EPA Inspector General Statement on Greenhouse Gases Endangerment Finding Report - Data Quality Processes

EPA Inspector General Statement on Greenhouse Gases Endangerment Finding Report - Data Quality Processes


Press Statement - U.S. Environmental Protection Agency
For Immediate Release
Office of Inspector General
Washington, D.C., September 28, 2011Contact: John Manibusan. Phone: (202) 566-2391
http://www.epa.gov/oig/reports/2011/IG_Statement_Greenhouse_Gases_Endangerment_Report.pdf

WASHINGTON, D.C. – Statement of Inspector General Arthur A. Elkins, Jr., on the Office of Inspector General (OIG) report Procedural Review of EPA’s Greenhouse Gases Endangerment Finding Data Quality Processes:

“The OIG evaluated EPA’s compliance with established policy and procedures in the development of the endangerment finding, including processes for ensuring information quality. We concluded that the technical support document that accompanied EPA’s endangerment finding is a highly influential scientific assessment and thus required a more rigorous EPA peer review than occurred. EPA did not certify whether it complied with OMB’s or its own peer review policies in either the proposed or final endangerment findings as required. While it may be debatable what impact, if any, this had on EPA’s finding, it is clear that EPA did not follow all required steps for a highly influential scientific assessment. We also noted that documentation of events and analyses could be improved.

We made no determination regarding the impact that EPA’s information quality control systems may have had on the scientific information used to support the finding. We did not test the validity of the scientific or technical information used to support the endangerment finding, nor did we evaluate the merit of EPA’s conclusions or analyses.

We make recommendations that we think will strengthen EPA’s control over data quality processes. EPA disagreed with our conclusions and did not agree to take any corrective actions in response to this report. All the report’s recommendations are unresolved.”

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Is Fiscal Policy Procyclical in Developing Oil-Producing Countries?

A new IMF working paper by Nese Erbil "examines the cyclicality of fiscal behavior in 28 developing oil-producing countries (OPCs) during 1990-2009. After testing five fiscal measures - government expenditure, consumption, investment, non-oil revenue, and non-oil primary balance - and correcting for reverse causality between non-oil output and fiscal variables, the results suggest that all of the five fiscal variables are strongly procyclical in the full sample. Also, the results are not uniform across income groups: expenditure is procyclical in the low and middle-income countries, while it is countercyclical in the high-income countries. Fiscal policy tends to be affected by the external financing constraints in the middle- and high-income groups. However, the quality of institutions and political structure appear to be more significant for the low-income group."

Excerpts (notes excluded):

Both the neoclassical and Keynesian theories support the idea that effective fiscal policy should smooth the volatility of output during the business cycle. Barro’s (1973) ―tax-smoothing‖ hypothesis of optimal fiscal policy suggests that, for a given path of government expenditure, tax rates should be held constant over the business cycle, and the budget surplus should move in a procyclical fashion. According to the Keynesian approach, however, if the economy is in recession, policy should increase government expenditure and lower taxes to help the economy out of the recession. During economic booms, the government should save the surpluses that emerge from the operation of automatic stabilizers and, if necessary, go further with discretionary tax increases or spending cuts. As a result, fiscal policies are expected to follow countercyclical patterns through automatic stabilizers and discretionary channels. In other words, one would expect a positive correlation between changes in output and changes in the fiscal balance or a negative correlation between changes in output and changes in government expenditure.

However, empirical studies show that fiscal policies are procyclical in developing countries and in OPCs.5 They increase spending with an increase in oil revenue during an oil price boom. They are forced to reduce spending because of a revenue decline as a result of a drop in oil prices. Since, in general, these countries are not able to accumulate savings in years with high oil revenues, they can only finance deficits by cutting expenditure during revenue shortfalls. Fouad and others (2007), Abdih and others (2010), and Villafuerte and Lopez-Murphy (2010) find that oil-producing countries followed procyclical fiscal policies during the recent oil price cycle. Baldini (2005) and De Cima (2003) also present evidence for the procyclicality of fiscal policies in two oil-producing countries, Venezuela and Mexico. More recent studies, e.g. Ilzetzki and Vegh (2008), find, using instrumental variable regression, strong evidence of procyclical fiscal policy in developing countries.

Two broad arguments that have been proposed as an explanation for procyclical policies in developing counties also apply to OPCs: constraints on financing (or limited access to credit markets) and factors related to the structure of the economy ( the budget, political, power, and social structure, and weak institutions). In general, these factors are presented separately but they go together and are likely to reinforce each other. For example, weak institutions, the budget structure, or a corrupt government may hinder prudent fiscal policies, which may, in turn, affect fiscal sustainability and creditworthiness by amplifying the financing constraints.

Liquidity and borrowing constraints emerge when a developing country needs financing the most--during a downturn--and that is when it is least likely to be able to obtain it. Many countries do not have significant foreign assets or developed domestic financial markets to raise funds. When these countries face large terms of trade shocks (i.e., a sharp fall in oil prices in the case of OPCs), investors may lose confidence and be less likely to lend, because they fear that the lack of policy credibility and discipline may force the government to run up large budget deficits and to default.6 Governments in this situation will also experience recurring credit constraints in world capital markets (―sudden stops,‖ as explained in Calvo and Reinhart (2000)), which hamper their ability to conduct countercyclical policies.

Oil stabilization funds have been increasingly used by OPCs as an instrument to cope with oil revenue volatility. These funds are aimed at stabilizing budgetary revenues: when oil revenues are high, some portion of the revenue would be channeled to the stabilization fund; when oil revenues are low, the stabilization fund would finance the shortfall. However, the creation of such funds is found to have no impact on the relationship between oil export earnings and government expenditure in countries where no sound and transparent fiscal and macroeconomic policies were implemented.7 Moreover, some oil funds have operated outside existing budget systems and are often accountable to only a few political appointees. This makes such funds especially susceptible to abuse and political interference. Therefore, stabilization funds should not be regarded as a substitute for sound fiscal management.

The other argument proposed to explain the difficulty in implementing countercyclical policy focuses on procyclical government spending due to three aspects of the economy and the government: the budget structure, the weak political structure and institutions, and corruption in government.

First, developing countries run procyclical fiscal policies because of their budget structure. These countries have a few automatic stabilizers built into their budgets. As a result, government spending in developing and emerging countries displays less of a countercyclical pattern than in industrial countries. For example, Gavin and Perotti (1997) note that Latin American countries spend much less on transfers and subsidies than do richer OECD economies (24 percent of total government spending, compared with 42 percent in the industrial countries). Furthermore, most developing countries and OPCs cannot raise revenue effectively through taxes since they usually suffer from inefficient tax collection systems, owing to the low level of compliance with tax laws, insufficient political commitment, and a lack of capacity, expertise, and resources.8 Additionally, non-oil tax bases in these countries are in general very low.9

Second, weak institutions and political structure encourage multiple powerful groups in a society to attempt to grab a greater share of national wealth by demanding higher public spending on their behalf. This behavior, called the ―voracity effect‖ by Tornell and Lane (1999), results in fiscal procyclicality arising from common pool problems, whereby a positive shock to income leads to a more than proportional increase in public spending, even if the shock is expected to be temporary. This is discussed extensively in ―resource curse‖ literature as a reason for low economic growth in resource-rich countries.10 Moreover, fiscal policies are more intense in countries with political systems having multiple fiscal veto points and higher output volatility (Stein, Talvi, and Grisanti, 1998;and Talvi and Végh, 2000). Similarly, Lane (2003) and Fatas and Mihov (2001) find that countries with power dispersion are likely to experience volatile output and procyclical fiscal behavior.

Lastly, Alesina and Tabellini (2005) argue that a more corrupt government displays more procyclical fiscal policies as voters, who do not trust the government, demand higher utility when they see aggregate output rising. This behavior would be more prevalent in democracies since a corrupt government is accountable to the voters, whereas, in a dictatorship, the government would not be accountable and, even if corruption were widespread, voters could not influence fiscal policy. Alesina and Tabellini conclude that corrupt governments in democracies, rather than credit market imperfections, are the underlying cause of procyclical fiscal policy.


[...]


The results confirm that political and institutional factors, as well as financing constraints, play a role in the cyclicality of fiscal policies in the OPCs. Most of the variables on the quality of institutions and the political structure appear to be significant for the low- income group. Two of the variables are significant for the middle-income countries: the composite institution index and checks and balances. None of the institutional variables turns out to be significant for the high-income countries.21 Domestic financing constraints seem to matter for the low-income group. But fiscal policy is affected more by the external financing constraint in the middle- and high-income groups, as they may be more integrated into the global financial system than the low-income countries.

Despite their many differences, all the OPCs face volatile and unpredictable oil revenues, a situation that makes fiscal management challenging. For this reason, it is imperative for them to formulate effective countercyclical fiscal policies by which they can smooth government expenditure, decouple it from the volatile oil revenues, and prevent boom-and-bust cycles. Breaking away from a procyclical fiscal policy will enable them to sustain long-term growth and keep the safety net that the poor need. Sound fiscal policies and discipline require strong institutions, a higher-level bureaucracy, and more transparency. Strong institutions and transparency would also help reduce the ―voracity effect,‖ which, in turn, would facilitate the accumulation of financial assets and build up confidence among investors to raise funds when needed.

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Europeans are approving important new drugs more rapidly than we are

The FDA Is Evading the Law. By SCOTT GOTTLIEB
Europeans are approving important new drugs more rapidly than we are.
WSJ, Dec 24, 2010
http://online.wsj.com/article/SB10001424052748704034804576025981869663212.html

This year, the Food and Drug Administration rejected the only medicine capable of treating the rare and fatal lung disease known as idiopathic pulmonary fibrosis. Pirfenidone, which has been available in Japan since 2008 and was just approved in Europe, was spurned by the FDA because the drug only showed efficacy in a single big trial—not the two large studies the FDA now requires. The decision to ban the drug is one of a rash of recent decisions that shows the FDA is making it more and more difficult for promising drugs to reach severely ill patients.

