intellects with a flair for language, characteristics that Karlan and Kagan share. My own politics are center-right, but I want good, smart judges and Justices on the left (where Karlan mostly is) and center-left (where Kagan resides) as well as on my piece of the ideological spectrum. The current Supreme Court does not suffer from too much high-quality ideological debate. More like too little.
 

May 8, 2009

More on the Chrysler Bankruptcy--Skeel

Several days ago, I wrote a short post noting some of my concerns about the extent to which the government seems to be commandeering the bankruptcy process in Chrysler as a means of effectuating its auto policy.  This commentary develops the critique in a bit more detail, and puts it in historical perspective. 

May 19, 2009

Banking on Bankruptcy--Skeel

This op-ed by equity fund manager Scott Sperling in today’s Wall Street Journal makes an interesting case that the Obama administration’s handling of Chrysler and GM is actually evidence of capitalism at work. In my view, he’s right that the restructuring of these companies has some similarities to how things would play out if the government weren’t cramming down its own preferred plans. Both companies would have filed for Chapter 11, and would have been restructured. But the op-ed strikes me as very misleading in its suggestion that restructuring of Chrysler in particular can be squared with the bankruptcy laws. In talking about Chrysler, Sperling seems to suggest that it’s fine to give employees, retirees or anyone else (including current stockholders, presumably) a large stake in the new company, so long as they aren’t allowed to keep everything they have now. That is, he seems to forget the rules of priority, which say that the senior lenders are required to be paid first. When he turns to General Motors, on the other hand, he suddenly remembers the priority rules. The recalcitrant bondholders really aren’t entitled to anything (or much of anything), he argues, because the government, as senior lender, is entitled to be paid first.

In my view, he’s right about GM and wrong about Chrysler. The government’s commandeering of the Chrysler bankruptcy, and rewriting of the priority rules, has laid the groundwork for a lot of mischief in the future.
 
Also on the bankruptcy front, Cleary Gottlieb lawyer extraordinaire Lee Buchheit and I have a little op-ed today arguing for a new approach to the financial distress of large, systemically important financial institutions. We propose that lawmakers provide for a 60-90 day interim period as a prerequisite to bankruptcy proceedings. In my view, the existing bankruptcy framework, this proposal, or the enactment of special bankruptcy provisions aimed at large nonblank financial institutions are each preferable to the current administration proposal, which would dramatically expand the FDIC’s authority and would continue the strategy of relying on bailouts. I hope to outline these thoughts in more detail in future posts and commentary.
 

May 26, 2009

Hispanics and Latinos--Stuntz

This is a trivial comment, but I note that all the early reports on Sotomayor’s appointment refer to her as “Hispanic.” This puzzles me. Brazilians aren’t Hispanic—they speak Portuguese—and Spaniards are. Why should Spanish ancestry matter more than, say, Dutch or Swedish ancestry? (Full disclosure: I’m descended from Swedes. We’ve already had our Supreme Court Justice—Earl Warren, whom his political ally Tom Dewey once called “that big dumb Swede.”) And why should Brazilians count for less than, say, Argentines or Bolivians? This is the great advantage of the label Latino: it encompasses all whose ancestry is Central or South American, and it excludes Europeans. Why a politically correct culture continues to use the un-politically correct terminology is beyond me.

 

June 4, 2009

Hearings in Congress and Bankruptcy Court--Skeel

            The enormous recent bankruptcies have provided a lot of reasons for a bankruptcy scholar to leave the library and venture out into the real world for a change. I’ve spent more time in New York and Washington in the past month than I ever would have imagined. In addition to conferences and conversations with congressional staff, I had the privilege of testifying at a House Judiciary Committee hearing on the auto bankruptcies two weeks ago, and I went to the bankruptcy court in New York last week to watch the first several hours of the hearing on the proposed sale of Chrysler’s assets to New Chrysler. (The bankruptcy court, by the way, is a lovely building—the old Custom House—at the very bottom of Broadway, at the southern tip of Manhattan, and well worth a visit).

            As different as the two venues were, I was struck by an important similarity. Although there is security in both buildings, anyone can come in and see the bankruptcy court in session, or see the offices and hearing rooms where our Senators and Representatives do their work. You aren’t asked to demonstrate your importance or explain why you’ve come. It had never fully occurred to me just how open our government is. Walking in and out of those buildings, I couldn’t help but feel proud of the system we are a part of. 

June 5, 2009

Hospitals--Stuntz

Thanks mostly to medical business, I’ve been out of touch for awhile. I was hospitalized for various tests and procedures nearly all of last week (no large problems, thank God), and save for a brief appearance at the law school’s graduation ceremony – I love graduations: everyone is so unremittingly happy – have spent this week recuperating. 

