Friday, December 29, 2006



There are many reasons to dislike Joe Lieberman. Some of them are good reasons, some aren’t. But his op-ed in today’s Post illustrates the fundamental problem with the Last Honest Man — he is and always has been dishonest about Iraq.

The other criticisms of Lieberman — his vanity; his gratuitous party-bashing for the benefit of Tim Russert — are all annoying, but they don’t really get to the heart of the problem. The issue of our generation is Iraq. And we got into Iraq because the Bush administration consciously misled the public about the nature of threat that Saddam posed. Playing on 9/11 fears, the Bush administration (in what was probably the biggest deception of the entire pre-war period) portrayed Saddam and his secular Baathist regime as being a terrorist wing of al Qaeda.

Lieberman does the same thing in today’s op-ed. He’s either the most ignorant person in the United States, or he’s consciously and intentionally misleading people about both the nature of conflict we’re in and the nature of the threat that Iran poses. It’s one thing to support the war and/or to support an escalation. I disagree with both, but the mere fact that one believes these things doesn’t make him an object of contempt. What’s infuriating — and inexcusable — is to advocate for these things through lies and deceit that are intended to stir up people’s post-9/11 emotions rather than their logic.

Let’s dive into the op-ed. This comes from the very first paragraph:

While we are naturally focused on Iraq, a larger war is emerging. On one side are extremists and terrorists led and sponsored by Iran, on the other moderates and democrats supported by the United States. Iraq is the most deadly battlefield on which that conflict is being fought. How we end the struggle there will affect not only the region but the worldwide war against the extremists who attacked us on Sept. 11, 2001.

Where to begin. First, I assume by “terrorists and extremists,” he is referring at least in part to the Sunni insurgency which of course is neither led nor sponsored by Iran. Same deal with al Qaeda (or the “franchisees” in Iraq that call themselves al Qaeda). To these people, Shiite Iran is run by heretics and infidels. But Joe knows better. Anyhoo, the rest of that sentence doesn’t get much better. Who exactly are the “moderates and democrats” that are fighting with us? The main democrats I see in the region (for now) are the Iraqi Shia, who are not moderate but are supported by Iran (more so for Badr than the glorified mafia that goes by the name Mahdi “Army”).

This is a serious point. In Lieberman World, the battle becomes a binary conflict between Iran and us. While that narrative is a good one if your goal is to create political support for bombing Iran, it has absolutely no connection with reality. And Lieberman knows this but says it anyway. Next paragraph:

Because of the bravery of many Iraqi and coalition military personnel and the recent coming together of moderate political forces in Baghdad, the war is winnable.

It would be nice if it were true. But Sistani pulled the plug on that. And the idea of this type of alliance always struck me as a long shot anyway. Waiting for the great Sunni-SCIRI alliance to save the day is a bit like waiting for Aragorn to come over the hill with his ghost army.

This bloodshed, moreover, is not the inevitable product of ancient hatreds. It is the predictable consequence of a failure to ensure basic security and, equally important, of a conscious strategy by al-Qaeda and Iran, which have systematically aimed to undermine Iraq's fragile political center. By ruthlessly attacking the Shiites in particular over the past three years, al-Qaeda has sought to provoke precisely the dynamic of reciprocal violence that threatens to consume the country.

On this point, let there be no doubt: If Iraq descends into full-scale civil war, it will be a tremendous battlefield victory for al-Qaeda and Iran.

Again, this makes sense if the goal to win support for bombing Iran, but the conflation of “al-Qaeda and Iran” is simply October 2002 all over again. Except that it’s coming from a high-profile Democrat. But he fought for civil rights in Mississippi in the 1960s. This paragraph also inflates “al Qaeda” by essentially equating it with the Sunni insurgency. But if that’s right, then I have a question for you Joe — isn’t it odd that Iran would “lead and sponsor” ruthless attacks on Shiites?

I saw firsthand evidence in Iraq of the development of a multiethnic, moderate coalition against the extremists of al-Qaeda and against the Mahdi Army, which is sponsored and armed by Iran and has inflamed the sectarian violence.

This is more picky, but the extent of the ties between Iran and Sadr is grossly exaggerated. The Iranian party is SCIRI and its Badr Brigade, which of course are our bestest friends in Iraq next to the Kurds. Also, the very name “Mahdi Army” is deceptive in that it implies a hierarchical military-like organization. Much of this “army” is a bunch of glorified, decentralized street gangs who can easily blend in to the population and disappear in the face of a conventional military operation.

Not to get lost in the trees, the point here is that Lieberman is consciously misleading people to advocate a failed policy that will get more people killed. If someone wants to make an honest case about how escalation can help in light of inter-and-intra-ethnic civil war, fine. I will disagree but we can debate it. But to advocate for it by transforming Iraq into a fairy tale morality play with Iran as villain should not be tolerated.

What’s particularly harmful about this is that people are busy and don’t have time to learn about all the complexities of Iraq and the current conflict. In this respect, they rely on leaders to tell them the truth. Lieberman, however, does just the opposite. It’s the worst sort of demagoguery. What’s even more maddening is that Lieberman (given the perception of him as a “serious” national security guy) could probably do more than any other Democrat to persuade public opinion that escalation is a terrible idea.



I haven’t followed the news all that closely over the past few days, but I did notice this NYT article explaining that a bipartisan immigration bill is currently being drafted. To that, I say “good.” It’s the right policy and the political stars are aligned (however briefly) in its favor. So it’s now or never on that front. But what’s interesting is that several key Republicans view the reform bill as a way to “win back” the fast-growing Latino vote:

But Mr. Flake [R-AZ] described himself as optimistic, saying the elections had disabused many Republicans of the notion that opposing legalization and guest worker plans would win widespread support.

“That illusion is gone,” he said.

The percentage of Hispanics who voted for Republicans fell to 29 percent, from 44 percent in 2004, and some Republicans say passing immigration bills is a crucial part of the effort to win them back.

I wish Mr. Flake well, but I’m skeptical that comprehensive immigration reform will do anything but further harm the GOP’s Hispanic woes in the years to come. It’s not the new law that will hurt them, but the reaction to the law that will inevitably come from the Tancredo wing of the Grand Old Party.

In this sense, there are some interesting parallels between the modern immigration debate and the political battles over civil rights legislation in the 1960s. If you think about it, it’s not obvious why the Civil Rights Act transformed African-Americans into such reliable members of the Democratic coalition. But it did, as illustrated by this excellent chart of black voting patterns and party identification from 1936 to 2000 (note the difference between 1960 and 1964) (chart via this silly AmSpec article).

Historically, blacks (for obvious reasons) voted only for Republicans until the New Deal. FDR won around 20% of the black vote in 1932. But if you look at the chart, you’ll see a substantial increase in black Democratic support by 1936. However, even in the period between 1936 and 1960, Republicans remained competitive. Nixon got one-third of the black vote in 1960 and Eisenhower got 40% four years earlier. As the numbers show, things quickly changed with the 1964 election. LBJ — a southern Democrat — won an astonishing 94%. The percentage of blacks identifying themselves as Republicans dropped from 22% in 1960 to 3% in 1968. Nixon won 3% and 5% of the black vote in 1968 and 1972. And so on.

