Occassional reflections of a moderate (hey at least I think I am)

Friday, April 22, 2005

Retiree benefits and Bankruptcy

The other day both Robert Reich and Mark Kleiman were talking about the interplay between commitments companies have made to retirees and bankruptcy. My exposure to bankruptcy has led me to believe that, in those cases where there are outstanding commitments to retirees; retirees get a pretty raw deal. For the most part, they are not organized or present like current labor, creditors, debt holders or even stockholders. Plus many of the commitments made to them are partially covered by the PBGC.

Given that these commitments are such a potential drag to the competitiveness of older companies because they are costs that are not generally faced by newer entrants or foreign employers I wouldn’t be surprised to see more bankruptcies of older companies as a result.

If these companies go bankrupt the retirees will get whatever PBGC covers . Which may or not be all that the retirees had contemplated. I wonder if anyone has given any consideration to amending the bankruptcy laws, as was done with the asbestos matter, to allow corporations to retain some shareholder value while funding trusts to pay benefits that are due to retirees. Of course in the asbestos matters, the groups left holding the bag were injured people and insurance companies. In this case, I suppose it would mainly serve to accelerate the PBGC crisis that is looming but it might be the case that if it can be structured properly, retirees could end up at least as well off as if the company had just gone bankrupt and the company may be better situated to be competitive. Of course, if the incentives are such that even companies with adequately funded benefits programs choose to reorganize it would almost certainly be disastrous.

I am sure this is a horrid idea which would be made worse by the current Congress making it a sop for corporate interests but it seems to me if the PBGC crisis and the Social Security/Medicare crises occur in the same decade there are going to be some seriously bad results.

Supreme Court and Foreign Authority

In response to this post over at Prof. Althouse’s site relating to the question whether Supreme Court citations to foreign authorities is “incredibly outrageous” I tried (Blogger was acting funny) to post the following:

I suppose whether or not you believe the recent decisions citing foreign authorities are "incredibly outrageous" depends on how you view the use of those citations. If you believe (as Scalia, Delay, and several commenters here believe) that the citations are made as "part of the basis for the Court’s judgment" then you believe they are bad. If you believe these citations merely reflect "respected and significant confirmation" of the Court's judgment then you are not necessarily offended by the citations.

I actually went and read the decision in Roper v. Simmons as a result of this thread. I know that Scalia is an incredible legal mind, an excellent writer and, from what I have heard, a genuinely engaging personality. Reading this decision reminded me how derisive he can be. I don't read many Supreme Court cases anymore, does anyone know if he picks and chooses when he "respectfully" dissents (as opposed to merely "dissent")?

A couple of further points. I think that Scalia has a good point near the end of his dissent when he says “’Acknowledgment’ of foreign approval has no place in the legal opinion of this Court unless it is part of the basis for the Court’s judgment.” I think including these references to foreign authorities invites the conclusion that those authorities are the basis for the decision despite protestations of the majority to the contrary. I would have preferred a decision which did not focus so much on the foreign aspects including amici but at least the majority is always careful to say that they are not basing the decision on foreign law.

[I think that, if the majority and Justice O’Connor are to be believed, the decision rests on the analysis of whether there is a “national consensus against the death penalty for juveniles”. The majority thinks there is, O’Connor thinks there is not. (Scalia doesn’t think this is the right question but is willing to say (paraphrasing here) “Even if it were the right question, hey Anthony (Kennedy) you can’t count!”)]

The degree to which he derides both the majority opinion and the separate dissenting opinion really struck me. Like I said, I haven’t read Supreme Court cases as much as I used to but he seems even more caustic than I remember him. His insistence that the majority bases their decision on foreign authorities, basically calls the majority liars. It seems to me though that he saves some of his harshest tones for Justice O’Connor as if to say “You like to think you are different than them, but you are just as bad.” If anyone knows of an article or a book about the collegiality of the Court as currently composed I would be fascinated to read it.