Last week reminded me just how much attention patients in reasonably well-run hospitals receive. It’s remarkable; I saw a half-dozen doctors and another half-dozen nurses on a regular basis. Nighttime excepted, I rarely went as long as ninety minutes without at least one of them dropping by. Of course, I’m more advantaged than most patients. But this isn’t just a matter of class or status. My roommate, an alcoholic who appeared less than fully in touch with reality, had almost as much doctor attention and more nursing care than I had. All of which is a reminder that health care is a strange business: in the end, a large fraction of what sellers sell is human relationship. When done well, those relationships are a tonic. But it’s hard to see how one can both do them well and do them more cheaply – the twin goals of any plausible health care reform process. Plainly, the system needs reforming. Equally plainly, reform will come at a price. I hope it’s not too steep for patients like my hospital roommate, who need all the care they can get.

GM and the Railroads--Stuntz

This is more David’s department than mine, so if this observation is all wet, I’m happy to take correction. But in recent weeks, I’ve been thinking about the fate of the railroads in the late nineteenth and early twentieth centuries. Like the auto companies today, the railroads of the late nineteenth century received huge subsidies, often in the form of free land adjoining new track. Like GM and Chrysler, most of those subsidized railroads went belly up – not despite the government subsidies, but partly because of them. 

That sounds bizarre, but it isn’t. Allegedly friendly governments offer their business patrons a killing embrace – do this or that, and we’ll give you more money or land or trade protection than you could possibly ask. The subsidies are so generous, responsible corporate managers will do pretty much anything to get them. Over time, the corporations acquire more and more skill at pleasing the relevant government officials – and lose the ability to please their customers. The railroads laid track and built stations in places where the demand for transport could not match the supply; today’s GM is striving to build “green” cars that consumers may not buy. Insolvency is the inevitable consequence of such business decisions. So it was a century ago with railroads; so it is today with America’s auto companies. Perhaps the banks are next . . .

June 17, 2009

Iranian and Iraqi Democracy--Stuntz

In the many discussions of the pro-democracy protests in Iran, I’ve seen precious little about the relationship between that country’s democracy and democracy in its majority-Shiite neighbor: Iraq. The example of a democratic and not theocratic state on Iran’s borders may be destabilizing in precisely the ways the Bush Administration hoped – only the effect took hold more slowly than expected. If so, Bush should get some credit for this hopeful turn of events.

June 18, 2009

Consumer Financial Protection Agency--Skeel

The most surprising of Obama administration’s new financial reform proposals would establish a new Consumer Financial Protection Agency to look after consumers’ interests in financial services contracts such as credit cards and mortgages. It’s been discussed in Washington for many months, but it was not part of the earlier version of the reforms announced by Treasury Secretary Geithner in the spring. This new agency would have the power to write rules for credit card contracts and other transactions, examine financial institutions, and require firms to offer a “plain vanilla” mortgage product as a yardstick for comparing their more exotic mortages. 

The agency’s proposed powers are astonishingly broad. I strongly suspect that this is a first negotiating move, rather than an expectation of powers the agency will actually have when the legislation is passed. The financial services industry rightly fears that the agency is a major threat to their profits, and is already digging in its heels to fight vigorously. The final result is likely to be a compromise, at least if the Obama administration’s reluctance to take on banks directly in the past is any indication.
 
One of the most interesting questions—and a key to the likely efficacy of the agency—is who will be appointed its head. The principal proponent of the agency is Bill’s colleague Elizabeth Warren, who currently leads the TARP oversight panel, and she is an obvious choice to head it up. But Warren has locked horns with credit card banks for years over bankruptcy reform.  The banks surely will fiercely oppose her nomination.
 
I have sometimes disagreed with Warren about bankruptcy and credit issues in the past, but I personally think the agency is a good idea. Currently, consumers are protected by bank regulators. But bank regulators have more of a stake in bank health (and profits), than in consumer interests. Consumers could use a champion.
 
 

June 19, 2009

Democracy and Law--Stuntz

With good reason, ours is an age in which the rule of law is a terribly important concept. In the United States, support for law—and support for law’s natural product: order—is near-universal. Not so with respect to support for democracy. Americans oscillate between Administrations (like the previous one) that seek to promote both law and democracy and Administrations (like the current one) that seek to promote stability and order: the key products of the rule of law. We agree about law’s virtues. About democracy, not so much.