But what’s interesting is that the Civil Rights Act itself was very much a bipartisan effort. On the cloture vote in the Senate, the Democratic Senators voted 44-23 in favor of cloture, but Republicans were even more supportive, voting 27-6 to end the southern-led filibuster. And while it’s true that the highly-visible LBJ was a Democrat, it’s also true that the heart of the opposition to civil rights legislation was Democratic. The point is that, upon first glance, you might wonder why the bipartisan effort was so quickly forgotten by black voters who fled en masse to the Democratic Party.

The answer of course is that the legislation was quickly overshadowed by the reaction to the legislation. Rather than embracing their legislative success, the Republican Party began institutionally courting the reactionaries. Exhibit A is the nomination of that great American hero and visionary Barry Goldwater who (when not advocating the use of nuclear weapons) opposed and openly ran against the civil rights legislation (while being cheered on by a young Reagan). The GOP followed that up with Nixon 2.0 and the Southern Strategy. And then Reagan and his quota doctors and welfare queens. And so on.

The point here is that no one remembers that Republicans were instrumental in securing civil rights for African Americans. What they do remember is the loud, obnoxious coalition that denounced the laws in racist and reactionary tones following the legislation’s enactment. And more importantly, they watched this coalition — the lovechild of Goldwater and George Wallace — assume institutional control of the Republican Party. (To Bush’s credit, he is the first modern Republican to avoid race-baiting. I don’t give him praise for much, but I give him praise for that).

Something similar could easily happen with the immigration reform bill. If it passes, it will do so only as a bipartisan effort with strong Republican support. You might think Latinos would therefore be grateful to the GOP and restore their prior levels of political support. But that won’t happen. That’s because the legislation will lead to nativist demagoguery and race-based hysteria exclusively from certain wings of the GOP coalition. This in turn will lead to a number of nasty primary challenges within the GOP based heavily upon immigration. Bad things will be said. (Yes, it’s true that many of the newly-elected Dems won’t support reform. But you simply won’t see Tancredo-style racist hysteria from them.)

The result of all this will be that Latinos grow even more alienated from the Republican Party. As a result, the sharp decline in their support for the GOP will harden to become the very opposite of the structural shift that Rove had once dreamed of.

Thursday, December 28, 2006



I'm out of DC for the holidays and my Internet access has been, shall we say, less than ideal. Posting will hopefully pick up starting tomorrow, but will be sporadic until after New Year's.

Sunday, December 24, 2006



I've been on the road for Christmas and haven't been online for a couple of days. And when I got on, I saw to my shock and horror that Feddie was packing it up. Feddie is a long-time friend of this blog and gave me one of my very first "intro" links, so I've always considered him the Dre to my Snoop Dogg.

My hope is that he finds quitting as tolerable as I did and is back online in a few weeks. But if not, godspeed Fedster. You will be missed.

Thursday, December 21, 2006

MEMO TO GOP: Icebergs Ahead 


In debating the wisdom of “the surge,” people should remember that real lives are at stake. These are not poker chips or blackjack wagers, but real people who will die. That’s the first point. But there is — as always — a political point here too. Putting aside the question of whether the surge is good military strategy, it’s shaping up to be disastrous political strategy for the GOP.

If I were a GOP operative, a few things would stand out to me right now. First, 11% of the public — 11% — support the surge. Bush’s Iraq approval/disapproval numbers are 28/70. And perhaps most ominously, Congressional Democrats (Lieberman excluded of course) unanimously oppose the surge, while Republicans are acting wishy-washy on it.

There are a few points to take from this. First, the surge debate is creating a terrible political dynamic for Republicans. It not only makes Iraq the top headline every day (and will do so in spades if Bush escalates the war), but the specific issue being debated is horrible for the GOP. It allows the Democrats to draw sharp clear distinctions on a national security-related policy that the public almost unanimously opposes. And because Bush and others are allegedly supporting it, the surge is wedging the GOP. Bottom line — every day the surge is in the headlines is a bad day for Republicans.

The second point is that I’m not sure the Republicans — and the White House in particular — have come to terms with what these numbers mean in the wake of the election. For good or bad, the war has been rejected by the public. Robert Novak said it well:

Bush has not stepped back from the decisions he has made on Iraq. At the core of Bush's Iraq dilemma is the fact, still denied at the White House, that the president has lost his political base on the overriding issue of the war. In contact mainly with fawning campaign contributors, Bush may not appreciate the steady decline in support of his war policy that I have seen deepening among Republicans in the past year.

To follow up on that, I think these guys know the war isn’t terribly popular. What they haven’t digested yet is that support for the war — and for the GOP — has not yet hit a floor. Things can get worse. In the past decade of hyper-polarization and 50/50 America and all that, there’s been an underlying assumption that Bush’s support could only drop so far before it hit the “partisan floor” — i.e., the base. And to be honest, I used to think that too. But war has a funny way of remaking reality in ways you can’t foresee.

As I explained after the election, Iraq isn’t a one-time injury for the GOP from which it can now recover. Right now, it’s a festering political sore that is only getting worse. And if Bush keeps this up — and if he escalates it — a lot of the old political order may get thrown out the window in 2008. Iraq — like 9/11 — is one of those rare “game changers” that can make people rethink their underlying emotional loyalties to a political party. For that reason, if Bush keeps upping the ante in Iraq in light of the poll numbers above, he’s going to destroy the Republican base, along with the party’s public support more generally.

In fact, one of the most interesting dynamics to keep an eye on in 2007 is the increasing divergence between Bush’s interests and the Congressional GOP’s interests (and the GOP establishment’s more generally). As 2008 gets closer, they’re increasingly going to see Iraq as a liability that will cost them both the White House and more seats in Congress. You would expect then to see a lot of behind-the-scenes pressure on the White House to scale down and start getting out of Iraq. But Bush isn’t going to do that because his legacy is at stake and he has no hand-picked successor to keep him in line. The result is that these criticisms will bubble out into the public sphere from unexpected places while Bush marches blindly forward.

That’s why the GOP missed a big opportunity with the Baker report. The report was never intended to be a wonky policy paper. It was a political document intended to give politicians cover to say (1) this isn’t working; and (2) let’s leave. The White House didn’t take it, and most GOP legislators didn’t either.

But something’s got to give. The war is associated with the Republican Party thanks to the Super Genius’s efforts in 2002 and 2004. Accordingly, if Bush keeps intensifying it at the same time public support keeps dropping, it’s going to decimate the Republicans in 2008.

You might ask, why do I care about what happens to the Republican Party? The short answer is that I don’t. It wouldn’t really tear me up inside to see the Republican Party wreck their ship on Iraq. Morpheus: Fate, it seems, is not without a sense of irony. But I’d rather stop people from getting killed unnecessarily — that ranks even higher. And only Republicans can stop this war at this point — Bush won’t listen to Democrats. And until Republicans take a cold hard stare at the political dangers ahead, they won’t push Bush as hard as he needs to be pushed to stop the madness.

Wednesday, December 20, 2006



After a hiatus of a couple of years, I made a concerted effort this year to get back into music. I was at least semi-successful, but there are lots of albums I just didn't listen to either out of laziness (Built to Spill) or because they weren't on Rhapsody (Joanna Newsom). But anyway, here it is, the Legal Fiction Top 10 of 2006:

1) Yeah Yeah Yeahs Show Your Bones

Because Phenomena reminded me of Cheney.

