This Isn’t Working … Let’s Mandate It!

Once again, we need to begin by examining the premise – “Not only are 47 million Americans without insurance, but the 253 million with it, don’t like it.” These are the base assumptions that those pitching universalized healthcare are insinuating. “The healthcare system is in crisis”, we are constantly told. We have seen that the truly uncovered constitutes a very non-crisis 4% (11 million) of the population, so the “crisis” must be with the insurance itself.

According to an ABC News/USA Today/Kaiser Family Foundation survey, 89% of Americans (over 260 million people) are satisfied with their healthcare. No crisis there. In a CBS/New York Times poll, 38% say the economy is the most important problem facing the country, 19% say jobs, and only 7% say healthcare. In an NBC/Wall Street Journal poll on the same question, 24% say the budget deficit is today’s most worrisome problem, while only 11% say its healthcare. No crisis there.

Maybe the crisis is cost. Do we know why healthcare costs are high? Yes we do, Forbes’ Peter Robinson relates an interview with the late Nobel economist Milton Friedman about the inefficiencies of healthcare. Dr Friedman stated simply and clearly that the cost problems in our system can be traced to the fact that overwhelmingly most payments for medical care are made not by the patients who receive the care, but by third-parties – insurers or government. There are no incentives for competition and cost-control because nobody’s playing with their own money[1]. Costs aren’t high because too few people are insured, rather because too many are.

A market dominated by third-party payers is a market distorted to the point of removing the consumer from the feedback loop. Providers and payers, through their lobbies and pressure groups, haggle-out between them what will be covered and for how much, and the consumer is stuck with the results. There is something that could be done to remove real-world concerns, and that, in and of itself, doesn’t increase government spending.

One of the largest drags on American competitiveness in world markets rises from the fact that health insurance has become a responsibility of employers. Switch business over from having to offer insurance to offering 401(k)-type healthcare accounts that travel with the employee. This could be accomplished by allowing a dollar-for-dollar tax credit[2] for company money put into these plans for employees. This solves the competitiveness issue by removing the cost of investing in healthcare from profitability, and it re-introduces the consumer (patient) into the cost/price feedback loop, because the patient (not the insurer) will be selecting and paying for doctor and treatment. Insurance companies could offset the drain on their business model by offering management services for these programs to business clients. This increases incentives for business to contribute to employees’ healthcare by reducing taxes dollar-for-dollar; and it puts downward pressure on price by returning the final consumer to the role of direct payer.

Allow health insurance companies to market nationwide instead only within states. Open up choice, don’t stifle it. For the chronic and involuntarily uninsured, government can issue debit cards that will allow for choice and coverage of legitimate (e.g., non-elective) healthcare procedures. This approach should cost ~$25 billion to $30 billion a year by moving most of this treatment from emergency rooms to primary providers’ offices.

This would leave us with the catastrophic illness and injury, the details and definitions for which would have to be worked out. This is a legitimate area for means-tested government assistance. These could be covered by a separate class of debit card good for recoverable and life-sustaining (but not coma-sustaining) treatment. This could cost another $60 billion to $80 billion annually.

Total cost to government (read: us) would be far, far less than anything being proposed, and it returns incentives to the marketplace, meaning that upward pressure is placed on quality and downward pressure is placed on price because the consumer is the payer, and by means-testing and making individual contributions to healthcare accounts (as opposed to business contributions) tax deductible, neither business nor individuals are incentivized to dump private coverage in favor of government coverage (an inevitable consequence of all current proposals).

Add to this, the market is trying to re-assert itself as many doctors and many of those 17 million making $50K or more who self-insure are opting out of the insured healthcare game due to ever-increasing amounts of red tape, and ever-increasing amounts of government interference. Again, by returning the consumer to role of payer, this will have a downward pressure on price, making it evermore possible for others to join the ranks of the self-insured. Government should encourage, not counter, these tendencies.

The only way that merely insuring more people will lower price is for government to fix those prices, and that will, of course, destroy the medical research and pharmaceutical industries in this country, while dumbing-down everybody’s treatment and turning physicians into civil servants.

