According to Pat Robertson, Christians Are Crazy and Bloodthirsty

President Obama recently signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. Pat Robertson is very upset. He believes that the law is bad news for Christians:

The noose has tightened around the necks of Christians to keep them from speaking out on certain moral issues. And it all was embodied in something called the Hate crimes bill that President Obama said was a major victory for America. I’m not sure if America was the beneficiary. . . .We have voted into office a group of people who are opposed to many of the fundamental Christian beliefs of our nation. And they hold to radical ideology, and they are beginning put people sharing their points of view into high office. And not only that, they not only have control of both houses of Congress.

Assuming that people who believe Pat Robertson have the capacity to read, here is the actual language from the statute that addresses "hate crimes" committed on the basis of sexual orientation (and other categories):

Whoever . . . willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person. . . [shall be liable for criminal penalties stated in this legislation].

So, in order to believe Robertson, one must also believe that Christians, by definition, want to "willfully" cause "bodily injury" to people in the listed categories. Robertson's grotesque logic also requires the listener to ignore the fact that the law also protects Christians -- and everyone else -- from religion-based violence.

Earth to Robertson: Your blatant lies are a bigger threat to Christianity than this legislation.

Palin: Former Beauty Queen Who Left Job for More Money Calls Ex-Son-In-Law a Ho'

In Sarah Palin news, the former Governor of Alaska had harsh words for Levi Johnston, her ex-son-in-law and the father of her grandchild. Palin criticized CBS News for reporting critical comments that Johnston, slated to appear in Playgirl Magazine, has made about her:

CBS should be ashamed for continually providing a forum to propagate lies. Consider the source of the most recent attention-getting lies -- those who would sell their body for money reflect a desperate need for attention and are likely to say and do anything for even more attention. . . .

How odd. Sarah Palin is a former beauty queen who left her government job in order to make millions in the private sector and who has become the "Bloggacuda" on Facebook and who is desperately trying to get lucrative speaking gigs across the globe. Yet, she basically called Johnston an "attention whore" and a "ho.'" Nice.

Demented Senators? Voting to Kill, But Not to Heal

Hearing Mary Landrieu, Joe Lieberman and other moderates express discontent with a public plan option is too much to bear. These centrists say they oppose a public plan for various reasons, including expense. If they had exhibited such caution before they voted to authorize military force in Iraq, the country could possibly have avoided the unnecessary expenditure of hundreds of billions of dollars and the loss of thousands of lives fighting a senseless war.

Several moderate Senate Democrats (Lieberman is now an "Independent") voted to authorize military force in Iraq, but they now oppose the public plan. These Senators include Evan Bayh, Landrieu, Lieberman, and Ben Nelson. In 2002, every Senate Republican voted to authorize military force in Iraq. Today, every Senate Republican opposes the public plan.

These Senators voted to spend hundreds of billions of dollars to kill Iraqis and to lead young Americans to their deaths, but they refuse to finance life-saving medical care for Americans. Apparently, this is how "pragmatism" looks.

Was Reid's "Public Option" Move Simply a "Show"?

Earlier this week, Senate Majority Leader Harry Reid announced that proposed healthcare reform would include a "public option." Reid's announcement came while the Washington, DC rumor mill debated whether the White House truly supported a public plan. Shortly after Reid's announcement, Senator Joe Lieberman announced that he would not support a public plan. Lieberman, who has received over $1 million from the insurance industry during his career, claims that the public plan would harm the economy.

Without Lieberman's support, the public plan will lack the 60 votes needed to overcome a filibuster. It seems impossible that Reid could have made the announcement without realizing Lieberman's position. Ross Baker, a professor of political science at Rutgers University, argues that Reid's dramatic announcement regarding the public plan probably represents his effort to appease liberal backers, including labor unions and leftists:

You put on a good show for certain elements of the electorate and say with all candor that you tried your hardest and you got it debated, but it’s very difficult to corral 60 senators. . . .That will satisfy most people.

This theory sounds immensely plausible.

Illinois Prosecutors, Take Notice: Innocent Man Released After 12 Years in Prison

Anita Alvarez, the District Attorney for Cook County Illinois, has served the Medill Innocence Project at Northwestern University with a controversial subpoena. The subpoena seeks the "grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students themselves."

Commentators have almost uniformly criticized the subpoena, and many journalism and legal experts view it as an attempt to harass and chill the work of the students and their professors. The Medill project has secured the release of 11 wrongfully convicted Illinois inmates during its 10-year history. Alvarez (to quote the late-Justice Brennan) is apparently afraid of "too much justice."

A judge will ultimately determine whether the Medill project must submit to Alvarez's heavy handed tactics. Meanwhile, innocent persons undoubtedly languish in Illinois prisons.

CBS News, however, reports that one wrongfully convicted Illinois man will soon get the opportunity to try and piece his life together again. 41-year-old Dean Cade was recently released from prison after serving 12 years for a rape he did not commit. DNA evidence proved his innocence. The work of the Innocence Project at Benjamin Cardozo Law School (part of Yeshiva University) in New York City secured his release.

Alvarez's subpoena shows a contempt for justice. Although Alvarez is cynical about the work of students and professors who run innocence programs, their efforts serve a vital function in the administration of justice. Legal professionals should encourage, rather than impede, the work of innocence projects.

Senator Lieberman Would Vote to Block Legislation With Public Plan

Senator Joe Lieberman says he will vote with Republicans to filibuster legislation with a public plan option. Remarkably, some of the reporting on this issue fails to mention that Liberman has received over $1 million in donations from the insurance industry over the course of his political career.

NWA Pilots Busy on Laptops, Overshoot Airport

The Northwest Airlines pilots that flew past their Minneapolis destination last week say they were distracted by their laptops. Apparently, the pilots were so engrossed reading their new flight schedules that they missed the airport and about an hour of communication with frantic air traffic controllers.


Irony: As the flight attendants told passengers to turn-off their laptops in preparation for landing, the pilots missed the landing because they were playing with their laptops!

Durbin on Public Plan: The Liberals Made Us Do It

Senator Durbin has stated that progressives forced the hand of the rest of the Senate Democrats and caused them to agree to a public plan with an opt-out provision. Olympia Snowe finds this "deeply disappointing," but I do not believe 60 Democrats should cater to one Republican.

Apparently advocacy works, but the political battle has not ended. Even though many articles have portrayed the public plan as a "done deal," the vote has not taken place yet. Furthermore, the conference committee process will produce any final version of the reform package.

Warning: Read the fine print, and carefully watch the proceedings after things go into conference committee. Liberal elements of legislation vanished during conferences earlier this year (e.g., forceful limits on executive pay).

Obama Releases Statement "Supporting" Public Plan, But In Washington, Talk Is Cheap

President Obama has released another statement indicating his support for the inclusion of a public plan in healthcare reform. The statement comes after a new round of rumors portray him as unsupportive of a public plan option.

Last week, a coalition of liberal groups sent a letter to the White House demanding that President Obama lobby strongly for the public plan option. The difference between "lobby" and "support" probably means a lot in this context.