2) Viva Voce Get Yr Blood Sucked Out

Didn't know them before this year.

3) Ali Farka Toure Savane

Metacritic's top album, which means it gets radio silence at Pitchfork (except for one dude). Perhaps if there were more polysyllabic adjectives and independent clauses in the title, the Pitchfork staff would have rated it higher.

4) Decembrists Crane Wife

Liked the last one better though.

5) Neko Case Fox Confessor Brings the Flood

She gets an eternal top 10 spot just for the song "Letter from an Occupant" on Mass Romantic.

6) Califone Roots and Crown

Another new one for me, but I liked it a lot.

7) Bob Dylan Modern Times

Because it's Dylan. But it's not bad either.

8) Beck The Information

He is unfairly held to a higher standard because of his past albums. But on a blank slate, people would have loved it.

9) TV on the Radio Return to Cookie Mountain

I don't like this (yet) as much as everyone else, but it deserves up here.

10) Mastodon Blood Mountain





The idea of sending reinforcements to Baghdad is not a new one. The United States dispatched a Stryker brigade and several Army battalions to the capital in August as part of a joint American and Iraqi operation to improve security there. Those additions brought the number of American troops involved in the Baghdad operation to 15,000.

Sectarian killings initially declined, only to soar after death squads adapted to American tactics.

Albert Einstein:

Insanity: doing the same thing over and over again and expecting different results.

Tuesday, December 19, 2006



For those of you interested in the Genarlow Wilson case (described below) and its appeal, here's the website that includes case information, online petitions, etc.



When I was in law school (circa 2000-2003 — the Pax Bushana), it had become unfashionable to embrace the Warren Court. Guilty liberals like me thought the Court’s hearts were in the right place, but we were contemptuous of its means. With forty years distance, we were embarrassed by the results-oriented jurisprudence, and more than a little convinced by some of the old Bork/Scalia critiques.

But one thing that morally-superior, so-very-smart 21st-century liberals like myself are missing is the underlying social context in which the Warren Court acted. We tend to forget that the Warren Court wasn’t acting on a blank slate. Rather, at the time it got going, segregation — you know, the mandatory separation of the races by the state — remained the universal practice in the South.

Even though it hasn’t been all that long ago, the relics of this past — like Faulkner’s ghosts — pop up from time to time to remind us that the past is never past. This time, the ghosts of the Civil War popped up in Georgia in the case of Genarlow Wilson, a 17-year old black kid who was sentenced to 10 years for consensual oral sex with a 15-year old girl (the Georgia Supreme Court upheld the sentence last week). The prosecutor was white, and, according to this article, it seems that white defendants have not exactly faced similarly harsh sentences for actions that seem far worse.

Of course, I can’t say what motivated the prosecutor here. But it is strange that the most egregious prosecutions under this Georgia law that bubble up to the national consciousness (including Marcus Dixon) involve young black men and white prosecutors. But regardless of the motivation, it is a textbook example of an abuse of prosecutorial discretion. (As explained in the article, Wilson had no prior problems with the police).

And that brings me to a larger point. The criminal justice system in America depends heavily upon prosecutorial and police discretion. Both prosecutors and police officers have a number of tools and laws at their disposal, and at some point we just have to trust that they won’t abuse those powers. (That’s why you should be nice to cops when they pull you over — they can always make things worse). The point is that there is a very wide range of actions that fall into the “wrong, but legal” category, as the Wilson prosecution clearly shows.

The criminal justice system’s reliance on discretion explains the problem that civil rights activists faced in the Warren Court-era South. Quite simply, Southern judges, prosecutors, and police officers could not be trusted to exercise proper discretion on racial matters. Their abuses, however, were impossible to address because existing constitutional doctrine (e.g., respect for state criminal court decisions) prevented anyone from doing anything about it. Again, “wrong, but legal.”

So, in the face this outrageousness, the Warren Court stepped in and started making new law. In fact, one way to understand the Warren Court’s decisions is that they are a collective attempt to impose bright-line rules upon Southern law enforcement officials. Specifically, the Warren Court sought to limit police and prosecutorial discretion in the South out of racial concerns and distrust for law enforcement officials. (As I’ve explained in prior writings, Scalia’s formalism and bright-line rules are also motivated by distrust, but of hippy district court judges rather than 1950s Southern state troopers.)

As an abstract constitutional matter, you can argue back and forth about whether it was appropriate for the Warren Court to step in the way it did. I’ve certainly gone back and forth on these decisions in my life. But the more I think about, the more ridiculous I think it is to focus solely on abstract logic and interpretative theory in the face of what Earl Warren was seeing when he looked out the window in 1961. The truth is that the formal logic of constitutional law and precedent was sanctioning an apartheid state in a quarter of the country.

Of course, the fact that something is deemed “wrong” by judges is not an invitation for them to impose their unelected will upon the country. And that’s why the “race is different” theory is important. Although this is worthy of a separate post, I've always thought race has a unique place in our history that allows it to be treated differently, constitutionally speaking. This theory is especially true with respect to the Warren Court decisions given that black disenfranchisement prevented these abuses from being corrected through the political process.

Anyway, the point of all this is that cases like Genarlow Wilson ease my Warren Court Guilt, if not eliminate it entirely. The Wilson case is an isolated example of an idiot prosecutor enforcing an idiotic law for bad reasons, but it also shows all too clearly how scary the world must have been for southern blacks in the age of unfettered discretion. (On this point, Toni Morrison’s Beloved includes haunting passages and imagery of the punishment that Southern black criminals faced back in the day that has — Beloved-esquely — stayed with me.).

And so say what you will about Earl Warren and his court, but it’s a bit convenient for us to sit here — forty-five years later — and critique the logical weaknesses of his opinions while Bull Connor was unleashing the dogs in Selma. While I’m not much for extending the Warren Court’s methods and decisions outside the realm of race, the Wilson case reminds me why I should stop apologizing for them.

[UPDATE: The award-winning David Schraub has more.]

[UPDATE 2: Feddie too. I expected Feddie to disagree, but I think the central flaw in his argument is that black people couldn't vote. As I said in the comments over there, relying on the political process assumes as a necessary precondition that the political system is not defective. In the case of the Jim Crow South, it clearly was.]

Monday, December 18, 2006



The Georgia statutory rape law is back in the news. This time, a 17-year old is going to jail for 10 years for consensual oral sex with a 15-year old. Eugene Volokh has an good rundown of some of the legal issues surrounding the conviction.

He does leave out one important detail though. The 17-year old is black, and the prosecutor is white. And what's more, white defendants have apparently had a better go of it in this district under this statute:

McDade [the prosecutor] says he further supported the judge’s decision to treat Genarlow [the "criminal"]— the only one who had not had any run-ins with the law prior to this case — the same as the other boys because he does not believe in offering First Offender status in sex crime cases.

McDade’s tough stance on sex crimes seems reasonable, noble even, until a closer look is taken at several recent cases in Douglas County, including one indirectly involving McDade’s own teenage son.

. . .