Last week, the FDA revoked an approval for the cancer drug Avastin because it said that evidence supporting its use in breast cancer wasn't strong enough. (The drug was judged ineffective because it merely stalls the spread of tumors.) European regulators, looking at the same data, made the opposite decision.

It wasn't supposed to be this way. In 1997, Congress passed the FDA Modernization Act, which gave the FDA broad discretion to reduce the quantity and rigor of clinical data needed to approve drugs targeting grave illnesses. The purpose of the law was to save lives by reducing the cost and time needed to launch such medicines.

But the FDA has steadily disregarded many of the law's provisions. Longer, larger trials that require drug makers to evaluate "hard" endpoints (like how long a cancer patient lives) rather than "surrogate" endpoints (like a drug's ability to shrink tumors) give FDA reviewers more statistical confidence. Reviewers prefer these drawn-out trials because they insulate the FDA from critics who say that it isn't focused enough on safety. But bigger trials increase the time needed to develop a drug, keeping it out of the hands of patients.

The Modernization Act also allowed the FDA to conduct drug trials in which patients are treated with an experimental medicine in a single group or "arm," and the trial can be completed in less than a year. But the FDA doesn't often opt for such trials. The agency commonly requests more complex, "multi-arm" and "placebo controlled" studies, which can take three years to finish and are much more expensive. Each patient enrolled in a trial adds over $30,000 to drug-development costs.

Of 76 cancer drugs approved since 2005, the FDA gave only 13 "accelerated approval"—another process created under the Modernization Act to expedite drug development. From 2001 to 2003, 78% of the novel cancer drugs approved were granted accelerated approval. Since then only 32% got the designation.

What's more, the clinical trial requirements that the FDA is imposing on cancer drugs with accelerated approval are now as burdensome as the requirements imposed on regular drugs. So, practically speaking, having "accelerated approval" doesn't mean anything.

Europeans are now approving novel drugs an average of three months more rapidly than we do. Of 82 novel drugs that were submitted for approval in both the U.S. and Europe between 2006 to 2009, 11 were approved only in Europe. One is for relapsed ovarian cancer, another for bone cancer.

To reverse these discouraging trends, Congress should reaffirm the provisions of the Modernization Act. It should spell out in legislation that the FDA "shall"—rather than "may"—approve drugs for severe conditions on the basis of a single study, or a more lenient statistical orthodoxy than "two, randomized, placebo controlled trials."

While Congress may not want to get into the business of establishing the FDA's analytical methods, it can call on the agency to convene an advisory panel to cultivate principles that are more permissive when it comes to very bad diseases. And it could go a step further, empowering patient groups with a mechanism to seek review of FDA decisions.

Congress also needs to modernize the way the FDA's review process is organized in order to increase efficiency and enable more cooperation. The science embedded in the most novel drugs is increasingly complex, requiring collaboration across many disciplines, including clinical medicine, pharmacology and statistical modeling.

But in recent years, the FDA has carved out each scientific discipline into its own distinct office. In addition, new work rules allow drug reviewers to spend two days each week working from home. The result is that FDA scientists don't collaborate well. Reviewers rarely meet as full teams, so they struggle to resolve internal debates and provide timely feedback to drug makers. The FDA's scientists should be organized around areas of therapeutic expertise—not broken into discrete offices based on what degree they have.

Finally, the FDA should be required to disclose its reasons for rejecting a drug.

The next Congress will reauthorize a user fee program that funds the FDA's review process. It should use this legislation to revive the FDA's fundamental mission: giving very sick Americans the best medical options available.

Dr. Gottlieb, a former deputy commissioner of the Food and Drug Administration, is a fellow at the American Enterprise Institute and a practicing internist. He invests in and consults with drug companies.

Taxes and the Top Percentile Myth

Taxes and the Top Percentile Myth. By Alan Reynolds
A 2008 OECD study of leading economies found that 'taxation is most progressively distributed in the United States.' More so than Sweden or France.
WSJ, Dec 23, 2010
http://online.wsj.com/article/SB10001424052748703581204576033861522959234.html


When President Obama announced a two-year stay of execution for taxpayers on Dec. 7, he made it clear that he intends to spend those two years campaigning for higher marginal tax rates on dividends, capital gains and salaries for couples earning more than $250,000. "I don't see how the Republicans win that argument," said the president.

Despite the deficit commission's call for tax reform with fewer tax credits and lower marginal tax rates, the left wing of the Democratic Party remains passionate about making the U.S. tax system more and more progressive. They claim this is all about payback—that raising the highest tax rates is the fair thing to do because top income groups supposedly received huge windfalls from the Bush tax cuts. As the headline of a Robert Creamer column in the Huffington Post put it: "The Crowd that Had the Party Should Pick up the Tab."

Arguments for these retaliatory tax penalties invariably begin with estimates by economists Thomas Piketty of the Paris School of Economics and Emmanuel Saez of U.C. Berkeley that the wealthiest 1% of U.S. households now take home more than 20% of all household income.

This estimate suffers two obvious and fatal flaws. The first is that the "more than 20%" figure does not refer to "take home" income at all. It refers to income before taxes (including capital gains) as a share of income before transfers. Such figures tell us nothing about whether the top percentile pays too much or too little in income taxes.

In The Journal of Economic Perspectives (Winter 2007), Messrs. Piketty and Saez estimated that "the upper 1% of the income distribution earned 19.6% of total income before tax [in 2004], and paid 41% of the individual federal income tax." No other major country is so dependent on so few taxpayers.

A 2008 study of 24 leading economies by the Organization of Economic Cooperation and Development (OECD) concludes that, "Taxation is most progressively distributed in the United States, probably reflecting the greater role played there by refundable tax credits, such as the Earned Income Tax Credit and the Child Tax Credit. . . . Taxes tend to be least progressive in the Nordic countries (notably, Sweden), France and Switzerland."

The OECD study—titled "Growing Unequal?"—also found that the ratio of taxes paid to income received by the top 10% was by far the highest in the U.S., at 1.35, compared to 1.1 for France, 1.07 for Germany, 1.01 for Japan and 1.0 for Sweden (i.e., the top decile's share of Swedish taxes is the same as their share of income).

A second fatal flaw is that the large share of income reported by the upper 1% is largely a consequence of lower tax rates. In a 2010 paper on top incomes co-authored with Anthony Atkinson of Nuffield College, Messrs. Piketty and Saez note that "higher top marginal tax rates can reduce top reported earnings." They say "all studies" agree that higher "top marginal tax rates do seem to negatively affect top income shares."

What appears to be an increase in top incomes reported on individual tax returns is often just a predictable taxpayer reaction to lower tax rates. That should be readily apparent from the nearby table, which uses data from Messrs. Piketty and Saez to break down the real incomes of the top 1% by source (excluding interest income and rent).

The first column ("salaries") shows average labor income among the top 1% reported on W2 forms—from salaries, bonuses and exercised stock options. A Dec. 13 New York Times article, citing Messrs. Piketty and Saez, claims, "A big reason for the huge gains at the top is the outsize pay of executives, bankers and traders." On the contrary, the table shows that average real pay among the top 1% was no higher at the 2007 peak than it had been in 1999.

In a January 2008 New York Times article, Austan Goolsbee (now chairman of the President's Council of Economic Advisers) claimed that "average real salaries (subtracting inflation) for the top 1% of earners . . . have been growing rapidly regardless of what happened to tax rates." On the contrary, the top 1% did report higher salaries after the mid-2003 reduction in top tax rates, but not by enough to offset losses of the previous three years. By examining the sources of income Mr. Goolsbee chose to ignore—dividends, capital gains and business income—a powerful taxpayer response to changing tax rates becomes quite clear.

The second column, for example, shows real capital gains reported in taxable accounts. President Obama proposes raising the capital gains tax to 20% on top incomes after the two-year reprieve is over. Yet the chart shows that the top 1% reported fewer capital gains in the tech-stock euphoria of 1999-2000 (when the tax rate was 20%) than during the middling market of 2006-2007. It is doubtful so many gains would have been reported in 2006-2007 if the tax rate had been 20%. Lower tax rates on capital gains increase the frequency of asset sales and thus result in more taxable capital gains on tax returns.

The third column shows a near tripling of average dividend income from 2002 to 2007. That can only be explained as a behavioral response to the sharp reduction in top tax rates on dividends, to 15% from 38.6%. Raising the dividend tax to 20% could easily yield no additional revenue if it resulted in high-income investors holding fewer dividend- paying stocks and more corporations using stock buybacks rather than dividends to reward stockholders.

The last column of the table shows average business income reported on the top 1% of individual tax returns by subchapter S corporations, partnerships, proprietorships and many limited liability companies. After the individual tax rate was brought down to the level of the corporate tax rate in 2003, business income reported on individual tax returns became quite large. For the Obama team to argue that higher taxes on individual incomes would have little impact on business denies these facts.

If individual tax rates were once again pushed above corporate rates, some firms, farms and professionals would switch to reporting income on corporate tax forms to shelter retained earnings. As with dividends and capital gains, this is another reason that estimated revenues from higher tax rates are unbelievable.

The Piketty and Saez estimates are irrelevant to questions about income distribution because they exclude taxes and transfers. What those figures do show, however, is that if tax rates on high incomes, capital gains and dividends were increased in 2013, the top 1%'s reported share of before-tax income would indeed go way down. That would be partly because of reduced effort, investment and entrepreneurship. Yet simpler ways of reducing reported income can leave the after-tax income about the same (switching from dividend-paying stocks to tax-exempt bonds, or holding stocks for years).

