I’ve got a new piece up at Reason about recent, disingenuous attempts to equate eminent domain abuse with unrelated copyright issues such as Google Print and the DMCA.

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I’m a little late to this party, but I was excited to learn that the Competitive Enterprise Institute has challenged the 1998 Master Settlement Agreement (MSA) between state attorneys general and the tobacco industry.

This has always been a pet issue of mine, but the more I study it, the more appalled I become. Whatever one thinks of the underlying lawsuit (and I was definitely not a fan) I think it’s hard to deny that the settlement was a travesty of justice whose only beneficiaries were the tobacco companies themselves (who literally transformed their industry into state-enforced a cartel) and the trial lawyers, who made off with hundreds of millions of dollars in contingency fees.

The agreement is so bad that I’m afraid people reading my blog won’t believe me when I describe it. So I strongly encourage you to read the CEI’s brief for yourself. But in a nutshell, here’s what the Master Settlement Agreement does:

The lone health care facility offering abortions in Springfield, MO, closed its doors last week. The Springfield metro area is the third-largest after St. Louis and Kansas City.

With all the attention over whether Bush’s Supreme Court nominees would overturn Roe v. Wade, I wonder if such an outcome would really be bad for the pro-choice movement. Right now, the pro-choice narrative goes something like this: “since 1973, the Supreme Court has protected a woman’s right to choose, but that right is now endangered by evil right-wing nominees who would overturn Roe and return us to the bad old days of coathangers and back-alley abortions.”

The problem is that the Supreme Court is not guaranteeing that women have meaningful access to abortions. Women in big cities, and those with the means and know-how to arrange trips to get their abortions, have the ability to obtain abortions. But women who are too poor to drive to another city (and in many cases, rent a hotel to comply with various waiting-period and notification restrictions) don’t have access.

Now, maybe that’s a good thing, because it reduces the number of abortions. On the other hand, the people most deterred are probably the people least able to do a good job of taking care of the children once they have them. In any event, the pro-life movement is clearly winning on the ground in a lot of states. On paper, women have the right to an abortion, but for a significant number of women, that right is of little use since actually getting an abortion is an extremely difficult and stressful process.

I think that all that would change if Roe were overturned. To see why, consider the parallels to the Kelo decision. For decades, we property rights activists have been complaining about property rights violations. But when we talked about it, peoples’ eyes glazed over. They knew that the Constitution protected their property, and they just weren’t that interested in the details. But when the Supreme Court said unambiguously that the Constitution did not protect their property, ordinary people stood up and took notice. Moderates who previously hadn’t thought about the issue suddenly became keenly interested. The public backlash has been much more effective at preventing the use of eminent domain than a victory before the Supreme Court would have been, because politicians are much more afraid of pissed-off voters than they are of judges.

The same dynamic could occur with Roe. There are millions of married suburban women who support abortion rights but don’t consider the issue a high priority, largely because they see Roe as an insurance policy against legislative mischief-making. But if Roe were overturned, suddenly those women (and probably some men too) will be keenly intersted in the issue. Suddenly in every state and local race, a lot more votes will depend on a politician’s position on the abortion question.

Now, obviously the effect won’t be entirely positive for abortion rights. Some very conservative states would probably outlaw abortions entirely. But on net, I don’t think it’s at all clear that the reversal of Roe would be bad for abortion rights, any more than Kelo was necessarily bad for property rights.

What it would do is push the issue back into the legislative arena, where conservatives, after 3 decades of only telling voters what they’re against, would suddenly have to explain what they’re for. Do they want to put women in jail for abortion, or doctors? Do they want exceptions for the health of mothers and rape? These are questions that Karl Rove has been very grateful not to have to answer. When Roe is no longer an excuse for their failures, I’d be willing to bet that many Republicans’ bark is worse than their bite on the abortion issue.

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David Brooks says that George W. Bush has rescued conservatism from the bad old days of anti-government extremism. He says that “This is not the Government-Is-the-Problem philosophy of the mid-’90s, but the philosophy of a governing majority party in a country where people look to government to play a positive but not overbearing role in their lives.”

I’ll certainly grant that Bush has jetisoned the Government-Is-the-Problem philosophy. Regular readers will hardly be shocked to learn I don’t think that was a good idea. But I think it’s giving the president too much credit to say that he’s replaced it with a “philosophy of a governing majority.” In fact, I think it’s giving him too much credit to call it a philosophy at all. “Philosophy” implies coherence, intellectual seriousness, and at least a modicum of governing discipline.