Although Obama has stated his support for the public plan, some liberals believe that he is not exercising the leadership needed to make inclusion of the plan in legislation a reality. Also, NPR's Tavis Smiley says that Senator Charles Schumer told him off-the-air that Obama was "noncommittal" on the public plan in a closed-door meeting with Senators last week.

Supporting the public plan does not mean fighting for it. So, perhaps the liberal groups were correct to demand more than Obama's support.

Shameful and Pathetic Tactics by Illinois Prosecutors: Attacking "Innocent" Students

Students in the Medill Innocence Project at Northwestern University investigate claims of innocence and wrongful conviction by inmates. Over the course of a decade, the Medill project has helped secure the release of 11 innocent persons, 5 of whom were slated for execution.

Rather than applauding the students for their difficult and compelling work, prosecutors have hit them with a low blow. In a current case involving a claim of innocence by Anthony McKinney, Cook County prosecutors have served the Medill project with a shocking subpoena. According to the New York Times, the subpoena demands "the grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students themselves."

The Subpoena Is Highly Inappropriate
The subpoena raises several red flags. First, the information the prosecutors seek is completely unrelated to the question of McKinney's guilt or innocence. Second, student grades are normally protected from disclosure by federal law. Third, the program is operated by the school of journalism and likely qualifies for protection by state journalism shield laws and the First Amendment. Fourth, the professor's course materials are possibly protected from disclosure by the concept of academic freedom -- which the Supreme Court has construed as a value secured by the First Amendment.

Sally Daly, a spokesperson for the Cook County District Attorney's Office, denies any wrongdoing by prosecutors. Instead, Daly points the finger at students. Daly claims that prosecutors are concerned that students could have qualified for higher grades if they concluded that the inmate was innocent. This is a highly unusual -- and insulting -- assertion. First, any reputable professor would grade a student's research by evaluating the methodology and written presentation, rather than using the final conclusion as a litmus test. Second, prosecutors should make their own independent determination regarding McKinney's guilt or innocence -- rather than treating the students as suspects.

During interviews the students conducted, several key witnesses recanted their testimony. The students have already turned over videotapes of these interviews to prosecutors. Prosecutors should question these witnesses rather than fishing for the students' personal materials.

Daly makes other nonsensical and outrageous arguments in defense of the subpoena. Although the subpoena extends to grades, she says that "[w]e’re not trying to delve into areas of privacy or grades. . . ." Daly also likens the subpoena to the routine disclosure of information by "detectives." Police detectives, however, work for the government and assist the prosecution. They are colleagues. Although private detectives do not work for the government, they have an unambiguous financial stake in the outcome of their investigation. The students, by contrast, are private citizens and journalists. The Medill project exists to monitor and improve the criminal justice system -- not to service the prosecutors' office or inmates.

Northwestern University Vows to Fight the Subpoena
Fortunately, Northwestern University is fighting the subpoena. As the New York Times reports:

Northwestern University and David Protess, the professor who leads the students and directs the Medill Innocence Project, say the demands are ridiculously overreaching, irrelevant to Mr. McKinney’s case, in violation of the state’s protections for journalists and a breach of federal privacy statutes — not to mention insulting.

John Lavine, the dean of the Medill School of Journalism, said the suggestion that students might have thought their grades were linked to what witnesses said was “astonishing.” He said he believed that federal law barred him from providing the students grades, but that he had no intention of doing so in any case.

Professional journalism groups have also stepped forward to defend the students.

Irony
The outcome of this matter could turn on whether a judge treats the students as "journalists" under Illinois law. If the students are journalists, their work is protected from disclosure.

Ironically, the prosecutors' brief provides the best argument for treating the students as journalists. In awfully butchered and revealing prose, prosecutors complain that: "The school believes it should be exempt from the scrutiny of this honorable court and the justice system, yet it should be deemed a purveyor of its inadequacies to the public. . . ." The prosecutors are uncomfortable with the idea of shielding journalists who investigate and publicize "inadequacies" in the criminal justice system. But having an additional "check" on the government is one of the strongest justifications for vigorously protecting the work of journalists.

Illinois prosecutors are blatantly using the strong arm of the state to harass Medill journalism students. The prosecutors' behavior evinces a deep contempt for the law, which makes the students' efforts to uncover wrongful convictions even more compelling.

Very Hot Air From "Hot Air" -- Regarding Healthcare Reform

Ed Morrissey of Hot Air has pumped out an essay defending the rightwing's largely unsuccessful effort to convince any reputable constitutional law scholar (on the right or left) that proposed healthcare reform would violate the Constitution. Morrissey's essay takes issue with my recent post that applauds Nancy Pelosi for dismissing a CNSNews reporter's question on the subject. Morrissey makes several arguments. I find none of them persuasive.

Conservatives Have Demanded "Absurdly Specific" Language Justifying Healthcare Reform
Morrissey says that "our argument has never been that Congress cannot pass laws, or that Congress cannot pass laws without some absurdly specific mention in the Constitution." This is disingenuous. On September 22, Hot Air posted a viral video (via CNSNews) that shows a high school "government" teacher pleading with Mark Warner for specific language in the Constitution authorizing the government to "run healthcare." Certainly, a citation to Article I, or even more specifically to the Commerce Clause or to the taxation and spending powers, would not have alleviated her anxiety. Nor would it have satisfied Hot Air and CNSNews.

Furthermore, the CNSNews article that served as the basis for the Hot Air piece ominously reported that Warner said "there is 'no place in the Constitution' that mentions health care. . . ." If conservatives are, as Morrissey claims, uninterested in absurdly specific text, then Warner's statement is not newsworthy. Clearly, the Constitution does not mention health care (or education, telephones, etc.). This silence, however, does not deprive Congress of any authority over the industry.

In addition, Morrissey himself has argued that unless the Constitution "covers" a power, then Congress must "butt out." He made this assertion in response to Representative Shea-Porter's rejection of a strict reading of the Constitution that would limit Congress to the exact wording of the text. If Morrissey is not demanding exact language regarding healthcare, then he should not have found Shea-Porter's argument worthy of discussion. Although Morrissey has been more flexible at times, he has (intentionally or unintentionally) pushed a method of constitutional interpretation that he now labels "absurd."

The Framers Did Not Know About Airplanes
Morrissey also takes issue with my argument that demanding specific text on a subject would nullify the government's authority to create the Air Force. Morrissey, of course, does not point to language in the Constitution that refers to the "Air Force" or even to airplanes. Instead, he cites to more generalized language empowering Congress to provide for the "common defence." This, however, is the exact same type of constitutional interpretation that should guide debates over the constitutionality of healthcare reform. Interstate commerce, taxation, spending, and "general welfare" come to mind as places to anchor healthcare reform. Conservatives, however, have demanded precise language from liberals, while embracing generalized provisions to justify policies they favor.

Furthermore, Morrissey completely ignores more difficult questions that the strict approach implicates. For example, he specifically evades the question of Medicare's constitutionality, and he is absolutely silent regarding federal bans on partial-birth abortion, crack cocaine, acts of terrorism and other issues my essay raises. I do not believe these laws necessarily fall outside of the scope of federal authority, but I have not approached the Constitution from the constrained perspective that conservatives have advanced.

