Tag Archives: Radley Balko

Tucson

James Fallows:

After this horrible news from Tucson….

… let me amplify something I said half-coherently in a live conversation with Guy Raz on All Things Considered a little while ago. My intended point was:

Shootings of political figures are by definition “political.” That’s how the target came to public notice; it is why we say “assassination” rather than plain murder.

But it is striking how rarely the “politics” of an assassination (or attempt) match up cleanly with the main issues for which a public figure has stood. Some killings reflect “pure” politics: John Wilkes Booth shooting Abraham Lincoln, the German officers who tried to kill Hitler and derail his war plans. We don’t know exactly why James Earl Ray killed Martin Luther King, but it must have had a lot to do with civil rights.

There is a longer list of odder or murkier motives:
– Leo Ryan, the first (and, we hope, still the only) Representative to be killed in the line of duty, was gunned down in Guyana in 1978 for an investigation of the Jim Jones/Jonestown cult, not any “normal” political issue.

– Sirhan Sirhan horribly transformed American politics by killing Robert F. Kennedy in 1968, but Sirhan’s political causes had little or nothing to do with what RFK stood for to most Americans.

– So too with Arthur Bremer, who tried to kill George C. Wallace in 1972 and left him paralyzed.

– The only known reason for John Hinckley’s shooting of Ronald Reagan involves Jodie Foster.

– It’s not often remembered now, but Manson family member Lynette “Squeaky” Fromme tried to shoot Gerald Ford, again for reasons that would mean nothing to most Americans of that time.

– When Harry Truman was shot at (and a policeman was killed) on the sidewalk outside the White Blair House, the attackers were concerned not about Cold War policies or Truman’s strategy in Korea but about Puerto Rican independence.

– The assassinations of William McKinley and James Garfield were also “political” but not in a way that matched the main politics of that time. The list could go on.

So the train of logic is:
1) anything that can be called an “assassination” is inherently political;
2) very often the “politics” are obscure, personal, or reflecting mental disorders rather than “normal” political disagreements. But now a further step,
3) the political tone of an era can have some bearing on violent events. The Jonestown/Ryan and Fromme/Ford shootings had no detectable source in deeper political disagreements of that era. But the anti-JFK hate-rhetoric in Dallas before his visit was so intense that for decades people debated whether the city was somehow “responsible” for the killing. (Even given that Lee Harvey Oswald was an outlier in all ways.)

That’s the further political ramification here. We don’t know why the Tucson killer did what he did. If he is like Sirhan, we’ll never “understand.” But we know that it has been a time of extreme, implicitly violent political rhetoric and imagery, including SarahPac’s famous bulls-eye map of 20 Congressional targets to be removed — including Rep. Giffords. It is legitimate to discuss whether there is a connection between that tone and actual outbursts of violence, whatever the motivations of this killer turn out to be. At a minimum, it will be harder for anyone to talk — on rallies, on cable TV, in ads — about “eliminating” opponents, or to bring rifles to political meetings, or to say “don’t retreat, reload.”

Jack Shafer at Slate:

The attempted assassination of Rep. Gabrielle Giffords, D-Ariz., and the killing of six innocents outside a Tucson Safeway has bolstered the ongoing argument that when speaking of things political, we should all avoid using inflammatory rhetoric and violent imagery.

“Shooting Throws Spotlight on State of U.S. Political Rhetoric,” reports CNN. “Bloodshed Puts New Focus on Vitriol in Politics,” states the New York Times. Keith Olbermann clocked overtime on Saturday to deliver a commentary subtitled “The political rhetoric of the country must be changed to prevent acts of domestic terrorism.” The home page of the Washington Post offered this headline to its story about the shooting: “Rampage Casts Grim Light on U.S. Political Discord.”

The lead spokesman for the anti-inflammatory movement, however, was Pima County Sheriff Clarence Dupnik, whose jurisdiction includes Tucson. Said Dupnik at a Jan. 8 press conference in answer to questions about the criminal investigation:

I’d just like to say that when you look at unbalanced people, how they are—how they respond to the vitriol that comes out of certain mouths, about tearing down the government, the anger, the hatred, the bigotry that goes on in this country is getting to be outrageous. And unfortunately, Arizona, I think, has become sort of the capital. We have become the mecca for prejudice and bigotry.

Embedded in Sheriff Dupnik’s ad hoc wisdom were several assumptions. First, that strident, anti-government political views can be easily categorized as vitriolic, bigoted, and prejudicial. Second, that those voicing strident political views are guilty of issuing Manchurian Candidate-style instructions to commit murder and mayhem to the “unbalanced.” Third, that the Tucson shooter was inspired to kill by political debate or by Sarah Palin’s “target” map or other inflammatory outbursts. Fourth, that we should calibrate our political speech in such a manner that we do not awaken the Manchurian candidates among us.

And, fifth, that it’s a cop’s role to set the proper dimensions of our political debate. Hey, Dupnik, if you’ve got spare time on your hands, go write somebody a ticket.

Sheriff Dupnik’s political sermon came before any conclusive or even circumstantial proof had been offered that the shooter had been incited by anything except the gas music from Jupiter playing inside his head.

For as long as I’ve been alive, crosshairs and bull’s-eyes have been an accepted part of the graphical lexicon when it comes to political debates. Such “inflammatory” words as targeting, attacking, destroying, blasting, crushing, burying, knee-capping, and others have similarly guided political thought and action. Not once have the use of these images or words tempted me or anybody else I know to kill. I’ve listened to, read—and even written!—vicious attacks on government without reaching for my gun. I’ve even gotten angry, for goodness’ sake, without coming close to assassinating a politician or a judge.

From what I can tell, I’m not an outlier. Only the tiniest handful of people—most of whom are already behind bars, in psychiatric institutions, or on psycho-meds—can be driven to kill by political whispers or shouts. Asking us to forever hold our tongues lest we awake their deeper demons infantilizes and neuters us and makes politicians no safer.

Alex Massie:

So apparently a pretty stupid Sarah Palin poster from last year in which gunsights were slapped over 20 districts carried by John McCain from which the Democratic incumbent had voted for Obamacare, is now to be considered the inspiration for this atrocity. Mrs Palin has some influence, but let’s not get carried away. For what it’s worth – and readers know that I’m hardly her greatest fan – I do not think she is very much more responsible for this abomination than Jodie Foster was for John Hinckley’s attempt to murder Ronald Reagan. In any case, Palin’s poster was only a souped-up version of a campaign trope that both parties have been happy to employ in the past. (That said, Palin Presidential Futures, already worth shorting, took another dive yesterday.)

But the sordid temptations of politics are such that people who argue there’s little sensible connection between Hollywood “violence” and real-world violence now suddenly insist that it just takes a silly poster and plenty of over-heated rhetoric to inspire America’s Top Kooks to come out of the closet, all guns blazing. And of course the reverse is also true: people happy to blame Grand Theft Auto for just about anything now insist there’s no connection at all between the tone of political discourse (“Second Amendment Solutions!”) and some nut taking these notions just a little bit too seriously.

Clearly, things are a little more complicated than that. While you cannot legislate for lunatics there’s also little need to give them any encouragement. But the more we learn about Jared Loughner the more it seems probable – at this stage – that he’s the kind of mentally unstable person who neither needed nor took any inspiration from Palin or the Tea Party or anything other than powerful fantasies that were his own creation.

And this too is normal. Political violence of this type is almost definitionally unhinged but it’s striking how rare it turns out to be the case that the perpetrators can be fitted into one neat political profile or another. And even when they can their targets are frequently so at odds with the meaning of their supposed “philosophy” that trying to “make sense” of such matters becomes an even more frustrating task.

Anyway, we may think these are unusually turbulent times, fanned by unusual quantities of cheap and phoney populism, scaremongering and hysteria but this is not in fact the case. ‘Twas ever thus and the 1960s offer a perspective that might be worth looking at if only, despite all the huffing and puffing, to appreciate how calm and at peace America is these days. Remember McKinley and Garfield too, if you want to go still further back. America ain’t tearing itself apart these days, no matter how much Paul Krugman tries to persuade you it must be. The paranoid style has rarely lacked followers and, just as significantly, the centre has also always had a healthy paranoia of its own. Sometimes, as is the case today or in the aftermath of any other act of grim violence, this will seem unusually plausible.

Most of the time, however, the scare stories about a new era of Militiamen or whatever are seriously over-cooked. The temper of these American  times – despite what you will read everywhere today and tomorrow – is not unusually rebarbative or even uncommonly obtuse. (What might be said, mind you, is that the level of rhetoric is out of proportion to the stakes involved in the political game these days.)

The fact of the matter is that a country of 300 million people cannot help but be generously larded with oddballs, freaks, paranoids and assorted other nutters. Couple that with the American genius for self-realization and you soon begin to wonder why there isn’t more politically-themed violence than is actually the case

Radley Balko:

We’re going to hear a lot of talk in the coming days about putting an end to anti-government rhetoric. I’ve been listening to it all morning on the Sunday talk shows. Let’s get the obvious out of the way, here: Initiating violence against government officials and politicians is wrongheaded, immoral, futile, and counterproductive to any anti-government cause. As is encouraging or praising others who do. I ban anyone who engages in that kind of talk here.

But it’s worth remembering that the government initiates violence against its own citizens every day in this country, citizens who pose no threat or harm to anyone else. The particular policy that leads to the sort of violence you see in these videos is supported by nearly all of the politicians and pundits decrying anti-government rhetoric on the news channels this morning. (It’s also supported by Sarah Palin, many Tea Party leaders, and other figures on the right that politicians and pundits are shaming this weekend.)

I hope Rep. Giffords—and everyone wounded yesterday—makes a full recovery. It’s particularly tragic that she was shot while doing exactly what we want elected officials to do—she was making herself available to the people she serves. And of course we should mourn the people senselessly murdered yesterday, government employees and otherwise: U.S. District Judge John Roll, Dorothy Murray, Dorwin Stoddard, nine-year-old Christina Green, Phyllis Scheck, and Gabe Zimmerman.

That said, I long for the day that our political and media figures get as indignant about innocent Americans killed by their own government—killed in fact, as a direct and foreseeable consequence of official government policy that nearly all of those leaders support—as they are about a government official who was targeted by a clearly sick and deranged young man. What happened this weekend is not, by any means, a reason to shunt anti-government protest, even angry anti-government protest, out of the sphere of acceptable debate. The government still engages in plenty of acts and policies—including one-sided violence against its own citizens—that are well worth our anger, protest, and condemnation.