Brooks sort of concedes this. “Bush’s approach to government,” he concedes, is not “fully coherent.” But he insists that he has one, without ever getting around to explaining what, exactly that philosophy is. What I see is an intellectually incurious and stubborn president who has tried to cobble together an agenda from the collection of vague catch-phrases on which he campaigned. When taken together, they aren’t just “not fully coherent,” they’re confused and seemingly random.

I’d be fascinated to see someone try to articulate the Bush governing philosophy. And I’d be shocked if he succeeded.

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Someone needs to tell Chuck Schumer that the phrase “road to hoe” is nonsensical. I assume he means to say that Miers has a tough row to hoe.

I think everyone’s obsession with the “right to privacy” as the key to overturning Roe v. Wade is a little bit wrong-headed. If I were a Supreme Court justice seeking to overturn Roe, I wouldn’t do it by striking down Griswold. The central holding of Griswold, that certain activities–in this case contraception–are too intimate to be interfered with by the state, strikes me as reasonbly good law. Courts have long found unenumerated rights to do things like raise your children in the language of your choice, travel freely, and have anal sex based on the Ninth and Fourteenth Amendments (as well as the infamous “emanations and penumbras”). Overturning Griswold would be a very big deal, because it would likely call into question the whole edifice of unenumerated rights and require the courts to re-consider other settled law.

On the other hand, a conservative Supreme Court could uphold Griswold but strike down Roe on the grounds that Roe is a special case. After all, tens of millions of Americans believe that abortion is murder. And many more at least believe that abortion is morally troubling in a way that contraception and anal sex are not. So it would not be at all implausible to rule that the state may have a compelling interest in protecting the rights of the unborn.

So I think pro-choicers are barking up the wrong tree if they think getting nominees to affirm Griswold will force them to uphold Roe. There’s plenty of room to argue that Roe is a special case.

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The abuse just doesn’t stop. Here’s Gene’s reason for disliking the Miers nomination:

The Miers nomination has managed to horrify almost every big-firm or ex-big-firm lawyer in the country. Because we all know/worked for someone just like her. Someone with such a vacuum of an internal life that they’d happily agree to write those insipid bar journal articles and sit on all those friggin’ committees. It’s atavistic ambition without even the touch of evil that might make it interesting. Tracy Flick without the spunk.

Those Texas Bar Journal articles Miers wrote are about as badly written as David Brooks said they were, though I’ve seen much worse. The managing partner of my old law firm used to write free verse about leadership and service to the client. I remember talking to a colleague about having it translated back into the original German and posting it throughout the firm, but we were both too enervated to follow through.

I’m lucky enough never to have had a boss like that. But it still gives me the creeps.

Maggie Gallagher is over at The Volokh Conspiracy “defending marriage”–that is, opposing same-sex marriage. I have a feeling that I’m going to disagree with her ultimate conclusion, but this post, on the legal case for court-mandated gay marriage, is spot on:

When marriage has lost in court, we’re mostly losing on the rational basis test. This is really hard to do, and also quite insulting. It is a declaration by the court that only madness or malice can possibly explain why 60 to 70 percent of Americans today see marriage as the union of husband and wife.

Here’s how it looks from my side: You want to strip from the law of marriage the one feature that has been practically universal in human experience: and you can’t imagine even one reason why a person of sound mind and good will might object? Gee, Horatio, maybe there are more things on heaven and earth . . .

If courts really are applying a rational basis test, then marriage easily meets the test.

The classification used in marriage (sexual union of male and female) is clearly substantively related to a legitimate state purpose (“procreation and paternity” or creating the only kind of sexual unions in which men and women can make babies and raise them together).

I made a similar argument a couple of years ago. And I think Maggie’s right–if you understand how the courts traditional apply the rational basis test, it’s downright insulting to argue that traditional marriage laws fail. To meet the rational basis test, you merely have to show that a legislature had some plausible reason for making the decision that it did. The court doesn’t have to agree with the legislature’s reason, or even to think it’s a very good reason. It merely has to verify that the legislature had a good-faith reason to believe the policy was rationallly related to a legitimate state interest.

So a court that strikes down straight-only marriage under a rational basis test is saying that the hundreds of millions of Americans who support the traditional definition of marriage are all crazy or bigoted–that concerns about damaging the traditional family are nothing more than a cover for anti-gay animus. Certainly some opponents of gay marriage are just anti-gay bigots, but I think there are many well-intentioned people who sincerely believe that gay marriage would hurt children by undermining the traditional family. If that’s true, then straight-only marriage ought to pass a rational basis test with flying colors.