This is curious, and deeply wrong. Law has no moral content: its rights and wrongs depend wholly on the content of the relevant legal rules. Democracy does have moral content: it says that, as between thuggish rulers and people in the streets of Tehran, the people in the streets are on the side of the angels. True, democratic governments are sometimes evil—but the concept of democracy places limits on those evil rulers; their rule is subject to a power they cannot control. Law is more a tool for evil rulers than a limit on them. As between democracy and law, I would think Americans of all political stripes could agree that democracy is a better and more consistent ally.
 
Perhaps that will be the lesson of what looks more and more like the Iranian Revolution of 2009. I certainly hope so. The American-style rule of law is deeply problematic; much about our legal system is nightmarishly wrong and unfair. But the twin ideas that elections matter and that governments do not fake election results—those are thoroughly good and right ideas, ones with which all of us, Bushian and Obamaphile alike, ought to agree. Maybe the rise of the Iranian street will produce such agreement. Again, I hope so.
 

July 21, 2009

The Apollo 11 Landing--Skeel

The Apollo 11 landing was one of the first public events I remember. My family was living in Ann Arbor, Michigan, and we had returned from a family camp in Michigan the day of the landing. It was a long day, but like the rest of the country we stayed up and parked our selves in front of our big old black and white TV.

This was a happy time for me personally, but the public events I remember were faintly ominous, almost to a one. I remember my mother talking anxiously to a neighbor in 1967, but only much later realized that the threat I didn’t quite understand at the time was the Detroit riots, which were taking place a few miles away, not an invasion of hippies. I also vaguely remember the fraught political campaign of 1968, though again without many of the details.
 
The 40th anniversary coverage has focused extensively on the artificiality of America’s race to put a man on the moon, its role in the Cold War, and the extent to which NASA seemed to peter out afterwards. What doesn’t seem to me to have been emphasized quite enough is just how important it was to bring the nation together at that moment. It was a scary time in many respects, and watching Neil Armstrong hop along on the moon seemed to put a bounce back in everyone’s steps.
 
 

August 26, 2009

Bernanke--Skeel

In announcing Ben Bernanke’s nomination to another term as Federal Reserve chair, President Obama said he "approached a financial system on the verge of collapse with calm and wisdom." This seems a fair characterization of Bernanke’s personal demeanor, but an odd description of the Fed’s response to the financial crisis. Several of the Fed’s rate cuts and interventions in 2007 and 2008 were more panicky than calm.

The question now is how Bernanke and the Fed will handle the winding down of the Fed’s money printing machine in the coming years. Here, the danger is that Bernanke will wait too long to tighten credit, for fear of triggering another recession. As a student of the Depression, which was exacerbated by tight money, Bernanke seems much more comfortable flooding the economy with money than cutting back.
 
In a bank, the person who makes a loan is never the same person as the one who negotiates with the borrower if things work out badly.  The skills needed for the two jobs are quite different, and banks fear that the loan officer will not be able to make an objective decision when to cut a borrower off. The same may hold true for the Fed. Although Bernanke’s performance surely warrants a second term, he may need to be pushed to step down in favor of a new, unsentimental chair—Larry Summers?—when the time comes to seriously tighten credit. The question is whether anyone will have the gumption to do the pushing.
 
 

Kennedy's Passing--Skeel

Like nearly everyone who does not inhabit the left, I’ve always had deeply mixed feelings about Ted Kennedy—admiration for his dedication and accomplishments mixed with distaste for his partisan excesses and the seamy side of his personal history.

Soon the historians will go to work, putting his legacy into perspective. I believe that his decision to throw his support to Barack Obama in the Democratic primaries last year will be viewed as one of the shining moments of a remarkable political career. The easy decision would have been to support the establishment candidate. But he put the Kennedy name behind the candidate who could open a new page in American history, much as J.F.K did.

In political terms,Ted Kennedy surely will be remembered as one of our greatest senators, much as the nineteenth century triumvirate of John Calhoun, Henry Clay, and Daniel Webster are.

September 8, 2009

Life Issues and Healthcare Reform--Skeel

 A key issue with both life issues that have flared up in the healthcare debate—“death panels” and funding for abortion—is coercion. If healthcare reform requires doctors to consult with their elderly or other patients about end of life healthcare options, and facilitates funding for abortion, will patients be pressured to forego costly life preserving interventions or to have abortions?

I think the danger is greater with abortion. Although pro choice advocates often scorn the claim that doctors pressure women to abort, I’m firmly convinced they do. I’ve seen it happen, even in my sheltered little world. It’s easy to see why. If tests show a high risk of problems, a doctor can’t help but fear she’ll be blamed, and possibly face a big malpractice suit. If the doctor is pro-choice, there’s a powerful incentive to push for abortion. Some, perhaps many, do. Any healthcare bill that increases funding for abortion, whether directly or indirectly, will make it easier for doctors to prod more people to have abortions.
 
