Posted 8:06 AM by Robert

Voyage To Krugmania

It has long been difficult to take anything Herr Doktorprofessor Paul Von Krugman writes in any way seriously, and today's column demonstrates why that is the case. His argument proceeds first with the assertion that the President is out of touch with the Krugmanian "fact" that the economy is doing rather poorly, and then the "explanation:"

According to John Snow, the Treasury secretary, the global economy is in a "sweet spot." Conservative pundits close to the administration talk, without irony, about a "Bush boom." ... Is the administration's obliviousness to the public's economic anxiety just partisanship? I don't think so: President Bush and other Republican leaders honestly think that we're living in the best of times. After all, everyone they talk to says so. ... Actually, it's quite simple: Mr. Bush and his party talk only to their base - corporate interests and the religious right - and are oblivious to everyone else's concerns. .... Americans are feeling a sense of dread: they're worried about a weak job market, soaring health care costs, rising oil prices and a war that seems to have no end. And they're starting to notice that nobody in power is even trying to deal with these problems, because the people in charge are too busy catering to a base that has other priorities.

One should count one's blessings: At least today's "Bush is delusional" argument is not another "Bush lied" column. But it would have been nice - or at least intellectually coherent - for Herr Doktorprofessor to have begun his argument with some actual relevant evidence that the administration is out of touch. Mr. Snow's out-of-context statement about the global economy does not even purport to express his views on the domestic American economy. The "administration" does not include "conservative pundits." And Herr Doktorprofessor couldn't find even a single statement by the President indicating that he is out of touch, even though Herr Doktorprofessor deems that to be the defining characteristic of the President and his administration? - could not find even one such statement taken completely out of context? Maybe that's because the President has been saying things like this:

"Millions of American families and small businesses are hurting because of higher gasoline prices," Bush said. "I wish I could simply wave a magic wand and lower gas prices tomorrow; I'd do that. Unfortunately, higher gas prices are a problem that has been years in the making."

And today there is this:

President Bush on Monday said he would tell Saudi Crown Prince Abdullah that high oil prices will damage markets and will discuss the kingdom's oil production capacity with the Saudi leader.

Herr Doktorprofessor was last seen dismissing a "Bush Boom" back in July of 2004 (Bye-Bye Bush Boom). In fact, today's column could be a hasty recycling of that pre-election effort, as these excerpts from the old column indicate:

When does optimism - the Bush campaign's favorite word these days - become an inability to face facts? On Friday, President Bush insisted that a seriously disappointing jobs report, which fell far short of the pre-announcement hype, was good news ... But Mr. Bush has already presided over a bust. ... Americans badly need a boom to make up the lost ground. And we're not getting it. .... And economic growth is passing working Americans by. ... Whatever boost the economy got from the tax cuts is now behind us... One last point: government policies could do a lot about the failure of new jobs to come with health benefits, a huge source of anxiety for many American families. John Kerry is right to make health care a central plank of his platform. I'll analyze his proposals in a future column.

Well, there you have it. As of July 2004 President Bush was hopelessly out of touch, the Bush Boom was a delusion, John Kerry was then on a roll with his health care talk and, of course, was resoundingly elected president in November 2004 after seizing the idea-weaponry handed to him by Herr Doktorprofessor (that intellectual Vulcan to the Democratic gods!), as the Democrats swept control of Congress from the delusional Republicans!

Gee, where did that syllogism go so badly off the tracks?

Anyway, in today's column Herr Doktorprofessor also assures us that wage-earning Americans aren't part of the [Republican] base, which consists of corporate interests and the religious right. I wonder what happened to all the wage earning Christian conservatives in the country? Have they all become independent contractors churning out software for all those corporate interests? Or does Herr Doktorprofessor think that these Christians are so wrapped up in advancing "family values" that they don't care about feeding their families? Does he think that they live off dividends or capital gains, as Herr Doktorprofessor seems to suggest? Or is that just what happens once they retire and have to depend on their retirement savings? If only Herr Doktorprofessor were here to explain.

