Reading the justices: second day of SCOTUS arguments on HCR

The New Neo Posted on by

I’ve noticed a lot of speculation today about the way the questioning is going in the Supreme Court, and what it might mean for the ultimate ruling.

And that’s as it should be. It’s a case of unusual importance, and not just because HCR is a big deal. The constitutional questions raised are an even bigger deal.

But it’s been my observation in the past that trying to predict what the justices will rule based on the questions they ask during oral arguments is a fool’s errand, although a very tempting and perhaps irresistible one, especially for legal analysts. Justices ask questions for a lot of reasons, but one of the main things they appear to be doing is acting in a Socratic manner, almost like law school professors trying to tease from the advocates for each side all the possible arguments pro and con. Then after some contemplation they ordinarily rule exactly as they were leaning in the first place, IMHO—usually with Justice Kennedy casting the deciding vote.

So articles like this, although interesting, are not necessarily good prognosticators:

If the vote had been taken after Solicitor General Donald B. Verrilli, Jr., stepped back from the lectern after the first 56 minutes, and the audience stood up for a mid-argument stretch, the chances were that the most significant feature of the Affordable Care Act would have perished in Kennedy’s concern that it just might alter the fundamental relationship between the American people and their government. But after two arguments by lawyers for the challengers ”” forceful and creative though they were ”” at least doubt had set in. and expecting the demise of the mandate seemed decidedly premature…The argument on Tuesday pointed the Justices in opposite directions ”“ the first hour against the mandate, the second hour cautiously in its favor.

Well, yes. That’s the way these oral arguments tend to go.

So I don’t think any predictions right now mean much, although you can read about the issues and the arguments at length at the links I’ve already given. One thing I will say, though, is that at this point none of the justices agrees with the oral argument of that great legal mind Nancy Pelosi:

Jeepers creepers, winter’s back…

The New Neo Posted on by

…in New England. But only for a little while.

March is usually quite cold here, and often snowy, although by then we can comfort ourselves with the idea that the long winter is nearly over. But this March it’s been exceptionally warm all over New England, prompting both joy and dark mutterings about global warming.

I’m not sure how far ahead of the usual schedule the flowers are, but there’s forsythia all over the place, and this is not a normal March phenomenon. And the peepers are making an awful lot of noise already, too:

This tiny frog is a seldom seen, but often heard and one of the real telecasters of spring.

These hardy little frogs spent the winter sleeping under leaf litter and logs. They are about an inch long, brown, and difficult to see in their new wetland homes. As the season progresses, each male stakes out a small, four to sixteen inch square, “territory” and sets up housekeeping.

During the breading season, this little fellow sits in the frigid water on his homestead and is heard peeping through the night. Whole marshes and wetlands come alive with a chorus of their song. The loud high-pitched peep is repeated once per second from dusk to dawn, as many as 4,500 times a night. This vocal effort is an attempt to defend his homestead area, and to attract a mate. Science has shown the females are attracted to the older males who tend to call faster. Once he attracts a lady, and she is happy with the “home”, she will lay up to 800 eggs, and when they hatch, they are a food source for birds, snakes, turtles, and fish. Those tiny frogs that survive, head for the woods to find small spiders and insects to eat.

Well,…

The New Neo Posted on by

…this should come as no surprise. For quite some time we’ve been saying on this blog that Obama will have more “flexibility” (although we haven’t used that word) in a second term.

Supreme Court begins to hear oral arguments on Obamacare today

The New Neo Posted on by

Three days of oral arguments is a long time in SCOTUS-land, indicating that the Court considers the issues in the HCR case incredibly important. And yet this hasn’t stopped some liberal commentators (see this, for example) from preemptively suggesting that the arguments of the opposition are ludicrously weak, and that therefore any ruling that might go against the health care reform law will be obviously biased and politically motivated.

Liberal Ezra Klein, though, has done a pretty good job of simply laying out the main issues to be discussed in the oral arguments. In summary, we’ve got:

(1) Anti-Injunction Act: can the Court rule on the case before 2015, when the penalties in question goes into effect?

(2) Individual mandate: is it permissible under the Commerce Clause?

(3) Severability: if the mandate is found unconstitutional does the entire HCR act have to go as well?

(4) Medicaid expansion: can the bill force the states to expand Medicaid in a manner they say is too economically onerous?