The Tenth Amendment Does Not Make Healthcare Reform Unconstitutional
Finally, Morrissey's interpretation of the Tenth Amendment -- which other conservatives seem to share -- is also flawed. In a prior essay, Morrissey argues that:

The Constitution sets their power and circumscribes it rather clearly in Article I, Section 8 and Section 9 of the Constitution. The Tenth Amendment reserves all other powers to the states or to the people, underscoring the explicit limitation on Congressional power. . . .Therefore, when the Constitution does not “cover” a subject, it explicitly and expressly intends for Congress and the federal government to butt out.

The Tenth Amendment is a truism: every power that is not delegated to the federal government is retained by the states. The provision, however, does not tell us what is in fact delegated. Nor does it state that the text of Article I expressly "covers" the entirety of permissible federal authority.

Morrissey is stuck in the era of the repudiated and supplanted Articles of Confederation. Anyone who has read McCulloch v. Maryland should know that the Court rejected the notion that unless the power was "expressly" mentioned in Article I, then Congress lacked authority; this was the law under the Articles of Confederation. Under the Constitution, Congress (as Morrissey seems to concede) has implied powers. Accordingly, the Tenth Amendment does not provide any useful information about this subject.

Pelosi Was Right to Dismiss Question Regarding Constitutionality of Healthcare Reform

Updated Thread: Very Hot Air From "Hot Air" -- Regarding Healthcare Reform.

________________________________________________
Today, a "reporter" from CNSNews.Com, a conservative blog, asked Nancy Pelosi to point out language in the Constitution that specifically authorizes Congress to mandate that individuals purchase health insurance. Pelosi dismissed the question by responding, "Are you serious?" Pelosi's response was absolutely warranted.

Conservatives have tried unsuccessfully to argue that the Constitution does not permit various aspects of Democratic healthcare reform. Liberal and conservative Constitutional Law scholars have rejected these arguments, but people continue to assert them.

I am particularly perplexed/annoyed by the conservative assumption that unless explicit text directly authorizes a legislative enactment, then Congress necessarily lacks the power to pass the law. This is a extraordinarily foolish and unsupportable view of the Constitution. The Constitution is written in general terms; only a few provisions define individual rights and governmental powers with precision. To make this point more concrete, I quote from a previous essay on the subject:

It is absolutely absurd to ask whether the constitution specifically or explicitly allows Congress to regulate or reform healthcare. The Constitution speaks broadly and ambiguously. Only a few provisions are specific and beyond dispute (like the age requirement for presidents and members of Congress).

The Constitution does not specifically or explicitly authorize the creation of the Air Force or Medicare, nor does it discuss the federal prosecution of crack cocaine possession. And the "Framers" certainly did not specifically contemplate airplanes, prescription drug and hospital plans for seniors, or crack cocaine because these things were not realities when they wrote the Constitution.

If conservatives only believe Congress can regulate things that are explicitly mentioned in the actual text of the Constitution, then they should essentially advocate the abolition of the federal government. At a minimum, they should seek the immediate repeal of laws banning partial-birth abortion and kidnapping; the Constitution does not mention children or abortion.

Also, as many students of high school and college civics classes know, Article I of the Constitution contains the "necessary and proper" clause, which endows Congress with unenumerated powers that are needed to carry out its expressly delegated powers. In the very first case interpreting this provision (McCulloch v. Maryland), the Supreme Court rejected the narrow interpretation offered by anti-federalists.

Many of today's conservatives pretend that the Necessary and Proper Clause does not exist or that courts can only interpret it conservatively. Nothing in the history of the clause or the Court's interpretation of it compels an exclusively narrow interpretation.

In addition to the above observations, a method of constitutional interpretation that demands specific and unambiguous textual support would mean that the following federal rights or powers could not exist: the right to pray during school or to be free of racial quotas in college admissions; and the power to ban child pornography on the Internet; "drill drill drill" for oil in Alaska; force air passengers to submit to safety screening; and to criminalize acts of terrorism. The Constitution does not specifically mention any of these things.

I am happy to debate the meaning of the Constitution -- but, please: let's retire ridiculous and unserious arguments.

UPDATE: Hot Air chimes in, and I respond: Very Hot Air From "Hot Air" -- Regarding Healthcare Reform.

Progressive Coalition Sends Letter to White House Urging Implementation of "Robust" Public Plan

Several liberal groups have written a letter (thanks to the Plum Line) demanding that President Obama lobby strongly for a "robust" public plan. Although Obama campaigned on the promise of a public plan, his support for it since the election has been less than certain at times. But progressive protest lives on -- despite some opposition to dissent among liberals.

Several liberals, including Representative Maxine Waters, have asserted that Rahm Emanuel has given political cover to fiscally conservative -- or "Blue Dog" -- Democrats, who do not support the public plan. Emanuel, the White House Chief of Staff, was himself previously associated with the Democratic Leadership Council -- a group of moderate, pro-business Congressional Democrats. The coalition's letter is addressed directly to Emanuel.

Here is the list of organizations that have signed the letter:

African American Health Alliance
Alliance for Health Care
American Federation of Government Employees
American Medical Student Association
Campaign for America's Future
Campaign for Better Health Care, Illinois
Campus Progress
Center for Policy Analysis
ColorOfChange.org
Commonwealth Institute
DemocraciaUSA Action
Democracy for America
Disability Rights Education and Defense Fund
Doctors Council of the District of Columbia/NUHHCE/AFSCME
Dolores Huerta Foundation
Equal Justice Society
Faith United Church of Christ
Future Majority
Generational Alliance
Ian Mackey, Democratic National Convention Delegate 2008
LULAC
Matt Adler, Democratic National Convention Delegate 2008
Metro New York Health Care for All Campaign
Metropolitan Washington Council, AFL-CIO
MoveOn.org Political Action
NAACP
National Black Nurses Association
National Center for Lesbian Rights
National Physicians Alliance
National Union of Hospital and Health Care Employees
National Union of Hospital and Health Care Employees 1199J
OpenLeft.com
Out of Many, One
People For the American Way’s African American Ministers in Action
Peoples Congregational United Church of Christ
Plymouth Congregational United Church of Christ
Power PAC
Progressive Congress Action Fund
Progressive States Network
Racial and Ethnic Health Disparities Coalition
Raising Women's Voices for the Health Care We Need
Religious Action Center of Reform Judaism
Roger Manno, Maryland State Delegate
Roosevelt Institute Campus Network
The Cave Institute
The Honorable Shirley Nathan-Pulliam, Maryland State Delegate
United Church of Christ, Justice and Witness Ministries
United Methodist Church – General Board of Church and Society
Universal Health Care Action Network
US Action
Young Americans for Healthcare Reform
Young Invincibles

55 Congressional Republicans Oppose "Public Plan" But Enrolled in Medicare!

Representative Anthony Weiner, a New York Democrat who sits on the House Health Subcommittee, has released an "internal study" that seeks to expose the hypocrisy among Republicans who oppose the idea of a public, government-sponsored health plan. Weiner's study lists the names of 151 members of Congress who receive Medicare benefits. The study also lists 55 Republicans who benefit from Medicare, but who oppose a public plan -- which would provide a new, low-cost health insurance option for millions of uninsured Americans.