But anything that increases decision-making power for the individual diminishes meddling power for Congress, and therefore is a non-starter. Politicians will never vote to reduce their power over our lives.


[1] See Lawrence Kudlow, We Don’t Need Big-Bang Healthcare Reform, in Rasmussen Reports, June 26 2009.

[2] A tax deduction is subtracted from gross income to determine taxable income, a tax credit is subtracted from taxes owed.

Why Must Every American be Entitled to Healthcare?

OK, there’s around 11 million people caught between being able to afford health insurance on their own and having it provided by everyone else. Remember that the Kaiser Family Foundation defines an “uninsured American” as someone who does not qualify for current government programs and makes less than $50,000 a year. This would be the profile for Kaiser’s chronically and involuntarily uninsured, and is the rightful focus of any honest attempt to insure access to our healthcare system.

Before going further, it may be instructive to ask if trying to bring 4% of the population into the insured is something we would like to do, or something we have to do. In other words, is this a matter of charity or entitlement? The answer is profound beyond semantics. For one thing, the closer we move to the median household income ($46,326) with an entitlement, the closer we are to saying the “rich” half “owes” the “poor” half something, and that is politically very dangerous. It’s naked class warfare.

One other thing that needs to be mentioned is that Congress is talking about spending what will turn out to be between one and three trillion of our dollars to “fix” a $41.4 billion problem – that’s the amount of uncompensated medical services dispensed last year[1]. The interesting thing about that $41.4 billion shortfall? It cost us exactly $41.4 billion. The total public expenditures exactly covered the problem, with an extra 8¢ on the dollar added to current policy-holders and current levels of city, state and federal taxes. Regardless of what some politician bottom-feeding for votes tells you, doing nothing is always an option.

Those howls of protest you hear – and thank all of you collectivists for howling on-cue – help resolve the real debate: we’re not talking about access to healthcare, we’re talking about access to insurance. The $41.4 billion speaks to the fact that emergency healthcare is available to all – and that even includes illegal aliens. It is being argued that the 4% of us that are chronically and involuntarily uninsured have a “right” to health insurance. That we should tax the 96% of us that either have insurance or chose not to, in order to subsidize coverage for the 4% of us that ran up that $41.4 billion tab. For a mere trillion or so dollars[2].

Should this allow one of the 4% to go to Sloan-Kettering for an oncological examination … Cedar-Sinai to recover from exhaustion? Should this subsidized insurance cover a private room? Semi-private? Ward? Would it cover dental? Should one of the 4% be able to get Lasik rather than contacts? Contacts instead of glasses? Should the 4% get coverage for self-inflicted maladies – alcoholism, drug addiction, smoking-related conditions, morbid obesity, etc? Are these over-the-top examples? Perhaps, yet they are each covered by some or other insurance policies. So the question becomes, where on the slope do we make our slippery stand? How much of a “right” does $3,000+ per capita buy?

We have the “rights” thing right, as far as medical care is concerned – no one in true need is turned away – and by revisiting the “Anchor-Baby” provision of the 17th Amendment, we could take most of the pressure off of Southern California hospitals where hordes of Mexican women come in to have their baby, thereby attaining citizenship (and benefits) for the child. We have so cheapened the privilege of American citizenship by political pandering to this ethnicity or that, that there is almost nothing left as a benefit of citizenship. This whole idea of entitlements to non-citizens needs to be re-thought (but that’s another discussion).

We are living the practical hazard of creating rights out of whole cloth (throwing a trillion dollars at a $40 billion problem), but we also do real harm to the fabric of America by creating rights and entitlements for political expediency. The design of our government and its relationship to the citizenry wasn’t casually derived, it’s a complex balancing act aimed at preventing the tyranny of the majority and class warfare.

Oops.


[1] Most of it was delivered in hospitals, which are required by federal law to treat patients with emergency conditions, regardless of ability to pay. A vast majority of that care is covered by the federal, state and local governments in a direct cost shift to taxpayers. But there is also a shift to the privately insured. Hospitals and doctors raise their fees to compensate for the losses they incur by treating uninsured and underinsured patients, and insurers pass those increases along to consumers. A 2005 study found that the shift added 8.5% to the average premium. See Michael Stravato, 2 Plans and Many Questions on the Uninsured, in New York Times, February 23 2008.