But there are also other cases of adults — white adults — prosecuted by the Douglas County District Attorney’s office for sex crimes involving minors and received far lighter sentences than any of the teens in the Douglasville Six case.

Case in point: Jack Stewart, a 24-year-old volunteer coach at Heirway Christian Academy in Douglas County, who received 30 days in jail and 10 years probation for fondling the 15-year-old daughter of a couple whose house he was living at temporarily. McDade notes that he objected in court to the “inappropriately light” sentence.

In the case of 26-year-old George Tsimpides, First Offender status was extended in a sex crime. Tsimpides received 20 days in jail after he pleaded guilty to luring a 15-year-old girl he’d met on the Internet to Arbor Place Mall with the intention of engaging in sex with her. McDade says he publicly objected to that sentence.

Disgusting. I'll have more on this later.

Sunday, December 17, 2006



In light of everything we’ve seen over the past three-and-a-half years, I’d like to amend the Constitution so that the executive can be impeached for “high crimes, misdemeanors, and adopting war strategies from Weekly Standard writers.” Fred Barnes says:

Now Bush is ready to gamble his presidency on a last-ditch effort to defeat the Sunni insurgency and establish a sustainable democracy in Iraq. . . . Bush only needed what his press secretary, Tony Snow, called a "plan for winning." Now he has one.
. . .

Why would the Keane-Kagan plan succeed where earlier efforts failed? It envisions a temporary addition of 50,000 troops on the ground in Iraq. The initial mission would be to secure and hold the mixed Baghdad neighborhoods of Shia and Sunni residents where most of the violence occurs. Earlier efforts had cleared many of those sections of the city without holding them. After which, the mass killings resumed. Once neighborhoods are cleared, American and Iraqi troops in this plan would remain behind, living day-to-day among the population. Local government leaders would receive protection and rewards if they stepped in to provide basic services. Safe from retaliation by terrorists, residents would begin to cooperate with the Iraqi government. The securing of Baghdad would be followed by a full-scale drive to pacify the Sunni-majority Anbar province. [Finally, there would be a redistribution of ponies to the public.]

Like so much of what the Weekly (“Never Right” ) Standard writes, this sounds fine in the abstract. Hairy-chested even. The problem is a lack of a will, so we’ll just get tough and people will fall in line, which will light the candle, which will cause the gerbil to run, which will release the ball, which will release the ponies, and on to victory.

The problem is that the Weekly Standard writers are living in the Matrix. It is the fantasy world of warfare that exists in their minds to justify their policy recommendations. But once you take the red pill and look at reality, you can see why we should be skeptical of the Kagan plan. (Amazingly enough, Powerline hits a lot of these points.)

Let’s start with the very first sentence — 50,000 additional troops. Sounds good, but it’s either impossible or will put an enormous strain on an already-strained military. (See also Spencer Ackerman for more).

Second, there’s the whole “clear and hold” strategy which I thought we had been doing for some time. Anyway, I’ve always had problems with this strategy at a very fundamental level. First, in places like Baghdad (and Shiite Lebanon for that matter), you can’t really “clear” anything. That’s because the people who are fighting both you and each other are part of the local community. You storm in, they melt away. This is also why you can’t “clear” gangs from south-central LA, or why the Union couldn’t “clear” Confederates and Klansmen in the Reconstruction South (the latter being a very early example of fourth-generation warfare). The idea of “clearing” makes more sense in the context of, say, the al Qaeda camps in Afghanistan that included a lot of non-local forces who had come from outside the local communities. It makes no sense in the Shiite/Sunni enclaves of Baghdad.

And so, Kagan is wrong when he says:

The recent unsuccessful effort to secure Baghdad, Operation Together Forward II, was broken into a series of phases. U.S. and Iraqi troops working together succeeded in clearing the neighborhoods they entered one after the other. But that is not why the operation failed. The problem, according to much anecdotal evidence and the recent testimony of the director of the Defense Intelligence Agency, General Michael D. Maples, is that the U.S. military command did not leave American forces behind in the areas that had been cleared. That mistake allowed insurgents to reinfiltrate those neighborhoods and begin the cycle of violence again.

But I doubt “insurgents” “reinfiltrated,” the local residents just hid their guns and waited. And all of this assumes in the first place that the US and Iraqi troops could even know who they needed to “clear.” Again, it all sounds good in the Matrix, but not in the real world.

Third, there is the assumption that the Iraqi troops doing the “holding” would put nation above ethnicity. That assumption is, shall we say, questionable — much like the recommendation to make our troops sitting ducks on the streets of Baghdad. And contrary to what Barnes said, Bush isn’t gambling his presidency, he’s gambling with human lives — which is a key point to remember.

But the bigger point here is that, while order is of course necessary to a political solution, it isn’t sufficient. And unless there’s some light at the end of the tunnel (some actually attainable end that will be achieved by these means), sending more troops is just sending more people to die so that Fred Kagan can convince himself that he has hair on his chest. As Ackerman explains:

A more sensible assessment comes from Colonel Jim Pasquarette, commander of the 1st Brigade of the 4th Infantry Division. Pasquarette recently returned from a year-long tour outside of Baghdad, and I interviewed him on Monday. "It is beyond military means to fix the issues in Iraq right now," he told me. "Most everybody agrees there is not a military solution." Instead of building on that basic insight, which comes from direct experience, Kagan would subject ever more forces to die for an ever-elusive goal. Not once does he stop to consider whether his means only push his ends further into the horizon.

It’s time we sucked it up and realized that. And it’s certainly time to stop listening to the Weekly Standard about anything.

Friday, December 15, 2006



I’ve had a strange back and forth on Obama over the last few months. I obviously loved the 2004 keynote speech and thought he had great potential. But I was also annoyed by what I perceived as his latent Liebermanism on some issues. I’ve come back around though and now I think he’s the guy. And though I had been trending that way anyway, the New Hampshire speech — or at least one moment in it — really sealed the deal for me. Pardon me if this sounds cheesy, but for a brief moment, I found myself inspired.

But before I get that, let’s talk about World War I. Right out of college, I read Paul Fussell’s The Great War and Modern Memory. This book — a classic — examines poetry and literature relating to World War I, generally from the soldiers who fought in that most absurd of wars.

The book covers a lot of ground, but the part that has stuck with me over the years is Fussell’s examination of the effect of the war upon postwar literature and poetry. As with everything else, war leaves lasting effects — shadows — upon the future that follows it. Art and literature are no exceptions. Nowhere is this concept expressed more elegantly — and hauntingly — than in the charred, emaciated sculptures that Alberto Giacometti created after World War II.

Anyway, one of the many “shadows” that the Great War cast upon literature, Fussell argues, is that authors turned away from “Romantic” perspectives after the war. Romanticism means many things, but one way of thinking about it is the concept of “looking up.” The reader — or writer — stands in an inferior position to the subject he is examining. He is “looking up” at it because it is something greater, something more powerful, more beautiful — in short, something beyond him. Whatever “it” is (leader, ideal, emotion), the viewer is smaller than the subject and looks up longingly at it.

Fussell argues that World War I grabbed Western literature by the hair and forced it to start looking down. Using the metaphor of looking down upon soldiers in the rat-infested trenches, Fussell argues that the Romantic perspective was replaced with a more ironic one. Authors and readers no longer looked up and admired but looked down and ridiculed.