That’s a simplification, of course, but it’s the basic idea. Real SCOTUS junkies can hear oral arguments and read transcripts here—not live but pretty quickly after they occur. And SCOTUSblog has a lot of fast-breaking information on what’s happening, and all sorts of links.

The overarching issue is the power of the federal government:

“This case will be a tremendous opportunity to reaffirm that Congress is a legislature of limited powers,” said Randy Barnett, a Georgetown University law professor who is helping the challengers.

Harvard University law professor Laurence Tribe…said opponents are asking the court to erase the flexibility the Constitution’s framers gave Congress. If the court struck down Mr. Obama’s law, said Mr. Tribe, it would implicate “virtually every major piece of federal legislation enacted over the past several decades, and many laws now in the pipeline”””including proposals favored by conservatives.

To libertarians and many conservatives, that latter point is a feature, not a bug.

Dick Cheney: age, status, and heart transplants

The New Neo Posted on by

As soon as Dick Cheney’s heart transplant was announced, the predictable unfunny jokes began to proliferate:

Have they put Bush on the brain transplant list?

Don’t they mean an implant, since he didn’t have a heart to begin with?

Too bad there’s no soul transplant list.

So funny I forgot to laugh, as my brother used to say.

I’ve never understood the intensity of the hatred for Cheney. Disagreement, yes. Disapproval, yes. But there’s no end of rabid hatred from the left, so much so that many people really do seem to wish him dead.

As far as Cheney’s transplant goes, I wish him well. And I have to say that I’m astounded he’s lasted this long; when he was nominated as VP in 2000, and then re-elected in 2004, I never never never thought he’d live to finish out his terms. In fact, one of the many thoughts that passed through my mind on 9/11 was that Cheney must have a stronger heart than I thought he did to have survived the shock.

And here it is almost eleven years later, and 71-year-old Cheney’s got his new heart. Apart from all those who hate his guts (another body part), there are quite a few people discussing whether or not someone of that age ought to be eligible for a transplant. I don’t think there should be any hard-and-fast rules about that. It depends on so many things: need and availability and match, first and foremost; and then how otherwise healthy and active person is. In this, many physicians in the field of transplants seem to agree:

His age may be 69 [when he was first put on the heart-transplant list] but we talk about physiological age. There are transplant centers who will definitely consider a 69 year old,” [heart surgeon Magliato] said. “There is no national cut off age for heart transplants; it depends on the transplant center. Some have abolished a cut off age and will consider every patient on a case by case basis.”…

According to data from the United Network for Organ Sharing, the survival rate for a heart transplant on a patient over the age of 65 after one year is 84 percent. Magliato stressed that the prognosis for these patients is quite good considering their chances of survival without the transplant…

“You don’t get on the list by buying your way on. People think somehow wealth plays a role, and that is absolutely not true, nor does socioeconomic status,” she said. “The bottom line is the sicker you are, the higher on the list you are.”

Yes, but I’ve got a question: what if this had happened while Cheney was VP? Would (and should) the priorities have been different? Should he have gone to the head of the line then, no matter what? And my question isn’t specifically about Cheney, of course, and whether you like or hate him. It’s about someone holding that office (or the presidency) who becomes ill. Shouldn’t they get some sort of special treatment? And if so, where would it stop? How about members of Congress? Personally, I think it should stop with the presidency and vice-presidency, but I do think they should get priority.

[NOTE: It seems that Cheney waited longer than average for his new heart.]

The Santorum exodus

The New Neo Posted on by

No, I’m not referring to anything Biblical (note that the word “exodus” isn’t capitalized). I’m referring to a trend I’ve noticed in the comments section of the right-wing blogosphere, and that’s the reaction to Santorum’s latest statements about Romney=Obama, and his supposed retraction-that-wasn’t-really-a-retraction.

Yesterday I wrote about Santorum’s remarks, but at that point I hadn’t yet read much of the backlash in the right half of the blogosphere. It’s been surprisingly strong and almost overwhelmingly negative, even among former Santorum-supporters. I can’t tell you how many comments I read yesterday that essentially said, “That’s it. I’ve had it with Santorum. He crossed a line that shouldn’t be crossed.”

For the most part, Santorum’s support has always been soft. It came late, because he was the last non-Romney standing. Now he may not remain standing for too much longer.