[2] You do realize that for that $1 trillion, we could just mail everyone – every man, woman and child – a check for $3,333 to apply toward insurance, and then ticket everyone who turns up without it.

“Every American is Entitled to Healthcare”

This is the unchallenged mantra of the administration’s zeal to mandate universal healthcare. If you will recall, of this premise, I ask three simple questions:

1. Who’s entitled? Are “Americans” citizens and their dependents? Or does the label include legal aliens and their dependents? Or illegal aliens and their dependents? Or not illegals, but does include their dependents? Exactly where this line is drawn includes or excludes millions of people (at an approximate mean cost of $62,000 each), and is therefore not trivial. (Kennedy uses the arbitrary number of 47 million uninsured[1]).

2. Why is anyone entitled to healthcare? When, exactly, did healthcare become a right? Are we entitled to fundamental (e.g., life-saving) healthcare, or all available healthcare, or something in between (and if so, who decides and by what criteria)?

3. After settling the definitions of “American” and “healthcare” for these purposes, is any included member currently denied healthcare?

Today, I will address the first of these. The bloc of 47 million uninsured Americans came by a circuitous route to find itself as the raison d’être for the administration’s breathless appeal for fundamentally changing the world’s most advanced medical delivery system.

This figure seems to have originated with the Census Bureau report Income, Poverty, and Health Insurance Coverage in the US: 2005, which puts the number of uninsured people living in the country at 46.577 million[2]. From here, it found its way into Michael Moore’s factually discredited propaganda film SiCKO, which put the number at “nearly 50 million”. From there, it found its way into the campaign, with President Bush, Senators Barack Obama (D-IL) and Hillary Clinton (D-NY), presidential candidates former Senator John Edwards (D-SC) and Governor Mike Huckabee (R-AR) and The Washington Post, New York Times, Los Angeles Times, People magazine and Time magazine, as well as CNN, CBS and ABC using either 46 million or 47 million[3] as an authoritative number of “uninsured Americans.” The president’s Council of Economic Advisors has repeatedly used “46 million uninsured Americans” in reports to Congress, op ed pieces in the Washington Post and New York Times, and various press conferences and releases[4]. By the time Senator Kennedy began work on his bill, this figure was accepted as orthodoxy.

The problem is that the figure is a composite number of all uninsured people living in the United States, which, as we will see, factors-out quite differently from what those who use it would have you believe. To put these numbers in perspective, out of 300 million Americans, we are talking about 15.5% (46.5 million uninsured) of the population to begin with.

Young adults (18-to-24 years old) are the least likely of any age group to have health insurance. These Gen-Xers drop money on clothes, booze, nightlife, the latest tech gizmos and other things that interest them. With different priorities, these young folks could both afford and qualify for health insurance (the cost of which at this age and health starts at around $100 a month). They simply choose not to. Census data shows that just over a fourth of this group (28.1%) voluntarily does without health insurance[5], amounting to 9.2 million people.

Of the remaining 37.3 million uninsured, 11 million people who are already qualified under S-CHIP (State Children’s Health Insurance Program), Medicaid or other government programs, simply haven’t taken advantage of them[6].

Of the 26.3 million people that are left “uninsured”, the Census report includes 8.3 million uninsured people who make between $50,000 and $74,999 per year and 8.74 million who make more than $75,000 a year. That’s ~17 million people who can afford health insurance but decide to self-insure[7]. About half this number, ~8.6 million, are small business owner/operators, and thus can be included as those who can’t afford today’s health coverage (and remain profitable).

Of the 17.86 million remaining, the Census Bureau report states that 9.7 million are not US citizens[8], leaving 8.16 million. This squares with the Kaiser Family Foundation, a liberal non-profit medical-oriented think-tank, which puts the number of uninsured Americans[9] who do not qualify for current government programs and make less than $50,000 a year at between 13.9 million and 8.2 million[10]. During normal economic times, the CBO notes that ~3.5 million of the uninsured will be so only for four months or less (during periods between jobs), but I will completely ignore this group in the current atmosphere.