To get a sense of what I mean, think about Seinfeld. In Seinfeld, the characters are not heroes you look up to. Instead, the viewer “looks down” upon them and their neuroses and antics. Same deal with literature following the war in which once-mighty concepts like glory became objects of sarcasm and ridicule. The literary world was, in a sense, thrown into the trenches. Hemingway (another great exemplification of the post-war shadow) captured this idea perfectly in A Farewell To Arms:

Abstract words such as glory, honor, courage, or hallow were obscene beside the concrete names of villages, the numbers of roads, the names of rivers, the numbers of regiments and the dates.

In short, the Romantic concepts gave way to a postwar reality that newly-superior viewers looked down upon.

If modern punditry (and I include blogs) can be said to have a perspective, it is ironic and “downward-looking,” not Romantic and upward-looking. It is the age of irony and cynicism after all, even though our age has longer roots than we realize. (I'm not a huge Daily Kos fan, but they are an exception in that the site is more "R"omantic in that sense.)

Anyway, the point is that, in describing the political scene, bloggers and pundits are looking down upon the world they describe. They themselves are bigger than that world from a literary perspective. Yes, politicians are more powerful — we recognize that — but we do not “look up” to them in the Romantic sense. When a politician gives a speech, we look down and figure out what demographic he or she is appealing to. We analyze the strategy. We criticize and ridicule dishonesty and wankery. In short, we look down upon their movements and talk about them. We are obsessed with the candidates, but they aren’t offering anything that we feel is beyond us — something that we look up to, something that inspires, something Romantic.

And so it was with Obama. When I thought about him, I thought in terms of the Democratic calendar. How does Illinois screw up Hillary’s path to the presidency? Can he raise money? And so on. But as I was watching his speech, he got my attention with this:

I was doing a book signing [and] the title of the book that I just wrote is called “The Audacity of Hope.” And some people have asked me about the title and where’d I get it from. And some people recalled that I actually used the phrase in my convention speech down in Boston in 2004. But I’m here to confess … that I actually stole the line from my pastor … on the South Side of Chicago. I had just gotten out of college and like most 21-year olds I wasn’t exactly sure of what I wanted to do with my life. But one thing I knew I wanted to do was somehow be involved in rebuilding and renewing America — particularly in low-income areas. . . . [He goes on to explain how he got hired by a group of churches as a community organizer in a poor, deindustrialized area in Chicago. He also explains that he got invited to a church and, since he was working with churches, he thought he should start going to church.]

So I walked in one day into this church, Trinity United Church of Christ, and the pastor was there. And the title of his sermon was “The Auduciaty of Hope.” And his premise was very simple. He said, “the easiest thing in the world to do is to be cynical. You have every good reason not to expect much. You open up the newspapers, you look on television, what do you see? You see violence, and strife, and corruption, and injustice, war, poverty, famine. So it’s easy to get discouraged.

It’s easy to at some point say to yourself ‘that is the world as it is.’ And there’s not much you can do about it. In fact, maybe your best strategy is to withdraw as much as possible. Draw a circle around yourself. Protect yourself. Make as much money as you can. … Don’t anticipate that you can have much say over the course of the world. It’s too difficult. It will break your heart.

What’s hard — what demands courage — what’s risky — what’s truly audacious is to hope. To believe that somehow the world as it is, is not the world as it has to be. But through the application of will and imagination, you can make the world anew.”

It’s not so much the last paragraph as the next to last paragraph that I found compelling. And for a brief moment there, Cynical Me found myself “looking up” at this neophyte from Nowhere Illinois.

Electoral calculations aside, this man has the ability to inspire — not just crowds, but cynical over-educated professionals as well. He has the potential to inspire on both the intellectual and emotional level — sense and sensibility. And for that brief little moment, I got a fleeting glimpse of what I suspect young people felt on Inauguration Day back in 1961. Kennedy was not a good president, but coming in, he inspired.

This guy appears to be the same. Hillary Clinton may have a great direct-mail infrastructure, but I’ve never paused to reflect on anything she’s ever had to say. And I suspect I never will. Edwards hits the emotional cords from time to time, but less so on the intellectual front.

And so the real reason for the blog demographic to support Obama is that he alone of all the candidates has the potential to make us all Romantics once again. Doubt he can - it's a tall order - but I know the others have exactly 0% chance to do so.



Senator Johnson’s illness got me thinking about succession this week. There are few political issues more fascinating — and consequential — than succession disputes. Succession (i.e., the replacing of one official with another) is democracy’s soft underbelly — the most vulnerable point on its body. It is at these junctures that the rule of law and legitimacy are most likely to give way to a pure power struggle that can have devastating consequences.

Just look at Johnson. If he is incapacitated but not dead, it is has the potential to create a Class 5 political storm, or even a constitutional crisis. From what I can gather, the South Dakota succession laws are clear on death, but say nothing about incapacitation. If he turns out to be incapacitated, it’s not clear who would have the authority to declare the seat “vacant.” Could the Governor do it? And if the Senate disputed the Governor’s authority, could it refuse to seat the Republican appointee? And in that case, would the appointee (and thus Cheney) get to vote? And so on. You could think of a dozen bad scenarios.

For that reason, it is absolutely critical that succession issues (regarding both vacancies and disputed elections) are defined as clearly as possible ex ante. The incentives to use these disputes to make power grabs are so great that ambiguity should be avoided at all costs.

With that in mind, I’ve been thinking a lot about what the succession laws should ideally look like. As I see it, there are three general ways the laws could be structured: (1) let a state executive pick the replacement; (2) have a special election; or (3) allow “the retiree’s state party to pick the successor” (quote from Ezra at Tapped).

I hadn’t thought about #3 until I read the Tapped post, but it’s an interesting one. The primary benefit is, frankly, that it removes the incentives to assassinate public officials. Unlikely, yes. But it’s something to think about. There are, sadly, nutcases who will realize that they can sway the Senate through an act of assassination in certain states. Vesting the power to name a successor with the party committee removes these kinds of incentives entirely. (Though in the case of the Senate, this would require a constitutional amendment).

For a similar reason, it makes no sense for Presidential succession to run through Congress. We’re fortunate in America that we haven’t had to think about these things, but it is something worth thinking about. If someone had killed Clinton and Gore, Newt Gingrich would have been President. If someone kills Bush and Cheney, Nancy Pelosi will be President. A better succession system would run entirely through the President’s cabinet. Yes, the chances are slim that these type of things would come to pass, but why create such bad incentives.

Turning back to the party committee proposal, even though it has its benefits, it has its problems too. First, I think it violates little-d democracy. Voters in non-parliamentarian America, for good or bad, vote for individuals not parties. The people of Nebraska didn’t elect the Democratic Party of Nebraska, they elected Ben Nelson. It seems a bit undemocratic to let an unelected party hack pick the successor for the entire state.

And that’s why I think #2 — a mandatory special election in a clearly defined time period — is the best option of all. The benefit is that it respects little-d democracy and ensures legitimacy. The problem, of course, is that it does not completely remove all “bad” incentives, but it removes some of them.