Michelle Malkin

Jonathan Martin in Politico

Keach Hagey in Politico

Nick Gillespie at Reason:

There’s no question that the GOP and its proponents are more than ready to play a similar game. Any moral lapse by a Democrat, for instance, is an ethical rot that stems directly from the malefactor’s stance on the minimum wage or Don’t Ask Don’t Tell, say, while hypocrites such as Sen. Larry Craig and Tom DeLay are ethical one-offs. The most-unbelievable response in the immediate aftermath of the 9/11 attacks was longterm GOP activist Jerry Falwell’s announcement on Pat Robertson’s TV network that gays and women wearing pants etc. were responsible for radical Islamists killing 3,000 people (even more sadly, years after Falwell apologized for his self-evidently retarded statement, conservative writer Dinesh D’Souza blew out the thesis into a full-length book). I’m not trying to be “fair and balanced” here by bringing up GOP stupidity; I’m trying to point out that we’re in a decade of this sort craptastic instantaneous spin that latches on to everything in its path. I say this as someone who was fingered as broadly responsible for the culture that produced “American Taliban” John Walker Lindh.

Readers of this site know I’m no Sarah Palin fan, but to accuse her of complicity in the murderous spree of a clearly insane person is one of the main reasons that partisan political parties are losing market share. I had myself tweeted that blaming Palin for Jared Loughner’s mass killing would be like blaming J.D. Salinger for Mark David Chapman shooting John Lennon (and as Jesse Walker pointed out, in Chapman’s case, at least we could be sure Chapman had read Salinger). Given Loughner’s fixation on grammar and the supposed lack of literacy evinced by most Americans, maybe William Safire and S.I. Hayakawa should be held responsible.

Like Matt Welch and Jack Shafer, I don’t think that today’s political rhetoric is particularly overheated or vitriolic and, even if it were, I don’t think that would be a problem. I suspect that most people are like me in that they respond to folks who actually believe something and are willing to fight for it when it comes to a particular political issue. I don’t like bipartisanship, which usually means that all of us get screwed, but it’s easy enough to respect someone you virulently disagree with if you think they are arguing in good faith.

The problem isn’t with the current moment’s rhetoric, it’s with the goddamn politicization of every goddamn thing not even for a higher purpose or broader fight but for the cheapest moment-by-moment partisan advantage. Whether on the left or on the right, there’s a totalist mentality that everything can and should be explained first and foremost as to whether it helps or hurt the party of choice.

That sort of clearly calculated punditry helps explain one of last week’s other big stories, which is how both the Dems and the GOP have really bad brand loyalty these days. In its most recent survey of political self-identification, Gallup found that the Dems were at their lowest point in 22 years and that the GOP remains stuck below the one-third mark. The affiliation that has the highest marks for the past couple of decades on average and is growing now is independent. Faced with the way that the major parties and their partisans try to bend every news story, trend, box office hit or bomb, you name it, whether truly horrific (as Saturday’s shooting was) or totally banal, is it any wonder that fewer people want to be affiliated with the Dems and Reps? This is a long-term trend. Indeed, Harris Poll numbers that stretch back to the late ’60s show the same trend: Fewer and few folks want to view themselves as Democrats and the GOP has never been popular (even though far more people consider themselves “conservative” than “liberal”). And note what Gallup are Harris are talking about there is not party registration. It’s identification and self-affiliation; how you see yourself. It’s a cultural identity.

Paul Krugman at The New York Times

Ross Douthat at The New York Times

Tom Maguire on Krugman

Nick Baumann at Mother Jones:

At 2:00 a.m. on Saturday—about eight hours before he allegedly killed six people and wounded 14, including Rep. Gabrielle Giffords (D-Ariz.), in Tucson—Jared Lee Loughner phoned an old and close friend with whom he had gone to high school and college. The friend, Bryce Tierney, was up late watching TV, but he didn’t answer the call. When he later checked his voice mail, he heard a simple message from Loughner: “Hey man, it’s Jared. Me and you had good times. Peace out. Later.”

That was it. But later in the day, when Tierney first heard about the Tucson massacre, he had a sickening feeling: “They hadn’t released the name, but I said, ‘Holy shit, I think it’s Jared that did it.'” Tierney tells Mother Jones in an exclusive interview that Loughner held a years-long grudge against Giffords and had repeatedly derided her as a “fake.” Loughner’s animus toward Giffords intensified after he attended one of her campaign events and she did not, in his view, sufficiently answer a question he had posed, Tierney says. He also describes Loughner as being obsessed with “lucid dreaming”—that is, the idea that conscious dreams are an alternative reality that a person can inhabit and control—and says Loughner became “more interested in this world than our reality.” Tierney adds, “I saw his dream journal once. That’s the golden piece of evidence. You want to know what goes on in Jared Loughner’s mind, there’s a dream journal that will tell you everything.”

Peter Beinart at Daily Beast:

Liberals should stop acting like the Tea Party is guilty of inciting Rep. Gabrielle Giffords’ shooting until proven innocent. That’s unfair. If someone finds evidence that violent anti-government, or anti-democratic, rhetoric helped trigger Jared Lee Loughner’s shooting spree, then the people making those statements should pay with their political careers. But so far, at least, there is no such evidence. Of course, Sarah Palin should stop using hunting metaphors to discuss her political opponents. She should stop doing that, and a dozen other idiotic things. But just as Tea Partiers are wrong to promiscuously throw around terms like “communist” and “death panels,” liberals should avoid promiscuously accusing people of being accessories to attempted murder. That’s too serious a charge to throw around unless you have the goods. I want Barack Obama to derail the congressional Republicans as much as anyone. But not this way.

The Giffords shooting doesn’t prove that Sarah Palin has blood on her hands. What it does prove is that when it comes to terrorism, people like Sarah Palin have a serious blind spot. On the political right, and at times even the political center, there is a casual assumption—so taken for granted that it is rarely even spoken—that the only terrorist threat America faces is from jihadist Islam. There was a lot of talk a couple of weeks back, you’ll remember, about a terrorist attack during the holiday season. And there’s been a lot of talk in the last couple of years about the threat of homegrown terrorists. Well, we’ve just experienced a terrorist attack over the holiday season, and it was indeed homegrown. Had the shooters’ name been Abdul Mohammed, you’d be hearing the familiar drumbeat about the need for profiling and the pathologies of Islam. But since his name was Jared Lee Loughner, he gets called “mentally unstable”; the word “terrorist” rarely comes up. When are we going to acknowledge that good old-fashioned white Americans are every bit as capable of killing civilians for a political cause as people with brown skin who pray to Allah? There’s a tradition here. Historically, American elites, especially conservative American elites, have tended to reserve the term “terrorism” for political violence committed by foreigners. In the early 20th century, for instance, there was enormous fear, even hysteria, about the terrorist threat from anarchist and communist immigrants from Eastern or Southern Europe, people like Sacco and Vanzetti. In the aftermath of World War I, large numbers of immigrant radicals were arrested and deported. Nothing similar happened to members of the white, protestant Ku Klux Klan, even though its violence was more widespread.

Similarly today, the media spends the Christmas season worrying how another attack by radical Muslims might undermine President Obama’s national-security credentials. But when Jared Lee Loughner shoots 20 people at a Safeway, barely anyone even comments on what it says about the president’s anti-terror bona fides. And yet Loughner’s attack is, to a significant degree, what American terror looks like. Obviously, jihadists have committed their share of terrorism on American soil in the last couple of decades—from the attempted bombing of the World Trade Center in 1993 to the 9/11 attacks to Army psychiatrist Nidal Malik Hasan’s murder of 13 people at Fort Hood in 2009. But there have been at least as many attacks by white Americans angry at their own government or society. For almost two decades, culminating in 1995, Unabomber Ted Kaczynski sent mail bombs to people he considered complicit in industrial America’s assault on nature. (A surprising amount of recent American terrorism comes from militant environmentalists.) That same year, Timothy McVeigh blew up the Alfred P. Murrah Federal Building in Oklahoma City, the second-largest recent terrorist attack on U.S. soil after 9/11. In 1996, Eric Rudolph bombed the Atlanta Olympics to protest abortion and international socialism. According to the FBI, opposition to abortion also played a role in the 2001 anthrax attacks (you know, the ones Dick Cheney were sure had been masterminded by Saddam Hussein). In 2009, Wichita, Kansas, abortion doctor George Tiller was murdered. (He had already been shot once, and his clinic had been bombed.) That same year octogenarian neo-Nazi James Wenneker von Brunn shot a security guard at the U.S. Holocaust Memorial Museum. Last February, a man angry at the federal government flew a small plane into an IRS building in Austin, Texas.

Instapundit at The Wall Street Journal

Ezra Klein:

None of this, of course, will ease the suffering of Giffords or her family, nor of any of the other individuals and families directly affected by this morning’s slaughter. For them, the process of grieving and recovering has barely begun. Loughner’s shooting might’ve been motivated by mental illness, but the people in that parking lot were motivated by democracy: It was a meeting between a congressional representative and those she represents. They were attacked for being good citizens, and nothing can ever put that right.

But one way that people might pay tribute is to follow their example and attend the next meeting held by their representative. It is so easy and safe to participate in the American political system that we sometimes take doing so for granted. Today was a horrifying look into a world in which that isn’t so, and it should leave us with renewed appreciation for, and determination to protect, the world we have. On this, Giffords was way ahead of us: When the 112th session of the House of Representatives convened to read the Constitution earlier this week, she chose to read the section guaranteeing Americans the right “peaceably to assemble.”

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Filed under Crime, Political Figures, Politics

Galt Has A Moment And A Movement

Christopher Beam in New York Magazine:

Just before Thanksgiving, in an impassioned speech on the floor of the House of Representatives, Ron Paul called for Congress to be groped. The Transportation Security Administration, having rolled out its new airport body scanners, had decreed anyone who opted out could be subjected to the now-infamous enhanced pat-down. “Let’s make sure that every member of Congress goes through this,” Representative Paul said, waving his finger in the air. “Get the X-ray, make them look at the pictures, and then go through one of those groping pat-downs.” Perhaps this would put Congress in touch (quite literally) with real Americans.