Medicare is a government-run, taxpayer-sponsored health plan for seniors. It operates as the single payer for most seniors, who cannot afford the cost of private insurance.

Update: This article was edited to reflect that fact that Weiner's study lists 151 members of Congress on Medicare and 55 Republicans on Medicare who also oppose a public plan.

Shame on You, Landrieu: Senator Opposes Public Health Plan

The Associated Press reports that several Democratic Senators might vote against any proposed healthcare measure that contains a public plan. The article quotes Senator Mary Landrieu of Louisiana, who says that she is "not for a government-run, national, taxpayer-subsidized plan, and never will be."

I respect ideological independence, and I acknowledge and am comfortable with the fact that many Democrats are moderates. Landrieu's position, however, does not reflect intellectual consistency or honesty.

Louisiana: Abundance of Poverty, Scarcity of Health Care
Among the 50 states, Louisiana has the second highest percentage of people living in poverty. Landrieu's position on government-sponsored healthcare does not respond to the needs of poor individuals who live in her state.

Because of the high rate of poverty in Louisiana, many residents of the state already receive healthcare through a "government-run, national, taxpayer-subsidized plan" -- which Landrieu supposedly opposes. Despite this taxpayer-sponsored coverage, many of the state's residents remain uninsured and unhealthy.

Louisiana Ranks as Nation's Least Healthy State
According to the 2008 America's Health Rankings survey -- an annual report issued by the United Health Foundation -- Louisiana ranks as the nation's least healthy state. The report considers many individual and community statistics.

As for specific health categories, Louisiana ranks 49 in infant mortality, cancer deaths, and premature deaths; 48 in preventable hospitalizations; 47 in prevalence of obesity; 45 in cardiovascular deaths; and 41 in smoking

27% of Louisianan Residents Enrolled in Medicaid
According to the most recent data reported by the Louisiana Department of Health and Hospitals (LDHH), a whopping 27% of state residents are enrolled in Medicaid. Medicaid is a government-run, national, taxpayer-sponsored health plan for indigent people.

21% of Louisiana Adults Are Uninsured
According to the most recent data reported by the LDHH, 21% of Louisiana's non-elderly adults lack health insurance. This exceeds the national rate of 16%.

The high cost of insurance precludes most of the state's uninsured individuals from purchasing coverage. Landrieu's opposition to a public plan is shocking in light of this group's unmet medical needs.

Per Patient Medicare Expenditure Highest in Louisiana
Although Landrieu despises government-run healthcare, per patient Medicare expenditures in Louisiana rank higher than in any other state. Unfortunately, the state also has the lowest quality outcomes for Medicare patients.

Children's Health Insurance Rate Has Increased -- Due to Government-Run Health Insurance
Only one bright spot appears in Louisiana's health statistics. The percentage of uninsured children has fallen dramatically over the last decade. The rate has decreased for one reason alone: the federal government created and expanded participation in SCHIP -- the State Children's Health Insurance Program.

A 10-year analysis of Louisiana's uninsured population by the LDHH makes the following conclusion: "The child uninsured rate decreased 12.9 percentage points from 1998 to 2007. This large reduction in the rate of uninsured children is attributable to the introduction of [Louisiana's SCHIP plan] and its rapid expansion." SCHIP -- which is undeniably a government-run, taxpayer sponsored health plan -- has provided necessary medical services to tens of thousands of children in the State of Louisiana.

It is also worth noting that, while Landrieu was not a Senator in 1997 when Congress enacted SCHIP, when the program came up for reauthorization in 2007, she voted in favor of the legislation. Bush vetoed this measure and a second one that Congress passed. In 2009, however, Congress again passed legislation to extend and expand SCHIP. Landrieu voted for that measure, which Obama signed into law.

What Is Going On With Landrieu?
Landrieu is clearly playing politics. She is taking a position that is ultimately unhelpful for many people in her state because Louisiana conservatives (many of whom apparently vote against interest) could cause her to lose her job if she votes for a public plan. The "reading" public, however, should not allow Landrieu to place her career above the indigent residents of her state without exposing the terms of her gamble. Consider this as notice.

What's In a Name? Some Dems Want to Rename "Public Option" as "Medicare"

In several blog entries, I have analyzed the perplexing (and immensely annoying) hypocrisy of many Republicans and conservatives who blast "government-run" healthcare, while claiming to support Medicare. In September, a PPP poll revealed that 62% of Republicans supported the idea that the government should "stay out of Medicare." This argument, however, is patently unsound because Medicare is a government-run and government-created health plan.

Also, many conservative bloggers (rightfully) criticized a recent violent attack against an elderly man who attended a rally protesting healthcare reform. These bloggers, however, conveniently neglected to report that the victim of the assault went to an emergency room and received treatment covered by (drum roll) Medicare (also known as a government-run health plan or public plan).

Even Joe "You Lie" Wilson is guilty of speaking out of both sides of his mouth. Although Wilson has blasted government-sponsored health plans as "unnecessary and unacceptable," he strongly praises and benefits from TRICARE, the government-run plan for military personnel, veterans and their families.

Although opinion polls continue to show that voters support the public plan option, many voters seem confused about the meaning of a "public plan" and the extent to which the federal government and states fund medical treatment. Nearly 1/3 of the public is covered by government-sponsored health insurance. In addition, workers who have "private" insurance health plans receive large governmental subsidies because these plans do not qualify as "income" for tax purposes. Only a small fraction of Americans actually purchase their health insurance out-of-pocket -- without governmental or employer support.

Dealing With Hypocrisy: Renaming the Public Plan
Apparently, some members of the House of Representatives realize the importance of framing and politics. According to an article in The Hill, some House Democrats want to rename the public option as "Medicare." This would link the supported -- though maligned -- public plan with an already established and popular government-sponsored program. The strategy would also force hypocritical politicians to confront the contradictory nature of their arguments that dismiss the public plan as "socialized medicine" but simultaneously seek to defend Medicare.

Pat Buchanan: Working-Class Whites Losing "Their" Country

In his latest article, Pat Buchanan whines about white-working class voters losing "their" country:

In their lifetimes, they have seen their Christian faith purged from schools their taxes paid for, and mocked in movies and on TV. . . .They have seen trillions of tax dollars go for Great Society programs, but have seen no Great Society, only rising crime, illegitimacy, drug use and dropout rates. . . .

They see Wall Street banks bailed out as they sweat their next paycheck, then read that bank profits are soaring, and the big bonuses for the brilliant bankers are back. Neither they nor their kids ever benefited from affirmative action, unlike Barack and Michelle Obama.

They see a government in Washington that cannot balance its books, win our wars or protect our borders. The government shovels out trillions to Fortune 500 corporations and banks to rescue the country from a crisis created by the government and Fortune 500 corporations and banks.

America was once their country. They sense they are losing it. And they are right.

Excuse me, Pat, but the country belongs to all of us.