The worst of all worlds, however, is #1 — allowing the executive to name a successor. That creates the worst incentives imaginable and has the added benefit of being undemocratic. The South Dakota law mixes #1 and #2 — the executive names a temporary successor and then is required to hold a special election within a certain amount of time. The mandatory special election is good policy (and is required for Senators), but I would do away with temporary replacements if I had my druthers. Incumbency is a powerful thing, even if it’s only for the few months prior to a special election. And the power to appoint a temporary successor would give that person an unfair advantage going into an election.

Thursday, December 14, 2006



I've decided that I want Obama to be the nominee. I thought about writing a long piece outlining the pros and cons, but it's unnecessary. That's because there's a very simple reason to support him -- everyone else sucks.

You'll see a lot of commentary in the months ahead about who is supporting whom and why. But you won't need to read any of that because I just told you everything you need to know.

If you doubt, just go watch him (via Ezra).



To follow up on the last post, although I think basing war strategy on a blackjack concept is - how to put this - criminal, the "Baghdad Double Down" is also terrible blackjack strategy.

As I understand it, the point of doubling down is to take a bigger risk (i.e., put more on the line) when the probability of winning is the highest. The casino overall has an built-in edge of X%. When you get a favorable hand, and the dealer has an unfavorable card showing, the casino's edge gets smaller (something less than X%). And so, because your odds of success are at the highest, you bet more money.

The larger point though is that you don't double down to show that you have hair on your chest. You do it after a fairly rigorous analysis of the "underlying conditions" and your probability of success.

Here, there doesn't seem to be any sort of analysis of why or how this surge is going to work any better than the last Baghdad surge. How have the odds changed to make increasing our forces (i.e., "doubling down") a rational strategy? Anyone?



LA Times:

As President Bush weighs new policy options for Iraq, strong support has coalesced in the Pentagon behind a military plan to “double down” in the country with a substantial buildup in American troops[.]. . . . “I think it is worth trying,” a defense official said. “But you can't have the rhetoric without the resources. This is a double down” — the gambling term for upping a bet.

Bill Stuntz:

War is not poker; the stakes in Iraq are much higher than a little money or a few chips. But war's psychology bears some resemblance to a well-played game of cards. The only way Americans lose this war is to fold. That seems likely to be the next move, but it is the last thing we should do. Far better to call and raise. Our cards are better than theirs, if only we have the nerve to play them.

White House Poker Game:

Bush: Whose deal?

Rumsfeld: Pace! Deal, boy. (Rumsfeld walks over and kicks the butt of his chair)

[Chairman of the Joint Chiefs Peter] Pace: Yes sir. [cards shuffling]

Cheney: Blinds are 21-year old from Omaha, and 32-year old from Brooklyn. Big blind to the Decider.

Pace deals.

Cheney (looks at cards): In like Flynn.

: Golly-McWillickers. I’m in.*

Pace: Out.

Bush: Fold.

Cheney: Knock. Don’t fold.

: In.

Cheney: No, knock.

Bush: Knock.

Cheney: Don't say "knock," just knock.

Bush knocks.

(Pace deals the flop).

Cheney: I’m in for another 21-year old from Alabama.

Rumsfeld: See yours — raise you his baby and a family of four in Sadr City. Pace, for Christ sake, close your mouth when you’re not talking.

: What is that to me?

Cheney: Let’s see. Baby. Three soldiers. Sadr City family.

Bush: I’ll double down.

Cheney and Rumsfeld exchange glances.

Pace: Mr. President, you can’t do that—

Cheney: Unless you double the pot first.

(Rumsfeld glares at Pace)

Bush: Hmm. I’ve got a lot of legs and arms over here, but I’m running short on full people. No, wait, I can double it.

Rumsfeld: The other thing when you double down is that you have to give the player to your left your best card, and he gives you his worst.

Bush: I remember that now. Here you go Don. Damn, that hurts.

: That's what makes it a bold strategy Mr. President.

Pace deals the turn.

Cheney: All in.

Pace: Out.

Rumsfeld: How much did you put in?

Cheney: Let’s see.

Bush: I’m in.

Cheney: No, you should fold.

Bush: Fold.

: Ok Don, I’ve got 100,000 soldier chips, about 300,000 family chips, and 25 million Iraqi chips.

: I see that and raise you the security of the Middle East for a generation.

: I see that and raise you your job.

Bush: Oooh.

Rumsfeld: Turn ‘em over.

Rumsfeld slaps Pace on the back of the head. Pace deals the river.

: Nice deal Pace. First damn thing you've done right.

Pace: Thank you sir.

: Goddamit. (Rumsfeld gives Pace an atomic wedgee and storms out of the room).

* "Golly-willickers" taken from Daily Show.

Wednesday, December 13, 2006



LA Times:

As President Bush weighs new policy options for Iraq, strong support has coalesced in the Pentagon behind a military plan to "double down" in the country with a substantial buildup in American troops, an increase in industrial aid and a major combat offensive against Muqtada Sadr, the radical Shiite leader impeding development of the Iraqi government.

Lyndon Johnson, 1965:

In recent months attacks on South Viet-Nam were stepped up. Thus, it became necessary for us to increase our response and to make attacks by air. This is not a change of purpose. It is a change in what we believe that purpose requires. We do this in order to slow down aggression.

. . .

We do this to convince the leaders of North Viet-Nam--and all who seek to share their conquest--of a very simple fact: We will not be defeated. We will not grow tired. We will not withdraw, either openly or under the cloak of a meaningless agreement.

Wikipedia, "Sunk costs":

In economics and in business decision-making, sunk costs are costs that have already been incurred and which cannot be recovered to any significant degree. . . . Economics proposes that a rational actor does not let sunk costs influence one's decisions, because doing so would not be assessing a decision exclusively on its own.

. . .

The sunk cost fallacy is also sometimes known as the "Concorde Effect", referring to the fact that the British and French government continued to fund the joint development of Concorde even after it became apparent that there was no longer an economic case for the aircraft. The project was regarded privately by the British government as a "commercial disaster" which should never have been started, and was almost cancelled, but political and legal issues ultimately made it impossible for either government to pull out.

Tuesday, December 12, 2006



I've been busy with a monster brief due this week, but it's almost over. Regular posting should resume tomorrow.

Question of the day: Is the Yeah Yeah Yeahs' Show Your Bones the best album of 2006? I'm preparing my top ten, so feel free to share your lists.

Saturday, December 09, 2006



I'm out of town this weekend - and working - so posting will be limited. But (and this is the last time I'll mention it), the voting link is now up for the Weblogs. Again, I have the ambitious goal of not coming in last, which I appear to be right now.

Thursday, December 07, 2006



Via JPod, I see that one of my favorite movie scenes of all time is on YouTube. Ladies and Gentlemen, from the seminal classic Back To School, the late great Sam Kinison:



As regular readers know, I’ve been pretty skeptical of the Baker Boys over the past few weeks. But in reading over the actual text, I found it more interesting than I thought I would. And though it’s been getting a chilly reception across the blogomasphere, I think people are missing the point. Yes, you can carefully analyze and critique the individual policy recommendations. But that’s not the only way to look at the Report. It's also a political document — and one that might be, among other things, providing the political cover necessary for a relatively rapid withdrawal of troops.