Then there is his odd "explanation" of why the administration is "out of touch." Surely not even Herr Doktorprofessor thinks that the President and the administration literally (or even substantially) talks only to the Republican base. The President and his people have read all the public opinion polls that Herr Doktorprofessor (pathetically) quotes to demonstrate his own unity with, and knowledge of, the American people. And the President and his people also know about the government statistics Herr Doktorprofessor cites and distorts. It's not even worth asking why Herr Doktorprofessor thinks "wage earners" are so different from and more important than the self-employed, for example - it would just raise all that "two employment indices" stuff again. Do we need a Princeton economist to recite public opinion polls or "speak for the people" - especially when he doesn't even mention the actual 5.2 percent unemployment rate in his passion to argue that ordinary people are being left behind? Nor does Herr Doktorprofessor seem very good at reading those polls, since (as Don Luskin points out) those wage earners do seem to support the President's private account Social Security reform - contrary to Herr Doktorprofessor's assurances. And, after all the push-polling was swept away, newer, better polls (here, for example) suggest that the public does not line up against the Republicans on Terri Schiavo the way Herr Doktorprofessor thinks. Actually, I don't see how Terri Schiavo's death much fits into Herr Doktorprofessor's argument that the religious right is happy, happy, happy with recent developments. Does Herr Doktorprofessor think those Republican corporate interests are particularly pleased with what happened to Terri Schiavo?

So what the heck does Herr Doktorprofessor think about the topic of his column? What does he think he has contributed? One finds hardly a hint in the column itself.

POSTSCRIPT:

Detroit Free Press management investigated an April 3 Mitch Albom column that contained inaccurate information. Albom was allowed to resume writing columns for the Free Press, but his work was suspended for a while after he addressed the incident with readers on April 7. The inaccuracies underlying the whole mess are summarized by the Free Press this way:

Mitch Albom's column in the Sunday section said NBA players Mateen Cleaves and Jason Richardson attended Saturday's Michigan State-North Carolina NCAA tournament basketball game.

This all happened just because Albom wrote his Sunday column early - just as Harris, Steve Martin's weatherman character in L.A. Story, pre-recorded his next weekend forecast, promising lots of sun ("Harris, should you really be pre-taping the weather report?" Harris: "The weekends are very tough for me to come in, you can imagine my busy weekend schedule. Besides, this is L.A., what's gonna change?"But something did change: No sun, just rain.)

Seriously, who cares if these two guys were in the audience or if Mitch Albom pre-wrote his column? Compared to the whoppers Herr Doktorprofessor lets fly almost every week, Albom's misdemeanors are trivial. Heck, Herr Doktorprofessor routinely misquotes government statistics and outright lies about many private studies. And he often does it crudely, allowing interested readers to sense that he's committing some misdemeanor by not giving whatever information would make it easy to identify or access his source.

But the New York Times never holds Herr Doktorprofessor to account for his journalistic crimes the way the Detroit Free Press nailed poor Mitch Albom. And, unlike Mitch Albom, Herr Doktorprofessor hasn't even written a run away best-seller! (And don't even get me started on Maureen Dowd!)

I guess that just shows that the Detroit Free Press has journalistic standards that are quite a bit higher than those of the New York Times!

Posted 10:01 PM by Robert

The Envy Of The World? O, Please!

Ted Olson has created some fuss with his Wall Street Journal Op-Ed argument that politicians should lay off the judiciary, an argument that he says largely proceeds from the following premise:

We might start by getting a firm grip on the reality that our independent judiciary is the most respected branch of our government, and the envy of the world.

The envy of the world? Well, it is often and correctly noted that imitation is the sincerest form of flattery - and that should hold for envy, too. But if the American judiciary is the envy of the world, why have so few other nations chosen to emulate this most respected branch of our government? Considerations of "independence" of the judiciary in American arguments slide frictionlessly into considerations of "judicial supremacy" - the doctrine under which courts strike down unconstitutional statutes. Mr. Olson's argument is no exception. But Britain, of course, famously has no written constitution, and a written constitution is often said (by Chief Justice John Marshall, for one) to justify judicial supremacy. British courts will issue rulings of "incompatibility" where Parliament's acts are found to be in conflict with other laws, including the unwritten British constitution (or with EU and other international law). But while the British certainly consider their courts to be "independent" in their own way, the highest court in Britain (the Law Lords) is formally part of the House of Lords, and since the 17th Century the British Parliament has always retained supremacy over any ruling of the British Courts. Parliament is supreme in the Netherlands. New Zealand courts are prohibited from striking down laws passed by the New Zealand Parliament - so their courts also lack American "independence." The American constitution was a major, express exemplar for the Australian constitution, so it is no surprise that the closest approximant to the American judicial system can perhaps be found in Australia, where the courts exercise a judicial review similar to (but by no means equivalent to) the American version - but there is little in the way of an express bill of rights. The notorious "notwithstanding" clause of the Canadian constitution allows that country's parliament to pass laws squarely inconsistent with much of the country's charter.