With elderly patients, on the other hand, doctors do not have the same perverse incentives. Regardless of which treatment a doctor counsels, she is not likely to be sued by the patient’s family if the patient dies. So long as the doctor with whom the patient consults does not have a financial incentive to steer patients away from life preserving interventions, the risk of coercion is relatively low. 
 
The death panels have made for dramatic talking points, but I think the more frightening issue is the risk that the coming reforms will mean more money and more pressure for abortion.

October 21, 2009

Health News, and the Cost of Cancer Treatment--Stuntz

I haven’t posted for far too long; sorry about that. I’ve been hunkered down, trying to manage chemo—which is harder this time around than it was last year—and also trying to make some progress on a book I’m writing.

So, a quick update: When I last posted, the docs had found a cluster of tumors in my abdomen, plus one tumor on my liver. I started chemo immediately. Three weeks ago, I received news of my latest set of films: the tumors haven’t shrunk, but they haven’t grown either. That’s good news—though, as always in Cancer World, news is double-edged: it means I’ll be on chemo for at least several months longer. When (I’m past the stage where it’s appropriate to say “if”) the tumors resume growing, the docs will try a modified chemo regimen. Whenever that fails, we will look either at clinical trials or palliative care.
 
Those films also turned up a blood clot in one of my lungs, which the doctors found worrisome. I’m giving myself daily injections of a blood thinner, a small piece of unpleasantness on top of cancer treatment.
 
As Americans debate reform of the health care system, I increasingly wonder at the cost of my own medical care. At this point, chemo can extend my life only modestly; there is only a slight chance I will live more than eighteen months. Less is more likely.  The tradeoff seems worth it to me, for now: I want to be around to pay more of our youngest child’s college tuition, so that Ruth need not pay those bills out of life insurance money she may need for herself. I’d also like to finish my book, and spend more time with family and friends. But while those desires are perfectly legitimate, it is also perfectly legitimate for others—my colleagues whose insurance premiums pay for my medical care or the taxpayers who would do so under a government-funded insurance plan—to conclude that my preferences do not merit the huge costs required to (possibly) extend my life a few months. How best to negotiate that gap between my preferences and the public interest, not just for me but for the many patients in circumstances like mine, is a mystery to me. But I doubt we will ever get control of health care costs if preferences like mine continue to govern in cases like mine. Which makes me wonder whether I have a moral obligation to cease chemo sometime in the near future, and let my cancer take its natural course. Not a pleasant thought, but not a foolish one either. At least, so it seems to me.
 

October 29, 2009

Bailouts and Preemptive Strikes--Skeel

One of many interesting questions I was asked while presenting a paper called “Bankruptcy or Bailouts?” at Professor Ted Janger’s bankruptcy seminar at Brooklyn Law School yesterday was whether there’s a connection between the ethos that led to the Bush adminstration’s preemptive strike policy and the Obama administration’s enthusiasm for bailouts. The question echoed a thought I’ve had often in the last few months. The Bush administration was criticized (fairly, in my view) for its secrecy and its “my way or the highway” attitude on foreign policy issues. Barack Obama campaigned against this ethos, and his administration has been far more transparent on foreign policy. Yet when it comes to economic issues, the Obama administration’s key financial regulators have been as high-handed and opaque as the Bush administration was on foreign policy.

 A preemptive strike is a little like a military version of a bailout.  And the ethos that produced that policy seems to have migrated, in the Obama administration, from military issues to economic ones.

November 29, 2009

Should Geithner Step Down?--Skeel

A recent report by Neil Barofsky, the special investigator for the $700 billion TARP program, criticizing last year’s AIG bailout has stoked suggestions that perhaps it’s time for Treasury Secretary Geithner to step down. My guess is that Geithner will indeed step down by the end of 2010, but that he will almost certainly step down too late.

The ideal time for a Geithner resignation might be in January, before Congress finalizes its financial reform package. President Obama presumably selected Geithner as Treasury Secretary due to his deep familiarity with the big Wall Street banks, and in order to maintain continuity with the Bush Administration’s response to the financial crisis. The Bush and Obama response centered on the use of ad hoc bailouts to fend off the possibility of a market-wide crisis. We now seem to have passed this stage of the crisis, and moved to the regulatory phase. The central problem with the administration’s financial reform proposals is that they are backward looking. They are designed to expand bank regulators’ powers, so that they can more easily effect the kind of bailouts that regulators pursued in 2008.
 