But first, if the Report is nothing else, it is a direct repudiation of neoconservative thought. Read through it and you get the sense that my “the opposite of Kristol” post may have actually been accurate. There’s no talk of democracy promotion. No talk of spreading freedom pixie dust across the world because it’s God’s gift to us. They explicitly warn us to stop talking about regime change. They encourage diplomatic engagement (i.e., horse-trading, not just talking) with the axis of evil and its outer rungs. They encourage a renewed focus on Israel-Palestine. They reject increasing troops. They recognize not only the profound inter-ethnic differences among Iraqis, but the intra-ethnic ones as well. And so on.

In a sense, then, the Report is not just an analysis of Iraq, but an argument against a certain school of foreign policy thought under the guise of Iraq analysis. This Post article gets it exactly right:

The Iraq Study Group report released yesterday might well be titled "The Realist Manifesto."

From the very first page, in which co-chairmen James A. Baker III and Lee H. Hamilton scold that "our leaders must be candid and forthright with the American people," the bipartisan report is nothing less than a repudiation of the Bush administration's diplomatic and military approach to Iraq and to the whole region.

Throughout its pages, the report reflects the foreign policy establishment's disdain for the "neoconservative" policies long espoused by President Bush and his aides.

I would say the Report is more “anti-neoconservative” than “pro-realist,” but the Post article is otherwise right on.

And as the article explains, the Report is also a scathing attack on the White House and the Pentagon. For instance, the Report (p. 94-95) basically calls the administration out for lying about suppressing civilian casualty numbers. In addition, the Report’s opening factual section (“Assessment”) is bleak and the Report itself opens with “[t]he situation in Iraq is grave and deteriorating.” That’s not how you start a Report if your purpose to make the White House look good. This is Baker's way of saying, “you screwed things up, boy.”

But the really interesting part of the Report has to do with troop withdrawals and, specifically, this sentence:
By the first quarter of 2008, subject to unexpected developments in the security situation on the ground, all combat brigades not necessary for force protection could be out of Iraq.

Several people (see Benen and Yglesias) have seized upon the highlighted disclaimer to express skepticism about the reality of withdrawal. And that’s certainly one way to look at the Report. But there is another way — one suggesting that the Report lays the groundwork (and provides political cover) for a rapid withdrawal despite this language.

First, the Report lays out an exceedingly specific (and arguably unrealistic) set of dates by which the Iraqis must achieve milestones for “national reconciliation.” (See p. 62-63). There’s no way, though, that these milestones will be met on time. And that makes this sentence (on p.61) all the more interesting:

RECOMMENDATION 21: If the Iraqi government does not make substantial progress toward the achievement of milestones on national reconciliation, security, and governance, the United States should reduce its political, military, or economic support for the Iraqi government.

Maybe this is all too clever by half, but let me run this interpretation by you. The Report calls for scaling back combat troops, but leaving substantial numbers of support troops. But, the continuing support is contingent upon the Iraqis meeting a set of milestones that they can’t possibly reach. And when they don’t reach them (indeed, many dates are fast approaching), the US can say as early as 2007, “hey, the Iraqis didn’t make the milestones, so we’re leaving.”

To be truly cynical, the point of these recommendations may not be to “solve” Iraq, but to give elected officials political cover for withdrawing or redeploying most of the troops out of the country. At the least, it opens that door for those willing to take it.

And yes, there's still reason to worry about the disclaimer above. But, that disclaimer is scary only because of how it’s been used in the past by the administration. If you looked at it from a blank slate, you would likely agree that of course withdrawals must be contingent upon something crazy not happening on the ground.

Given (1) that the Baker Report is very critical of the war and (2) there are other reasons to think it’s laying the groundwork for a quick withdrawal, I’m not sure this clause deserves the emphasis it’s getting. Yes, it gives Iraq supporters cover to stay in Iraq forever. But it also gives political cover to do just the opposite, for those so inclined.

And I guess that's my request as people read and write about this thing. Understand that the Baker Report is multi-dimensional. Yes, it can be read a series of policy proposals. But it's also a political document that requires you to think through the sort of political opportunities that it presents. And finally, it's all-out bashing of neocons. That alone makes it, at worst, not bad.

Wednesday, December 06, 2006



After reading the first four paragraphs of this Ruth Marcus op-ed on a future Social Security Commission, I thought for sure that I was reading an April Fools' Day column. But when I got to the end, I didn't see "April Fools!" anywhere. And then my eyes glanced up and saw "December 6, 2006" in the top right-hand corner of the newspaper.

And so the best explanation of Marcus's op-ed is that she (1) got mixed up about what month it is and then (2) omitted "April Fools!" from the end. A less charitable explanation is that it's the most ridiculous op-ed written in a long while.

And by the way, between Broder and Marcus, the Great Scales of Objectivity were churning pretty hard today on the Post op-ed page.



So I was over at Lindsay's place and I saw that she had been named a finalist for the 2006 Weblog Awards (Best Individual - and congrats). And so, for kicks, I followed the link and did a control-F for me and, lo and behold, the cursor stuck on Best Liberal Blog. So a hearty thanks to whoever out there nominated me. And if it was a typo, tough luck. I get to keep the image.

But seriously, thanks to whoever nominated me. And the goal here, people, is to not finish last.

Monday, December 04, 2006



I’m getting killed at work right now, but I wanted to make a couple of quick points about the school desegregation cases currently before the Guardians of our Republic. Specifically, I want to riff off of this post by Scott Lemieux:

The problem is that it's almost impossible to justify striking down affirmative action programs in "originalist" terms . . . . And the reason for this is obvious: it is implausible in the extreme to argue that, at the time of the Reconstruction Congress, the equal protection clause was generally understood to prohibit all racial classifications. While it's not strictly accurate to say that you can't defend the Thomas/Scalia position on state racial classifications in “originalist” terms, you can do so only by defining constitutional principles at such a high level of abstraction that "originalism" is essentially devoid of content. If this is what originalism means, then . . . Roe v. Wade is perfectly defensible in originalist terms[.]

Here, here. Hear, hear. Originalism was a frequent topic of mine back when I started in 2004 (with Feddie often slapping me in the face with a virtual glove), but my law blogging has slacked off lately. But Lemieux correctly notes one of originalism’s most annoying tendencies when he talks about “levels of abstraction.” I call this “originalism’s ladder.” The idea is that originalism tends to analyze issues at different levels of generality depending on the context. In other words, it moves up and down the “ladder” strategically depending on the issue.

Take desegregation. Lemieux is of course right that it’s impossible to argue that the original understanding of the framers/ratifiers of the 14th Amendment was to eliminate all racial classifications (e.g., schools didn't integrate in 1868). Also, for similar reasons, I suspect few of them thought the new amendment banned affirmative action-type preferences that disadvantaged white people because respectable opinion in 1868 wouldn't have even conceived of such policies (outside of crazy "radical" Massachusetts anyway).

So, because the policy preference (no racial classifications) wasn’t specifically contemplated, up the ladder they go. And the original understanding of the 14th Amendment gets defined at progressively higher levels of abstraction until it can be read as prohibiting all racial classifications.