There will always be slop in these kinds of numbers – they are largely statistically derived and extrapolated from polling data – but I am confident enough in the research to give Kaiser the benefit of the doubt, and settle on their median number of 11.05 million “uninsured Americans”, in the meaning that most people think of when they hear that label. That’s 3.68% of the population, or less than a fourth (23.74%) of the 15.5% that people who know better are telling you.

Now, let’s think about that trillion dollars Congress is poised to ask us to spend on “fixing” our healthcare system. Assuming that Kennedy turns out to be the first ever government program that achieves its stated goal and brings all 11.05 million into the ranks of the insured (and no one else). That would only cost us $90,497.74 each. But experience tells us that won’t happen. Historically, ~20% of a targeted population will avoid any given government program, meaning that of the 11.05 million chronically uninsured, Kennedy (or any other plan) will only reach around 8.84 million of them. CBO estimates that Kennedy will spend $1 trillion over ten years to bring around 16 million into the “insured” fold, meaning that nearly half would be those who are voluntarily self-insured or owner/operators of small businesses (who would be “helped” into teetering on bankruptcy).

We need to get a much better handle on the actual uninsured, and the smartest way to help them without clubbing the unwilling among us. Government, with its track record in healthcare, should be a carefully used last resort, not a smothering blanket we throw over the country in hopes of “helping” 4% of us.


[1] A PDF version of the 615-page America Health Choices Act – S 11, the Kennedy bill – that the Congressional Budget Office (CBO) scored (which will, by default, serve as a baseline for all plans and costs going forward) is available upon request.

[2] Available at:

http://www.census.gov/prod/2006pubs/p60-231.pdf

[3] See Julia A Seymour, Health Care Lie: “47 Million Uninsured Americans”, Business & Media Institute, July 18 2007.

[4] See Matt Cover, White House Claim of 46 Million Uninsured “Americans” Includes Almost 10 Million Foreigners, CNSNews, June 16 2009.

[5] C DeNavas- Walt, B Proctor, and J Smith, Income, Poverty, and Health Insurance Coverage in the United States: 2007, US Census Bureau., August 2008.

[6] See Larry Elder, “45 Million Americans” – Who Are Those Guys?, in Jewish World Review, June 18 2009.

[7] Seymour, op cit.

[8] Cover, op cit.

[9] Kaiser’s criteria for the chronically uninsured only includes those involuntarily uninsured for 2 years or more.

[10] Seymour, op cit.

Ready … Fire … Aim

As part of the FY2010 budget, the president had Congress put aside $635 billion as a “down payment” for healthcare “reform”, a campaign promise without form or definition. This, at a time when that same administration was telling us how dangerous existential economic conditions were … deficits, frozen capital markets, rising unemployment, and so forth. We all knew that healthcare was on the president’s agenda, but fiscal prudence dictates that you define before you borrow … especially in dire fiscal straits.

Now the non-partisan Congressional Budget Office (CBO) has scored what it has of the Kennedy plan (America Health Choices Act, hereinafter Kennedy, or the Act), and informed Congress that covering about a third of the identified (in the plan) uninsured would cost somewhere north of a trillion dollars over the next ten years. Assuming a linear, rather then the usual geometric, relationship of first costs to final costs, that would intimate a 10-year cost of around $3 trillion to cover the full 47 million Kennedy claims need coverage. I don’t think it would be reactionary to examine the premise for all this before we allow Congress to bribe us with our own money into an irreversible catastrophe to one-sixth of our economy. Anything that is probably going to cost something like China’s GDP should be carefully and explicitly justified.

The overarching premise is that “every American is entitled to healthcare” (else government’s involvement would be a shameless power-grab). Implicit here are three issues: where is the line between “American” and “non-American” for these purposes; does “entitled” mean “available” or “mandated”; and, there are now “Americans” denied healthcare.

1. Who’s entitled? Are “Americans” citizens and their dependents? Or does the label include legal aliens and their dependents? Or illegal aliens and their dependents? Or not illegals, but does include their dependents? Exactly where this line is drawn includes or excludes millions of people (at an approximate mean cost of $62,000 each), and is therefore not trivial. (Kennedy uses the arbitrary number of 47 million uninsured).