If Geithner stepped down in early January, he could announce (carefully avoiding the words “mission accomplished,” of course) that regulators have achieved the purpose for which he came to Washington, generally stabilizing the banking system. President Obama could then nominate a new Treasury secretary who played no role in the bailouts, and who is capable of thinking beyond them. Under the new secretary, the financial reform proposals could be dramatically revised, into a form that is less backward looking, looks less like another handout to Wall Street banks, and is more likely to generate enthusiasm in Congress. (A side note: in my visits to Washington this fall, I have been astonished by the depth of the bipartisan hostility to the Administration’s financial proposals; these debates are very, very different from the healthcare debate).
 
Unfortunately, I think Secretary Geithner will stick around until after Congress passes financial reforms in 2010, on the view that this too is part of the project for which he came to Washington. If he does, I fervently hope that he doesn’t get what he wants.
 
 
 

December 2, 2009

Afghanistan and Stem Cells--Skeel

I may the only person in the country who was reminded by President Obama’s speech last night of President Bush’s announcement of his stem cell policy in August 2001. In both cases, the President was announcing his policy on a controversial issue during the first year of his presidency. And in both cases, the President adopted a policy that seemed to reflect his own preferred position, but also concede a small amount of ground to critics. In Bush’s case, the prohibition on research with new stem cells reflected his opposition to stem cell research, but the policy allowed scientists to continue working with existing lines of stem cells. In Obama’s case, the troop escalation reflects his repeated emphasis on the importance of the war in Afghanistan (as contrasted with Iraq), while his proposal to begin scaling back in 2011 seems a concession to the war’s critics.

 There are at least two major differences between Bush’s compromises and Obama’s, however, and neither bodes well for the new policy. First, as David Brooks pointed out in a New York Times column several weeks ago, Obama’s stance seems intellectual and aloof rather than fully committed. Second, a compromise position on the war runs the risk of undermining the effect of the troop escalation altogether, since it seems to contemplate a prompt reversal. This may be one of those places were lukewarm is worse than either hot (a fully committed escalation) or cold (plans for a withdrawal).

December 17, 2009

Niebuhr's Serenity Prayer--Skeel

The flurry of comparisons between President Obama’s Nobel Peace Price speech and Reinhold Niebuhr’s Christian Realist theology reminded me of a debate over whether Niebuhr is the author of the “Serenity Prayer,” which has long been attributed to him. Last year, Yale law librarian Fred Shapiro produced evidence that the prayer pre-dated 1943, when Niebuhr was said to have composed it. Several weeks ago, the New York Times reported that Duke University librarian Stephen Goranson has uncovered a 1937 Christian student newsletter that attributes the prayer to Niebuhr, thus strengthening the case for Niebuhr’s authorship.

For me, the differences between the earlier and now classic versions of the prayer are even more intriguing than the authorship debate itself. In the familiar, classic version, the supplicant prays: “God grant me the serenity to accept the things I cannot change; courage to change the things I can; and wisdom to know the difference.”
 
The 1937 version is a little different: “Father, give us courage to change what must be altered, serenity to accept what cannot be helped, and the insight to know the one from the other.”
 
To my ear, the 1937 version sounds a lot more like Niebuhr.  Niebuhr’s thought tended toward dichotomies and tensions. He argued that anxiety tempts us toward sin, but that it is not inherently sinful and is the fount of our creativity. The 1937 prayer, with its initial emphasis on courage and change, and request for serenity (a very un-Niebuhrian word and concept) only with respect to “what cannot be helped” seems Niebuhrian to me; the classic version, with its tone of placid acceptance, doesn’t.
 
Based on no evidence whatsoever, I would even speculate that Niebuhr’s earlier prayer (assuming he was indeed the originator) was shaped into its final form by others, not Niebuhr himself.  Is it appropriate to do this, to alter and reuse a prayer penned by someone else? I think it is. Like hymns, prayers are part of our communal worship. We may argue about whether the changes are appropriate—changes to increase gender neutrality, for instance, or to remove references that seem theologically dubious or specific to a different era. But this back and forth is part of participation in Christian community. 
 
This isn’t an argument against identifying the original author. I think we should recognize Niebuhr or whoever the author was, just as we recognize Charles Wesley or John Newton as the author of their hymns. But prayers and hymns are a gift to the Christian community, to be adapted and adjusted by the community as part of our life together.
 