Once higher tax rates cause the top 1% to report less income, then top taxpayers would likely pay a much smaller share of taxes, just as they do in, say, France or Sweden. That would be an ironic consequence of listening to economists and journalists who form strong opinions about tax policy on the basis of an essentially irrelevant statistic about what the top 1%'s share might be if there were not taxes or transfers.

Mr. Reynolds is a senior fellow at the Cato Institute and the author of "Income and Wealth" (Greenwood Press 2006).

Cisneros Rewriting HUD History

Posted by Tad DeHaven, Cato, June 17, 2010 @ 1:50 pm

In a recent speech to real estate interests, former Clinton HUD secretary Henry Cisneros preposterously claimed that the recent housing meltdown “occurred not out of a governmental push, but out of a hijacking of the homeownership process by some unscrupulous interests.”
The only criticisms Cisneros could muster for the government’s housing policies over the past 20 years were that regulations weren’t tough enough and it should have focused more on rental subsidies.

The reality is that Cisneros-era HUD regulations and policies directly contributed to the housing bubble and subsequent burst as a Cato essay on HUD scandals illustrates:

• Cisneros’s HUD pursued legal action against mortgage lenders who supposedly declined higher percentages of loans for minorities than whites. As a result of such political pressure, lenders begin lowering their lending standards.

• On Cisneros’s watch, the Community Reinvestment Act was used to pressure lenders into making more loans to moderate-income borrowers by allowing regulators to deny merger approvals for banks with low CRA ratings. The result was that banks began issuing more loans to otherwise uncreditworthy borrowers, while purchasing more CRA mortgage-backed securities. More importantly, these lax standards quickly spread to prime and subprime mortgage markets.

• The Clinton administration’s National Homeownership Strategy, prepared under Cisneros’s direction, advocated “financing strategies, fueled by creativity and resources of the public and private sectors, to help homebuyers that lack cash to buy a home or income to make the payments.” In other words, his policies encouraged the behavior that he now calls “unscrupulous.”

• Cisneros’s HUD also put Fannie Mae and Freddie Mac under constant pressure to facilitate more lending to “underserved” markets. It was under Cisneros’s direction that HUD agreed to allow Fannie and Freddie credit toward its “affordable housing” targets by buying subprime mortgages. Fannie and Freddie are now under government conservatorship and will cost taxpayers hundreds of billions of dollars.

Cisneros now serves as the executive chairman of an institutional investment company focused on urban real estate. Might that explain why Cisneros is now a fan of subsidizing rental housing?
“Unscrupulous” would be a good word to describe the millions of dollars Cisneros has made in the real estate industry following his exit from government.
From the Cato essay:

In 2001, Cisneros joined the board of Fannie Mae’s biggest client: the now notorious Countrywide Financial, the company that was center stage in the subprime lending scandals of recent years. When the housing bubble was inflating, Countrywide and KB took full advantage of the liberalized lending standards fueled by Cisneros’s HUD. In addition to the money he received as a KB director, Cisneros’s company, in which he held a 65 percent stake, received $1.24 million in consulting fees from KB in 2002.
When Cisneros stepped down from Countrywide’s board in 2007, he called it a “well-managed company” and said that he had “enormous confidence” in its leadership. Clearly, those statements were baloney—Cisneros was trying to escape before the crash. Just days before his resignation, Countrywide announced a $1.2 billion loss, and reported that a third of its borrowers were late on mortgage payments. According to SEC records, Cisneros’s position at Countrywide had earned him a $360,000 salary in 2006 and $5 million in stock sales since 2001.

The State Department is sitting on funds to free the flow of information in closed societies

Mrs. Clinton, Tear Down this Cyberwall. By L. GORDON CROVITZ
The State Department is sitting on funds to free the flow of information in closed societies.WSJ, May 03, 2010

When a government department refuses to spend money that Congress has allocated, there's usually a telling backstory. This is doubly so when the funds are for a purpose as uncontroversial as making the Internet freer.

So why has the State Department refused to spend $45 million in appropriations since 2008 to "expand access and information in closed societies"? The technology to circumvent national restrictions is being provided by volunteers who believe that with funding they can bring Web access to many more people, from Iran to China.

A bipartisan group in Congress intended to pay for tests aimed at expanding the use of software that brings Internet access to "large numbers of users living in closed societies that have acutely hostile Internet environments." The most successful of these services is provided by a group called the Global Internet Freedom Consortium, whose programs include Freegate and Ultrasurf.

When Iranian demonstrators last year organized themselves through Twitter posts and brought news of the crackdown to the outside world, they got past the censors chiefly by using Freegate to get access to outside sites.

The team behind these circumvention programs understands how subversive their efforts can be. As Shiyu Zhou, deputy director of the Global Internet Freedom Consortium, told Congress last year, "The Internet censorship firewalls have become 21st-century versions of Berlin Walls that isolate and dispirit the citizens of closed-society dictatorships."

Repressive governments rightly regard the Internet as an existential threat, giving people powerful ways to communicate and organize. These governments also use the Web as a tool of repression, monitoring emails and other traffic. Recall that Google left China in part because of hacking of human-rights activists' Gmail accounts.

To counter government monitors and censors, these programs give online users encrypted connections to secure proxy servers around the world. A group of volunteers constantly switches the Internet Protocol addresses of the servers—up to 10,000 times an hour. The group has been active since 2000, and repressive governments haven't figured out how to catch up. More than one million Iranians used the system last June to post videos and photos showing the government crackdown.

Mr. Zhou tells me his group would use any additional money to add equipment and to hire full-time technical staff to support the volunteers. For $50 million, he estimates the service could accommodate 5% of Chinese Internet users and 10% in other closed societies—triple the current capacity.

So why won't the State Department fund this group to expand its reach, or at least test how scalable the solution could be? There are a couple of explanations.

The first is that the Global Internet Freedom Consortium was founded by Chinese-American engineers who practice Falun Gong, the spiritual movement suppressed by Beijing. Perhaps not the favorites of U.S. diplomats, but what other group has volunteers engaged enough to keep such a service going? As with the Jewish refuseniks who battled the Soviet Union, sometimes it takes a persecuted minority to stand up to a totalitarian regime.

The second explanation is a split among technologists—between those who support circumvention programs built on proprietary systems and others whose faith is on more open sources of code. A study last year by the Berkman Center at Harvard gave more points to open-source efforts, citing "a well-established contentious debate among software developers about whether secrecy about implementation details is a robust strategy for security." But whatever the theoretical objections, the proprietary systems work.

Another likely factor is realpolitik. Despite the tough speech Hillary Clinton gave in January supporting Internet freedom, it's easy to imagine bureaucrats arguing that the U.S. shouldn't undermine the censorship efforts of Tehran and Beijing. An earlier generation of bureaucrats tried to edit, as overly aggressive, Ronald Reagan's 1987 speech in Berlin urging Mikhail Gorbachev: "Tear down this wall."

It's true that circumvention doesn't solve every problem. Internet freedom researcher and advocate Rebecca MacKinnon has made the point that "circumvention is never going to be the silver bullet" in the sense that it can only give people access to the open Web. It can't help with domestic censorship.

During the Cold War, the West expended huge effort to get books, tapes, fax machines, radio reports and other information, as well as the means to convey it, into closed societies. Circumvention is the digital-age equivalent.

If the State Department refuses to support a free Web, perhaps there's a private solution. An anonymous poster, "chinese.zhang," suggested on a Google message board earlier this year that the company should fund the Global Internet Freedom Consortium as part of its defense against Chinese censorship. "I think Google can easily offer more servers to help to break down the Great Firewall," he wrote.

The US EPA opens a re-re-evaulation of atrazine

The War on a Weed Killer. WSJ Editorial
The EPA opens a re-re-evaulation of a safe chemical.WSJ, May 03, 2010

With the headlines full of oil spills and immigration, the Obama Administration's regulatory agenda is getting little attention. That's a mistake. Consider the Environmental Protection Agency's effort to revive an assault on atrazine, one of the oldest, most well-established agricultural chemicals on the market. Just this past week, the EPA held its third "re-evaluation" hearing on atrazine.

Atrazine is the nation's second-most common herbicide. For 50 years it has been the farm industry's primary crop protector. In the U.S., the weed killer is used in the production of 60% of corn, 75% of sorghum and 90% of sugarcane.

Since atrazine's debut in 1959, 10 Administrations have endorsed its use. The EPA in 2006 completed a 12-year review involving 6,000 studies and 80,000 public comments. In re-registering the product, the agency concluded the cumulative risks posed "no harm that would result to the general U.S. population, infant, children or other . . . consumers." The World Health Organization has found no health concerns.

None of this has stopped the most politicized environmental groups, which oppose both chemicals and the idea of industrial farming itself. Organizations such as the Natural Resources Defense Council have spent years ginning up claims that atrazine in groundwater causes cancer, birth defects and other maladies. Manufacturers such as Syngenta have been required to conduct millions of dollars worth of studies investigating these alarmist claims. EPA staff routinely review the studies in atrazine's favor.

But now the Obama Administration has begun to fill such agencies with hires who are either sympathetic to, or even hail from, these activist groups. Consider the EPA's new head for toxic substances, Stephen Owens. As director of Arizona's Department of Environmental Quality, he so aggressively imposed an activist's climate agenda that the state legislature voted to strip his department of authority to enact greenhouse gas rules.

In August, the NRDC and the Pesticide Action Network began a new campaign against atrazine. In October, the EPA announced it would begin a re-re-evaluation of atrazine with a series of scientific panel meeting, and those are underway. The goal seems to be to lay the groundwork to ban atrazine.