2. Why is anyone entitled to healthcare? When, exactly, did healthcare become a right? Are we entitled to fundamental (e.g., life-saving) healthcare, or all available healthcare, or something in between (and if so, who decides and by what criteria)?

3. After settling the definitions of “American” and “healthcare” for these purposes, is any included member currently denied healthcare?

Kennedy (and every currently available alternative) addresses this “problem” entirely through the “availability” of “affordable” insurance. We are told that this does not mean a single-payer system (euphemism for government-run healthcare), but that an “affordable” state-offered insurance plan will “compete” with currently available commercial policies.

4. Is it possible to offer equal or better coverage at lower cost and not drive private competitors out of the market?

5. Are we sure that third-party-payers (i.e., insurance) aren’t the responsible party for the high cost of healthcare?

6. Is it possible to keep the insurance “affordable”, the coverage universal, and run it without constant deficits, without rationing healthcare?

The administration tells us that the only way to lower the cost of healthcare is to go forward with their “reform” program.

7. How is this possible without price controls?

8. Will this new “affordability” exanguinate the American pharmaceutical industry? Do we care?

We are told all of this must be done now – in the midst of a struggling recovery from what the administration tells us is the “worst economy since the Great Depression”.

9. Does it make sense to throw at least two nationwide industries (insurance and pharmaceuticals) into disarray just as the economy is trying to recover?

10. Does it make sense to hobble small business (the overwhelming supplier of net new jobs) precisely at a time when we are trying to stem the tide of unemployment? According to the Act, any company that does not offer an “approved” healthcare plan to its employees will be levied an additional tax of 8% of gross payroll.

This collection of enigmas is wrapped in the assumption that government – the bankrupter or Medicare and Medicaid, and the same folks who are spending the United States of America out of its AAA bond rating – is the best choice to do this “for” us. Congress is, of course, exempting itself from any and all provisions and ramifications of whatever plan emerges.

I will address these ten issues (and any others that arise) in upcoming posts, so be advised: if this is a subject that doesn’t interest you, I will be unusually boring for a while; and if this is a subject that does interests you, I look forward to your input.

Oxymoronic Paternalism

In justifying the breathtaking expansion of government intrusion into our daily lives, the administration is, at once, taking a page from Saul Alinsky’s radical playbook[1] and breaking a fundamental principle of the practice of law. By continually lamenting the complexity of our problems, the administration is encouraging a MEGO – “my-eyes-glaze-over” – reaction among the people (what Britain’s Willie Whitelaw, Margaret Thatcher’s deputy for many years, once called “inciting apathy”). The first step in usurping a people’s rights is to convince them that they are incapable of exercising them. The administration’s solution is that only government can equitably solve this problem – a clear proclamation of facts not in evidence. No government on Earth has ever lowered price, raised quality and maintained access of anything – only markets (read: competition) can do that. So much for transparency.

Familial paternalism is clearly exercised in the name of the children – of shielding them from the consequences of decisions for which they are not qualified; governmental paternalism is clearly exercised in the name of fiefdoms – of protecting politicians from the consequences of decisions for which they are not qualified. See Fannie Mae and Freddie Mac, agencies empanelled to promote and protect homeowners … how’s that workin’ out for ya? The Federal Reserve – a non-partisan comptroller of the currency – is now seen as a culpable, if not causal, progenitor of our current recession. The lifespan of the Department of Education (separated from HHS and elevated to cabinet status under Carter) has roughly paralleled the tanking of the American public education system. “Postal” has now entered the language as an adverb, and so on ad nauseum. On what evidence does anyone think any government can improve any field of human productive endeavor?

Now, the administration looks to add the names of General Motors and Chrysler to proud images of Zil, Dacia and Oltcit, notable examples of government produced automobiles; expand Medicare (which is scheduled to be bankrupt by 2017) to cover all Americans (thereby making bankruptcy existential); and institute a tax on carbon production at all levels, raising the cost of everything we eat, wear, drive, live in or otherwise use.

My message to this administration: If things keep going like this, I’m going to have to ask you to stop helping me.


[1] Saul Alinsky, Rules for Radicals: A Pragmatic Primer for Realistic Radicals, Random House, 1971.