Paul, the 75-year-old Texas libertarian and quixotic 2008 Republican candidate best known for his quest to abolish the Federal Reserve, is used to fighting lonely battles. But this time, he had company. Fox News went wall-to-wall on the (nonexistent) health hazards of body scans, naked outlines of passengers, and pat-down paranoia. “If you touch my junk, I’m going to have you arrested,” said newfound freedom fighter John Tyner to a TSA agent in a video that went viral. The left backed Paul too. Salon blogger Glenn Greenwald argued that the screenings had “all the ingredients of the last decade’s worth of Terrorism exploitation.” Blogger Jane Hamsher of Firedoglake called the X-ray devices “porno-scanners.” For one beautiful moment, the whole political spectrum—well, at least both vocal ends of it—seemed to agree: Too much government is too much government.

Maybe it was inevitable that the National Opt-Out Day, when travelers were going to refuse body scans en masse, failed to become the next Woolworth’s sit-in (how do you organize a movement that abhors organization?). It turned out most Americans actually supported the body scanners. But the moment was a reminder of just how strong, not to mention loud, the libertarian streak is in American politics.

No one exemplifies that streak more than Ron Paul—unless you count his son Rand. When Rand Paul strolled onstage in May 2010, the newly declared Republican nominee for Kentucky’s U.S. Senate seat, he entered to the strains of Rush, the boomer rock band famous for its allegiance to libertarianism and Ayn Rand. It was a dog whistle—a wink to free-marketers and classic-rock fans savvy enough to get the reference, but likely to sail over the heads of most Republicans. Paul’s campaign was full of such goodies. He name-dropped Austrian economist Friedrich Hayek’s seminal TheRoad to Serfdom. He cut a YouTube video denying that he was named after Ayn Rand but professing to have read all of her novels. He spoke in the stark black-and-white terms of libertarian purism. “Do we believe in the individual, or do we believe in the state?” he asked the crowd in Bowling Green, Kentucky, on Election Night.

It’s clear why he played coy. For all the talk about casting off government shackles, libertarianism is still considered the crazy uncle of American politics: loud and cocky and occasionally profound but always a bit unhinged. And Rand Paul’s dad is the craziest uncle of all. Ron Paul wants to “end the Fed,” as the title of his book proclaims, and return the country to the gold standard—stances that have made him a tea-party icon. Now, as incoming chairman of the subcommittee that oversees the Fed, he’ll have an even bigger platform. Paul Sr. says there’s not much daylight between him and his son. “I can’t think of anything we grossly disagree on,” he says.

There’s never been a better time to be a libertarian than now. The right is still railing against interventionist policies like TARP, the stimulus package, and health-care reform. Citizens of all political stripes recoil against the nanny state, which is nannier than ever, passing anti-smoking laws, banning trans fats, posting calorie counts, prohibiting flavored cigarettes, cracking down on Four Loko, and considering a soda tax in New York. All that, plus some TSA agent wants to handle your baggage.

Libertarianism has adherents on the left, too—they just organize around different issues. Whereas righty libertarians stew over taxes and bailouts, lefty libertarians despise de facto suspensions of habeas corpus, surveillance, and restrictions on whom you can marry. It’s not surprising that the biggest victories of the right and the left in the last weeks of this lame-duck session of Congress were about stripping down government—tax cuts and releasing the shackles of “don’t ask, don’t tell.”

Much of Americans’ vaunted anger now comes from a sense of betrayal over libertariansim shrugged. Right-wing libertarians charge that the Bush presidency gave the lie to small-government cant by pushing Medicare Part D, No Child Left Behind, and a $3 trillion war. Left-wing libertarians are furious that Obama talked a big game on civil liberties but has caved on everything from FISA to DOMA to Gitmo. Meanwhile, the country faces a massive and growing deficit (too much government!) that neither party has the power or the inclination to fix. If there were ever a time to harness libertarian energy—on left and right—it’s now.

Erik Hayden at The Atlantic with the round-up

Beam and Julian Sanchez at Bloggingheads

Matt Welch at Reason:

Beam’s piece ends on an extended Big But, in which we hear warnings about doctrinal purity, extreme Randian selfishness, Brink Lindsey leaving Cato, and minarchy being “an elegant idea in the abstract.” In the real world, not bailing out banks “would have unfairly punished a much greater number” of homeowners, and so on. Plus, that one Tennessee house burned down, and: Somalia! He ends the piece like this:

It took 35 years for Ron Paul to reach the center of American politics. And it could take another 35 before he or someone like him is back. It’s certainly a libertarian moment—but it’s not liable to last too long. Libertarianism and power are like matter and anti-matter. They cancel each other out.

Radley Balko at Reason:

The first two-thirds of the article are a sort of tour guide of libertarian personalities, factions, and general philosophy. It comes off a bit like Beam describing to Manhattanites some exotic new species discovered in Madagascar, but I suppose that probably is how libertarians come off to people outside the politics/policy/media bubble. This portion of the article is mostly fair, though are still some revealing word and phrase choices. (For example, the Koch brothers are only “infamous” if you don’t happen to agree with them. Just like George Soros is only infamous if you’re opposed to the causes he funds.)

Still, the first two-thirds of the article is mostly a quick and dirty introduction to or primer on libertarianism and the movement surrounding it, with Beam largely playing a neutral storyteller, interviewer, and interpreter.

It’s in the last third of the article there’s a noticeable and disruptive shift in tone. After establishing a certain trust with the reader that casts himself in the role of a mostly neutral observer and chronicler of this libertarian uprising, Beam then stops describing libertarianism, and starts critiquing it himself. The critiques are selective. He picks a few issues, broadly (and sometimes inaccurately, or without appropriate detail) describes the libertarian position, then describes why libertarianism fails on that particular issue. Taken as a whole, these critiques are supposed to support his thesis for the latter third of the article, which is that libertarianism is utopian and impractical. (He neglects to explain how the current system has produced better results, but that’s a different discussion.) I don’t think much of Beam’s critiques, but then I’m also a libertarian.

But it’s not the critiques themselves that I found off-putting. If this had been a straight Jacob Weisberg-style trashing of libertarianism, we could evaluate it on those terms. But this is more subtle and, I think, in some ways more pernicious. This was a thrashing disguised as a primer. That Beam makes these critiques himself comes off as abrupt and, frankly, condescending. There’s an aesthetic I’ve noticed among some journalists that libertarianism is so crazy and off the rails that it’s okay to step outside the boundaries of decorum and fairness to make sure everyone knows how nuts libertarians really are. (A couple years ago, I emailed a prominent journalist to compliment him on a book he had written. His strange response: He thanked me for the compliment, and then ran off several sentences about how dangerous and evil he thought my politics were.)

Reihan Salam:

Radley Balko has written a characteristically astute critique of Chris Beam’s New York magazine article on libertarianism. I think Radley says all that needs to be said on the subject.

Instead, I’d like to throw out a few other approaches to the subject that might have worked better:

(1) While talking to a good friend, we came to the conclusion that while cultural conservatism’s influence has been fading (something we both lament, albeit in different degrees) and while social democratic thinking is moribund, certain kinds of libertarian incrementalism (think Ed Glaeser and Tyler Cowen), not just resigned but comfortable with the idea of a social safety net in an affluent society, have grown more influential. Libertarian purists hate it. But they’ve grown less relevant. This piece might have focused on criminal sentencing, the war on drugs, etc., with a “we’re all libertarians now” coda. The trouble with this piece is that it might be really boring. But it would make sense. And it would avoid a lengthy discussion of minarchism.

(2) A much more fun piece, attuned to a New York audience, would open with the Tea Party’s libertarianism and make a strong case for its hypocrisy: they call themselves libertarians, but here are the subsidies they love, the un-libertarian restrictions they champion, etc. This section would be tendentious and unfair, but that’s the fun of it. And then the piece would argue that modern-day New York city, for all its taxes and regulations, is the real home of liberty: look to the cultural freedom, and also to the entrepreneurial energy of Silicon Alley, etc. Bracketing whether or not this is fair, it would be a provocative piece about who really owns liberty.

(3) Drawing on Amar Bhidé and Tim Wu and Tyler, one could also write a straightforward piece on how Tea Party libertarians and minarchists are misguided because more freedom and more affluence and more government tend to go hand in hand. We get more free and less free at the same time, along different dimensions. Again, this piece might be boring, but not necessarily.

David Weigel:

Beam’s history and etymology are going to be useful to outsiders, who don’t pay attention to this stuff. It’s a better case against libertarian policy, if you want that, than a shouty “investigative” blog post at some liberal site that connects a congressman’s staff to the Koch family with the assumption that evil has just been uncovered. But no case against libertarianism sounds very compelling right now, because any alternative to the managed economy sounds great to a country with 9.9 percent unemployment.

Do libertarians promise utopia? Sure. So do the socialists who came up with the ideas that motivate Democratic politicians. Voters don’t care much about where ideas come from as long as they have jobs. Now, the real test for libertarians will come if a year of Republican austerity budgeting is followed by economic growth. In the 1990s, the new, libertarian-minded Republican congressmen and governors discovered that fast growth allowed them to cut taxes and grow budgets for services that voters liked. In the 2010s, if unemployment falls, will the libertarian Republicans keep cutting budgets and reducing services? It doesn’t sound impossible right now.

E.D. Kain at The League:

In any case, I suspect the many reactions to Beam’s article are not because of any of its insights but rather because it is long and in a prestigious publication, and because it is written in such accessible language. It may not do anything but scratch a few surfaces and regurgitate a number of old anti-libertarian tropes, but that’s to be expected. Look, here I am commenting on it myself, largely because it is long and because so many other people are commenting on it and because I’m surprised at how little it really says about the Libertarian Moment in question.

Matthew Yglesias:

I liked Chris Beam’s NY Mag article on libertarians, but I want to quibble with this:

Yet libertarianism is more internally consistent than the Democratic or Republican platforms. There’s no inherent reason that free-marketers and social conservatives should be allied under the Republican umbrella, except that it makes for a powerful coalition.

People, especially people who are libertarians, say this all the time. But we should consider the possibility that the market in political ideas works is that there’s a reason you typically find conservative and progressive political coalitions aligned in this particular way. And if you look at American history, you see that in 1964 when we had a libertarian presidential candidate the main constituency for his views turned out to be white supremacists in the deep south. Libertarian principles, as Rand Paul had occasion to remind us during the 2010 midterm campaign, prohibit the Civil Rights Act as an infringement on the liberty of racist business proprietors. Similarly, libertarians and social conservatives are united in opposition to an Employment Non-Discrimination Act for gays and lesbians and to measures like the Lilly Ledbetter Fair Pay Act that seek to curb discrimination against women.