Pat comes across as desperate -- rather than passionate. Perhaps desperation caused him to ignore the truth more than usual. He mocks the Great Society as accomplishing nothing -- except for urban blight. But working-class people of all races benefit from Great Society programs like student financial aid. Also, most of the recipients of welfare are poor and white. And working-class people would not have adequate healthcare as seniors in the absence of Medicare -- another Great Society program.

Pat also says whites never benefited from affirmative action. Apparently, excluding people of color from jobs and educational opportunities for centuries never benefited whites, but using race as a "plus" in college admissions causes an emotional meltdown. Someone give this man a Valium laced with truth serum.

PS: I agree that the Bush and Obama administrations pumped money into the same banks that are among the most culpable parties with respect to the financial crisis. But catering to powerful societal interests is not a recent political phenomenon.

Washington Examiner's Byron York Bashes the Left

Byron York, a writer for the Washington Examiner, has written an article that blasts liberal bloggers and claims that their activism could harm the Democrats. Chicken Little lives!

My favorite part of York's article quotes an anonymous (of course) "Democratic strategist" who observes that:

These are the same people who have never participated in, much less won, a campaign, who have no idea what it takes to maintain a majority and keep a speaker of our party, who want Obama to kowtow to the loony Left, and then they're going to be the ones who say, 'What happened?' in November 2010, when we lose the House and possibly the Senate and maybe a lot of governorships.

Given the abysmal performance of Democrats in national politics since 1964 -- especially in the White House -- this so-called strategist could use a long look in the mirror. York's essay reads more like an attack on progressive political platforms -- rather than an honest effort to advocate more successful political strategies.

Wall Street in Recovery

The New York Times is reporting that Wall Street is having a robust recovery -- thanks to generous financial assistance from the federal government.

Question for the extreme right: What "socialist" would pump money into the very financial institutions that fuel global capitalism? Hint: None!

Judge Justice Has Died

William Wayne Justice, a former federal judge, has died. Judge Justice had a great and fitting name. He was passionate about the Constitution and about equality. He stood up to local governments that deprived politically vulnerable people of their basic rights. He is the type of judge the represents a lost generation of judges that took equality seriously. He will be missed.

The New York Times has a good obituary.

Judicial Time Warp: Louisiana Judge Refuses to Officiate Interracial Marriages!

I have checked, and this is not a story from The Onion. Apparently, Keith Bardwell, a Louisiana Justice of the Peace, actually refuses to officiate marriages of interracial couples. Bardwell says he opposes interracial marriages because multiracial children "suffer" (yeah -- from bigots like Bardwell).

Bardwell also offers one of the most amusing versions of "I'm not a racist but. . . ." Bardwell says that:

I'm not a racist. I just don't believe in mixing the races that way. . . .I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else.

Colored people can use his bathroom, but they are unfit to marry whites. Good one, Bardwell. And the "piles and piles" imagery is not flattering.

Bardwell's Stance Violates Constitution
In 1967 the Supreme Court decided Loving v. Virginia, which held that state prohibitions of interracial marriage violated the Equal Protection Clause and the Due Process Clause. Even at that time, only a handful of states banned interracial marriage.

The Court also rejected the specious assertion -- which Bardwell has also made -- that banning interracial marriage did not discriminate on the basis of race because neither blacks nor whites could marry outside of their race. Banning interracial marriage, however, prohibited blacks from doing things that whites could do (e.g. marry whites) and vice versa. Also, the Court held that the laws were designed to foster white racial purity -- not to promote racial equality. Someone needs to bring Bardwell up to speed -- FAST!

Better yet--the state should take steps to remove Bardwell from his position. Apparently, the ACLU is already working to get him fired. Bardwell, however, says he will resign before he changes his policy. Given his archaic views on race, Bardwell's resignation is probably the best possible outcome!

UPDATE: A new, shocking "fact" has emerged in this case. According to USA Today:

Bardwell, who has been a JP for 34 years, says the state attorney general told him years ago that he would eventually get into trouble for not performing interracial marriages. . . ."I told him if I do, I’ll resign. . . .I have rights too. I’m not obligated to do that just because I’m a justice of the peace."

Apparently, a state law enfrocement official knew that a judicial officer was engaging in racial discrimination, but did nothing about it.

Does "Yes We Can" Mean "No You Can't"?

Peter Beinart, the senior political writer for the Daily Beast, has joined Michael Moore, who recently ordered liberals to "Get Off Obama's Back." Beinart, who is also a professor of journalism and political Science, says that liberals need to "Lay Off Obama."

The irony of these two individuals trying to shield the president from criticism is very rich. Moore produced Fahrenheit 911 -- a 2-hour documentary that offers an extensive critique of the Bush administration and militarism. And as a journalism and political science professor, critical analysis should be as normal to Beinart as oxygen. Yet both Moore and Beinart have chastised liberals for criticizing Obama. Here's a message for both of them: Lay off Liberals.

I have written extensively on the subject of political dissent. Accordingly, I will not write much more in this post. Nonetheless, I will will take a moment to reiterate the historical fact that no social movement -- liberal or conservative -- has effectuated substantial change without engaging in dissent -- including public disagreement with political allies. The desire for change itself represents discontent with the status quo.

Because Obama campaigned largely on the promise of change, his supporters' efforts to condemn honest criticism of his policies contradict the most central message of campaign. "Yes we can" apparently means "no you can't."

Liberals should offer honest and constructive criticism of Obama when it is warranted. Anything less is disrespectful and unhelpful.

Dissenting Justice Debuts at #26 on Law Blog Traffic Rankings

Dissenting Justice started last year, but it just reached an important milestone. The blog has debuted at number 26 (measured by unique visitors) on the rolling 12-month law professor-authored blog rankings compiled by Tax Prof Blog. Only three blogs debuted in the top 35. Thanks for your support!

Why Are Liberals Rushing to Defend Watered-Down "Individual Mandate"?

For years, many liberal healthcare reform proposals have included an individual mandate. The individual mandate could help the US achieve "univeral coverage" and lower costs by eliminating the problem care for uninsured Americans.

Also, univeral coverage could help justify some insurance reforms -- such as mandatory coverage of "pre-existing conditions" and acceptance of all applicants, regardless of health, age, sex, etc. Without mandatory coverage, healthy individuals could "game" the system and only seek health insurance once they discover they have a chronic health condition.

In exchange for covering all individuals, insurance companies would receive added revenue generated by a larger pool of insured individuals. Although Democrats have promised to deliver mandated coverage, an amendment to the Senate Finance Committee bill would severely weaken the provision.

The News Hour has published an article that details the battle over the individual mandate:

Under the bill, individuals and families will be required to buy health insurance, and will pay a penalty if they don't. In the original version of the bill, that penalty topped out at $950 per family; in the new version the fee won't exceed $750.

Also, under the amendment the penalties do not start until 2014. That year, the top penalty will be $450 and it will gradually rise to $750 by 2017.

The amendment also expanded by an estimated 2 million the number of people who would be granted a "hardship waiver" exemption. Under the original bill, anyone whose health coverage would cost more than 10 percent of their income would receive the waiver; the amendment lowered that threshold to 8 percent.

Senator Charles Schumer and Senator Olympia Snowe co-sponsored the amendment. They did so because the legislation does not provide sufficient money to subsidize the purchase of health insurance for people who lack the money to do so on their own.