Why?

If the speed of light is terminal and absolute, and it must be if E=mC2, then the surface of simultaneity is endospheric to the actor, meaning that time and entropy run in the same direction – a condition necessary for the development of intelligent life. So the next time someone asks you “Why did you [fill in the blank]!?”, tell them with confidence, “because optic velocity is 300,000kps, of course.”

Happy Hopeychange!

We can now add nationalizing healthcare to what Congress is supposed to do before going on recess. Let’s see, Congress is going to confirm Sonia Sotomayor as an Associate Justice of the Supreme Court, after familiarizing themselves with her 173-page application (and the hundreds of speeches, interviews and opinions attached thereto); they are going to revolutionize the way in which we produce energy in everything from driving our cars to pulling electricity out of our outlets; and they are going to “improve” one-seventh of our economy at a stroke by sticking the nose of the federal camel under the tent of healthcare.

Congress is scheduled to be in session for six weeks from next week to the August recess. Six weeks of Tuesday-to-Thursday sessions means 18 days for actual legislating the above confirmation and fundamental changes to our daily lives. If Ms Sotomayor were not confirmed, there would be a screed of “rush to judgement!”, but I predict nary a peep when she is confirmed. Cap-and-trade will spike utility costs (Mr Obama admitted as much on the campaign trail), and Senator Waxman’s (D-CA) 1,000-plus-page bill to do this is scheduled to be voted on before it would be possible for Members to read (it is yet to be released from committee). The healthcare bill isn’t even written yet, and if they are to vote on it in the next 18 legislative days, I guarantee that no one will read it before the vote.

Obama and the Democratic congressional leaders see this as a rare chance to make “transformational” changes in America.

They are right … Happy Hopeychange!

Obama’s Message to the Muslim World

For starters, by using the term (indeed, the very concept) of “the Muslim World”, the Obama administration is handing Islamist terrorists a powerful public victory. A large part of the Islamist narrative is that the ummah – the Muslim community, taken as a whole (i.e., “the Muslim World”) – is being warred against by the non-Muslim world. A very potent counter to this argument would be to let Muslims know that we know they are not part of some Khalifat led by wild-eyed mass murderers. They are, in fact, Indonesians, Sudanese, Bosnians, Turks and Englishmen, French, Germans and Americans. Mr Obama is conceding a very important point to the enemy at the outset. Middle Eastern interpretation: weakness.

By saying that Iran has a right to a peaceful nuclear program, and leaving it at that, he is conceding an Iranian bomb. Team Obama sees the key to solidifying an Arab response to Iran is through the Israeli/Palestinian peace process (read: two-state “solution”), and the key to that is to put pressure on Israel (to stop and reverse settlement-building in the West Bank). This is their plan (wrong-headed, but at least proactive – that’s the optimistic interpretation of the Cairo speech). Else he’s lowering the landing gear for an intentional soft landing of American influence in the world (an American capitulation – that’s the pessimistic interpretation).

By limiting his remarks to a sort of sovereign equality on the right to diddle with fissile materials makes Obama’s Cairo speech the weakest American statement on a nuclear Iran to date. He completely ignores (or simply doesn’t realize) the degree to which Iran’s diddling with fissile materials is destabilizing an already fragile region. The Sunni Arab mind isn’t consumed with the plight of the “Palestinians” (it never has been), it is consumed with the prospects of a nuclear armed Shi’ite Persia.

“No single nation should pick and choose which nations hold nuclear weapons,” he says. Perhaps by “no single nation” he means the “global community” should pick and choose, which means the United Nations Security Council, which means the five veto-wielding powers, which means that Russia and PRC will pursue their own murky interests and that, in the absence of American leadership, Britain and France will reach their accommodations with a nuclear Iran, a nuclear DPRK and any other psychostate that wishes to join them. One single nation proclaimed that Israel should be “wiped off the map”; one single nation is defiantly pursuing nuclear weapons (in two separate incidents). Regardless of what he thinks he’s saying, the world is hearing, “world ‘community’, you’re on your own.”