Jonathan Chait at TNR:

Let me refine the point a bit. The left-right division tends to center around the distribution of power. In both the economic and the social spheres, power is distributed unequally. Liberalism is about distributing that power more equally, and conservatism represents the opposite. I don’t mean to create a definition that stacks the deck. It’s certainly possible to carry the spirit of egalitarianism too far in either sphere. An economic policy that imposed a 100% tax on all six-figure incomes, or a social policy that imposed strict race and gender quotas on every university or profession, would be far too egalitarian for my taste. Soviet Russia or Communist China are handy historical cases of social and economic leveling run amok.

But in any case, there’s a coherence between the two spheres. Liberals see a health care system in which tens millions of people can’t afford regular medical care, or a social system in which gays face an array of discrimination, and seek to level the playing field. The inequality may be between management and labor, or rich and poor, or corporations versus consumers, or white versus black. In almost every instance, the liberal position is for reducing inequalities of power — be it by ending Jim Crow or providing food stamps to poor families — while the conservative position is for maintaining those inequalities of power.

Economic liberalism usually (but not always) takes the form of advocating more government intervention, while social liberalism usually (but not always) takes the form of advocating less government intervention. If your only ideological interpretation metric is more versus less government, then that would appear incoherent. But I don’t see why more versus less government must be the only metric.

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Filed under Books, Conservative Movement, Politics

Talking About The Clause… No, Not That Claus

Andrew Sullivan rounds up some of this.

Josh Marshall at Talking Points Memo:

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to “economic activity” seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia — that the federal health care mandate is unconstitutional — is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

Julian Sanchez on Marshall:

And the weird thing is, he’s right… sort of! It does seem like a surprising result, given the last century of Commerce Clause precedent, that anything plausibly describable as economic activity might be found beyond the power of Congress to micromanage. “Preposterous on its face,” even.

But isn’t it preposterous that it’s preposterous? Step back from that steady accretion of precedents and instead just ask how far a federal power to “regulate commerce…among the several states”—especially in the context of separate and parallel powers to regulate commerce with foreign nations and Indian tribes—can plausibly be stretched. Isn’t it the idea that “regulate commerce” could entail a power to require a private individual in a single state to buy health insurance that ought to seem kind of crazy? Shouldn’t we find it more intuitively preposterous that a provision designed for tariffs and shipping rules should be the thin end of the wedge for a national health care policy?

And yet it isn’t! It’s the denial of that infinitely flexible reading that now seems strange. And that’s really strange.

Megan McArdle on Sanchez:

Obviously, I agree with Julian.  I have been reading a lot of well-meaning liberals who are befuddled by the notion that conservatives are going after the mandate, when that runs the risk of bringing on single payer.  Personally, I kind of doubt that, but this is completely beside the point.  On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can’t the government force you to do?

This doesn’t seem to be a question that interests progressives; they just aren’t very excited about economic liberty beyond maybe the freedom to operate a food truck.  And so they seem genuinely bewildered by a reading of the commerce clause that narrows its scope, or an attempt to overturn the mandate even though this might lead us into a single payer system.  If you view this solely as tactical maneuvering, perhaps it really is preposterous.

And of course, for some conservatives, these operations are tactical, but for a lot, it’s an actual horror at the ever-expanding assertion of government powers.  I’d like it if they’d get equally horrified about, say, the TSA and the drug laws, but there you are: neither side is as consistently supportive of liberty as I’d like.

Radley Balko:

Next, I posed this question to Chris Hayes on Twitter, so I’ll pose to those of you who read this site who are outraged by the Hudson ruling: Putting aside what’s codified Bill of Rights, which was ratified after the main body of the Constitution, do you believe the Constitution puts any restrictions on the powers of the federal government?

If your answer is yes, what restrictions would those be? And what test would you use to determine what the federal government can and can’t do? I’ve written this before, but after Wickard, Raich, and now, if you support it, the health insurance mandate, it’s hard to see what’s left that would be off-limits. I mean, during her confirmation hearings, Elena Kagan couldn’t even bring herself to say that it would be unconstitutional for the federal government to force us to eat vegetables every day. (She did say it would be bad policy — but that’s a hell of a lot different.)

If your answer is no, that is, that the Constitution puts no real restraints on the federal government at all, why do you suppose they bothered writing and passing one in the first place? I suppose an alternate answer might be that the Constitution does place restrictions on the federal government, but those restrictions have become anachronistic given the size of the country, the complexity of modern society, and so on. To which my follow-up question would be, do you believe there should be any restrictions on the powers of the federal government? Let’s say, again, beyond those laid out in the Bill of Rights.

I guess to get at the meat of the disagreement, I should ask one more: Do you buy into the idea that the people delegate certain, limited powers to the government through the Constitution, or do you believe that the government can do whatever it wants, save for a few restrictions outlined in the Constitution? It’s not an unimportant distinction. I’m not sure it’s consistent to believe that the government gets its power from the people, but the people have gone ahead and given the government the power to do whatever it wants.

I’m not trying to be cute. I’m genuinely interested in how people on the left answer these questions. Rep. Pete Stark, a liberal Democrat, said a few months ago that he believes there are no constitutional restrictions on what the Congress can do. To hear from a sitting Congressman was refreshingly honest. And terrifying.

Jonathan Chait at TNR:

The conservative argument, reflected in Republican judge Henry Hudson’s ruling against the individual mandate, is that purchasing health insurance is the ultimate individual decision, and that abridging this liberty would, in Hudson’s words, “invite unbridled exercise of federal police powers.” If the individual mandate is permissible, writes George Will, then “Congress can doanything – eat your broccoli, or else – and America no longer has a limited government.” Megan McArdle echoes, “On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can’t the government force you to do?”

This is the intellectual rationale for the hysterical conservative response to the pasaage of health care reform. By this line of reasoning, the individual mandate springs from a paternalistic desire to compel individuals to engage in behavior that affects nobody but themselves.

But of course, the decision not to purchase health insurance is the very opposite. Those who forego health insurance are forcing the rest of us to cover their costs if they exercise their right to be treated in an emergency room. They are also forcing the rest of us to pay higher insurance rates, now that insurance companies can no longer exclude those with preexisting conditions. That, of course, is exactly why conservatives supported it for so long.

Conservatism’s sudden lurch from supporting (or tolerating) the individual mandate to opposing it as a dagger in the heart of freedom is a phenomenon that merits not intellectual analysis but psychoanalysis. This is simply how conservatives respond in the face of every liberal advance. At such moments the nation is always teetering on the precipice between freedom and socialism. The danger never comes to pass, yet no lesson is ever learned. We simply progress intermittently from hysterical episode to hysterical episode.

Conor Freidersdorf at The American Scene on Chait:

It’s handy to argue against the generalized hypocrisy of incoherent ideological adversaries, though I don’t think that describes Megan McArdle, Julian Sanchez, Radley Balko, or many others who see constitutional problems here, myself included. I’ll see if I can make a case without lapsing into hysteria: If the Obama Administration’s health care reform bill stands, I do not imagine that America is going to cease to be free, or that a decisive blow in the battle between capitalism and socialism will have been struck. Although I would’ve preferred different variations on health care reform, I am not even expert enough to know for sure whether they’d have been more successful.

What does worry me is the notion that the federal government is no longer an entity of enumerated powers – that a limit on its scope purposefully established by the Founders no longer exists. It used to be a check and balance. Is it now completely gone?

If Judge Hudson’s ruling is upheld, I’ll celebrate not because I fear Obamacare – I’m cynical enough to suspect that whatever came next might well make me even worse off – but because a limit on federal power that I care about generally has been re-asserted.

Should his ruling be overturned, I’ll be disappointed because the precedent troubles me: if the commerce clause can prevent me from growing marijuana in my backyard and mandate that I buy a particular kind of health insurance that covers far more than emergency room care, what Congressional action can’t it cover? You’d think from Chait’s post that liberals never approach matters of constitutional law in this way, looking past the utility in a given policy area to ask what the long term implications are for state power.

What I’ve yet to see answered to my satisfaction is Radley Balko’s question

Chait responds to Friedersdorf:

Let me try to reiterate my point.

The legal merits of Hudson’s ruling, which seem to be totally daft, are themselves piggybacked upon a policy argument which is itself highly unpersuasive at best. The political argument, endorsed by Friedersdorf, maintains that the individual mandate represents some dramatic new imposition of Congressional power. Congress’s power may have grown over the years, the argument holds, but the individual mandate represents some new frontier of intrusiveness. It is forbidding an activity (or inactivity) that is more personal and less intertwined with the economy as a whole than almost any previous regulation. It is not dramatically different than a law requiring people to eat broccoli.

But this is totally incorrect. In reality, the individual mandate is much less intrusive and paternalistic than many regulations accepted as Constitutional. The rationale isn’t to make people buy insurance because it’s good for them. If people want to accept the risk of illness on their own, that’s fine. The issue is precisely that they can’t do this without forcing the rest of us to pick up the tab when they 1) show up at the emergency room, or 2) decide to buy private insurance in a now-regulated market.

Regulations to prevent people from offloading their risks onto others are extremely common and extremely necessary. So, again, the right’s portrayal of this as a dramatic expansion of the scope of Congressional action is wildly misleading, and it owes itself not to any sober analysis of federal power but to the psychology of reaction.

Now, Friedersdorf is correct to point out that some libertarians who are not partisan Republicans have endorsed this argument as well. In my view this is a group of people who are deeply inclined to support limited government, and have latched onto an argument in favor of limited government that has gained a political foothold without subjecting the merits of the case to serious scrutiny. They think the case is about drawing a new line against the expansion of Congressional economic power, when in fact the line is far behind the old one.

Freidersdorf responds to American Scene:

Actually, I am endorsing a somewhat different argument, and I apologize if I misstated my position or was less than clear about it. It isn’t that I think the individual mandate is an imposition of Congressional power more dramatic than anything seen before. It is merely one example of the longstanding Congressional tendency to justify all manner of things – gun free school zones, legislation to prevent violence against women, the ability to grow marijuana in my backyard, etc. – under the banner of the commerce clause. Where I come down on these cases has nothing to do with policy arguments: on the merits, some seem like good ideas to me, and others seem like bad ideas, but none strike me as attempts to regulate interstate commerce unless that task is so broad that it imposes no meaningful limit on the scope of federal power. (Speaking of which, I’d still like to see Chait and Kevin Drum answer Radley Balko’s question.)

Chait writes:

Friedersdorf is correct to point out that some libertarians who are not partisan Republicans have endorsed this argument as well. In my view this is a group of people who are deeply inclined to support limited government, and have latched onto an argument in favor of limited government that has gained a political foothold without subjecting the merits of the case to serious scrutiny. They think the case is about drawing a new line against the expansion of Congressional economic power, when in fact the line is far behind the old one.