In almost all civil law jurisdictions - including Germany - neither the judicial system nor the members of the judiciary personally enjoy the respect or authority they receive in the United States. In France, the Constitutional Council can examine the constitutionality of a proposed statute only before it becomes law and citizens have no right to petition. I recall sharing martinis many years ago with Antonin Scalia, who had then recently given up his position as a professor at the University of Chicago to take a spot on the United States Court of Appeals for the District of Columbia. Then-judge Scalia confided that his daughter had recently been an exchange student in Germany, and her German family had over dinner one evening enquired about her father's work. When the daughter explained that Nino had been a university professor, but had just become a federal judge, a silence fell over the dinner table until somebody asked the daughter the question on everyone's mind: "What went wrong?" Such is the status of a judge compared to a professor in Germany.

In contrast, the Indian Supreme Court has the power to declare a law or governmental practice unconstitutional - and has used that power in a manner arguably much more aggressive and overtly "activist" and partisan than anything attempted in the United States. Would Mr. Olson wish American courts to follow the Indian lead? India's Supreme Curt, if anything, seems to enjoy far too much "independence" for American tastes.

Recent developments in Russia drive home that there, as in most of the former Soviet bloc, the transition to an independent judiciary (whatever definition one chooses) remains at very best highly incomplete. Such countries inherited systems that had a totally different view as to the purpose of law than exists in the West. The law is supposedly seen in the United States and throughout the West as having faith in constitutionalism and a belief that government is limited by law. Soviet style governments sought to control society through law, which was a mere instrument of infinite government discretion with nothing to do with the defense of human rights or on placing other limits on the power of the state. Courts were controlled of the Communist Party, prosecutors and the executive. The law and the justice system were the tools of the state, used to advance state powers and control the citizenry - and that attitude has not been fully shed.

Perhaps other countries should value or envy an American style independent judiciary more than they do. But I think it is a fact that most jurisdictions given the chance have not chosen to adopt an American style system. In fact, to judge by the actual choices made by almost every other country, even highly democratic countries whose constitutions have recently been reworked or rewritten, it is hard to read Mr. Olson's postulate "We might start by getting a firm grip on the reality that our independent judiciary is the most respected branch of our government, and the envy of the world," and not chuckle. The fact is that the judiciary of almost every other nation occupies a much smaller quarter of the legal structure of that nation than is the case in the United States - and that seems to be by deliberate, informed choice of those other nations.

Would importing principles from constitutional structures with such shrunken judicial quarters lead to a shrinking of the authority of the Supreme Court and the rest of the American judiciary, perhaps in unexpected ways? Some American Justices - such as Breyer and Kennedy - seem determined to find out. One wonders if the Supreme Court Justices who recently have expressed such interest in importing elements of foreign law into American federal constitutional precedent keep in mind the old saying that "the law is a seamless web." Indeed, Mr. Olson lists a good many devices that could be used to shrink the judiciary in this country, even within the current constitutional framework. For example, there is no clear constitutional reason why a prosecutor or Congress could not put a judge under oath and obtain his or her testimony about a controversial decision - leading to a possible perjury prosecution. The governments of many other countries wouldn't think twice about doing such a thing. It is unlikely that these are the kinds of things Justices Breyer and Kennedy would like to see imported to this country. But such results may follow anyway. For the most part only extra-constitutional respect for the American judiciary keeps such things from happening here. And it is possible, even likely, that such extra-constitutional respect exists here largely because of how American judges have acted in the past, what kind of things they do (civil law judges, for example, can and do initiate and conduct prosecutions), and what principles they have employed in their decision making. If American judges start acting more like judges from jurisdictions in which there is less respect for the judiciary and start employing principles imported from such jurisdictions, will the American respect for the judiciary that Mr. Olson so values remain high?

In a similar vein, one might also wonder a bit at Mr. Olson's observation that "corruption in the judiciary ... is astonishingly rare in this country." Presumably he means that it is astonishingly rare in this country compared to other, comparable countries. Isn't it possible that that corruption of American judges is rare because of how American judges act, what they do, and what principles they employ in their decision making? If American judges start acting more like judges from jurisdictions in which corruption is not so rare, and start employing principles imported from such jurisdictions, will American judicial corruption remain so rare?

Do people like Justices Breyer and Kennedy know likely answers to the above questions? Has either of them has even seriously tried to ask such questions? Their public statements make that very unlikely. That could become a very big problem for all of us - including Mr. Olson.