By essentially tying American attention-span on Iran to a two-state process in Israel, Obama is trying to get Arab states on board with overtly accepting Israel’s right to exist (e.g., by initiating trade and travel agreements with Jerusalem, etc), thereby pressuring Israel to reverse settlement-building in Judea and Samaria. This, Obama supposes, will hasten Palestinian acceptance of Israel as a legitimate negotiating partner. All of this presupposes that Israel’s neighbors want a Palestinian state in the first place. As mentioned above, he’s trying to force a marriage of two disinterested parties – a two-state process in Israel and Iranian nuclear ambitions have nothing to do with each other, and by trying to force one upon the other is to almost guarantee failure on both.

After his earlier apology tour in Europe, I didn’t have very high expectations for this trip, but I must say, Mr Obama managed to exceed even those depths of ineffectuality.

Sonia Sotomayor: an Epilogue[1]

Judge Sotomayor’s bench record reveals an even-handed approach that is at odds with her writings and public statements, which are decidedly leftist. This is relevant because of two aspects of this particular nomination: President Obama’s statement that he wanted his nominee to feel free to allow “empathy” to color the application of law; and the Democrats’ oft spoken wish for a jurist that could rally support among the Justices for a more neoliberal agenda.

Replacing Justice Souter with another neoliberal maintains the current Court balance, so the question would be, can a more emotional appeal (“empathetic” application of law) swing any of the 5-4 decisions away from the current majority, and I don’t think so. Justice Kennedy will continue to be the swing vote, and he doesn’t seem amenable to “touchy-feely” arguments from the bar.

As for assembling a new leftist majority, coalition-building doesn’t seem to be Judge Sotomayor’s forté. Lawyers who have argued cases before her use terms like “nasty,” “angry” and a “terror on the bench,” according to the current Almanac of the Federal Judiciary – a kind of Zagat’s Guide to federal judges – which rated her last among federal judges on demeanor from the bench.

I don’t find any of the immediate Republican reaction to Judge Sotomayor’s appointment to be problematic, (unless it gets far better organized) but I would like to address three aspects of her potential ascension to the Court.

Her multiple “wise Latina woman” comments have raised concerns, and even accusations, of racism. While the comment is undeniably racist (and sexist, for that matter), I find nothing in her record to indicate even a latent racism. What I do find, in her demeanor and her writings, is an arrogance that could just as easily explain the comment. This may not be an attractive attribute, but I find most people who have managed to climb to national office, be it political or judicial, have an unshakable self-confidence, and in most cases, that translates to arrogance.

More troubling is her “appellate court is where policy is made” comment. This doesn’t hint at judicial activism it’s a definition of it. When they used to teach civics, every high school kid knew that policy is made by the executive and codified by the legislative. The judiciary is there to enforce it, not to change it. This is all the more important at the Supreme Court level as their decisions are non-reviewable, and the Court’s prime function is to rule on the constitutionality of the laws it finds before it, not to fit the Constitution to plaintiffs.

The most troubling of all is her internationalism as evident in her dissent to Croll, where she exhibits a preference for the latest fad among neoliberal jurists, the warping of American jurisprudence to international norms. The United States is the most successful – the freest, most prosperous – society in history, and it rose from a Constitution that is universally recognized as one of the most profound document ever penned. Should we find applicable wisdom in the laws of other nations, the legislature is free to contemplate it. The role of the Supreme Court would be to rule on it’s constitutionality, not to bend the Constitution to fit a whim.

Overall, I find Ms Sotomayor a fine judge, but her cavalier attitude about the primacy of the Constitution disqualifies her for a job whose primary role is to jealously guard the primacy of the Constitution.


[1] I have a PDF copy of her 172-page Senate questionnaire, available upon request.

Sonia Sotomayor: an Addendum

I have previously commented on Sonia Sotomayor’s cases that have been reviewed by the Supreme Court[1], and, in fairness, would now like to look at other of her opinions as an appellate judge.

Since joining the Second Circuit in 1998, Sotomayor has authored more than 150 opinions, addressing a wide range of issues, in civil cases. To date, three of these decisions have been overturned by the Supreme Court; a fourth is under review and likely to be reversed. In two of those cases (and likely the next), Sotomayor’s opinion was rejected by the Supreme Court’s more conservative majority and adopted by its more liberal dissenters (including Justice Souter). These outcomes suggest that Sotomayor’s views would in many respects be similar to those of Justice Souter, and her elevation to the Court would maintain, rather than alter, the overall balance.