 
 

December 21, 2009

Person of the Year?--Skeel

The selection by Time magazine of Fed chairman Ben Bernanke as its person of the year has been met by a collective yawn. Perhaps this reflects a general disinterest in financial regulators. It also could simply be one more illustration of the diminishing influence of newspapers and weekly magazines.

Even for those of us who find regulators fascinating, the Bernanke pick seems misguided in two respects. First, if Time wished to single out the regulators who flooded the markets with money to avert a Depression, it didn’t make sense to select Bernanke alone. For better and worse, Bernanke was part of a team effort that included then Treasury Secretary Henry Paulson and current Treasury Tim Geithner. The did everything from the Bear Stearns bailout to TARP in tandem. It doesn’t make sense to include just one of the three musketeers. The second problem is much more revealing, however. Time seems to have had a problem with its calendar. Nearly all of the major financial interventions took place in 2008, not 2009. Perhaps Bernanke should have gotten some votes for person of the year last year, but his contributions were so 2008.
 
New York Times columnist Frank Rich had an interesting column yesterday suggesting that Tiger Woods would have been a better pick, since the complete mismatch between his carefully crafted public image and his actual private behavior fits a pattern that includes financial wrongdoers like Enron.
 
With the benefit of several extra weeks of political developments to consider, I would make still another pick. My pick for persons of the year would be Rahm Emanuel and David Axelrod, President Obama’s advisors. If the story of last year was Obama’s sensational election, this year’s story is the legislation at all costs strategy that the Administration’s advisors have persuaded the President to adopt. It doesn’t seem accidental to me that the most quoted political comment earlier in the year was Emanuel’s statement about a crisis being a terrible thing to waste; and the most quoted recent comment is his statement that everything is negotiable except success. Only time will tell whether this strategy of doing whatever it takes to line up votes will seem to have been well-founded in retrospect. But in my view, it is the story of 2009.
 
 
 

January 9, 2010

The House and Senate Abortion Provisions

As I understand it—and this is a serious qualification, because I’m not sure I do—the principal difference between the treatment of abortion in the House and Senate healthcare bills is this: the House Bill would prohibit government funding of health insurance policies that cover abortion, while the Senate Bill would allow the coverage but require anyone who wants the coverage as part of a government-subsidized policy to make separate premium payments for the basic policy and for the abortion coverage. It would be a terrible thing for the government to fund abortions, which argues decisively for the House approach.

But I think it’s worth speculating about the likely effect of the Senate approach, should it become part of the final legislation.  In theory, the Senate approach would serve as a referendum on Americans’ views on abortion. Those who hold to the old Mario Cuomo position of claiming to be pro-life personally but in favor of keeping abortion legal would presumably decline the coverage (and the politicians among them might well get asked about this in political debates). Those who are adamantly pro-choice might opt for the coverage even if it is highly unlikely they would ever have an abortion. My guess is that coverage decisions would show that pro-choice enthusiasm is less widespread than its advocates like to suggest.
 
But unless it’s prohibited, many employers, under relentless pressure from pro choice groups, might make it very easy to choose the abortion coverage. They might well do all the processing for their employees, so that the employee never has to sign the separate check that adds abortion to a government-subsidized health insurance policy.

January 24, 2010

Obama's Populist Turn--Skeel

It’s hard not to think of Franklin Roosevelt (Roosevelt-and-water, perhaps) as President Obama criticizes the Wall Street banks, welcomes Paul Volcker (who argues that the banks should be partially broken up) back into his inner circle, and condemns the Supreme Court’s new campaign finance decision as a threat to democracy. Roosevelt did break up the banks (a successful reform), and he wanted to “pack” the Supreme Court with new New Deal friendly justices (a disaster).

I think the President’s bank proposals will be much more difficult for Republicans to simply reject than healthcare. If the tax were called a “penalty for bigness” instead, and designed to force the too-big-to-fail banks to slim down, it would fit perfectly with a commitment to competition in the marketplace. The proposal to “break up” the banks—actually to prohibit deposit taking banks from owning hedge funds and the like—is more debatable, but is also defensible. I would reduce the ability of deposit taking banks, which enjoy a government guaranty, to gamble with the taxpayer’s money.  If the President were to go one step further, and abandon his proposed resolution authority (with would mean more bailouts in the future), he would have a package that Republicans ought to support. And if they didn’t, they could be the ones on the wrong side of the current populist outrage in the fall.
 
It remains to be seen, of course, whether the populist turn will amount to more than just words. In my view, a key indicator is the future of Treasury Secretary Tim Geithner, whose fingerprints are all over the bailouts, especially AIG. If the President is serious about reform, he will replace Geithner with a Treasury Secretary who is less committed to Wall Street and bailouts. If Geithner remains, it is unlikely that the new populism will achieve its promise.