I actually agree that the individual mandate doesn’t constitute an obvious high water mark when it comes to legislation passed under the umbrella of the commerce clause. But surely Chait understands how constitutional challenges work. Most people who care about the principle at stake don’t get to choose the partisan blowhards on the same side of the issue, let alone the case that someone with standing files, that winds its way through the courts, that results in a favorable ruling, and that has a chance of making it to the Supreme Court. The individual mandate may not constitute a high water mark as legislation, but if it ends up being a SCOTUS test case, the majority opinion that results might well entrench a precedent that goes farther than any before it, and determines the future of the commerce clause for generations. To me, Linda Greenhouse is right: the issue at stake is whether the Rehnquist Court’s jurisprudence is going to be killed in infancy or mature into a more expansive body of law.

Noah Millman also responded to my earlier post.

He writes:

…it is unquestionably within the power of Congress to tax, and the mandate could have been structured as a tax-plus-voucher scheme that would have had exactly identical effects. Does that mean that the law is constitutional? If not, then the reason is entirely some notion of precedent – that if this form of the law is Constitutional then other mandates that could not obviously be structured as a tax (“From this day on, the official language of San Marcos will be Swedish. Silence! In addition to that, all citizens will be required to change their underwear every half-hour. Underwear will be worn on the outside so we can check. Furthermore, all children under 16 years old are now… 16 years old!”) would also be acceptable. If that’s the argument that’s being made, then why are we arguing about the health insurance mandate as such being a threat to freedom?

First of all, the judicial precedent in this case won’t necessarily apply only to future commerce clause cases that involve mandates. Second, people are talking about the mandate as a threat to freedom for all sorts of reasons, many of them nonsensical. There are two arguments that I regard as plausible. One is that the mandate is particularly troubling because it requires payments to powerful corporations that spent millions of dollars lobbying the very people who wrote and passed health care reform. Call it the wonko-industrial complex. What if it gets out of control?! But that isn’t my position. It’s the second argument that I am making: it’s the jurisprudential precedent and the implications for the commerce clause and federalism generally that matter.

Tim Lee:

I get what Julian, Radley, and Megan are saying, and in principle I agree with them. A fair-minded reading of the constitution and the debates that surrounded its enactment makes it pretty clear that the founders’ goal was to create a federal government of far more limited powers than the one we’ve got. But I’m finding it awfully hard to get excited about the federalist boomlet sparked by Judge Hudson’s ruling that the ObamaCare insurance mandate is unconstitutional. I’m not a big fan of ObamaCare, and I wouldn’t be too sad to see portions of it struck down by the courts. But the rank opportunism of the Republican position here is so obvious that I have trouble working up much enthusiasm.

There’s nothing particularly outrageous about the health care mandate. The federal government penalizes people for doing, and not doing, any number of things. I’m currently being punished by the tax code for failing to buy a mortgage, for example. I’d love it if the courts embraced a jurisprudence that placed limits on the federal government’s ability to engage in this kind of social engineering via the tax code. But no one seriously expects that to happen. The same Republican members of Congress who are applauding Hudson’s decision have shown no qualms about using the tax code for coercive purposes.

The test case for conservative seriousness about federalism was Raich v. Gonzales, the medical marijuana case. Justices Scalia and Kennedy flubbed that opportunity, ruling that a woman growing a plant in her backyard was engaging in interstate commerce and that this activity could therefore be regulated by the federal government. If Scalia and Kennedy now vote with the majority to strike down portions of ObamaCare, it will be pretty obvious that they regard federalism as little more than a flimsy pretext for invalidating statutes they don’t like. Or, worse, for giving a president they don’t like a black eye.

Joshua Holland on Balko:

The question’s a straw-man — as evidence that “the left” flatly rejects all limits on the federal government, Balko offers up a statement by Rep. Pete Stark, a liberal from California, which was taken at least somewhat out of context during a town haul meeting with constituents and turned into a minor brouhaha by Andrew Breitbart’s crew a few months back.

More importantly, premising the question on us “setting aside the Bill of Rights” and amendments 11-27 just because they were ratified after the fact is disingenuous. As soon as an amendment is ratified, it becomes part of the United States Constitution, and those amendments happen to codify most of the constraints on the federal government that liberals hold to be the most important. (Balko’s a good civil libertarian who thinks they’re pretty important too.)

Essentially, he’s saying, ‘aside from preventing the government from limiting your right to speak, worship, assemble, petition government for redress, searching or seizing your stuff without due process, forcing you to incriminate yourself, enacting policies that discriminate on the basis of race and gender and guaranteeing a dozen other cherished freedoms, are there any constraints at all that you lefties find legit?’

That aside, the longer answer is that the Framers obviously didn’t create a detailed, step-by-step handbook for governing the U.S., and they didn’t try to anticipate every conflict that might come up in this new federal system they were cooking up. But they knew that conflicts would in fact arise, and they created a court to adjudicate those conflicts. It’s an enumerated power!

Now, the issue before us is what economic activities (or non-activities) the Commerce Clause empowers the feds to regulate, and the Supreme Court has used an expansive – and, yes, expanding – interpretation of that clause for close to 75 years.

Balko, like his fellow libertarians, and, less consistently, conservatives, doesn’t like that interpretation, which is his right. But it is nevertheless what’s known as a “super-precedent” – jurisprudence that’s been tested and affirmed in a not one or two, but a series of cases decided by the courts over the years.

Until maybe 20 or 30 years ago, the idea that judges should, accept in very rare cases, defer to precedent was a key tenet of judicial conservatism. That’s changed somewhat with the right’s focus on “originalism” – the idea that justices should try to glean the original intent of the Framers and put a little less emphasis on upholding precedent. (That shift is why, ironically, when one defines “judicial activism” as a willingness to overturn past rulings, conservative justices have been shown to be far more activist than liberals in recent times.)

So, a shorter answer, speaking as just one lefty, is that I accept any constraints on the government that the Supreme Court, guided, as it should be, not only by the text of the Constitution but also by past precedent– and checked by the states and the executive and legislative branches via the amendment process — holds to be legitimate.

Scott Lemieux on Balko:

Well, I don’t really see the Bill of Rights as a mere aside; these limitations are very important. But that said, to play the mild contrarian I don’t actually have any objection to U.S. v. Lopez. When a statute is not a regulation of economic activity, has no jurisdictional hook, has no necessary connection to a broader regulatory regime, and Congress can’t be bother to explain what the connection to interstate commerce is or why federal action is necessary…I don’t really have a problem with the Supreme Court ruling the statue as beyond Congress’s authority. And while I disagree with United States v. Morrison, this is primarily because I strongly reject the narrow conception of Congress’s enforcement power under Section 5 of the 14th Amendment. I have no problem saying that the commerce clause limits federal ability to intervene in purely local crime enforcement.

Now, I assume the libertarian response will be that this isn’t much, and…this is right. I don’t think in a modern industrial economy there’s any point in the Supreme Court trying to make distinctions between “local” and “national” economic regulations.

One thing I would add, though, is that saying that the Court should not strike down economic regulations under a narrow interpretation of the Commerce Clause is not to say that the power of Congress is unlimited. As many of you know, Madison did not feel that “parchment barriers” were the most important protection against excessive government. Rather, he felt that an institutional design featuring multiple veto points was the central protection. And, in fact, Madisonian institutions have been effective — from my non-libertarian perspective, often much too effective — in limiting the authority of the federal government to regulate the economy. I think these limits are (more than) sufficient, and having the courts try to apply a conception of economic powers more meaningful in an 18th-century agrarian economy doesn’t make any sense.

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Filed under The Constitution

The Stem Cell Fight Begins Anew, A Return To 2001 For Me And You

Gardiner Harris at NYT:

A federal district judge on Monday blocked President Obama’s 2009 executive order that expanded embryonic stem cell research, saying it violated a ban on federal money being used to destroy embryos.

The ruling came as a shock to scientists at the National Institutes of Health and at universities across the country, which had viewed the Obama administration’s new policy and the grants provided under it as settled law. Scientists scrambled Monday evening to assess the ruling’s immediate impact on their work.

“I have had to tell everyone in my lab that when they feed their cells tomorrow morning, they better use media that has not been funded by the federal government,” said Dr. George Q. Daley, director of the stem cell transplantation program at Children’s Hospital Boston, referring to food given to cells. “This ruling means an immediate disruption of dozens of labs doing this work since the Obama administration made its order.”

In his ruling, Chief Judge Royce C. Lamberth of Federal District Court for the District of Columbia wrote that his temporary injunction returned federal policy to the “status quo,” but few officials, scientists or lawyers in the case were sure Monday night what that meant.

Dr. Daley was among those who said they believed that it meant that work financed under the new rules had to stop immediately; others said it meant that the health institutes had to use Bush administration rules for future grants.

Steven H. Aden, senior counsel for the Alliance Defense Fund, which sued to stop the Obama administration rules, said the judge’s ruling “means that for now the N.I.H. cannot issue funding grants to embryonic stem cell research projects without any further order from the court.”

Officials at the health institutes said that lawyers at the Department of Justice would interpret the ruling for them. Tracy Schmaler, a spokeswoman for the Justice Department, wrote in an e-mail, “We’re reviewing the decision.”

The judge ruled that the Obama administration’s policy was illegal because the administration’s distinction between work that leads to the destruction of embryos — which cannot be financed by the federal government under the current policy — and the financing of work using stem cells created through embryonic destruction was meaningless. In his ruling, he referred to embryonic stem cell research as E.S.C.

“If one step or ‘piece of research’ of an E.S.C. research project results in the destruction of an embryo, the entire project is precluded from receiving federal funding,” wrote Judge Lamberth, who was appointed to the federal bench in 1987 by President Ronald Reagan.

Joe Carter at First Things:

The issue of research involving stem cells derived from human embryos is back in the news after a federal judge clarified that the government cannot use federal funds for such immoral research. Although the debate has been ongoing for almost ten years, the complexity of the issue and the peculiar terminology used often prevents many citizens from developing a fully informed opinion on the matter. To help, in some small way, redress that problem, I’ve compiled a brief primer, a “least you need to know” guide, that helps clarify and explain the questions most frequently asked about stem cell policy.

To those unfamiliar with the topic, this should provide brief non-technical answers to many of the important questions surrounding the policy. For those who are well versed in the controversy, I hope this will be a useful reference source to help you explain the issue to others.