In her only case directly involving abortion rights, Center for Reproductive Law and Policy v Bush, 304 F.3d 183 (2d Cir. 2002), she found in favor of the “Mexico City Policy[2]”, rejecting plaintiff’s First Amendment claims (on merits), due process claims (lacked standing), and equal protection claims (on rational review basis). This decision mirrors the Second Circuit’s earlier decision in Planned Parenthood Federation of America, Inc v Agency for International Development, which dealt with a virtually identical claim.

In another controversial First Amendment case, Pappas v Giuliani, 290 F.3d 143 (2d Cir. 2002), involving an employee of New York Police Department who was terminated from his desk job because, when he received mailings requesting that he make charitable contributions, he responded by mailing back racist and bigoted materials. On appeal, the panel majority held that NYPD could terminate Pappas for his behavior without violating his First Amendment right to free speech. Sotomayor dissented, acknowledging that the speech was “patently offensive, hateful, and insulting,” but cautioned the majority against “gloss[ing] over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives just because it is confronted with speech is does not like.”

More recently, in Kraham v Lippman, 478 F.3d 502 (2d Cir. 2007), she wrote an opinion holding that a rule prohibiting high-ranking political party officials from receiving court fiduciary appointments (such as guardians ad litem) in New York state courts did not violate the plaintiff’s right to freedom of political association. Sotomayor acknowledged that the rule required individuals to choose between holding a high-ranking party position and receiving court appointments, but she ultimately concluded that such an “incidental effect on individual decision-making, however, furthers the rational and legitimate goal of eliminating corrupt court appointments.”

In Ford v McGinnis, 352 F.3d 382 (2d Cir. 2003), Sotomayor wrote an opinion that reversed a district court decision holding that a Muslim inmate’s First Amendment rights had not been violated because the holiday feast that he was denied was not a mandatory one in Islam. Sotomayor held that the inmate’s First Amendment’s rights were violated because the feast was subjectively important to the inmate’s practice of Islam. But in Duamutef v Hollins, 297 F.3d 108 (2d Cir. 2002), Sotomayor wrote an opinion holding that an inmate’s First Amendment rights were not violated by prison officials’ monitoring of his mail – prompted by the inmate’s receipt of a book with the title Blood in the Streets: Investment Profits in a World Gone Mad – because the inmate had previously caused disturbances and the prison needed to forestall security problems.

I’ve reviewed 15 other cases, all of which describe much the same record of unremarkable application of law to circumstance. I say “unremarkable” here in the sense that I have detected no ideological pattern or apparent agenda in her decisions.

In one other case, Croll v Croll, 229 F.3d 133 (2d Cir. 2000), I do find roots of a disturbing drift from a Constitutional grounding of our law. Croll considered whether a ne exeat clause – that is, a clause prohibiting one parent from removing a child from the country without the other parent’s consent – constitutes a “right of custody” for purposes of the Hague Convention on International Child Abduction, thereby requiring the child’s return when the clause is violated. In holding that the ne exeat clause does not constitute a “right of custody,” the majority – among other things – declined to attribute any weight to contrary holdings by courts in other nations, dismissing them as “few, scattered, [and] conflicting.” In her dissent, Judge Sotomayor concluded that the Convention’s drafters had in mind “a notably more expansive definition of custody rights” than the “parochial” definitions – from US dictionaries – on which the majority relied. Moreover, she noted, “most foreign courts to consider the issue” had held, as she would have, that a ne exeat clause does indeed constitute a “right of custody.” Although certiorari was denied in Croll, the question is once again before the Supreme Court in No. 08-645, Abbott v Abbott. In January 2009, the Court called for the views of the Solicitor General, who is expected to file her brief this month.


[1] See Sonia Sotomayor: a Primer, elsewhere on this Blog site.

[2] A Bush presidential directive that prohibited foreign organizations receiving US funds from performing or supporting abortions, and has since been rescinded by President Obama.