Among the environmental lobby's new lines of attack is that some U.S. water systems occasionally show "spikes" in the chemical. This ignores that the EPA's drinking water standard for atrazine—three parts per billion—has a built-in, 1,000-fold safety factor. It ignores EPA findings that atrazine isn't likely to be carcinogenic to humans.

Also re-energized by the EPA's sudden interest in atrazine is, you guessed it, the plaintiffs bar. Tort kingpin Stephen Tillery, joined by Baron & Budd, filed a class action in 2004 against atrazine makers in tort-friendly Madison County, Illinois, but they've struggled even there. The EPA's re-re-evaluation is already helping the lawyers sign up more water-district plaintiffs—Mr. Tillery has filed a new federal class action—and it surely will provide ammunition in court.

There is an agenda here far more ambitious than getting one chemical. The environmental lobby wants more farmland retired to "nature," and one way to do that is to make farming more expensive. The EPA notes that eliminating atrazine would cost $2 billion annually in lost crop yields and substituting more expensive herbicides. Some farmers would go out of business or ask the federal government for more subsidies.

The environmental lobby also figures that if it can take down atrazine with its long record of clean health, it can get the EPA to prohibit anything. Sounds plausible. Between this and its determination to regulate greenhouse gases, the Obama EPA is proving itself a regulatory fundamentalist, with scant regard for good science or economics.

My Gift to the Obama Presidency - Bush lawyers were protecting the executive's power to fight a vigorous war on terror

My Gift to the Obama Presidency. By JOHN YOO
Though the White House won't want to admit it, Bush lawyers were protecting the executive's power to fight a vigorous war on terror.
WSJ, Feb 24, 2010

Barack Obama may not realize it, but I may have just helped save his presidency. How? By winning a drawn-out fight to protect his powers as commander in chief to wage war and keep Americans safe.

He sure didn't make it easy. When Mr. Obama took office a year ago, receiving help from one of the lawyers involved in the development of George W. Bush's counterterrorism policies was the furthest thing from his mind. Having won a great electoral victory, the new president promised a quick about-face. He rejected "as false the choice between our safety and our ideals" and moved to restore the law-enforcement system as the first line of defense against a hardened enemy devoted to killing Americans.

In office only one day, Mr. Obama ordered the shuttering of the detention facility at Guantanamo Bay, followed later by the announcement that he would bring terrorists to an Illinois prison. He terminated the Central Intelligence Agency's ability to use "enhanced interrogations techniques" to question al Qaeda operatives. He stayed the military trial, approved by Congress, of al Qaeda leaders. He ultimately decided to transfer Khalid Sheikh Mohammed, the planner of the 9/11 attacks, to a civilian court in New York City, and automatically treated Umar Farouk Abdulmutallab, who tried to blow up a Detroit-bound airliner on Christmas Day, as a criminal suspect (not an illegal enemy combatant). Nothing better could have symbolized the new president's determination to take us back to a Sept. 10, 2001, approach to terrorism.

Part of Mr. Obama's plan included hounding those who developed, approved or carried out Bush policies, despite the enormous pressures of time and circumstance in the months immediately after the September 11 attacks. Although career prosecutors had previously reviewed the evidence and determined that no charges are warranted, last year Attorney General Eric Holder appointed a new prosecutor to re-investigate the CIA's detention and interrogation of al Qaeda leaders.

In my case, he let loose the ethics investigators of the Justice Department's Office of Professional Responsibility (OPR) to smear my reputation and that of Jay Bybee, who now sits as a federal judge on the court of appeals in San Francisco. Our crime? While serving in the Justice Department's Office of Legal Counsel in the weeks and months after 9/11, we answered in the form of memoranda extremely difficult questions from the leaders of the CIA, the National Security Council and the White House on when interrogation methods crossed the line into prohibited acts of torture.

Rank bias and sheer incompetence infused OPR's investigation. OPR attorneys, for example, omitted a number of precedents that squarely supported the approach in the memoranda and undermined OPR's preferred outcome. They declared that no Americans have a right of self-defense against a criminal prosecution, not even when they or their government agents attempt to stop terrorist attacks on the United States. OPR claimed that Congress enjoyed full authority over wartime strategy and tactics, despite decades of Justice Department opinions and practice defending the president's commander-in-chief power. They accused us of violating ethical standards without ever defining them. They concocted bizarre conspiracy theories about which they never asked us, and for which they had no evidence, even though we both patiently—and with no legal obligation to do so—sat through days of questioning.

OPR's investigation was so biased, so flawed, and so beneath the Justice Department's own standards that last week the department's ranking civil servant and senior ethicist, David Margolis, completely rejected its recommendations.

Attorney General Holder could have stopped this sorry mess earlier, just as his predecessor had tried to do. OPR slow-rolled Attorney General Michael Mukasey by refusing to deliver a draft of its report until the 2008 Christmas and New Year holidays. OPR informed Mr. Mukasey of its intention to release the report on Jan. 12, 2009, without giving me or Judge Bybee the chance to see it—as was our right and as we'd been promised.

Mr. Mukasey and Deputy Attorney General Mark Filip found so many errors in the report that they told OPR that the entire enterprise should be abandoned. OPR decided to run out the clock and push the investigation into the lap of the Obama administration. It would have been easy for Mr. Holder to concur with his predecessors—in fact, it was critical that he do so to preserve the Justice Department's impartiality. Instead the new attorney general let OPR's investigators run wild. Only Mr. Margolis's rejection of the OPR report last week forced the Obama administration to drop its ethics charges against Bush legal advisers.

Why bother fighting off an administration hell-bent on finding scapegoats for its policy disagreements with the last president? I could have easily decided to hide out, as others have. Instead, I wrote numerous articles (several published in this newspaper) and three books explaining and defending presidential control of national security policy. I gave dozens of speeches and media appearances, where I confronted critics of the administration's terrorism policies. And, most importantly, I was lucky to receive the outstanding legal counsel of Miguel Estrada, one of the nation's finest defense attorneys, to attack head-on and without reservation, each and every one of OPR's mistakes, misdeeds and acts of malfeasance.

I did not do this to win any popularity contests, least of all those held in the faculty lounge. I did it to help our president—President Obama, not Bush. Mr. Obama is fighting three wars simultaneously in Iraq, Afghanistan, and against al Qaeda. He will call upon the men and women serving under his command to make choices as hard as the ones we faced. They cannot meet those challenges with clear minds if they believe that a bevy of prosecutors, congressional committees and media critics await them when they return from the battlefield.

This is no idle worry. In 2005, a Navy Seal team dropped into Afghanistan encountered goat herders who clearly intended to inform the Taliban of their whereabouts. The team leader ordered them released, against his better military judgment, because of his worries about the media and political attacks that would follow.

In less than an hour, more than 80 Taliban fighters attacked and killed all but one member of the Seal team and 16 Americans on a helicopter rescue mission. If a president cannot, or will not, protect the men and women who fight our nation's wars, they will follow the same risk-averse attitudes that invited the 9/11 attacks in the first place.

Without a vigorous commander-in-chief power at his disposal, Mr. Obama will struggle to win any of these victories. But that is where OPR, playing a junior varsity CIA, wanted to lead us. Ending the Justice Department's ethics witch hunt not only brought an unjust persecution to an end, but it protects the president's constitutional ability to fight the enemies that threaten our nation today.

Mr. Yoo, a law professor at the University of California, Berkeley and visiting scholar at the American Enterprise Institute, was a Justice Department official from 2001-03. He is the author, among other books, of "Crisis and Command: A History of Executive Power from George Washington to George W. Bush" (Kaplan, 2010).

Obama vs. Holder

Obama vs. Holder. By Stephen F. Hayes

The Weekly Standard, February 3, 2010 3:45 PM

In an interview with 60 Minutes last spring, President Obama discussed the handling of captured terrorists and challenged those who claimed the "American system of justice was not up to the task of dealing with these terrorists."

Obama said: "I fundamentally disagree with that. Now -- do these folks deserve Miranda rights? Do they deserve to be treated like a shoplifter -- down the block? Of course not." President Obama ought to call Attorney General Eric Holder.  In a five-page letter to Senator Mitch McConnell, Holder lays out in exhaustive detail exactly why these folks deserve Miranda rights and why his Justice Department will treat them like a shoplifter down the block.

Holder's letter responds to criticism of the Obama administration's handling of Umar Farouk Abdulmutallab, the Christmas Day bomber, from McConnell and other Republicans. Holder writes:

The decision to charge Mr. Abdulmutallab in federal court, and the methods used to interrogate him, are fully consistent with the long-established and publicly known policies and practices of the Department of Justice, the FBI, and the United States Government as a whole, as implemented for many years by Administrations of both parties. Those policies and practices, which were not criticized when employed by previous Administrations, have been and remain extremely effective in protecting national security. They are among the many powerful weapons this country can and should use to win the war against al-Qaeda.
I am confident that, as a result of the hard work of the FBI and our career federal prosecutors, we will be able to successfully prosecute Mr. Abdulmutallab under the federal criminal law. I am equally confident that the decision to address Mr. Abdulmutallab's actions through our criminal justice system has not, and will not, compromise our ability to obtain information needed to detect and prevent future attacks.

Nobody doubts that Abdulmutallab can be prosecuted. There were nearly three hundred people on the plane when he tried to blow it up. He lit himself on fire. Authories gathered his badly burned underpants and the components of the bomb. His prosecution was never seriously in question, which is precisely what makes the decision to Mirandize him quickly so outrageous.