Finally, many people are upset that as a result of the decision capital punishment cannot be imposed on anyone under the age of 18. I wonder how many of those people, if any, would be concerned about executing 14 year olds or 8 year olds. It is clear that there are 3 Justice who support capital punishment as to 14 year olds and as to 8 year olds (assuming a State could overcome a presumption of incapacity).

Thursday, April 21, 2005

McCain's Committee investigates Reed and Norquist

With this (via Atrios) can we now say that John McCain has even less chance of winning the Republican nomination? Maybe Reed and Norquist will come out unscathed but if they don’t I can’t imagine that it will endear McCain anymore to a group of people who already view him with some suspicion if not disdain.

Juan Non-Volokh and Filibuster myths

The anonymous conspirator talks about David Brooks’ piece regarding Roe v. Wade, the filibuster and the nuclear option. While I find myself in agreement with many of the conspirators, I would take Juan to task on a couple of points.

First, he(?) appears to accept Brooks’ claim that the filibuster of Presidential nominees is “unprincipled and unprecedented”. While it may be unprincipled (what would the principle be) it is not the case that filibustering Presidential nominees is “unrecendented”. As I have written elsewhere, when you include all nominees, there are few Republican Senators who have always voted for cloture on nominees. (Put another way there are few Republican Senators who have not participated in filibusters of nominees.) It is true that Clinton’s nominees (with the exception of Henry Foster) had an up or down vote. But many of those nominees were only approved after having consideration be subjected to a cloture motion (i.e., they were filibustered). The fact that cloture was invoke only demonstrates that the filibusters in those cases failed. I suppose one could be against “successful filibusters” while approving of “failed filibusters” but it seems like an odd position to me.

The second point I would quibble with Juan on is his(?) statement that

It is also important to note that overturning Roe, by itself, would not be a pro-life victory. All it would accomplish is returning abortion policy to the states, many of which would never severely restrict, let alone prohibit, the practice.

Many have lamented that the Roe decision is problematic because (a) it made a judicial decision out of something that should be a legislative matter and (b) it took a matter that should be left to the states and made it a federal matter. Just as Brooks’ proposal to put the judicial genie back in the bottle is problematic (see here and here ) I believe that saying that pro-life/anti-abortion advocates will allow this to be a state decision is unrealistic. They will seek legislation to prohibit the practice nation wide.

David Brooks on the Filibuster

Even David Brooks is expressing concerns about the nuclear option. You have to wade through some of his thoughts on Roe v. Wade, some of which I would disagree with, but he makes the following points:

Once the filibuster was barred from judicial nomination fights, it would be barred entirely. . . .The culture of deliberation would be voided. Minority rights would be unprotected. . . . Those who believe in smaller government would suffer most.

It would be interesting to see, when the time comes for debate on the nuclear option (assuming there will be any debate), whether any Dems make precisely this very conservative argument.

As an aside, if I were a “pro-choice” Republican I would be troubled by this observation of Brooks: “If [Republican Senators who love the institution] turn back now, their abortion activists will destroy them.” (Not surprised, troubled.)

Wednesday, April 20, 2005

Paul Wolfowitz -- Prophet

Atrios points out this new poll which says that 53% of Americans don’t believe the Iraq invasion was “worth it”. The story asks why “there has been very little press coverage of why, in light of some positive developments in Iraq, this is true.”

Well in fact there has been much coverage of why support has eroded for the invasion. Simply put, the failure to find WMDs and significant connections between Saddam Hussein and Al-Qaeda type terrorist organizations has diminished the American public’s support for the invasion despite the fact that some of the fruits of the labor may be here or on the horizon.

As Paul Wolfowitz noted:
there have always been three fundamental concerns. One is weapons of mass destruction, the second is support for terrorism, the third is the criminal treatment of the Iraqi people. . . . The third one by itself . . . is a reason to help the Iraqis but it's not a reason to put American kids' lives at risk, certainly not on the scale we did it.

It is not historical revisionism to point out that what “sold” the American people on the invasion was WMD and Saddam’s connection to Osama. Some people (including I suspect Mr. Wolfowitz and Prof. Reynolds) always believed that the third reason was the best reason. I suspect that history will prove them right that this was the best of the three reasons (if only because history may show the weakness of evidence for the first two reasons). These people cannot, however, legitimately claim that that reason was the primary reason given to the American people for the invasion.