What are stem cells?

The term stem cells refers to a diverse group of primitive cells that are themselves relatively undifferentiated and unspecialized. These cells are multipotent, meaning they can give rise to several other differentiated and specialized cells of the body (for example, liver cells, kidney cells, brain cells). All specialized cells arise originally from stem cells, and ultimately from a small number of embryonic cells that appear during the first few days of human development.

How are stem cells different than other types of cells?

Stem cells have two unique characteristics: (1) an almost unlimited capacity for self-renewal (they can theoretically divide without limit to replenish other cells for as long as the person is alive) and (2) they retain the potential to produce differentiated and specialized cell types. As stem cells within a developing human embryo differentiate within the cell, their capacity to diversify generally becomes more limited and their ability to generate many differentiated cell types also becomes more restricted.

Why are stem cells so important to research?

Stem cells are of interest to both scientific and medical research. First, stem cells provide a valuable tool for studying both normal and abnormal cellular processes. By learning how stem cells differentiate and become specialized, scientists hope to gain a better understanding of how cells in general work and what can go wrong. Second, stem cells may prove to be an indispensable source of transplantable cells and tissues for repair and regeneration. If stem cells can used to produce new and differentiated cells that are damaged because of disease (e.g., Parkinsons) or injury (e.g., spinal cord damage), it would transform regenerative medicine.

What are embryonic stem cells?

Embryonic stem cells (ESCs) are stem cells taken from from the inner cell mass of a blastocyst, a preimplantation embryo of about 150 cells. (Embryos are humans in the stage of development between fertilization and the end of the eighth week of gestation whereupon it it referred to as a fetus until the time of birth.)

Where do the embryos for ESC come from?

Currently, all embryonic stem cell lines have been derived from “spare” embryos created from in vitro fertilization (IVF) (i.e., embryos that have been conceived by a combination of egg and sperm occurring outside the body). However, because there are not enough embryos in existence to carry out the research, some scientists have been pushing for the use of human cloning (somatic cell nuclear transfer) to create the embryos that will then be killed and harvested for their cells.

What are adult stem cells?

The term adult stem cells simply refers to any non-embryonic stem cell, whether taken from a fetus, a child, or an adult. Adult stem cells are also referred to as somatic stem cells.

What is a stem cell “line”?

A stem cell line is a stem cell culture that can be grown indefinitely in the laboratory.

Why is there a controversy over ESC research?

The process of obtaining stem cells leads to the destruction of the human embryo from which the cells are taken. For those who believe that life begins at conception, embryo destruction is immoral even when it leads to beneficial research. Even those who do not believe that human embryos are deserving of full moral status worry about what the effects of normalizing such practices may have on society.

Advocates of ESC research, however, argue that it is unethical to impede potential advances that could heal disease and relieve the suffering of fully developed human beings. They believe that the moral status of a 150-to-200-cell early human embryo should not take precedence over scientific inquiry.

Didn’t the Bush administration ban funding of ESC?

No, but the Congress implemented its own ban. In 1995, Congress attached language to an appropriations bill prohibiting the use of any federal funds for research that destroys or seriously endangers human embryos, or creates them for research purposes. This provision, known as the Dickey Amendment, has been attached to the Health and Human Services appropriations bill each year since 1996. This law only prohibits federal funding of such research and does not affect either private funding efforts or private research that involves the destruction of embryos.

Michael Kinsley at The Atlantic:

OK, let’s go through this one more time.

Half of all pregnancies end in miscarriages, usually in the first couple of weeks, before a woman even knows that she is pregnant. A miscarriage destroys an embryo. If you believe that every embryo is the moral equivalent of a fully-formed human being, miscarriages are like a perpetual natural disaster like a flood or an earthquake, and you should be urging a massive effort to reduce miscarriages as the best way to save millions of human lives a year. As far as I know, there is no such effort going on in the United States or elsewhere.

But perhaps your concern is not the number of slaughtered embryos, but rather the morality of intentionally killing them or—worse, in your view—intentionally creating and then killing them. In that case, your attention should be directed to fertility clinics, which routinely create multiple embryos for each human baby they wish to produce. They pick and choose among the embryos that seem healthiest, and typically implant several in the hope that one—and not more than one—will survive. Every year tens of thousands of human embryos are created and destroyed (or pointlessly frozen) in the everyday work of fertility clinics. There is no political effort to stop this work. President George W. Bush even praised the work of fertility clinics in his speech announcing the policy that virtually halted stem cell research for eight years. Advanced fertility techniques have brought happiness to thousands of couples who otherwise would probably be childless. They are a godsend that no politician would dare oppose.

Of the tens of thousands of embryos discarded by fertility clinics every year, a few are used for stem cell research. Extracting the stem cells involves destroying the embryos, which would be destroyed anyway. True, the destruction of embryos used for research is purposeful, whereas the destruction of embryos in the everyday work of fertility clinics is incidental. But is that distinction really strong enough to support the difference between cavalier acceptance of tens of thousands of embryo deaths in fertility clinics and a legal ban on using a small fraction of these embryos to help develop ways to save lives? (Conflict-of-interest note: My life included. I have Parkinson’s.)

Allah Pundit:

The result: It’s Congress’s move now. They can either clarify Dickey-Wicker to okay funding for research on stem-cell lines derived from killed embryos, or The One and NIH can put their heads together to try to draft more clever language that will comply with the statute. Given the likelihood of a much redder Congress next year, they’d better hurry up either way. One thing I don’t understand, though: It sounds like the court’s decision would have found even Bush’s policy in violation of Dickey-Wicker. Bush didn’t cut off all funding for ESC research, remember, just for research on embryonic stem cells created after the date of his executive order. Weren’t the stem-cell lines already in existence on that date also based on killed embryos and therefore in violation of the statute?

Radley Balko at Reason:

Both the Clinton and Bush administrations had thought that they had artfully gotten around this restriction by regulatory interpretations. The National Institutes of Health concluded that while the government could not pay for the creation and derivation of embryonic stem cells federally funded researchers could use such cells once they had been derived.

The case had been brought before the court by the conservative Christian Alliance Defense Fund and Nightlight Christian Adoptions which wants to put embryos left over from fertility treatments up for “adoption.” Both argue that deriving human embryonic stem cells kills pre-born people.

Given that about 60 percent of Americans support stem cell research using embryos left over from fertility treatments, this ruling will surely spark the stem cell wars anew. While researchers eager to get federal funding will be disappointed and the confusion over the ruling will likely further delay research, the good news is that there is a lot private and state funding available for stem cell research.

Steve Benen:

Dr. Irving L. Weissman, director of the Stanford Institute for Stem Cell Biology and Regenerative Medicine, said the ruling was “devastating to the hopes of researchers and patients who have been waiting so long for the promise of stem cell therapies.” Amy Comstock Rick, immediate past president of the Coalition for the Advancement of Medical Research, struck a similar note, calling yesterday’s news “absolutely devastating.”

“We were really looking forward to research finally moving forward with the full backing of the NIH. We were really looking forward to the next chapter when human embryonic stem cells could really be explored for their full potential. This really sets us back,” Rick said. “Every day we lose is another day lost for patients waiting for cures.”

Others can speak to the legal proceedings with more expertise than I can, and it was at least somewhat heartening to see one lawyer weigh in describing the judge’s order as “quite vulnerable; it’s not on solid ground at all.”

I’d just note as an aside, though, that the breakdown in the Senate’s ability to fill judicial vacancies often has sweeping national and international implications — in the matter of medical research, possibly even issues of life and death.

David Dayen at Firedoglake:

This kind of came out of nowhere. It doesn’t overturn the funding rules but allows the case to proceed, with a temporary injunction against implementation until the completion of the case. This ensures that a case on the high-profile issue will continue through the election, though in recent years, stem cell research has not been among the high-profile hot-button issues.

UPDATE: William Saletan in Slate

Jim Pinkerton

Adam Keiper at NRO

More Saletan in Slate

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Settle In Kids, We’re In For Another Sherrod-y Week

Jeffrey Lord at The American Spectator:

It isn’t true.Shirley Sherrod’s story in her now famous speech about the lynching of a relative is not true. The veracity and credibility of the onetime Agriculture Department bureaucrat at the center of the explosive controversy between the NAACP and conservative media activist Andrew Breitbart is now directly under challenge. By nine Justices of the United States Supreme Court. All of them dead.

[…]

Plain as day, Ms. Sherrod says that Bobby Hall, a Sherrod relative, was lynched. As she puts it, describing the actions of the 1940s-era Sheriff Claude Screws: “Claude Screws lynched a black man.”

This is not true. It did not happen. How do we know this?

The case, Screws vs. the U.S. Government, as she accurately says in the next two paragraphs, made it all the way to the U.S. Supreme Court. Which, with the agreement of all nine Justices of the day — which is to say May 7, 1945 — stated the facts of the killing of Bobby Hall this way:

The arrest was made late at night at Hall’s home on a warrant charging Hall with theft of a tire. Hall, a young negro about thirty years of age, was handcuffed and taken by car to the courthouse. As Hall alighted from the car at the courthouse square, the three petitioners began beating him with their fists and with a solid-bar blackjack about eight inches long and weighing two pounds. They claimed Hall had reached for a gun and had used insulting language as he alighted from the car. But after Hall, still handcuffed, had been knocked to the ground, they continued to beat him from fifteen to thirty minutes until he was unconscious. Hall was then dragged feet first through the courthouse yard into the jail and thrown upon the floor, dying. An ambulance was called, and Hall was removed to a hospital, where he died within the hour and without regaining consciousness. There was evidence that Screws held a grudge against Hall, and had threatened to “get” him.

The very first paragraph of the Supreme Court decision states:

1. Upon review of a judgment affirming the conviction, for violation of § 20 of the Criminal Code and conspiracy thereunto, of local law enforcement officers who arrested a negro citizen for a state offense and wrongfully beat him to death, the judgment is reversed with directions for a new trial.

In other words, the Supreme Court of the United States, with the basic facts of the case agreed to by all nine Justices in Screws vs. the U.S. Government, says not one word about Bobby Hall being lynched. Why? Because it never happened.

So why in the world would Ms. Sherrod say something like this?

Philip Klein at The American Spectator:

A regular part of writing for a political magazine or website is that you sometimes disagree with what is written, or even with decisions to publish certain articles. Such is my sentiment today with Jeff Lord’s piece on Shirley Sherrod. I am rendered speechless by a 4,000-word article that is based around the suggestion that somebody is a liar for saying that a black man was lynched, when he was merely beaten to death by a white sheriff who evidence suggests had previously threatened to “get him.”