What's Going on Here?
The White House and many liberals have rightfully blasted the flawed insurance industry report on healthcare reform. The weakening of the mandate, however, undermines the terms of reform that liberals have touted for years.

Liberals, however, have rebutted the insurance industry's concern that without the mandate, too much gaming will occur. But they are using White House analysis that suddenly portrays the mandate as insignificant.

The political scrambling probably relates to the lack of courage among moderate Democrats -- including Obama -- regarding the public plan and mandatory coverage. A public plan could potentially reduce costs and make mandatory coverage more affordable. Moderates, however, do not want the public plan option, and many of them are reluctant about mandatory coverage. Mandating coverage without the public option or a vigorous subsidy would make insurance cost-prohibitive for most uninsured people. Providing subsidies to uninsured people without cost reductions is highly expensive -- and mirrors the Republican approach to the issue.

Democrats appear to be caving on the public plan and mandatory coverage, but they are still forcing the insurance industry to offer coverage regardless of the insured's health status. This has resulted in an exchange of criticism from liberals and the insurance industry.

The insurance industry, however, cannot complain too much, because it opposes the cost-reducing public plan. Despite the insurance industry's "unclean hands," I am disturbed that liberals are primarily dismissing the evisceration of mandated coverage as insignificant -- after making it a centerpiece of reform proposals. On a final note, Obama opposed mandatory universal coverage during the presidential campaign -- a point that distinguished him from Hillary Clinton.

Tonight on Frontline: Obama's War

The PBS series Frontline has produced "Obama's War" -- a documentary regarding the war in Afghanistan. While many liberals have defended the decision to award President Obama the Nobel Peace Prize, Frontline reminds viewers that the apparently "peaceful" president is waging a bloody war. Obama's War will air tonight online and on television.

Here is the extended promotional video for "Obama's War":

President and Nobel Laureate Obama Sends 13,000 More Troops to Afghanistan

President and Nobel Laureate Barack Obama has quietly approved and the military will soon deploy 13,000 additional troops to Afghanistan. The Washington Post reports that the additional troops are "support troops," including "engineers, medical personnel, intelligence experts and military police." In March, Obama sent 21,000 additional "combat troops" to the region.

According to defense experts quoted by the Washington Post, additional support troops are always needed when combat troops are increased. The White House, however, did not publicize President Obama's subsequent approval of additional support troops following the March increase in combat troops. Defense Department officials, however, have provided a clearer picture:

"The 21,000 are only combat forces, and when the combat forces go in, there are a certain amount of additional forces that are required," said Pentagon spokesman Bryan Whitman. Defense Secretary Robert M. Gates, who signs the deployment orders, had military officials identify last spring the entire scope of the increase and agreed that he would consult with Obama again if the Pentagon sought to go above that, Whitman said.

"Obama authorized the whole thing. The only thing you saw announced in a press release was the 21,000," said another defense official familiar with the troop-approval process.

Counting both support and combat troops, President Obama has authorized 34,000 additional troops for Afghanistan. Currently, the combined troop levels in Afghanistan and Iraq exceed the number of troops during the height of the infamous Iraq "surge" of late 2007 and early 2008. Also, the White House is considering a request by General Stanley McChrystal for the deployment of thousands of additional combat troops to Afghanistan. This is definitely "Obama's War."

Did White House Dismiss GLBT Critics As Being Part of "Internet Left Fringe"?

Is there a grand leftwing conspiracy harassing President Obama? Maybe, according to a report by NBC news.

John Harwood, CNBC's Chief Washington Correspondent, reports that the White House is unconcerned with "the Left." Harwood, responding to a question regarding yesterday's GLBT rights march in Washington, explains that Obama is "doing well with 90% of Democrats" and that the White House views "this opposition" as part of the "Internet Left fringe."

Harwood also reports that one White House "advisor" told him that "those bloggers need to take off the pajamas, get dressed, and realize that governing a closely divided country is complicated and difficult." I have several responses.

First, it is unclear whether the White House advisor used the "Internet Left Fringe" language, but it definitely clear that someone in the White House believes that the Left is merely a political irritant.

Second, it is unclear whether the "fringe" language was directed towards GLBT protesters alone or to the Left as a whole, but many bloggers have interpreted this as a slight to GLBT demonstrators. [Update: Harwood says that the phrase describes the "grumbling" Left in general.]

Third, the "pajamas" language is absolutely bankrupt and really demonstrates how "elite," "out of touch" and smug some politicos are. The "demeaning your critics" card is an old and pathetic approach to debate.

Fourth, the belief that Obama would do something extraordinary for progressives actually got him elected, in part. So, it is extremely ironic for this unnamed White House source to dismiss Leftists as pajamas-clad imbeciles.

Fifth, I am a proud member of the Internet Left Fringe (if that means "progressive critic of Obama"), but I never put much stock in the sweeping liberal rhetoric that surrounded Obama's election. I agreed with Hillary Clinton who said that "you campaign in poetry but govern in prose." I said a long time ago that the liberal euphoria surrounding Obama's candidacy was misguided and that Obama was going to govern from the center because the country was politically divided and that he was a moderate -- at best.

Nonetheless, I have always argued that progressives must push President Obama to implement progressive policies (which involves more than speeches). The history of progressive change in this country has always involved progressive social movements pushing moderate presidents and other politicians for liberal policies. The White House official's comments demonstrate a gross misunderstanding of history.

The comments also contradict the nation's current political climate. On some issues, like Don't Ask, Don't Tell, a majority of Americans support the "liberal" outcome (repealing the discriminatory policy). So, by remaining sluggish on this deficit-neutral policy, Obama is catering to military brass, not to the public at large. Of course, a fight with the military brass could erode some of Obama's public support, but this does not mean that GLBT people who want an end to discrimination are fringe elements. Instead, we are simply reminding President Obama what he said before he was elected and issuing him a "call for action."

Here is the NBC footage, courtesy of YouTube:

Where's the Beef? Obama Reiterates Support for GLBT Rights

President Obama's speech at the Human Rights Campaign fundraiser reiterated his "support" for GLBT rights. But, according to the Associated Press and the New York Times, many people want less talk and more action. I do too!

See: Obama Pledges Again to End "Don't Ask Don't Tell."

To Michael Moore: Absolutely Not!

Michael Moore's wife has convinced him that he was too harsh in his criticism of President Obama's Nobel Peace Prize. Moore has decided to share his born-again moment with other liberals by telling us to "Get off Obama's back." Well, here's my message to Moore: Absolutely not!

I remain highly skeptical of the Nobel Peace Prize committee's decision. My skepticism stems from Obama's continuation of policies that leftists -- including Moore -- criticized loudly, passionately, and relentlessly for the last 8 years. These policies include wars, troop surges, handouts to corporations, rendition, indefinite detention, denial of habeas corpus, military tribunals, state secrets, and a lack of positive action on GLBT rights. Moore's essay does not mention these things -- neither do the liberal defenses that have emerged which condemn progressives who question the prize committee's decision. If liberals truly hated these practices, then they should apply the same criticism to Obama. Otherwise, their criticism looks disingenuous and partisan.