As I have said previously I hope that history proves Wolfowitz’ statement wrong and the liberation of the Iraqi people was worth putting American kids’ lives at risk on the scale we did.

Tuesday, April 19, 2005

My e-mail to Sen. Voinovich re: the Bolton nomination

I am a resident and voter in Ohio. Today I was watching the Senate Committee discussing the Bolton nomination. I am kind of on the fence about this. While I think he is a horrid nominee, I do believe that the President deserves great deference in selecting his administration (thouh I think that leeway does not extend to the same degree to Judicial nominees). So I am sitting there watching and my Senator, Senator Voinovich steps up and says there should be a delay in the vote (I am oversimplifying things here but that is the result) so that the issues surrounding the nominee can be more carefully considered and resolved.

This took a lot of courage and the Senator should be commended.

This is what I wrote in an e-mail to the Senator:

I was actually watching the committee hearing today at which the Bolton nomination was being discussed. Personally, if you end up supporting the nominee under the theory that “the President deserves great deference on his nominees” I would not bat an eye. That being said, I did want to commend you for the courage and independence you displayed in the committee. At a minimum I think the additional time will allow for the issues to be more carefully evaluated. Thank you for your courage and independence.

Tom DeLay and the "Whatever"

Prof. Kerr notes some of the latest pronouncements out of the mouth of the fearless majority leader. Namely that Justice Kennedy’s conduct is “outrageous” because he cites foreign authority and uses the internet for research. Silly Justice, don’t you know you are supposed to base your decisions on ”the, whatever, the Constitution”.

Monday, April 18, 2005

Martin and Malcolm (Revisited)

While I admire both a great deal, I quite frequently go over with myself why I am a bigger fan of Malcolm X while so many of my friends tend to favor Dr. Rev. Martin Luther King, Jr. Though I have read a good deal of what Dr. King wrote, I do not recall having read this quote (via Instadpundit ):

“if your opponent has a conscience, then follow Gandhi. But if your enemy has no conscience, like Hitler, then follow Bonhoeffer.”

In an odd way this quote goes a good ways to explaining why I prefer Malcolm to Martin. Intellectually, I was introduced to Dr. King's writings in the context of non-violent resistance. While the quote above evidences a good deal of pramatism which undoubtedly Dr. King needed to exercise to achieve his goals, it does not evidence a comittment to non-violence. Stated another way, he was a "tactical pacifist". This may be a great position for a leader, but it was not what I admired when I was studying philosophy.

As an aside, in reference to the quote above, Prof. Reynolds states
“[A reader] asks: 'Now consider: MLK chose nonviolence to advance his cause. What does that say, then, about his beliefs about his opponent?'"

My take away from that quote is that MLK believed that America in the 1960s was more like British colonialists (who incidentally merited being violently overthrown a century and a half before by Amercian colonists) suppressing a majority half a world away rather than Nazi Germany. This is faint praise indeed.

Sunday, April 17, 2005

On Sen. Lugar

I just watched Sen. Lugar on FoxNews Sunday regarding the filibuster. Unfortunately, it appears that he will support the “nuclear option”. He articulately made the case for filibusters applying to legislation but not to “executive” matters such as nominations. Two problems with this:

First, Senate Rule XXII does not make a distinction between the two types of actions. If the filibuster can be removed for this purpose, the rule no longer exists. The leadership may promise Sen. Lugar and others that the filibuster will not be removed with respect to “legislative” matters, but there is nothing that assures that.

The second point I would make is that Sen. Lugar has participated in filibusters of “executive” calendar matters. In addition to filibustering a judicial nominee in 1980 (now Justice Breyer), Sen. Lugar filibustered a nominee for one of the most ceremonial and symbolic positions in all of the government. I know that I should not expect FoxNews to question Sen. Lugar on these discrepancies but I do expect more of Mr. Wallace.