John Tabin at The American Spectator:

What on Earth is Jeffrey Lord talking about on the mainpage? He says that the sentence “Claude Screws lynched a black man” is untrue. Lynching is defined as an extrajudicial killing by a mob (which can be as few as two people). The fatal beating of Bobby Hall most certainly qualifies.

Radley Balko at Reason:

The term lynching refers to a mob execution unsanctioned by law. It’s often associated with hanging, but there are dozens of documented, racially-motivated lynchings in American history that had nothing to do with hanging. (The murder of Emmit Till is probably the most famous example.) Lord is also flat wrong about federal anti-lynching legislation. These bills sought to punish local governments for sanctioning or refusing to prevent all forms of lynching, not just hanging. Here’s the text of the Dwyer bill, the first piece of federal anti-lynching legislation, introduced in 1918:

…the phrase “mob or riotous assemblage,” when used in this act, shall mean an assemblage composed of three or more persons acting in concert for the purpose of depriving any person of his life without authority of law as a punishment for or to prevent the commission of some actual or supposed public offense.

The bill never uses any form of the word hang. The more famous Costigan-Wagner anti-lynching bill also made no distinction about a lynch mob’s chosen method of execution. Had either bill passed, they would have held local law enforcement responsible for failing to prevent extrajudicial mob murders of any kind, including murder by black jacks and fisticuffs.

But Lord isn’t finished. Sherrod mentions in her speech that Hall’s murder made it to the Supreme Court, which overturned the civil rights conviction of Sheriff Claude Screws by a 5-4 vote. Lord next criticizes Sherrod for not telling her audience that one of the justices who overturned the conviction (Hugo Black) was not only a member of the Ku Klux Klan, but also an FDR appointee, New Deal supporter, and a “committed liberal activist,” just like Sherrod. How conniving of her!

It gets even better. Lord also helpfully informs us that….

Hugo Black was, of course, a lawyer. His law partner? That would be a man named Crampton Harris. Mr. Harris was the Klan “Cyclops” of the Birmingham Klavern. Does this weird term ring a recent bell? It should. “Exalted Cyclops” was the Klan post held in a later time in West Virginia — by another prominent future Democratic Senator named Robert Byrd.

It goes on like that. There’s no question that there’s a long, ugly history of racism in the progressive movement, and that today’s left glosses over that history. But it’s more than a little absurd to suggest Sherrod was being dishonest for not drawing all sorts of connections between progressives and racism simply because a New Dealer sat on the Supreme Court that denied her relative justice.

But that is Jeffrey Lord’s charge. So black people, take note. If you’re ever giving a speech in which you recount a racially-motivated injustice, be sure you’re thoroughly familiar with and relay to your audience not only any subsequent legal action related to the case, but also the political affiliations of any and all judges who presided over those legal proceedings, both at trial and on appeal, and whether or not they or any of their business partners (and presumably family members, friends, or golfing buddies) were racist. Also, and most importantly, never, ever, ever talk about any historical racial injustice without also mentioning that the late Sen. Robert Byrd, a Democrat (be sure to mention this part, it’s important!), was once an Exalted Cyclops in the Ku Klux Klan.

Anything less would be dishonest.

Tom Maguire:

Taking a a more pedestrian approach, I simply Googled the word “lynching“.  These are all on the first page; Wikipedia is number one:

Lynching – Wikipedia, the free encyclopedia

Lynching is extrajudicial punishment carried out by a mob, often by hanging, but also by burning at the stake and shooting, in order to punish an alleged
en.wikipedia.org/wiki/Lynching

Lynching

Lynching is the illegal execution of an accused person by a mob. The term lynching probably derived from the name Charles Lynch (1736-96), a justice of the
http://www.spartacus.schoolnet.co.uk/USAlynching.htm

New Georgia Encyclopedia: Lynching

Of Georgia’s victims of lynch mob “justice,” the overwhelming majority (95 percent) were black, and they were murdered primarily, although not exclusively,
http://www.georgiaencyclopedia.orgHistory and Archaeology

79.02.04: The Negro Holocaust: Lynching and Race Riots in the

Most of the lynchings were by hanging or shooting, or both. However, many were of a more hideous nature—burning at the stake, maiming, dismemberment,
http://www.yale.edu/ynhti/curriculum/units/1979/…/79.02.04.x.html


Even a casual clue-seeker might have guessed that there were problems with equating “lynching” and “hanging”.

Sweet Jiminy – Jeffrey Lord is embarrassing himself and annoying the rest of us, even at the American Spectator.

Adam Serwer at The American Prospect:

Now does three guys beating someone to death sound like an extrajudicial mob killing to you? Well Lord thinks it’s merely “brutal fisticuffs” because under the definition of lynching he just made up, you need a rope to make it official — I mean they didn’t even set the guy on fire for crying out loud! It’s almost as if instead of being a Southerner tortured by the knowledge of past racial injustice, he’s someone who didn’t know very much about lynching or segregation before he decided to call Shirley Sherrod a liar without bothering to use Google first. What’s sad is that when the generation that actually remembers what living under segregation was like is gone, this kind of historical revisionism is just going to get 10 times worse.

Finally, how many times are conservatives going to try to smear this woman before some sense of shame or decency kicks in?

Paul Campos:

It’s hard to understand how this kind of thing gets published in a world that includes editors, higher cognitive function, and/or common decency.

My favorite bit from the comments, defending the author’s use of a definition of lynching that limits it to hangings:

“Regardless of the dictionary’s definition, English is considered the most nuanced of languages because each word has a specific, unique meaning giving context and emotion to any written or spoken idea or statement. I don’t need a dictionary to instruct me on the accepted meaning of the word ‘lynching.’”

UPDATE: More Lord

Steve Benen

Charles Johnson at LGF

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The Oscar Grant Verdict: Trouble In O-Town

Joe Eskenazi at San Francisco Weekly:

Ex-BART cop Johannes Mehserle has been found guilty of involuntary manslaughter in the shooting death of unarmed BART passenger Oscar Grant.

The jury could have convicted Mehserle of either second-degree murder or voluntary manslaughter — both charges that would have required the jury to believe that Mehserle intended to kill grant. That was evidently too much for the jury, which declared its belief that the former policeman didn’t intend to kill the man he shot via its involuntary manslaughter conviction. This carries a sentence of two to four years; a potential gun enhancement could bump that to five-to-14 years .

Heather MacDonald at Secular Right before the verdict was read:

It is true that death at the hands of a representative of the state–in this case, the BART police officer–has an entirely different meaning than death at the hands of a common criminal and produces a far greater sense of injustice.  That sense of injustice is compounded for blacks by the shameful history, now largely corrected, of police abuse.   Still, this one tragically-mistaken killing—BART officer Johannes Mehserle entered a scene of chaos at Oakland’s Fruitvale station on a night in which several guns had already been found along the subway line and thought, according to his testimony, that he was firing his Taser to subdue a resisting, possibly gun-wielding Oscar Grant—stands out from the tidal wave of cold-blooded murders in Oakland by the fact that Mehserle did not intend to murder an unarmed civilian.  Like many urban areas, Oakland has been seeing a retaliatory shooting pattern around vigils for shooting victims.  On June 21, for example, a 17-year-old was shot at an Oakland bus stop; just after midnight the next day, two gunmen sauntered up to a vigil for the bus stop victim and killed a 19-year-old girl and seriously wounded five other teenagers who were attending the vigil.  None of these and the hundred or so other murders a year in Oakland provoke the spectre of riots if their perpetrators are not convicted; indeed, it is often hard to find anyone to cooperate with the authorities in bringing the killers to justice.   The thousands of black-on-black killings a year nationally are treated as a matter of course; so, too, are killings of police officers.

Let’s hope that Oakland residents heed the many calls from community leaders to accept the jury’s verdict peacefully and defeat the sad, but not irrational, expectations of Bay Area law enforcement.

J. Peter Nixon at Commonweal:

I work in downtown Oakland, where many businesses were concerned that the announcement of the verdict would bring a repeat of the civil violence that accompanied the original shooting.  Shortly before the verdict was to be announced, we were asked to evacuate our office building.  I will confess I felt a great deal of ambivalence about this, but as a manager I felt responsible for the safety of our employees.  So I encouraged people to leave.

As I walked to the BART train entrance, the sidewalks were filled with office workers essentially fleeing the city.  I began to feel a sense of shame about this.  It was “white flight” on a concentrated and graphic scale.  I got in line to pass through the BART gates and even had my card out when I just stopped and got out of line.  “I can’t do this,” I thought.

I am probably the least spontaneous person you will ever meet.  The white board in my office has a “do list” ranging across three columns.  I don’t take a vacation without a carefully planned daily itinerary.  And yet there I was, making a last minute decision to remain in downtown Oakland at a time when many (white) commentators were convinced the place was about to explode in civil unrest.

I wish I could tell you it was an act of heroic virtue.  The truth is that I was seized by something outside myself, an irresistible prompting of the Holy Spirit.  I just couldn’t muster the energy to fight against it and keep my legs moving toward that gate.  So I climbed the staircase out of the rail station and walked back down the street against the human tide.  I called my wife to tell her of my decision. She, of course, understood perfectly.

My first destination was the Cathedral, which stands next to my office building.  My hope was that others would be naturally drawn there as a place to keep prayerful vigil while awaiting the verdict.  I’m sorry to say I was disappointed.  It was deserted except for the security guards.  I prayed for a just verdict, not even sure in my own heart what a just verdict would be in this case.  I prayed for a peaceful response, whatever the outcome.  In the Cathedral, an enormous image of Christ in judgment is depicted on the window behind the altar.  I contemplated the image, and prayed that whatever the imperfections of human justice, the city would be able to trust in the ultimate judgment of Christ.

Shortly after 4pm I flipped on my Blackberry and got the news: the verdict was involuntary manslaughter.  It was the least serious offense available to the jury, although it still represents—to my knowledge—the only case to date where a police officer has been found criminally liable in a case of this nature.

I wondered whether I should go downtown and join the demonstrators, who I knew would be deeply angry about the verdict.  The truth was that my own heart was conflicted about the justice of the verdict.  But I felt strongly that the place of a Christian that night was to be present in the midst of the city, not absent from it.  In the Psalms of the Office we pray “the Lord is my light and my salvation, of whom shall I be afraid?”  Did I believe these words or not?

San Francisco Chronicle:

There was outrage, there was looting and there were skirmishes between police and protesters, but that wasn’t the whole story of how Oakland reacted to the Johannes Mehserle verdict.