It’s interesting, because all Santorum did, really, was to voice the same thought that I’ve often read in comments throughout the right side of the blogosphere: “Romney is Obama-lite, so it really doesn’t matter which one you vote for.” How many times have I seen that stated? Plenty. But in response, even many people who say they agree with him on this say that whereas it’s okay for a blog comment, it’s not the sort of thing a person running for president should ever voice. And Santorum’s subsequent doubling-down, blaming Romney for the brouhaha over his own remarks, is causing him to lose even more respect.

The whole thing makes me wonder whether Santorum might be a blog reader himself. I’d guess that, at the very least, he must employ staff who peruse the blogs regularly. It strikes me that maybe that’s why he thought his remarks would be well-received; he’d seen so many similar thoughts expressed around the blogsophere that maybe he got accustomed to thinking they were mainstream and acceptable. Apparently, they’re not—at least, not for a candidate.

So if this is Santorum’s downfall, he shouldn’t blame Romney as he did. It’s the blogosphere’s fault :-).

The origins and uses of the chaise lounge

The New Neo Posted on by

You will not believe this. I’m not even sure whether I believe it.

It all began innocently enough. I was visiting my son, who had a space problem in the main living area of his apartment—not enough room for a regular couch. For various reasons he thought a chaise lounge might fit the bill and leave things feeling not too cramped and claustrophobic. We were talking about it, looking at photos and prices online, and came across a type of chaise that used to be called a “fainting couch.”

Here’s an old-timey version:

And a modern, streamlined one:

Interesting, a bit different—and then there was that curious name, “fainting couch.” Designed, no doubt, for those Victorian ladies to conveniently and gracefully recline in whenever they felt a swoon coming on, which was often.

At least, that’s what I supposed. And that’s probably something it was indeed used for way back when. But that wasn’t its only purpose, as I discovered when I Googled “fainting couch”—you know I like to do research—and went to its Wiki entry.

At first I thought it might be some sort of hoax, perhaps the Onion at work. But no; this stuff seems to be real (children, please leave the room now):

The second most common theory for the predominance of fainting couches is home treatment of female hysteria through manual pelvic massage by home visiting doctors and midwives. As a “disease” that needed constant, recurring (usually weekly) in-home treatment with a procedure that through manual massage could sometimes take hours, creating specialized furniture for maximum comfort during the extended procedure seems likely, as does the later creation of fainting rooms for privacy during the intimate massage procedure.

That’s a bit cryptic, but it’s describing pretty much what you think it might be describing. There’s more here. Much, much more. But you’ll have to go there yourself.

What passes for legal analysis in Slate

The New Neo Posted on by

Soon the Supreme Court will be facing the question of whether the federal health care individual mandate is constitutional, but Slate’s Dahlia Lithwick thinks the legal questions are laughable and not even worth considering. Of course it’s constitutional, dummyheads, she writes.

Why? Well, first of all, because until recently, the Obama administration “expended almost no energy defending it.” Now, there’s a convincing argument.

And then there’s Lithwick’s second argument, the argument from Pelosi authority, “Back when the bill passed Nancy Pelosi famously reacted to questions about its constitutionality with the words, ‘Are you serious?'” Touché, Dahlia!

And her third argument is that “the fact that the Obama administration rushed the case to the Supreme Court in an election year is all the evidence you need to understand that they remain confident in their prospects.”

And that’s all Lithwick seems to need to declare it Q.E.D. that the law is constitutional and that no reasonable man (or woman) could ever find otherwise. The rest of her article is devoted to wondering whether those backwards and completely-politically-motivated conservative Justices will find it unconstitutional anyway.

And lest you think Lithwick is just a legal know-nothing, she’s got a law degree from Stanford. So she can’t use ignorance of the law as an excuse.

[ADDENDUM: I just read Ed Whelan’s piece in National Review, which is in agreement with what I’ve said here but goes into it at greater length.]

The candidates and those gotcha gaffes

The New Neo Posted on by

I was going to write a long long piece on the Romney “etch-a-sketch” thing and the Santorum “vote for Obama instead” thing.

I did all the research. Looked at the original quotes in context (see this and this). Read the disclaimers, where Romney said his views would be consistent and conservative, and Santorum said he wouldn’t ever be voting for Obama over any Republican.

And I finally decided I didn’t want to write that big long piece about it. So I’m writing this smaller shorter piece to say that I really hate all the “gotcha” moments, and consider them nowhere near as important as the candidates themselves, their stated positions, their records, their histories, their personalities, and how they perform in the debates.