But Holder's second claim is false. Abdulmutallab spoke openly to FBI agents in his initial 50-minute interrogation -- questioning that took place before he was Mirandized.  He then received treatment for his burns. And five hours after his initial interrogation a second team of interrogators was brought in to question him. These interrogators were part of a "clean team," brought in to interrogate him after he was read his Miranda rights. The previous interrogation, while potentially helpful in obtaining intelligence, was "dirty" because he had not yet been Mirandized and thus unusable in his prosecution.  The "clean team" began by reading Abdulmutallab his rights. And Abdulmutallab, advised of his right to remain silent, chose to exercise it.

Does Holder really mean to suggest that the U.S. government would not have obtained more -- and better -- intelligence if the FBI had continued to interrogate him on Christmas Day?

The U.S. intelligence community had put together a dossier of the intelligence collected on Abdulmutallab in the six months prior to the Christmas Day attack. The FBI interrogators did not have access to this information when they questioned him.  Does Holder believe that there was nothing more to be learned by using this information?  Holder argues that the FBI and Justice Department officials "did precisely what they are trained to do, what their policies require them to do, and what this nation expects them to do."

Holder's predecessor, Attorney General Mike Mukasey, disagrees.  "Holding Abdulmutallab for a time in military custody, regardless of where he is ultimately to be charged, would have been entirely lawful—even in the view of the current administration, which has taken the position that it needs no further legislative authority to hold dangerous detainees even for a lengthy period in the United States," Mukasey wrote in the Wall Street Journal on January 7. "Then we could decide at relative leisure where to charge him—whether before a military commission or before a civilian court."

It's certainly cause for concern that Holder either does not recognize or will not admit the many mistakes in the handling of Abdulmutallab. But what's more disturbing is the fact that he is committed to handling future terrorists -- regardless of who they are or what danger the present -- in precisely the same manner.

"Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney. But the government's legal authority to do so is far from clear," according to Holder. He also writes that the law and FBI policy require providing "Miranda warnings prior to any custodial interrogation conducted inside the United States," unless a "public safety" exception is permitted.  (To make his point on a public safety exception, Holder uses the example of someone who has committed an armed offense that compels authorities to ask about the location of the gun.)  Holder further argues that "there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney."

Follow that logic.  If Holder is correct, the FBI could pick up al Qaeda's chief of operations in, say, Tampa, Florida, and unless he met the criteria for a public safety exception (i.e. had a gun), the FBI would be required to Mirandize him immediately and give him a lawyer. So someone with detailed and intimate knowledge of al Qaeda -- its leaders, its finances, its recruitment, its training and, yes, its future operations -- would be told he has the right to remain silent and provided counsel.

Holder seems to understand that this is a problem.  So his letter seeks to reassure: "While in some cases defense counsel may advise their clients to remain silent, there are situations in which they properly and wisely encourage cooperation because it is in their client's best interest, given the substantial sentences they might face."

Thank goodness.

It's no wonder that Holder couldn't answer Lindsey Graham's question at a hearing last fall about whether the U.S. government would be required to Mirandize Osama bin Laden if he were captured.  Holder's answer: "That all depends." Because if bin Laden were apprehended in the United States -- to take the logic to absurd lengths -- the FBI would read him his rights and get him a lawyer.

So what about Obama's words to 60 Minutes last spring.  "Do these folks deserve Miranda rights? Do they deserve to be treated like a shoplifter-- down the block?"
The president said: "Of course not." His attorney general says: "Yes."

Health Experts and Double Standards - Jonathan Gruber, Peter Orszag and the press corps

Health Experts and Double Standards. WSJ Editorial
Jonathan Gruber, Peter Orszag and the press corps.
The Wall Street Journal, page A18, Jan 14, 2010

The press corps is agonizing, or claims to be agonizing, over the news of Jonathan Gruber's conflict of interest: The MIT economist has been among the foremost promoters of ObamaCare—even as he had nearly $400,000 in consulting contracts with the Administration that weren't disclosed in the many stories in which he was cited as an independent authority.

Mr. Gruber is a health economist and former Clinton Treasury hand, as well an architect of Mitt Romney's 2006 health plan in Massachusetts that so closely resembles ObamaCare. His econometric health-care modelling is well-regarded. So his $297,600 plum from the Department of Health and Human Services in March for "technical assistance" estimating changes in insurance costs and coverage under ObamaCare, plus another $95,000 job, is at least defensible.

However, this financial relationship only came to wide notice when Mr. Gruber wrote a commentary for the New England Journal of Medicine, which has a more stringent disclosure policy than most media outlets. Last week the New York Times said it would have disclosed Mr. Gruber's financial ties had it known when it published one of his op-eds last year. Mr. Gruber told Politico's Ben Smith that "at no time have I publicly advocated a position that I did not firmly believe—indeed, I have been completely consistent with my academic track record."

We don't doubt Mr. Gruber's sincerity about his research, though the same benefit of the political doubt wasn't extended to, say, Armstrong Williams when it was revealed that the conservative pundit had a contract with the Department of Education during the No Child Left Behind debate. Any number of former Generals-turned-TV-analysts were skewered in the New York Times in 2008 merely because of continuing contact—and no financial ties—with the Pentagon.

The political exploitation of Mr. Gruber's commentary is another matter. His work figured heavily into a recent piece by Ron Brownstein in the Atlantic Monthly that the Administration promoted as an antidote to skepticism about ObamaCare's cost control (or lack thereof). White House budget director Peter Orszag has also relied on a letter from Mr. Gruber and other economists endorsing the Senate bill.

In a December conference call with reporters, Mr. Orszag said that "I agree with Jon Gruber that basically everything that has been put forward in health policy discussions for a decade is in this bill." He also praised "the folks who have actually done the reporting and read the bill and gone through and done the hard work to actually examine, rather than just going on buzz and sort of loose talk, but actually gone through and looked at the specific details in the bill," citing Mr. Brownstein in particular. Which is to say, the journalists who had "done the reporting" were those who agreed with the Gruber-White House spin.

Mr. Orszag never mentioned Mr. Gruber's contract. Nor did HHS disclose the contract when Mike Enzi, the ranking Republican on the Senate health committee, asked specifically for a list of all consultants as part of routine oversight in July. His request noted that "Transparency regarding these positions will help ensure that the public has confidence in the qualifications, character and abilities of individuals serving in these positions."

We're not Marxists who think everyone's opinion depends entirely on financial circumstances. But if Mr. Gruber qualifies as a health expert despite his self-interest, then the studies of self-interested businesses deserve at least as much media attention. The insurer WellPoint has built a very detailed and rigorous model on the likely impact of ObamaCare, using its own actuarial data in regional markets, and found that insurance costs will spike across the board. The White House trashed it, and the press corps ignored it.

This is a double standard that has corroded much of the coverage of ObamaCare, with journalists treating government claims as oracular but business arguments as self-serving. We'll bet Messrs. Orszag and Brownstein that WellPoint's analysis will more closely reflect the coming insurance reality than the fruits of Mr. Gruber's government paycheck.

The Chamber of Commerce is only the latest target of the Chicago Gang in the White House

The Chicago Way. By KIMBERLEY A. STRASSEL
The Chamber of Commerce is only the latest target of the Chicago Gang in the White House.
WSJ, Oct 23, 2009

They pull a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue. That's the Chicago way.

–Jim Malone,
"The Untouchables"

When Barack Obama promised to deliver "a new kind of politics" to Washington, most folk didn't picture Rahm Emanuel with a baseball bat. These days, the capital would make David Mamet, who wrote Malone's memorable movie dialogue, proud.

A White House set on kneecapping its opponents isn't, of course, entirely new. (See: Nixon) What is a little novel is the public and bare-knuckle way in which the Obama team is waging these campaigns against the other side.

In recent weeks the Windy City gang added a new name to their list of societal offenders: the Chamber of Commerce. For the cheek of disagreeing with Democrats on climate and financial regulation, it was reported the Oval Office will neuter the business lobby. Obama adviser Valerie Jarrett slammed the outfit as "old school," and warned CEOs they'd be wise to seek better protection.

That was after the president accused the business lobby of false advertising. And that recent black eye for the Chamber (when several companies, all with Democratic ties, quit in a huff)—think that happened on its own? ("Somebody messes with me, I'm gonna mess with him! Somebody steals from me, I'm gonna say you stole. Not talk to him for spitting on the sidewalk. Understand!?")

The Chamber can at least take comfort in crowds. Who isn't on the business end of the White House's sawed-off shotgun? First up were Chrysler bondholders who—upon balking at a White House deal that rewarded only unions—were privately threatened and then publicly excoriated by the president.

Next, every pharmaceutical, hospital and insurance executive in the nation was held out as a prime obstacle to health-care nirvana. And that was their reward for cooperating. When Humana warned customers about cuts to Medicare under "reform," the White House didn't bother to complain. They went straight for the gag order. When the insurance industry criticized the Baucus health bill, the response was this week's bill to strip them of their federal antitrust immunity. ("I want you to find this nancy-boy . . . I want him dead! I want his family dead! I want his house burned to the ground!")

This summer Arizona Sen. Jon Kyl criticized stimulus dollars. Obama cabinet secretaries sent letters to Arizona Gov. Jan Brewer. One read: "if you prefer to forfeit the money we are making available to the state, as Senator Kyl suggests," let us know. The Arizona Republic wrote: "Let's not mince words here: The White House is intent on shutting Kyl up . . . using whatever means necessary." When Sens. Robert Bennett and Lamar Alexander took issue with the administration's czars, the White House singled them out, by name, on its blog. Sen. Alexander was annoyed enough to take to the floor this week to warn the White House off an "enemies list."