Moore's essay also sets forth some very low standards for progressive politics. Why does Obama deserve the Nobel Peace Prize? He is "sane," "smart," wants world "peace," and was "elected." Add good looks to the list, and these traits could describe the winner of a Miss America pageant!

I believe that progressives can praise Obama when he is correct, criticize him when he is wrong, and act strategically at all times. The abolitionists did the same thing to Lincoln (whom Obama has symbolically emulated) and other moderate Republicans. The Civil Rights Movement criticized Kennedy. Today, progressives are told to be quiet and praise the establishment. History, however, means a lot more to me than sentimental political commentary.

For most of the last year, my liberal colleagues have told me (and others) to stop criticizing Obama. In a climate like this, I see no reason to heed their call. No progressive movement has accomplished its goals without criticism. Let the cheerleaders cheer and the cynics criticize. There is room for all voices -- and in this area, dissent is seriously underrepresented.

Update: Glenn Greenwald remains consistent on this issue as well, supplementing his prior commentary. See: Accusing Obama critics of "standing with the terrorists.

Daily Kos Reader: Progressive Criticism of Obama's Nobel Prize = Racism!

This is this ultimate GIVE ME A BREAK thread. I was skimming through Daily Kos and discovered this whopper in a diary written by "pvlb":

Apparently, among "progressives" unless the African American President of the United States of America does not satisfy the very exacting specifications of each individual's idea of what should be done, he is a sell-out do-nothing.

There's no conclusive way of determining what's at the root of that, but as I thought about it, I did come to an excruciating, embarrassing, and sad end to my contemplation.

As my mental wanderings led me down path after path in trying to find an explanation, I came to dead end after dead end. Only one seemed to provide any possibility of an explanation. Regretfully, I concluded that even among progressives, this is a racial thing. Even for them, President Obama has got to do more, do it better and in less time than anyone else on the planet, in order to prove that he is 'worthy' of the presidency, or our support or the Nobel Peace Prize . . . .

Normally, when I am discover such flawed reasoning, I fall into "teaching mode" and try to approach the proponent with diplomacy. But plvb's argument does not warrant such sympathetic treatment.

Committee Could Have Made a Better Choice
Pvlb's analysis is extraordinarily misguided (but gaining traction on Daily Kos). First, President Obama did not award himself the Nobel Peace Prize. Therefore, criticism of the award, at least from my perspective, is directed towards the prize committee -- not Obama.

Also, there are more deserving people the committee could have selected -- like Representative Barbara Lee, whose actual work embodies an actual commitment to peace. Lee is the only member of Congress who had the courage to oppose the war in Afghanistan in 2001. She has also introduced a measure to deny funding increases for Iraq and Afghanistan. Obama, by contrast, describes the war in Afghanistan as a "just war," and he is currently considering a second troop surge.

Obama's position on Afghanistan does not represent a strong commitment to peace. It certainly does not represent a greater commitment to peace than the advocacy of others -- like Lee. Lee, by the way, is a very progressive -- far more than Obama -- black woman. My argument that Lee is a better candidate for the Nobel Peace Prize than Obama should neutralize plvb's immensely ridiculous claim that progressive criticism of the prize decision (or of Obama's policies) results from racism. Pvlb is so stuck inside of his/her own "contemplation" and "mental wanderings," however, that I am not sure whether he/she will notice this very basic fact.

In addition to escalating the war in Afghanistan, Obama has maintained many of Bush's antiterrorism practices -- like rendition, military tribunals, indefinite detention, and the denial of habeas to certain detainees. When liberals criticized Bush for engaging in these practices, they were not racist. When the few liberals who believe in logical consistency criticize Obama for embracing these same practices, they are still not racist. Furthermore, these policies are inconsistent with the pursuit of peace among nations and people.

Indiscriminate and Unnecessary Use of Race Is Harmful to Racial Discourse
Undoubtedly, some of Obama's critics are racists. But the simplistic and kneejerk equating of criticism of his policies with racism needs to end. This line of analysis began during the Democratic primaries. Committed racial progressives like Sheila Jackson Lee and Maxine Waters were called self-loathing "racists" for supporting Hillary Clinton over Obama. But after he secured the nomination, Obama used the Clintons ("two racists") on the campaign trail, and he chose Hillary as Secretary of State after he was elected.

Ironically, Obama receives vigorous race-based advocacy, but he strives to avoid racial discourse himself. The first and only racial criticism he made as president ended comically with him having a brew with Joe the Cop.

Although Obama runs away from racial issues, many of his most ardent defenders continue to wield "race" as a knife aimed indiscriminately at progressives and conservatives alike. This is an absolutely bankrupt and ultimately unhelpful approach to race relations.

Update: A response to Michael Moore's criticism of Obama's progressive critics: To Michael Moore: Absolutely Not!

State Department: Better a Nobel Prize Than a Shoe

I believe that Obama has not accomplished enough related to "peace" to justify giving him the Nobel Prize. Nonetheless, the State Department's response to critics of the award is funny.

Contrasting Obama's award and the shoe-throwing incident involving former President Bush, Assistant Secretary of State P. J. Crowley stated that:

Certainly from our standpoint, this gives us a sense of momentum — when the United States has accolades tossed its way, rather than shoes.

Yeah - funny.

PS: Although I find Crowley's statement funny, I do not condone shoe-throwing!

Obama Wins Nobel Peace Prize (While Considering Second Troop Surge in Afghanistan)

President Obama has won the Nobel Peace Prize (unless someone seriously punked the NYT). This is a stunning development. As a social critic, I am surprised that he could win while continuing many of Bush's antiterrorism-civil liberties policies. Obama is also considering a second troop surge in Afghanistan. Furthermore, he is only in the first-year of his presidency.

I am certain about this: if the Olympics defeat excited his opponents, this development should cause head explosion (and it has).

UPDATE: I am hearing liberals who have problems with Obama winning the prize defending the award on the grounds that it could encourage him to promote peace in Afghanistan. Obama, however, has always portrayed Afghanistan as a righteous war. Also, if the prize committee wants peace in Afghanistan, then Representative Barbara Lee -- the only member of Congress who did not vote to authorize the use of force and who has recently called for a pullout -- seems like a more legitimate candidate.

Here is Lee speaking against the resolution to invade Afghanistan in 2001.




Lee also opposes increasing funds for the wars in Iraq and Afghanistan - which would preclude the proposed troop surge in the latter country. She recently spoke about this issue on Democracy Now!:




Now THAT sounds like a commitment to peace.

Update II: The Nobel Prize website quotes the will of Alfred Nobel (the prize founder), which states that the award should go to "the person who shall have done the most or the best work for fraternity between nations, for the abolition or reduction of standing armies and for the holding and promotion of peace congresses" (italics added). This language seems to undermine the prospective work theme that has emerged on liberal websites.

UPDATE III: Glenn Greenwald has emerged as another dissenting liberal on this issue: Obama's Nobel Peace Prize. Greenwald describes giving the award to Obama as "painfully and self-evidently ludicrous." Ouch. And my friends think I'm too harsh.

Update IV: New article: Daily Kos Reader: Progressive Criticism of Obama's Nobel Prize = Racism!