I’ve hated those moments from way way back. I hated it when Romney’s father got excoriated for his “brainwashed” remark. I hated it when Muskie’s tears (or perceived tears) did him in. I hated George Allen’s macaca fracas (although I do like to say “macaca fracas.” Does the make me a racist?) You may even notice that, compared to other bloggers, I don’t tend to write much about Obama’s many gaffes.

But despite all that, I do think that with gaffes there’s a hierarchy of importance that goes like this, from least important to most:

(1) errors of pronunciation or word usage or number (“57 states”) that could easily be the result of exhaustion or a momentary brain stutter.

(2) remarks made by surrogates (“advisors,” “supporters”) rather than by the candidate him/herself.

(3) off-the-cuff remarks rather than written ones (although both are important)

Using these rules, I’d say Santorum’s remarks were worse. He made them himself, and they were in a scripted speech. His retraction also didn’t sit well with me (worse than his original remarks, actually), because as he tried to correct what he considered the misperceptions about what he’d meant, he blamed his own error and the furor that followed on Romney, and to a certain extent doubled down in indicating once again that Romney and Obama are pretty much the same:

“I would never vote for Barack Obama over any Republican and to suggest otherwise is preposterous,” Santorum said. “This is just another attempt by the Romney Campaign to distort and distract the media and voters from the unshakeable fact that many of Romney’s policies mirror Barack Obama’s.”

Apologies and retractions are better done without the “yes, buts.” It’s hardly “preposterous” to have understood Santorum’s original remarks as suggesting that people (including Santorum himself) might just as well vote for Obama if Romney ends up the Republican nominee:

You win by giving people the opportunity to see a different vision for our country, not someone who’s just going to be a little different than the person in there. If you’re going to be a little different, we might as well stay with what we have instead of taking a risk with what may be the Etch A Sketch candidate of the future.

I’ve never been impressed by Santorum as a candidate, and that hasn’t changed. But I’ve also noticed in the last few days a sort of weariness in comments around the blogosphere about him, as though some of the air has gone out of the Santorum balloon. He’ll almost certainly win Louisiana, and maybe even by double digits. But has his campaign passed its peak?

Best restaurants?

The New Neo Posted on by

Here’s a list of the 20 best restaurants in America—according to the folks at something I’ve never heard of before called The Daily Meal. If you take a look, you’ll notice there’s a trend, which is for restaurants that are elegant and (I’m fairly sure) expensive.

Even if I had the money, these wouldn’t be my choices. Mine would probably all be ethnic restaurants, and reasonable ones at that: Greek, Lebanese, Spanish, Chinese. Slightly down the list for me, but still way up there, would come French (not haute, but rustic) and of course Italian. Who doesn’t like Italian food?

When I was a kid there weren’t many ethnic restaurants in most of the US. Pizza places and spaghetti joints, yes. Chinese food was wonton soup, spare ribs, and chow mein with those little crunchy things on it, which we considered very exotic indeed.

And that was about it until I was eight, when my uncle took us to a Manhattan eating establishment that was ever-afterward known in my mind as “the Armenian restaurant.”

I no longer remember the occasion we were celebrating. And I certainly don’t know why my uncle—a man not otherwise known for culinary adventurousness, to say the least—decided to lead us to such an odd and foreign choice.

But I remember the meal; oh, how I remember the meal! From the very first bite of the very first course, which was a soup with barley, yogurt, and mint, I was hooked. It was as though previously I’d been eating in black-and-white and now the food was Technicolor. And wide-screen.

From then on, I became a pest to my parents. Every time we went to Manhattan, which was usually to see a play on Broadway, I would beg them to take me to the Armenian restaurant. We never did, mostly because it was in the east 20s, as I recall, nowhere near where we ever were headed. But I never stopped trying until I finally grew up, when I went there one evening myself with some friends.

And you know what? It was just as good as ever.

So of course right now, salivating with the memory, I tried Googling it. Since I still don’t know the name, it was a bit of a challenge. But I found this query indicating there’s someone else with the same yearning:

Years ago, there were a couple old-school Armenian joints in Manhattan. One of them was down on Lexington in the 20’s. Can any lister tell me any Armenian restaurants remain in the city and where they might be? Thanks!

No one could come up with the name, so I guess it’s probably disappeared.

Was this restaurant really the “best”? I don’t know. But they say you always remember your first. And I sure do.

Turnout in the Illinois primary

The New Neo Posted on by

I keep reading it, over and over: the Republican turnout in Tuesday’s Illinois primary was low. Sometimes the report is “record low.” That would be a problem for Romney or the eventual nominee, whomever it might be, and would indicate a lack of voter enthusiasm on the part of the base.