House Minority Whip Eric Cantor? Targeted for the sin of being a up-and-coming conservative voice. Though even Mr. Cantor was shoved aside in August so the Chicago gang could target at least seven Democratic senators, via the president's campaign arm, Organizing for America, for not doing more on health care. ("What I'm saying is: What are you prepared to do??!!")

And don't forget Fox News Channel ("nothing but a lot of talk and a badge!"). Fox, like MSNBC, has its share of commentators. But according to Obama Communications Director Anita Dunn, the entire network is "opinion journalism masquerading as news." Many previous White House press officers, when faced with criticism, try this thing called outreach. The Chicago crowd has boycotted Fox altogether.

What makes these efforts notable is that they are not the lashing out of a frustrated political operation. They are calculated campaigns, designed to create bogeymen, to divide the opposition, to frighten players into compliance. The White House sees a once-in-a-generation opportunity on health care and climate. It is obsessed with winning these near-term battles, and will take no prisoners. It knows that CEOs are easily intimidated and (Fox News ratings aside) it is getting some of its way. Besides, roughing up conservatives gives the liberal blogosphere something to write about besides Guantanamo.

The Oval Office might be more concerned with the long term. It is 10 months in; more than three long years to go. The strategy to play dirty now and triangulate later is risky. One day, say when immigration reform comes due, the Chamber might come in handy. That is if the Chamber isn't too far gone.

White House targets also aren't dopes. The corporate community is realizing that playing nice doesn't guarantee safety. The health executives signed up for reform, only to remain the president's political piñatas. It surely grates that the unions—now running their own ads against ObamaCare—haven't been targeted. If the choice is cooperate and get nailed, or oppose and possibly win, some might take that bet.

There's also the little fact that many Americans voted for this president in thrall to his vow to bring the country together. It's hard to do that amid gunfire, and voters might just notice.
("I do not approve of your methods! Yeah, well . . . You're not from Chicago.")

WaPo Editorial: Mr. Paulson on the Hot Seat - A congressional inquiry into the financial crisis and bailout ignores what went right

Mr. Paulson on the Hot Seat. WaPo Editorial
A congressional inquiry into the financial crisis and bailout ignores what went right.
Friday, July 17, 2009

HERE, MORE or less, is the state of the U.S. financial system as we enter the second half of 2009: The top 20 U.S. banks -- once thought to be insolvent and possibly in need of nationalization -- have survived a government stress test and begun raising private capital. The three-month London Interbank Offered Rate, which rises when banks are illiquid, has declined steadily since March. Several recipients of government bailout funds have repaid them. The Treasury Department felt confident enough of the system's soundness to deny further help this week to CIT Group, a previous recipient of bailout money.

All of this good news must be marked "tentative," of course, for the simple reason that the banks are floating on a sea of government-supplied liquidity, in the form of a near-zero Federal Reserve target rate, open-ended Treasury support to Fannie Mae and Freddie Mac, and multiple government credit guarantees. This is far from a self-sustaining recovery, and a new shock could push the system back to the brink. But all things considered, we could be doing much worse.

Under the circumstances, you might have thought Congress would hold a hearing about what has gone right so far and how to turn this incipient and vulnerable progress into something more permanent. Instead, we got yesterday's backward-looking affair at the House Committee on Oversight and Government Reform, the latest in a series of sessions aimed at December's federally engineered merger of Bank of America and Merrill Lynch, which has ended up costing taxpayers about $50 billion. Resentment of bailing out Wall Street is a bipartisan affair, so both Republicans and Democrats on this committee are determined to show how wrong it was for officials, including Federal Reserve Chairman Ben S. Bernanke, then-New York Fed boss Timothy F. Geithner and then-Treasury Secretary Henry M. Paulson to strong-arm Bank of America chief executive Kenneth D. Lewis into swallowing Merrill even after it turned out that the former Wall Street powerhouse faced much bigger losses than previously known.

In the witness chair yesterday, Mr. Paulson pretty much pleaded guilty to telling Mr. Lewis that he would be out of a job if he reneged -- with the explanation that the alternative would have been worse, namely a financial meltdown that would have spread around the world and probably cost taxpayers many billions more than did the Merrill-Bank of America merger or the bailout of insurance giant AIG. "By far the biggest advantage to the taxpayers is what didn't happen," Mr. Paulson said. Unsatisfied, several committee members arraigned Mr. Paulson for allegedly bailing out the banks and AIG to benefit his former Wall Street firm, Goldman Sachs. As proof, they cited Goldman's record profit of $3.4 billion in the second quarter.

Even though Mr. Paulson didn't quite dare to say it, Goldman's good quarter is a sign that he and other decision-makers made the right calls back in the scary fall and winter of 2008. The objective of government policy should be to get financial firms to where they are once again profitable without taxpayer support. It's absolutely true, as members of the committee said and as Mr. Paulson acknowledged, that the bailout of Wall Street is fraught with moral hazard: It broke the basic rule of capitalism, which says that business executives should bear all the costs of their bad decisions. But it's also true that financial stability is a public good. When the collapse of one or more financial institutions threatens to destroy financial stability, a government bailout can serve the public interest. Believing that, Mr. Paulson and his colleagues made some very difficult decisions under dangerous conditions. The ultimate results of those tough choices are still unknown. A fairer congressional inquiry, though, would start from the premise that, if he had not taken the actions that he did, the subject of today's investigations might have been a much, much bigger catastrophe.

Ted van Dyk: Obama Needs to 'Reset' His Presidency

Obama Needs to 'Reset' His Presidency. By TED VAN DYK
The president we have is very different from the man who campaigned for the office in 2008.
WSJ, Jul 17, 2009

Time out, Mr. President.

As we approach the August congressional recess, it's clear that our economic distress is deeper than we thought, and thus your health-care and energy initiatives are in danger of stalling out. You could use a reset button for domestic policy.

Let's take it from the top.

Your presidential campaign was superb. You restored hope to millions -- including me -- who had been demoralized by the political polarization that characterized the presidencies of Bill Clinton and George W. Bush. You talked about reaching across party and ideological lines to get the public's business done. Your biography was appealing, and for those of us who entered politics motivated by the civil-rights struggle, your candidacy represented an important culmination.

You displayed an intellect and sense of cool that made us think you would weigh decisions carefully and view advisers' proposals with skepticism.

The first warning signals for me came with your acceptance speech at the Democratic National Convention. In it, you stressed domestic initiatives that clearly were nonstarters in the already shrinking economy.

I had greater concern when you staffed your administration and White House with a large number of Clinton administration retreads who had learned their trade in the never-ending-campaign culture of the Clinton years. Some appeared to represent what you had pledged to eradicate in the capital.

Many of the missteps that have followed flowed, in part, from your reliance on these Clinton holdovers. Your chief of staff, Rahm Emanuel, defined your early strategy by stating that the financial and economic crises presented an "opportunity" to jam through unrelated legislation. To many of us, the remark was cynical and wrong-headed.

The crises did not represent an opportunity. They presented an obligation to do one thing: Return our financial system and our economy to good health.

Since January, your advisers have compared your situation to those of Presidents Franklin D. Roosevelt and Lyndon Johnson after their landslide victories in 1932 and 1964. In fact, your situation is quite different. Most centrally, FDR's and LBJ's victories and congressional majorities were far larger than yours. Thus their mandates were stronger.

FDR's first months in office were devoted entirely to financial and economic recovery. His big domestic initiative, Social Security, was not enacted until 1935. LBJ pushed an ambitious Great Society agenda into law in 1965. But the U.S. economy was growing robustly in 1965. Johnson referred to it as "an endless cornucopia" which would generate tax revenues to pay for the Great Society. When he learned in mid-1967 that the projected federal budget deficit was $28 billion -- almost twice the amount projected six months earlier -- he went to Congress to push for tax increases in order to prevent Vietnam War and Great Society spending from creating unacceptable deficits.

Your staff recently has compared your strategy in pushing health-care and energy initiatives to the way Johnson pushed his Great Society legislation. That's not a fair comparison. Johnson's initiatives were framed in the White House by his administration. But at every stage, congressional leaders of both political parties and financial, business, labor and other private-sector leaders were consulted. Johnson wanted to assure that his legislation was substantively sound and could get consensus support in the Congress and the country.

Your strategy, by contrast, has been to advocate forcefully for health-care and energy reform but to leave the details to Democratic congressional committee chairs. You did the same thing with your initial $787 billion stimulus package. Now, you're stuck with a plan that provides little stimulus until 2010. A president should never cede control of his main agenda to others.

This tactic has already had negative consequences. Frightened by the prospective costs of your health-care and energy plans -- not to mention the bailouts of the financial and auto industries -- independent voters who supported you in 2008 are falling away. FDR and LBJ, only two years after their 1932 and 1964 victories, saw their parties lose congressional seats even though their personal popularity remained stable. The party out of power traditionally gains seats in off-year elections, and 2010 is unlikely to be an exception.

What adjustments should be made?

- Cut back both your proposals and expectations. You made promises about jobs that would be "created and saved" by the stimulus package. Those promises have not held up. You continue to engage in hyperbole by claiming that your health-care and energy plans will save tax dollars. Congressional Budget Office analysis indicates otherwise.

It's time to re-examine these initiatives. Could your health plan be scaled back to catastrophic coverage for all -- badly needed by most families, but quite affordable if deductibles are set at the right levels? Should the Rube Goldbergian cap-and-trade proposals be replaced with a simple carbon tax, with proceeds to be allocated to alternative-fuels development?

The evolving health and cap-and-trade bills are loaded with costly provisions designed to gain support from congressional leaders and special-interest constituencies. In short, they have become an expensive mess. This legislation will not clear Congress by the August recess, as you have requested, and could be stalled for the remainder of 2009. Settle for incremental change: Do not press Democratic legislators to vote for something they fear will destroy them in 2010.