God and Disasters--Skeel

James Wood had an interesting op-ed (here) in yesterday’s New York Times. Wood, as many readers may know, is a critic and novelist who was raised in an evangelical household but rejected the faith. He argues that that Pat Robertson’s suggestion that the earthquake in Haiti was a punishment suggests that “God is punitive and interventionist,” and that President Obama’s suggestion that “there but for the grace of God” we would have been the ones devastated makes God “as capricious as nature and so absent as to be effectively nonexistent.”

Although Wood is being a little unfair both to Christianity and to President Obama, I do think he wisely points out the dangers of trying to identify God’s will in a disaster. Jesus himself warned about this.  Referring to eighteen people who were killed when the tower in Siloam fell, Jesus said “do you think that they were worse offenders than all the others who lived in Jerusalem? No, I tell you.” The real moral, Jesus said, is that we all need to repent. (Luke 13:4).

I think the President’s comments would have been entirely appropriate if he had just worded them a little differently.  The President emphasized “our common humanity,” and said that “we stand in solidarity with our neighbors to the south, knowing that but for the grace of God, there we go.”  If he had omitted the statement “but for the grace of God,” and emphasized that our common humanity is grounded in the fact that we are together made in God’s image, his words would have touched on the most important contribution Christianity offers in a terrible crisis: a reason to reach out in love.

March 21, 2010

Obama and Berlusconi--Skeel

A week ago, at the end of a nine day trip to Italy, I waded through a vast protest in against Prime Minister Berlusconi. At a reception that evening, an Italian former student explained that, after Berlusconi’s minions missed the filing deadlines for regional elections, he simply had a law passed to change the rules. For my former student and millions of Italians, this was the final straw. Many of the protestors carried signs saying “Basta”—that is, Enough.

I first heard about the “deem and pass” strategy the Democrats were originally planning to use to pass healthcare the next day, when I returned to the U.S. I couldn’t help but think of the similarities between President Obama’s willingness to cut procedural corners and Berlusconi’s.  Overall, the differences between the two are far more pronounced than the similarities. Through his control of many of the main television stations and newspapers and through threats to others, Berlusconi has largely stifled the Italian media.  In the U.S., the media is much more wide open.   In addition, Berlusconi’s battle seems entirely personal at this point—an effort to cling to power—whereas Obama is fighting for a reform he campaigned on and is obviously committed to.
 
But here, as in Italy, assuming that citizens will overlook procedural manipulations because of an underlying confidence in their leader is a dangerous strategy.  It may work once, but even considering these kinds of tactics in the coming debates over financial reform and other legislative issues could have devastating consequences for Americans’ already shaky confidence in government.
 
 

June 15, 2010

David Brooks on Goverment-Corporate Relations--Skeel

Inspired by the Obama Administration’s awkward dance with BP over the oil spill, David Brooks divides the nations of the world into two categories in this column today: those that treat oil companies and other large corporations as private corporations (“democratic capitalism”), and those that directly own and control the companies (“state capitalism”).

Brooks’ columns are always interesting, but this time his love for the number two—for dividing everything into two camps—leads him astray. The category he calls democratic capitalism merges very two different approaches, corporatist governance in which the state regulates and collaborates with large corporations; and a more decentralized approach (smaller corporations and industry competition). The U.S. has traditionally tended to favor the decentralized approach, whereas many European countries favor corporatism.
 
One of the most remarkable developments in the two years has been the extent to which we’ve moved in a corporatist direction. With a few small exceptions—such as the so-called Volcker rule limiting banks’ propriety trading—the entire financial reform package has a corporatist cast. The Obama administration’s new plan to pressure BP to set aside a fund for those injured by the oil spill has the same corporatist quality. It’s more evidence of the shift toward European-style governance.
 

September 5, 2010

Is Obama for or Against Wall Street?--Skeel

Two views on President Obama’s relationship with Wall Street seem to alternate in the media.  One view, increasingly prevalent of late, is that he’s hostile to Wall Street, perhaps even on vendetta against it starting with the Dodd-Frank reforms.  The other view suggests he coddles the big Wall Street banks.  Is Obama for or against Wall Street?

I think the answer is both. The Obama administration clearly is comfortable with the biggest banks (Citigroup, JPMorgan Chase) dominating American finance, and the new financial reforms won’t change this.  So in this sense the administration is Wall Street’s best friend—at least one part of Wall Street. But the administration’s willingness to interfere with one industry after another has seriously complicated business.  Everyone now has to spend as much time predicting political risk as economic risk.  The increased uncertainty is bad news for Wall Street more generally, and for everyone else.