With abortion, however, things are different. At a very high abstract level, the 14th Amendment (or perhaps the 9th) is about individual freedom and could conceivably justify Barnett-style libertarianism. But, it’s pretty clear that neither the Bill of Rights nor the Second Bill of Rights (the Civil War Amendments) were understood to legalize abortion. So, down the ladder the originalists go. In the abortion context, they hug the ground tightly and point out that the specific policy in question was not contemplated.

And all this is assuming that the Scalia/Thomas camp thinks originalism is even the proper methodology to apply. Sometimes they just ignore the framework entirely. Of course, judges (rightly) apply different methodologies to different contexts. But the problem with originalism is its conceptual arrogance — its proponents claim it's the ONLY way to look at the world. Unless it isn’t - and it's often not. And that's why originalism opens itself up to accusations of hypocrisy more than other interpretive theories.



Via Lindsay Beyerstein and Steve Benen, I see that my old friend St. Paul Travelers is pulling out of the commercial property insurance market in New Orleans. As both of them explain, the lack of commercial property insurance would have a devastating effect on an already-devastated area. For that reason, it seems like an excellent place for Third Way, market-based “big government” to step in and help.

Based on my own personal litigation experience, there is no industry (and certainly no industry’s attorneys) that I care for less than the insurance industry. But I actually sympathize with Travelers. The devastation wrought by Katrina was simply too widespread for private industry to absorb. Regardless of what you might think of them, insurance companies are private, for-profit corporations and you can’t really expect them to stick around if it’s irrational to do so.

But, as Lindsay explains, there may be more to the story than the sorry state of the levees:

The company claims that it is pulling out because of the sorry state of the levees of New Orleans. (Not an implausible rationale, given the state of the levees.) However, cynics note that the pullout follows on the heels of a court decision [from a Louisiana federal district court] giving flood insurance policy owners the right to seek flood-related damages through other kinds of policies. The company insists that the pullout has nothing to do with the recent legal clarification of policy-holders' rights.

I think there’s something to the cynical view (i.e., that the legal decision is playing a key role here). As way of background, insurance policies often come with so-called “exclusions,” which “exclude” certain type of losses from the policy. For instance, auto theft policies might “exclude” coverage if you leave your keys in the car. Similarly, general commercial insurance policies contain “pollution exclusions,” which prevent policyholders (i.e, companies) from obtaining coverage for damages caused by their own pollution (e.g., environmental lawsuits against them).

The thing about exclusions though is that they are construed narrowly by courts. And if there is any ambiguity in the language of the exclusion (e.g., what if your keys are by your tire, but not “in” the car), then courts construe that language against the insurance company. The policy rationale is to protect policyholders and to give insurers incentives to draft coverage-limiting exclusions very specifically. Unlike other commercial relationships, insurers always have a potential advantage in that policyholders are “in trouble” when they come seeking coverage. For example, in a situation where someone’s car is stolen, or their house has been destroyed, insurers have a systemic advantage in terms of relative bargaining power and could seize upon ambiguities to deny coverage and obtain a favorable settlement (i.e., they force you to settle for less because you need the coverage badly). For these reasons, courts read exclusions narrowly.

This is apparently what happened in the Louisiana case. The commercial policies in New Orleans generally excluded “flood” damage. The question, as I understand it, is whether it matters that the flooding resulted from the faulty levees (man-made negligence) rather than from the hurricane alone (an “act of God”). The court said “flood” was ambiguous in this sense and construed the language against the insurance company. According to this article, this decision could add another 1 bill to the insurers’, um, bill.

That sounds like a lot of money (ok, it is a lot of money), but that alone doesn’t explain why Travelers is pulling out. After all, there are several ways for insurance companies to deal with Katrina losses without wholly abandoning the market. As policies are renewed, insurers can raise premiums, reduce limits (i.e., the amount insured), and increase deductibles until they start making money again. Or, if they really feared hurricanes, they could simply revise and strengthen their policy exclusions to exclude all water damage “from any source,” etc.

But as explained above, these exclusions only work if they are deemed “unambiguous.” And so the real reason I think Travelers is pulling out is from the fear that no exclusion will be sufficient in the case of a future levee breach or hurricane. Insurance companies, it should be remembered, fear risk more than loss. Loss can be calculated and dealt with. But risks are trickier. If insurance companies could write a policy that 100% for sure eliminated the risk posed by hurricanes, they would probably stay in the market. But their fear may be that policyholders will ultimately get around whatever they draft. For instance, if “water” exclusions don’t work, maybe policyholders could recover everything for “wind” damage. Or maybe “mold.” Who knows.

To be clear, I’m taking no position on the merits of the decision. And I completely agree with pro-policyholder legal presumptions (disclosure — I represent companies suing insurance companies). But you can understand the insurers’ concerns here. This is a high-risk exposure and the political pressure upon courts for pro-coverage decisions will be overwhelming.

And so, I’m wondering whether government (the ultimate “insurance” company) could play a bigger role here. Not so much in terms of subsidies, but in providing market incentives and risk-reductions to keep commercial insurers in the area. Who knows — maybe they do this already and I don’t know it (not an area of expertise). But I imagine some wonk could devise a policy where the government assumes a certain percentage of hurricane-related loss in “emergency” areas. Or, the government could act as a quasi-reinsurer and assume “catastrophic” loss above a certain level when it stems from hurricanes. This is similar to the Kerry plan for health insurance — the idea is that by ridding insurers of catastrophic loss, the result would be lower premiums, lower deductibles, etc. Or, insurance companies could be given substantial tax incentives for insuring commercial properties in New Orleans.

I haven’t really thought all this stuff out — and I welcome true experts weighing in — but there are potential problems with my proposals. For one, why should these programs be limited to the Gulf? Why shouldn’t every insurer in California get the same deal for earthquakes? In other words, where does it end? It’s a good question, but maybe the answer is to limit it first to the areas actually hit by Katrina — i.e., New Orleans and southern Mississippi. These are clearly unique areas in terms of the devastation they’ve suffered. Also, limiting this sort of market-based government program to a specific geographic area would create a laboratory of sorts for future programs.

And this ends my foray into insurance wonkery for the day.

[Postscript — I’m getting over my head here in terms of insurance economics, but there is a counterargument to the claim that the pullout is driven entirely by the legal decision. In other words, there is an argument that insurance companies in New Orleans simply can’t fix things by adjusting their premiums, etc. If, for instance, competing commercial insurers (i.e., Travelers’ competitors) don’t have exposure along the hurricane paths in the Gulf, then they wouldn’t need to raise premiums and otherwise make their policies less appealing to compensate for Katrina-type risks and losses. I suppose someone could crunch the numbers on that.]

Friday, December 01, 2006



Wow - Glenn Greenwald pretty much drives a stake through the heart of Thomas Friedman. Yes, I probably would have toned down a sentence here or there, but not by much. And the substance of the critique is dead on. As they say, read the whole thing.

I hope to write more on this later, but I get the sense that the November 7 election has done far more than throw out the GOP from Congress. If there really is such a thing as a DC pundit establishment (Atrios's Wise Men of DC), I get the sense that they're starting to feel some heat too. In other words, the critiques of the pitchforked digital masses that these people have no credibility might finally be gaining steam as Iraq disintegrates. Anyway, more later.

This page is powered by Blogger. Isn't yours?

Weblog Commenting and Trackback by HaloScan.com The 2006 Weblog Awards