- Talk less and pick your spots.You are outdoing even Johnson and Mr. Clinton with your daily speeches in the capital and around the country.

Applause and adulation are gratifying. But the more you talk, the less weight your words will hold. Let voters see you at your desk, conferring with serious people about serious matters. When you do choose to talk, people will understand that it's important and they should listen.

- Conform your 2009 politics to your 2008 statements. During your campaign, you called for bipartisanship and bridge-building. You promised to reduce the influence of single-issue and single-interest groups in the policy process. Yet, in your public statements, you keep using President Bush as a scapegoat.

You have ceded content of your principal proposals to Democratic congressional leaders who in large part have yielded to special-interest constituencies and excluded Republican leaders from policy formulation. This certainly was the case with the stimulus plan. It has been the case with health and energy legislation, with the notable exception of Sen. Max Baucus's attempt in the Senate Finance Committee to develop genuinely bipartisan legislation.

You have an enormous reservoir of goodwill among Americans of all persuasions. They want you to succeed. Level with them and trim your proposals to what is practical in the current environment.

You had things right in 2008. Take a timeout. Get back to yourself. Make a fresh start.

Mr. Van Dyk was Vice President Hubert Humphrey's assistant in the Johnson White House and active in national Democratic politics over 40 years. He is the author of "Heroes, Hacks and Fools," (University of Washington Press, 2008).

Defining Activism Down: A liberal vote cast in conservative judicial rhetoric

Defining Activism Down. WSJ Editorial
A liberal vote cast in conservative judicial rhetoric.
WSJ, Jul 15, 2009

After two days of Senate hearings on the nomination of Sonia Sotomayor, an onlooker could be forgiven for wondering where all the judicial liberals went. To hear the adjectives heaped on the judge by members of the President's party, you'd think Mr. Obama had nominated Chief Justice John Roberts's conservative cousin.

Judge Sotomayor is smart and accomplished, New York Democrat Chuck Schumer said Monday, "but most important . . . [her record] bespeaks judicial modesty" and shows she is a better "umpire" than Justice Roberts himself. Dick Durbin called her "restrained, moderate and neutral," while Pat Leahy said her record shows a "careful and restrained judge with a deep respect for judicial precedent."

The activists in Mr. Leahy's rhetorical show are, presto, the conservatives of the Roberts Court, which has very, very cautiously chipped away at some precedent in cases on issues like the Second Amendment and campaign finance reform.

Under this brave new meaning of judicial activism advanced several years ago by now-White House aide Cass Sunstein, a judicial activist is any judge invalidating a federal law, however shoddily made. Ergo, conservative judges are obliged to uphold liberal precedents no matter how narrow the vote and how recent the case, while liberals can overturn long-time principles in the name of the evolving Constitution.

The effect is a liberal ratchet, where precedents like Miranda v. Arizona and Roe v. Wade are cast in stone, but any rethinking by the Roberts Court of the six-year-old 5-4 campaign-finance ruling in McConnell v. FEC is a scandal. "So many of the rulings of the current conservative majority on the Supreme Court can be described as activist," Wisconsin Democrat Russ Feingold insisted. "The best definition of a judicial activist is when a judge decides a case in a way you don't like."

Actually, we have a better one. An activist judge is one who is willing to decide cases based on something other than what's in the Constitution. But that's a troublesome standard for Sonia Sotomayor, who in speeches and writings has shown she is open to a wide variety of sources, from human empathy to personal experience to foreign and international law to help her in judging cases, or to "set our creative juices flowing," as she said of the latter.

Under questioning yesterday on her controversial remark that a "wise Latina" would make better decisions than a white male, Judge Sotomayor backed away from the statement, calling it a "bad" play on the words of Sandra Day O'Connor that a wise old man and a wise old woman would reach the same conclusion. Still, she insisted, she was trying to inspire Hispanic law students "to believe that their life experiences would enrich the legal system, because different life experiences and backgrounds always do."

Democrats emphasize that Judge Sotomayor's record on the bench shows she is a moderate whose decisions were frequently in step with her colleagues on the Second Circuit Court of Appeals. According to a study by the left-leaning Brennan Center for Justice, Judge Sotomayor voted with the majority in 98.2% of her 217 constitutional cases, dissenting only four times.

Falling within the mainstream of liberal judges, however, is not the same as falling into the mainstream of the rest of the country. The judge's decision to deny a racial bias claim by white firefighters was overturned by the Supreme Court in Ricci v. DeStefano last month. Afterward, a Rasmussen poll found that 46% of voters considered her a political liberal compared to only 32% who thought she was a moderate. Justices shouldn't be confirmed based on polls, but the numbers do explain the concerted Democratic attempts to define her as a conservative.

In fact, what was once the Felix Frankfurter-Whizzer White school of liberal judicial restraint no longer exists in the polite echelons of the judicial left. The new school is now remarkably uniform in wanting to dictate racial outcomes, limit political speech, invoke foreign rulings as a legal guide, and do whatever else the activist cause of the moment demands.

Judge Sotomayor gives every sign of being of that school, and there's little reason to believe she wouldn't be a reliable liberal vote on every important issue. Elections have consequences, and Justice Sotomayor is almost certain to be confirmed. But for a President who was elected on the promise of moving beyond old racial divisions, Mr. Obama's first Supreme Court nominee looks jarringly passé.

If other countries have 'good ideas' it's up to Congress, not the courts, to copy them

Sotomayor and International Law. By COLLIN LEVY
If other countries have 'good ideas' it's up to Congress, not the courts, to copy them.
WSJ, Jul 14, 2009

Sonia Sotomayor will parry a wide range of questions about her judicial philosophy during her Supreme Court confirmation hearings in the Senate this week. The most revealing line of inquiry may be about her views on the use of foreign and international law when judging cases.

Like several of the judges on the left branch of the court, Judge Sotomayor has said she favors a broader consideration of foreign and international law in U.S. judicial opinions. While she rarely had occasion to dip into foreign sources during her time on the Second Circuit, she recently went out of her way to embrace the concept and its applications by the high court.

In a speech to the American Civil Liberties Union of Puerto Rico in April, Judge Sotomayor explained that "ideas have no boundaries," and that "international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system." To discourage the use of foreign or international law, she added, would "be asking American judges to close their minds to good ideas."

That's political quicksand for a judge Democrats are eager to portray as a moderate inclined to narrow reading of text and precedent.

Of particular interest to the confirmation hearings will be Judge Sotomayor's favorable reference in the ACLU speech to the Supreme Court's reasoning in two recent cases citing foreign and international law: Roper v. Simmons and Lawrence v. Texas. In Roper, the Court drew on international criticism of the death penalty to buttress the argument that it should be prohibited for juveniles under the Eighth Amendment prohibition of cruel and unusual punishment.

In Lawrence v. Texas, the court overturned a Texas statute against sodomy on the grounds that it violated due process. In his opinion for the majority, Justice Anthony Kennedy cited the European Court of Human Rights to show that the court's earlier decision in Bowers v. Hardwick was incorrect. In both those cases, Judge Sotomayor said, the court was using the foreign or international law to "help us understand what the concepts meant to other countries and . . . whether our understanding of our own constitutional rights fell into the mainstream of human thinking."

Cases like Roper and Lawrence fit squarely into that area of overseas law most sought after for borrowing by the more liberal justices of the court -- that is, the realms of moral or social policy. The problem with such inspiration is that it is inherently subjective and arbitrary. The laws of the world are infinitely diverse, and praising one necessarily condemns another. Cherry-picking desirable law introduces the very kind of legal chaos our Constitution was designed to prevent. If one judge may look to the courts of Western Europe for expansion of liberal thoughts on human rights, why may another not look to decidedly less liberal ideas?

Iran allows women who appear without a hijab on the streets to be lashed 74 times. China limits families to bearing one child. Even the democracies of Western Europe have laws that differ broadly from ours. Few countries, for instance, share our rules protecting the rights of the accused, or have the U.S.'s constitutionally mandated separation of church and state.

In his dissent from the court's reliance on foreign law in Roper v. Simmons, Justice Antonin Scalia wrote that "The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking and ignore it otherwise is not reasoned decision making, but sophistry."

There are plenty of ways to use foreign law appropriately -- most obviously in comparing standards for implementation in the case of treaties. Some judges have also looked to Constitutional antecedents like English jurist William Blackstone to help better understand the context and thinking of the Founders and their foundations in English common law.

Outside of that, using foreign law as a guidepost or inspiration raises issues of both sovereignty and democracy by permitting jurists outside the U.S. system to guide the trajectory of our democracy. The proper place for the consideration of whatever "good ideas" may be found in foreign law is not the courts but the Congress.

Judge Sotomayor insists in the ACLU speech that the brouhaha about foreign and international law is due to a misunderstanding about how she and others like Justices Stephen Breyer and Ruth Bader Ginsburg would propose to use it. The point, she says, isn't that judges actually use foreign decisions as precedent (er, well, of course they don't), but that they open their minds to the intellectual force of their foreign counterparts.

But either foreign ideas carry weight by butressing judicial arguments, or they don't. Judicial opinions are written with great precision and care because they matter, and each strand of argument becomes a part of the grit and texture of American law.

No one is suggesting that judges stop reading or learning in ways that help expand their understanding of the law and the cases they are hearing. But that is an altogether different matter than official citation in a decision.

Our system of government has stood the test of time not in spite of but because it is uniquely drawn from the priorities of our own citizens, and them alone. The responsibility of the Supreme Court is neither to win an international beauty pageant, nor to encourage the export of our ideas.
It is to extend principles of the Founders and the words of the Constitution into a world that still needs their wisdom.