I think it’s a sign of intellectual laziness when supporters of gay marriage simply brand their opponents bigots and seek to railroad their agenda through the courts. I happen to believe that gay marriage would have a positive effect on traditional marriage by universalizing it–incorporating a group previously excluded. I think that’s an argument we could win. But we’re not likely to persuade anyone on the fence if, in the next breath, we accuse anyone who disagrees with us of bigotry.

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Matt has a fantastic post about what was wrong with the Iraq War. A summary doesn’t really do it justice, so go read it first.

If you’ll excuse me for getting on my libertarian soapbox, I think Matt’s argument has applications beyond this war, and even beyond foreign policy generally. Policy debates are waged at the level of abstractions. We professional wonks talk in very general terms about competing values: “democracy,” “national security,” “liberty,” etc. Although we do our best to take into account the effects on actual people (i.e. the national guard troops who lose their lives or their limbs), there’s little relationship between who “wins” any given debate and whose policy actually is better for people on the ground.

That’s why the prudent policy maker should always be very, very cautious about deploying the immense power of the state when doing so isn’t absolutely necessary.

I happen to be working on eminent domain abuse in Missouri at the moment, so that’s the analogy that immediately popped into my mind when I was reading Matt’s post. Sure, having your home taken isn’t nearly as bad as getting shot. But it can still be devastating. And I think the dynamic Matt describes above is very similar. City planners deal in broad abstractions: Is this neighborhood blighted and in need of rennovation? Should this block be a apartment buildings, condos, or “greenspace?” Is a shopping mall a better public use for this land than single-family dwellings?
(more…)

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Yesterday I scored my first media hit as editor at the Show-Me Institute. In the Springfield News-Leader, I argue that Smokers already pay their fair share without tax hike.

Note to self: get a professional portrait made so I don’t look like a child molester.

So here’s a thought that just occurred to me: what’s the lowest presidential approval rating ever measured, and does Bush have a chance of breaking it?

The answer to the first question, it seems, is 23%, set by President Truman after firing McArthur. Richard Nixon is close behind at 24% at his resignation.

As for the second question, a CBS poll has Bush at 37% now. But look at the breakdown of that number–14% among Democrats, 29% among independents, and 79% among Republicans. If Republicans were to decide that Bush had sold them out, it’s conceivable that their support could drop precipitously. This would be especially true in a long, drawn-out nomination fight, with Rush pounding away at Miers’ lack of conservative credentials.

If the Republican support dropped to 40%, Bush’s overall support would drop below 30%. That would put him in range of the #3 record-holder, Jimmy Carter at 28%.

It’s hard to imagine Republican support dropping much lower than that, though. There’s a certain contingent of the country that’s blindly loyal to their guy, regardless of developments. And there is also a certain slice of the electorate that just doesn’t pay much attention to politics. A Supreme Court nomination is over their heads.

And it’s hard to imagine his support among Democrats and independents getting much lower than it already is. I mean, Bush has given Democrats every conceivable reason to hate him, and Katrina shined a pretty harsh spotlight on the guy. If you still like him, well, a little crony appointment isn’t going to change your mind. And independents are a fickle and contrarian bunch, so I can’t see them agreeing on one position.

So I think Bush has a good shot at breaking into the 20s, but Mr. Truman’s record is probably safe.

For a minute, I thought Ezra was seeing the light:

On surface, Katrina was a federal failure — the government’s, both national and local, did not respond effectively. And while some of that can be blamed on funding decisions, crony appointment, and misplaced priorities, much of it was long-standing, most of it was bipartisan, and the majority seemed endemic. Bush’s presidential leadership was particularly bad, but it certainly wasn’t the only factor.

Right on! I’d probably agree that Bush’s cronyism is worse than Clinton’s. And I might even concede that a Kerry administration would’ve handled the disaster response marginally better than this one did. But the fundamental problems long pre-dated the Bush administration. Those levies were being neglected long before the Bush administration took office. And while you can blame Michael Brown for some of the ineptitude at FEMA, like any agency FEMA is staffed largely by career civil service. Given the countless mistakes that have been documented at all levels of the agency, you can’t blame those entirely on a few crony picks at the top.

We had to stop Katrina before it happened, but instead, we determinedly degraded our ability to do anything of the sort. Bush wrecked FEMA, the tax cuts and the war shredded state budgets, and with hurricane prevention low on the list of policies that win elections, more immediate funding gaps forced the redirection of funds that’d otherwise have helped here.