This sort of thing has been written in the comments of this blog. Here’s one example:

As Alifa pointed out above, turnout was low. Indeed, I heard the IL Sec of State or whoever heads up the election squad quoted that this was a record low turnout.

Romney started the campaign of Repub personal destruction, and this is likely the result”¦.why bother to vote in the primary, since they’re all bums?

We are becoming Venezuelans. Discouragement leads to apathy.

Here’s another example, from the blog Gateway Pundit. There are many, many others.

It’s the meme du jour (that is, the meme du last Tuesday). Only problem is, it’s not true.

So how did this rumor begin? Some of the perception seems to be based on articles such as this one from CBS. It makes it sound as though turnout in general, as well as on the Republican side, was very low. But notice an interesting detail: the article only talks about the city of Chicago.

This one, written yesterday, seems to be saying that turnout was very low not just in Chicago, but at the state level:

Illinois voters, at least the ones who bothered to show up, did the math and wound up backing Mitt Romney, a candidate they see as less than thrilling but still the Republican Party’s best chance of capturing the White House this fall.

Turnout seems likely to be among the lowest in decades ”” perhaps the lowest, period. The record low in state records dating back to 1960 is 23 percent, which happened two years ago. Officials in several election districts said Tuesday’s turnout was hovering around 20 percent.

But later on the article drops a first hint of what’s really going on, although its significance could easily be missed [emphasis mine]:

The city of Chicago, overwhelmingly Democratic, might end up with its lowest turnout since World War II. Officials said turnout was 22.8 percent, with just 1 percent of precincts left to count as of early Wednesday morning.

The lack of statewide races beyond the presidential contest likely played a role in holding down turnout, particularly among Democrats. It was the first Illinois primary since 2000 that didn’t include a race for U.S. Senate or governor.

Aha! So now we learn more explicitly that it is total turnout they’re talking about, and that there’s a special reason why the Democratic turnout would be so depressed: not only is Obama a shoe-in for the Democratic nomination, but there are no statewide contests, unlike in previous years.

One would think, since it’s really only the Republican battle that anyone’s paying much attention to, that an article about turnout would focus on Republican turnout. But I’ve seen very few that mention that separately. It’s hard to avoid coming to the conclusion that this is purposeful, because it’s such a glaring omission when you finally spot it. The goal? My guess is that it’s to have the reader think turnout on the Republican side was low, which is a demoralizing message to the Republican Party. Perhaps the hope is that it will even become a self-fulfilling prophecy. Of course, it could also be mere stupidity, but I don’t think so.

And that especially low turnout in Chicago? Probably because Chicago is so overwhelmingly Democratic.

So, what was the level of Republican turnout in Illinois on Tuesday? Pretty darn high:

Romney actually won more votes in Illinois than John McCain did in 2008 and the number of Republican voters who went to the polls also exceeded turnout four years ago…While turnout in Chicago apparently was extremely low, that wasn’t the case for the entire state. Republican turnout was about 2.5% higher compared to four years ago, based on the latest state returns.

The Republican vote also surpassed the primary totals in 2004 and 2000.

In 2004, President George W. Bush won 583,575 votes in an uncontested primary. And in 2000, the Republican vote totaled 736,921 in a contested election that pitted Bush vs. McCain and several other candidates.

The increase in the Illinois vote cannot be attributed to population growth. The Democratic-leaning state’s population has grown less than 4% in the past 12 years, according to U.S. Census data.

The upshot is, Republicans are turning out to vote at similar levels to 2008 regardless of whether they are enthusiastic about their choice of candidates. Vote totals are generally higher in the Midwest while participation is mixed in the South.

Turnout in Illinois, Ohio and Michigan , for example, was higher in 2012. It was also higher in Alabama and Mississippi but lower in Florida and Tennessee.

The article goes on to say that higher turnout in the primaries isn’t necessarily correlated with winning the general. Of course not. But let’s get our facts straight about what the turnout actually was before we talk about what it means or doesn’t mean. And don’t count on most of the MSM to help us out in that endeavor.

[NOTE: Don’t misconstrue this post to mean I think the Republican electorate is exceptionally excited and inspired by the current slate of candidates. But I like to deal in facts, and the fact is that Republican turnout in Illinois was just fine. Perhaps the inspiration for Republican voters comes from the prospect of unseating Obama in 2012.]