NOW Condemns David Letterman for Having Sex With Female Staff

The National Organization for Women has strongly condemned David Letterman, who recently admitted to having sex with female staffers. Letterman disclosed the relationships in order to foil an extortion scam.

NOW: Letterman Created "Toxic Environment"
NOW has posted a formal statement criticizing Letterman on its website. According to NOW, Letterman's behavior created a "toxic environment." NOW reasons that:

[Letterman] wields the ultimate authority as to who gets hired, who gets fired, who gets raises, who advances, and who does entry-level tasks among the Late Show employees. As "the boss," he is responsible for setting the tone for his entire workplace -- and he did that with sex. In any work environment, this places all employees -- including employees who happen to be women -- in an awkward, confusing and demoralizing situation.

The statement also describes a call from a man who asked NOW to advise him how to discuss this issue with his daughter:

We recently received a call from a man in Rockford, Ill., who wanted to get advice from NOW about what to tell his 16 year-old daughter who was confused by reports on the latest Letterman controversy. The father raised his daughter to be a feminist. He raised her to stand up for herself. He raised her not be objectified as a sexual object. She admits she is confused because the messages she sees on television and news reports appear to make it okay to objectify women as long as the man in power is famous. It is this kind of hypocrisy that perpetuates the image of men in power preying on women, while many look the other way.

NOW's Criticism is Unnuanced
Sexual harassment in the workplace is not only unlawful, but it is a serious problem. NOW's analysis, however, does not distinguish unwanted sexual attention, which federal law prohibits, and consensual sex. Because Letterman is "the boss," NOW deems any sexual contact between him and his (female) staff as inappropriate.

Many feminist legal theorists (e.g., Janet Halley, Kathryn Abrams) have criticized the assumption that women lack agency to consent to sexual relations in the workplace, including with men in positions of authority. Some of the "agency theorists" have failed to appreciate the fact that economic status, race, sexual orientation, and other factors severely limit women's autonomy. Nevertheless, NOW's assertion that any sexual contact between "bosses" and subordinates creates a "toxic" work environment, "objectifies" women, and involves men "preying on women" offers a particularly unnuanced depiction of the workplace.

In some circumstances, the law rightfully assumes that "subordinates" cannot consent to sex. For example, statutory rape laws rest on the understanding that sex between a child and an adult will likely involve some dimension of coercion even if the child offers "consent." Laws also prohibit teachers from having sex with students, including students who have reached the legal age of consent. Similar laws ban sexual relations among staff and patients in mental hospitals and among prison officials and inmates. NOW's position treats the workplace like all of these other settings where the problem of consent seems far more pronounced.

Irony
It is also interesting and ironic that in the case of Letterman, a female staffer's male romantic companion spearheaded the extortion scheme. Apparently, Joe Alderman read Stephanie Birkitt's personal diary, discovered that she was having an affair with Letterman, and tried to cash in on the situation.

Alderman treated Birkitt as "his" property. It does not appear that Birkitt conspired with him to commit extortion. Instead, Alderman used her affair with Letterman to address his own dire financial situation. This seems analogous to the archaic notion that an act of adultery with a married women is a crime against the "innocent" married male.

Also, according to some sources, Birkitt apparently told Alderman that she and Letterman where "best friends" when she traveled with him to Montana in 2008. Furthermore, Birkitt has described her relationship with Letterman in very warm terms. These factors undermine the sexual predator narrative that informs NOW's critique of Letterman.

Conclusion
Letterman might be a patriarch. But that does not rob women of the ability to consent to sex, nor does it make him a sexual predator.

Update: Taylor Marsh has also analyzed this issue: Just One Reason I Don't Belong to NOW.

Great News: Sotomayor Not a "Shrinking Violet"

Several newspapers -- including the Washington Post and the Los Angeles Times -- are reporting that Justice Sonia Sotomayor peppered lawyers with questions during her first day of oral arguments. Apparently, Sotomayor asked more questions than any other Justice -- including Justice Scalia, who is known for his vigorous interrogation style.

Also, the retired Justice Sandra Day O'Connor recently said (thanks to SCOTUS for the tip) that having two women on the bench is great, but this is not enough. She also said that the Court should not consist of "nine clones." During confirmation hearings, conservatives attacked Sotomayor for not describing gender as a neutral category in some of her past comments. Many conservatives tried to contrast Sotomayor and O'Connor -- arguing that O'Connor treated gender as neutral to judging. Not only do O'Connor's rulings contradict this view, but her recent statements do so as well.

Erwin Chemerinsky on Healthcare Reform: It's Constitutional

Erwin Chemerinsky - Dean of UC Irvine Law School and Professor of Constitutional Law -- and I are on the same page regarding healthcare reform. In a Los Angeles Times op-ed, Chermerinsky argues that Congress has the authority to mandate coverage. I have made the same argument (see here and here).

By contrast, David Rivkin and Lee Casey, two conservative law firm partners, have made multiple arguments challenging the constitutionality of a federal mandate. I have not found any commentary by Constitutional Law scholars which contends that the mandate would violate the Constitution.

No Go on Chicago: Olympic Committee Denies US 2016 Bid

The New York Times reports that the International Olympic Committee has denied the United States bid to host the 2016 Summer Olympics. Madrid and Rio de Janeiro await the final decision.

See full coverage here: Chicago Loses Bid for 2016 Olympic Games.

The United States bid has received a lot of attention -- mainly because President Obama has put his weight behind his country and his hometown and because conservatives -- contradicting their usual "patriotism" -- have blasted the idea of having the games in Chicago/USA.

Reid: Senate Will Pass a Public Plan

Yesterday, the Plum Line released Obama administration talking points which state that the public option is a "small" part of healthcare reform. Also, the Senate Finance Committee has rejected two different public plan proposals. But Senator Harry Reid says that the Senate will eventually pass a public plan option. According to Reid: "[T]he public option is so vitally important to create a level playing field and prevent the insurance companies from taking advantage of us. . . ."


The Finance Committee has accepted an amendment that would allocate funds to states for them to create public plans. Presumably the amendment would also establish guidelines for the use of this money. Otherwise, this alternative could prove even costlier than having a national public plan. This option would certainly get rid of any constitutional questions regarding mandated care. Congress could give states money for healthcare reform on the condition that they require coverage. This sounds like a permissible use of the Spending Power and a lawful use of the states' police power.

Obama "Talking Points" Describes Public Option as "Small Part" of Reform

According to the Plum Line, the Obama administration has distributed new talking points on healthcare reform, and the document discusses the public plan option. Recently, the Senate Finance Committee rejected a proposed public plan option.

The talking points contain two interesting items. First, they state that "[t]he other four bills in the process include a strong public option," which treats the Finance Committee as an outlier.

The talking points, however, minimize the significance of the public plan by describing it as "just one small part of health insurance reform." I find it hard to understand why the public plan is a "small" element of reform. Advocates of the public plan have argued that it would provide competition and reduce the cost of insurance. Because the pending reform packages seek universal coverage, reducing the cost of insurance is extraordinarily important. To date, liberals have not abandoned the idea of a public option. I hope Obama has not done so either.