The trouble Thursday boiled down to a racially diverse mob of about 200 people, many bent on destruction no matter what, confronting police after the day’s predominantly peaceful demonstrations ended.

Sporadic conflicts were quelled quickly early in the evening, but by late night at least 50 people – and maybe as many as 100 – had been arrested as small groups smashed windows, looted businesses and set trash bins on fire.

The violence was contained for much of the early evening within a one-block area near City Hall by an army of police officers in riot gear, but around 10 p.m. a knot of rioters broke loose and headed north on Broadway toward 22nd Street with police in pursuit.

They smashed windows of shops including the trendy Ozumo restaurant, and one building was spray painted with the words, “Say no to work. Say yes to looting.”

A boutique called Spoiled was spared. It had a sign outside and pictures of Oscar Grant with the words, “Do not destroy. Black owned. Black owned.”

On  the verdict, Kevin Drum:

I hardly even know what to say about this. I wasn’t in court and I wasn’t on the jury, so I didn’t hear all the evidence. But for chrissake. Look at the video. Mehserle didn’t look confused and modern tasers don’t feel much like service revolvers. And it’s not as if he was acting under extreme duress. At most there was a brief and perfunctory struggle, after which Mehserle calmly raised himself up while Grant was pinned to the ground, drew his revolver, and shot him. The only thing that even remotely makes Mehserle’s story believable is that doing what he did is just flat out insane. It doesn’t make sense even if he were a stone racist and half crazy as well.

The jury can say what it wants, but it still looks to me like Mehserle decided on the spur of the moment to shoot Grant. I don’t know why, and no explanation really makes sense. But he’s a white cop and the jury apparently concluded that Grant was just black riffraff. The whole thing is just appalling.

Mark Kleiman:

Kevin Drum is upset by the verdict, which he regards as a finding of “semi-guilty.” He joins the victim’s family, the National Lawyers Guild, and a host of the usual suspects in thinking that the officer should have been convicted of second-degree murder instead. As usual, there will be an attempt to organize riots in protest, because of course burning down the stores of black shopkeepers is an excellent way to attack the white power structure.

I haven’t followed the case closely, but when I heard the story my first reaction was “involuntary manslaughter,” which is what the jury decided on. To bring in second-degree murder, the jury would have had to be sure, beyond reasonable doubt, that an ill-trained very junior cop, operating at 2am on New Year’s, didn’t make the unforgiveable error of drawing his handgun thinking it was his taser. They would have had to be sure, beyond reasonable doubt, that instead he decided at random to murder someone he’d never met before, in front of a big crowd of people and several other police officers.

It’s good to see the people who otherwise condemn the pointlessness of harsh retributive justice making an exception in this case. Perhaps retribution is actually a legitimate function of punishment after all? And of course the silence from the usual denouncers of the criminal-coddling criminal justice system, now that the criminal being coddled is a white cop who killed a black parolee, is deafening.

UPDATE: Via Patrick Appel at Sully’s place, Radley Balko at Reason

Adam Serwer at The American Prospect

Julianne Hing at Colorlines

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Straight Outta Conference

Daniel Indiviglio at The Atlantic:

In a marathon meeting lasting nearly 20 hours, Congress’ conference committee finalized the new financial regulation bill at 5:39am ET on Friday. Next, the merged bill goes back to both chambers for their individual votes. The rushed process was completed on-time early Friday morning so that President Obama could explain the new rules Congress will impose to the G-20 this weekend in Toronto. Assuming the votes go smoothly, the bill should pass in both chambers by July 4th. Here are some of the major highlights from the night and morning’s proceedings:

Volcker Rule

A watered-down ban of proprietary trading, also known as the Volcker Rule, passed. The final version of the rule would allow banks to participate in private equity and hedge funds up to 3% of their tier 1 capital. They could only, however, have up to 3% ownership of any private equity or hedge fund.

A conflict-of-interest provision was included in this amendment, which was inspired by the Goldman-SEC case. No market-maker can engage in any transaction that could result in a conflict-of-interest with any real or synthetic asset-backed security it has acted as underwriter, placement agent, initial purchaser, or sponsor for in the past year.

House Republicans were worried about the U.S. unilaterally imposing the Volcker Rule without similar measures taken by other nations. The fear was that U.S. competitiveness could be harmed if other nations don’t adopt similar regulation. They consequently offered an amendment that would have prevented the Volcker Rule from being effective until at least a majority of the G-20 had agreed to adopt a similar rule. The amendment failed.

Sen. Kanjorski (D-PA) also was bothered by the use of tier 1 capital instead of tangible common equity (TCE). The initial version of the rule would have used TCE instead of tier 1 capital. He said that tier 1 allowed too much flexibility for banks, as he indicated that it provided approximately 40% more investment in private equity and hedge funds. His amendment was rejected.

Derivatives

The big question here was Senator Lincoln’s (D-AR) so-called spin-of provision. It would require banks to put their swaps desks in a separately capitalized subsidiary. The Senate’s offer included a major change. Certain types of derivatives could be retained, while others would need to be put in subsidiaries, as follows:

  • Derivatives can be retained related to: interest rate swaps, foreign exchange, credit default swaps referencing investment grade entities, gold and silver, and hedging for the banks’ own risk
  • Derivatives must be put in an affiliate related to: cleared and uncleared commodities, energies and metals (except gold and silver), agriculture, credit default swaps not referencing investment grade entities, all equities, and any uncleared credit default swaps

The movie futures exchange was also forbidden. It was just approved by the Commodity Futures Trading Commission earlier this month. Its life will be short-lived.

Ezra Klein:

The big disappointment is that capital requirements, which I think to be the most important part of the bill, didn’t end up in the final legislation. Instead, that’s left to regulators, although it’s hard to imagine that anything in the bill will stop regulators from getting caught up in bubble-mania. Still, this is an ambitious, thoughtful piece of legislation that addresses some of the system’s worst failings (like the unregulated derivatives market) and adds a raft of protections. The work of financial regulation is trying to draw out the time between the last crisis and the next one, and this bill does seem likely to do that.

Richard Fernandez at Pajamas Media:

Since the central goal of the bill was to manage risk one might ask, ‘where does the risk go?’ Public policy analysts will have to spend hours is figuring out who ultimately holds what in the 2,000 page bill. Financial risk cannot be legislated away. Like energy, once in existence risk cannot be destroyed. It can only be moved around; assumed by someone. When it assumed for a fee the risk transfer is called insurance. When it is assumed by the taxpayer the result is something like Freddie Mac and Fannie Mae. Yet public or private the it remains in the system for so long as the transactions which gave rise to it are allowed. It is the distribution of risks that is affected by the bill. In that sense the spin-offs on derivatives trading mandated by Blanche Lincoln do not reduce total risk within the system. They simply prohibit banks from assuming it, assuming they do not simply reallow under other color through loopholes. Shara Tibken at the Wall Street Journal reports that that banks are expected to adapt happily now that the obligatory theatrics are over.

Radley Balko at Reason:

“It’s a great moment. I’m proud to have been here. No one will know until this is actually in place how it works. But we believe we’ve done something that has been needed for a long time. It took a crisis to bring us to the point where we could actually get this job done.”

That’s a “teary” Sen. Chris Dodd (D-Conn.), on the financial overhaul bill assembled by leaders in both houses this week. So Dodd, the chair of the committee with jurisdiction over the bill, has no idea how the bill work. Which also means he has no idea if it will work. Which also means he has no idea if the bill will do more harm than good. Nonetheless, he’s certain it was needed, and is proud to have helped make it happen.

Noam Scheiber at TNR:

A final, macro thought on where we go from here: Many hands have been wrung (including my own at times) about the fact that financial bureaucrats will have so much influence over the shape of the legislation. Even if you trust Team Obama (as I do), you have to worry about their possible successors under a GOP administration bent on waging anti-regulatory jihad. In fact, you don’t even need to imagine that to be anxious. History shows that even otherwise sober-minded officials are just as susceptible to bubble psychology as the rest of us.

But if there are ways that financial regulation is likely to weaken over time, there are other ways that it’s likely to strengthen. For example, the Democratic leadership was finally forced to exempt auto dealers from the new consumer regulatory agency late last night—Barney Frank, the lead House negotiator, conceded that they just didn’t have the votes to do otherwise. But that hardly strikes me as the final word on regulating auto loans. To the contrary, now that we’ve taken the big step of creating a consumer agency, it strikes me as relatively easy to expand its purview. And I’m guessing that the next time we hear about a sympathetic military family getting screwed by a deceptive auto loan, that’s what’s going to happen. So this bill really is just the beginning in more ways than one.

Daniel Foster at The Corner:

Prediction: if you thought financial instruments were complex before, wait until you get a load of the vehicles Wall Street will construct to get around these rules.

In addition, banks will have two years to spin-off their derivatives trading, and can retain the operations under independently capitalized affiliates. This latter might do some good if it keeps the riskiest products off the balance sheets of the biggest banks — effectively creating a good bank / bad bank situation in advance, instead of trying to do it on a sinking ship, as Lehman tried in September of 2008.

Steve Benen:

The timing is especially helpful for President Obama, who leaves today for Canada for a G20 meeting, and who wanted to be able to tell global leaders that the United States is poised to complete its work on financial regulatory reform. Now, he’ll be able to do just that, and Obama spoke briefly to the press this morning to herald the legislative breakthrough, most notably the new consumer protection agency, and calling the larger package the “toughest” industry regulations in generations.

The NYT‘s report is worth reading in full, to get a sense of the changes that were made through the negotiations, most notably to the Volcker Rule. Note that while intense industry lobbying influenced the process, and produced “some specific exceptions to new regulations,” by and large “the bill’s financial regulations not only remained strong but in some cases gained strength.”

The House and Senate are expected to bring the conference committee bill to the floor next week. Senate Republicans will very likely launch a filibuster — they have no shame — but leaders are confident the legislation will pass.

And in the larger context, this will add to an impressive list of historic accomplishments spanning President Obama’s first 18 months in office, a list that will now include Wall Street reform, health care reform, student loan reform, economic recovery, Lilly Ledbetter Fair Pay Act, expanded civil rights protections, expanded stem-cell research, new regulation of the credit card industry, new regulation of the tobacco industry, a national service bill, and the most sweeping land-protection act in 15 years, among other things.

Taegan Goddard noted this morning, “Not since FDR has a president done so much to transform the country.” That’s not a hyperbolic observation in the slightest.

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