November 2, 2010

TARP Confusion--Skeel

One of the biggest punching bag this election season seems has been the $700 billion TARP legislation that Congress passed in fall 2008 to rescue the banks. Those who voted no have trumpeted this fact, and many of those who approved have said as little about it as possible.

There were indeed several major problems with TARP and its rollout. The first was that then-Treasury Secretary Henry Paulson stunned Congress when he told lawmakers, with almost no explanation, that the economy would crash unless they immediately handed over $700 billion. Indeed, some studies show that the shock of Paulson’s Congressional appearance was the single most unnerving moment of the fall 2008 crisis. The second problem is that the TARP funds, which were designated for “financial institutions,” were treated as an all-purpose kitty that Paulson and his successor Tim Geithner could use for purposes that Congress never intended, like bailing out Chrysler and GM.
 
But this doesn’t mean that pumping money into the banking system was a mistake.  In my view, rescuing individual firms like Bear Stearns or AIG is almost always a terrible idea.  But if the entire banking system is on the verge of paralysis, as it was in 2008, industry-wide intervention is necessary.

November 8, 2010

Last Week's Church-State Case--Skeel

For those who might be interested, here is a little column I wrote on an important new church-state case (Arizona Christian School Tuition Organization v. Winn) that was argued in the Supreme Court last week. One interesting dimension of the case that I wasn’t able to squeeze into the column was the Obama administration’s stance: the administration came out squarely in favor of the Arizona program, supporting it both in an amicus brief and at the argument. This put the administration on the opposite side as the teacher’s unions, suggesting that the administration is serious about school reform. This may be one of the issues on which President Obama may find common ground with Republicans in the wake of last week’s election results.

July 10, 2011

Do Americans Care About the Debt Ceiling?--Skeel

The debt ceiling drama increasingly seems like two debates rolled into one. The first is the deficit reduction debate, and the question of what package of spending cuts and/or tax increases lawmakers should agree to. The second is whether we can risk reaching an impasse and failing to raise the debt limit by August 2. 

Americans seem much more engaged in the first debate than in the second. We’re told that the failure to raise the debt limit would trigger a worldwide financial crisis, but people seem remarkably unconcerned. Perhaps this is because the numbers are too big and the issues too abstract for ordinary citizens to understand. But I don’t think so. I suspect the disinterest is a legacy of the pattern of bailouts throughout the recent financial crisis, and the manipulation of the rule of law that accompanied them.   We now assume that warnings of financial Armageddon are always premature; there’s always an escape hatch.
 
If this is correct, the recent suggestion that the president might simply declare the debt ceiling unconstitutional, based on the 14th Amendment’s statement that “the validity of the public debt of the United States, authorized by law ... shall not be questioned,” is especially pernicious. It underscores the perception that no crisis is real, and that the rules can always be manipulated to make a problem go away. There’s a vicious cycle here. The inability to persuade Americans that a crisis is serious may make it less likely that Congress will agree on a solution, and create even more pressure to sidestep this problem by bending the rules.
 
This is a dangerous game. It may not be August 2-- or whenever Harold Camping predicts the new end of the world will come. But one of these times the habit of repeatedly crying wolf is going to bite us.
 

August 18, 2011

Senator Elizabeth Warren?--Skeel

It sounds like the long-rumored Elizabeth Warren campaign is really going to happen. She wrote a blog post about her return to Massachusetts that sounds like the warm-up to a campaign, and she has just set up an “exploratory committee,” ostensibly to explore the decision whether to run, but more likely to confirm it.

I found myself wondering if a law professor has ever been elected to the Senate. Barack Obama doesn’t count, because he was a politician moonlighting as a law professor when he taught at the University of Chicago.   The closest I can think of is Pat Moynihan, who wasn’t a law professor but was a true scholar before running for and winning a Senate seat in New York in 1976. But even he had an extensive political career (serving in the Kennedy administration, among other posts) before running for the Senate.
 
Of course, there are still a number of significant obstacles between Warren and the Senate, including the Democratic primary and, more importantly, popular Republican incumbent Scott Brown. But I have to imagine the prospects are good. Warren was controversial as a law professor, but those controversies will be close to irrelevant to her Senate run. She has a great deal of credibility on economic issues, and has focused on them for decades, going into an election that is likely to turn on precisely these issues. In many states, the fact that she excites the liberal wing of the Democratic party, but is deeply unpopular with many Republicans and draws mixed reviews from moderates might be a problem. But Massachusetts obviously is not that kind of state.