Ms. Levy is a senior editorial writer for the Journal, based in Washington.

Tom Goldstein' op-ed on Sotomayor on TNYT

Today’s New York Times Op-Ed on Judge Sotomayor. By Roger Clegg
Bench Memos/NRO, Tuesday, June 16, 2009

The New York Times today has an op-ed by Tom Goldstein about Judge Sotomayor’s decisions involving race.

Mr. Goldstein “conclude[s] that Judge Sotomayor does not allow bias to infect her decision-making.” It’s not a persuasive op-ed.

Let me note at the outset that others, including our own Ed Whelan, have earlier noted some problems with Mr. Goldstein’s methodology. Let me note also that others, including The Washington Post, have counted the cases involved differently than Mr. Goldstein.

Mr. Goldstein’s discussion in today’s op-ed begins and ends tendentiously, lamenting that “many of us remain incapable of having a conversation about ethnicity that does not devolve into charges of racism,” that “critics have latched onto [Judge Sotomayor’s] decision” in the New Haven firefighters case to “infer … that Judge Sotomayor must be biased against whites”; he calls this “hysteria” and ends with another lament, of “[u]nsubstantiated charges of racism.” It’s ironic that the op-ed, which implicitly calls for a white lab-coat, calm and disinterested review of the facts, should bracket its discussion with such name-calling.

Mr. Goldstein’s discussion of a narrow range of cases also completely ignores the fact that some of the suspicion of Judge Sotomayor, and the fear that she might be influenced by race, ethnicity, and sex in her opinions, is fueled by the fact that, in her talk and writing off the bench, she has said that judges are influenced by race, ethnicity, and sex in their opinions, and seems to think that this is perfectly fine. So it’s not unreasonable for the judge’s critics to be looking especially hard for problems in her decisions.

Nor is it very persuasive to argue, as Mr. Goldstein does, that such fear can be refuted by statistics showing that, in percentage terms, most of Judge Sotomayor’s decisions are not problematic. Suppose the shoe were on the other foot, and a conservative judge had just a couple of decisions that the Left objected to in, say, the abortion area — would that be the end of the matter? The answer, of course, is that it would not — and I’m not hypothesizing here: We know from past experience that is not. Nor should it be: A bad decision in a particularly difficult and sensitive case can reveal a lot about what kind of a justice a judge will be, when her cases will almost all be difficult and sensitive.

On the court of appeals, on the other hand, we would not expect that all or even most decisions would be problematic. No doubt most cases are so clear-cut, one way or the other, that judges on both ends of the spectrum will agree on their disposition. What’s more, saying that a panel is unanimous doesn’t mean that the decision was not problematic (the panel might have been composed of all activists); saying that some of those panels included “a Republican-appointed judge” does not avoid that problem (there are plenty of activist Republican-appointed judges — like, say, Earl Warren and William Brennan, not to mention David Souter and Judge Sotomayor herself, who was, technically, a Republican-appointed district judge).

I have not “reviewed every single race-related case” on which Judge Sotomayor has ruled, but I know of at least three disturbing ones. There’s the New Haven case, of course; and Hayden v. Pataki¸ in which, Mr. Goldstein acknowledges, “she concluded that felon disenfranchisement laws are [racially] discriminatory and violate the Voting Rights Act”; and Brown v. City of Oneonta, which Ed discusses here.

Oh, and by the way: Mr. Goldstein is looking only at decisions in one area. So he’s not considering her decisions on property rights, the Second Amendment, etc., which have also come in for criticism.

In this regard, I should also note that one of the cases that Mr. Goldstein (and the Washington Post, in an article last week) cites as supposedly reassuring involved a policeman who was fired for mailing out racist and anti-Semitic fliers. Judge Sotomayor, in dissent, wanted to rule against the police department — just as the ACLU's New York affiliate had urged the court to do. So, sure, her position favored a bigoted policeman, but she also wanted to use an aggressive interpretation of the First Amendment to tie the hands of the police department. Thus, this decision is hardly evidence of non-activism, which is the real issue. And in that regard, pace Mr. Goldstein’s op-ed, the fact that Judge Sotomayor doesn’t urge judges “to disregard the plain language of any statute or to invent exceptions to statutes” obviously doesn’t mean that she isn’t doing so.

There is, in sum, plenty for the Senate Judiciary Committee to be concerned about.

Sotomayor's Mind-Numbing Speeches

Sotomayor's Mind-Numbing Speeches. By Matthew J. Franck
Bench Memos/NRO, Thursday, June 11, 2009

I have just come up for air from the stifling smog of banality generated by the collected speeches of Sonia Sotomayor. They can be seen as the attachments to Question 12d on this page set up by the Senate Judiciary Committee, but let me hasten to add that I have wasted my morning on reading them so you don't have to.

I was interested in part in whether I was right to speculate yesterday that maybe her best-known speech, 2001's "A Latina Judge's Voice," was partly "unscripted" or ab-libbed, since that might explain the occasionally bad writing in its published form. It could not have been wholly off-the-cuff, of course, with its recitation of statistics and its quotations from a few sources—but those might have been on notecards. Having gone through virtually all the speeches on the Senate website, I can say that what the Berkeley La Raza Law Journal published was almost certainly based on a prepared text. I say that for a couple of reasons.

First, Judge Sotomayor's speeches all display mediocre writing, and frequently exhibit errors of various kinds, and the copies of them that have been made public are in most cases quite obviously her own originals. She said of herself as long ago as 1994 that "I consider myself merely an average writer," and as recently as 2007 that "[w]riting remains a challenge for me even today . . . I am not a natural writer." This is a salutary self-awareness, because her speeches are bad—uniformly boring, almost invariably devoid of actual ideas, and completely forgettable. I am not sure she has ever uttered an interesting thought off the bench—unless you count her celebration of the "wise Latina," which is interesting only to the pathologist of confused identity politics.

Second, Sotomayor's speeches are mind-numbingly repetitious when read in series. This may seem an unfair comment; each one was presumably a first-time listening experience for her audience (one can hope, anyway). But reading them in series, I began quietly to mutter to the speaker, "Get some new material. Aren't you boring yourself?" She didn't just once deliver the line "I became a Latina by the way I love and the way I live my life"; she delivered it easily a dozen times to (mostly Hispanic) audiences over the course of ten years or so. And the repetition allows us to see the same little mistakes over and over. To take just two: Sotomayor has a fond memory from her childhood of the Mexican comedian Cantinflas, but she never once spells his name correctly in at least a half dozen speeches (after which I stopped counting). And she likes relating how the city girl came to Princeton and had never heard a cricket before, and how she imagined it looked like "Jimmy the Cricket" from the Disney movie Pinocchio (once she called him "Jiminy the Cricket," which gets a little closer, but in subsequent speeches she went back to Jimmy). Such repeated mistakes over a period of years provide us with some assurance that all the errors we see are her own, and not transcription errors from audio recordings. So when she refers to "Anthony Scalia" for "Antonin" or "Thurmond Marshall" for "Thurgood," we can be pretty sure that's Sotomayor's own mistake.

I can also confirm what others have observed about the notorious "wise Latina" speech at Berkeley: that it was not an isolated instance of such an argument against traditional notions of judicial impartiality.

Sotomayor's speeches for the most part fall into three large categories: 1) celebrations of her Latina background, combined with exhortations to strive as she has done, delivered to young Hispanic audiences; 2) encouragement to law students to take up pro bono work and benefit their communities; and 3) brief descriptive accounts of the work of the courts on which she has served, trial and appellate. In the first category there are mostly harmless hurrahs for being Hispanic or Latino or Puerto Rican or whatever. Many of these contain a variant of this paragraph from 1998:

America has a deeply confused image of itself that is a perpetual source of tension. We are a nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society and in adding richness to its existence. Yet, we simultaneously insist that we can and must function and live in a race- and color-blind way that ignores those very differences that in other contexts we laud. That tension between the melting pot and the salad bowl, to borrow recently popular metaphors in New York, is being hotly debated today in national discussions about affirmative action. This tension leads many of us to struggle with maintaining and promoting our cultural and ethnic identities in a society which is often ambivalent about how to deal with its differences.

Nothing here, without more, should cause anyone to conclude that Sotomayor is for race-consciousness in judging. The paragraph is almost studiously non-committal and merely descriptive, except for its initial characterization of the "tension" between diversity and colorblind equality as a mark of a country that has a "deeply confused image of itself." Lots of Americans could easily explain to Judge Sotomayor how this is no source of confusion at all.

But then, overlapping with all these mostly boring celebrations of the joys of being a Latina, we find the speeches that do indicate something about Sotomayor's view of judging. The Berkeley La Raza speech, given in October 2001, was given again in almost identical form on February 26, 2002, and October 22, 2003. And an earlier version, containing much of the same material but not yet polished into its best-known form, was given on March 17, 1994 in Puerto Rico, on the topic of "Women in the Judiciary." Because of that topic and the audience listening to the speech, Sotomayor referred to a "wise woman with the richness of her experiences" rather than a "wise Latina." But the essentials of the speeches we know from 2001 and later were all there: the disagreement with Judge Miriam Cedarbaum's argument for judicial neutrality, the expectation that better judging will come from women and minorities because they are women and minorities, and the plumping for more appointments of Hispanic judges in particular.

In sum, we can say that Judge Sotomayor has, with few exceptions, given just three or four speeches to public audiences in her career—the same three or four, over and over and over. One of her repeated themes is on the virtue of race-conscious and sex-conscious bias in judging. Like her other themes, this one cannot be "walked back" by White House claims that she "misspoke" or could have made her point differently. She is, on the evidence of her speeches, a great self-absorbed bore, a mediocrity as a writer, and a polished practitioner of identity politics.