He seems to regard this as some kind of special problem with the Bush administration. But no, this is the way government works. Politicians focus their time and resources on projects that make them look good, attract special interest support, and get them re-elected. Basic infrastructure upkeep isn’t glamorous and it doesn’t have a dedicated special interest lobbying for it, and so it gets consistently underfunded. Perhaps the current batch of Republicans are worse, but it happens under Democrats, too.

Federal control of local problems is a particularly bad idea, because presidents have so much more on their plates. If the City of New Orleans had managed their local levies, it’s likely that some local business leaders or academics would have gone down to visit the mayor and demand that he pour the necessary resources into upkeep. But for the president, the dykes were on a list of dozens of infrastructure projects that he probable signed off on after a 5-minute briefing. In all likelihood, the president never made a conscious decision to let the dykes deteriorate. Probably, no one ever brought the issue to his attention. At a minimum, you can be sure that the Mayor of New Orleans knew what the dykes were and why they were vital to his city.

Unfortunately, Ezra draws precisely the wrong conclusion:

All of which is to say that the framing, so to speak, on Katrina is really the general argument for government — we have one, it can do things, it should do them well. And then you reach a very simplistic choice: do you trust the party that believes in government’s ability to function effectively, or do you trust the party that denies its basic utility and seeks to defund and dismantle it? Katrina was about conceptions of government. If it’s really just a partisan war, than filling crucial spots with political allies makes perfect sense. But if the parties are vying to see who runs government best, than do anything save appointing qualified and able candidates is quite insane.

What’s “quite insane” is to look at a long-standing, systemic problem (which Bush exacerbated but as Ezra concedes didn’t cause) and conclude that the solution is to change the guy at the top. As Gene Healy memorably put it, “government’s a massive runaway freight train careening towards disaster. Every four years we have a big to-do over who gets to sit up in the front car and pretend they’re driving.”

The question we should be asking is: what institutional arrangements will minimize the damage done by incompetent and neglectful politicians? Certainly, we should throw out incompetent leaders and replace them with (relatively) competent ones, but our disaster response system shouldn’t depend on the federal government being effective, because it never has been (even when it was run by Democrats) and never will be.

Wow, every time one of the administration’s allies speaks up in defense of the Miers nomination, the bar seems to get lower:

The qualities needed by a Supreme Court justice are not necessarily those needed by an advocate or scholar. By the time the court agrees to take a case, it has already been the subject of rounds of litigation in the lower courts. Indeed, the court generally will not even take a case unless the issues it raises have already been addressed by several federal courts of appeal and state supreme courts. When the court takes a case, the issues it raises have already been well developed and the arguments on each side honed.

Moreover, cases argued before the court are the subject of extensive briefing by the well-qualified members of the Supreme Court bar and the federal and state solicitors general. Each justice also has a staff of four experienced law clerks, top graduates of the nation’s most prestigious law schools, to assist them in synthesizing and analyzing the pertinent lower-court opinions and briefs as well as the court’s own precedents.

The point is that a Supreme Court justice need not come to the job with an already well-developed expertise in constitutional law. There is not even a requirement that a justice have the fluid pen of a Justice Antonin Scalia; Chief Justice William Rehnquist was known for his straightforward, ”just the facts” writing style. What a Supreme Court justice needs most is good judgment and a principled approach to interpreting the Constitution and laws. And nothing — nothing — Miers’s critics have pointed to yet suggests that she lacks either judgment or a principled approach to legal interpretation.

So the major qualifications for choosing a Supreme Court justice are… what exactly? I mean, the manager of an average Wal-Mart probably has pretty good judgment, and I’m sure you could find a Wal-Mart manager who had a “principled” (i.e. conservative) set of opinions about the court. So is he qualified?

Constitutional analysis is a skill that needs to be learned. There are lots of different ways to learn it– by serving on the bench, studying it in academia, by practicing it in a law firm, etc. But you should show some aptitude for it before we entrust you with being one of the 9 stewards of our constitutional system for the next 2 decades.

And even if we accept his standard, what evidence has been presented that Miers does have good judgment and a principled approach to the constitution? Is there now a presumption that mediocre nominees are to be confirmed unless someone can prove that they are incompetent?

It seems to me that if you want to be on the nation’s highest courts, you should be able to produce some evidence that you’re more than just a competent run-of-the-mill lawyer. Maybe she’ll present overwhelming evidence of her superior qualifications at the hearings, but I’m not holding my breath.

The University of Chicago Law School’s faculty has a new blog. Given that I’ll likely be applying to go to school there in the future, I plan to watch it closely. So far, there are interesting discussions of Kelo, Katrina, Miers, and intellectual property.