(Cross-posted at Blog of the Century)
Dr. Donald Berwick, administrator, until last Thursday, of the Centers for Medicare & Medicaid Services, has been out doing some great television and radio interviews this week. He’s come out swinging about death panels, rationing, the need for universal access to care, quality improvement, and other delivery reforms.
But here’s my question: Why now, after Republican filibuster threats have already chased him out of the Obama administration? Why did we roll the same videotape for Nobel Laureate Peter Diamond? Also filibustered out of a job, Diamond also came out swinging after his credentials to serve on Federal Reserve Board of Governors were publicly deemed inadequate by that noted monetary authority, Alabama Senator Richard Shelby.
Again and again, Republicans block superbly-qualified nominees and officials with the most flimsy justification, and Republicans pay little price for it. A few, such as Elizabeth Warren, are prominent outspoken liberals. And of course the problem reflects the larger dysfunction of the United States Senate. Yet the degree of Republican obstruction is striking when compared to reasonable historical norms. And they repeatedly obstruct the appointments of precisely the kind of respected experts we need to operate American government.
For reasons I don’t entirely understand, the Obama administration and Senate Democrats seem to have issued marching orders that quiet their party’s own people facing the harshest Republican attacks. This isn’t making visible progress in getting people confirmed. Moreover, many of those muzzled are also the most articulate advocates for the Obama administration’s signature achievements.
Below the fold, for example, is Don Berwick quoted in yesterday’s Boston Globe. We need more people standing up like this, while they are still in office where they can make the biggest difference:
It is one of the great and needless tragedies of this stormy time in health care that the “death panel” rhetoric has denied patients the care that they want, denied caregivers the information they need to give that care, and denied our nation access to a mature, open, informed, and balanced discussion of the challenge of advanced illness and the commitment to individual dignity. It is a travesty.
If you really want to talk about “death panels,” let’s think about what happens if we cut back programs of needed, life-saving care for Medicaid beneficiaries and other poor people in America. What happens in a nation willing to say a senior citizen of marginal income, “I am sorry you cannot afford your medicines, but you are on your own?” What happens if we choose to defund our nation’s investments in preventive medicine and community health, condemning a generation to avoidable risks and unseen toxins? Maybe a real death panel is a group of people who tell health care insurers that is it OK to take insurance away from people because they are sick or are at risk for becoming sick. Enough of “death panels”! How about all of us – all of us in America – becoming a life panel, unwilling to rest easy, in what is still the wealthiest nation on earth, while a single person within our borders lacks access to the health care they need as a basic human right? Now, that is a conversation worth having.
And, while we are at it, what about “rationing?” The distorted and demagogic use of that term is another travesty in our public debate. In some way, the whole idea of improvement – the whole, wonderful idea that brings us –thousands – together this very afternoon – is that rationing – denying care to anyone who needs it is not necessary. That is, it is not necessary if, and only if, we work tirelessly and always to improve the way we try to meet that need.
The true rationers are those who impede improvement, who stand in the way of change, and who thereby force choices that we can avoid through better care. It boggles my mind that the same people who cry “foul” about rationing an instant later argue to reduce health care benefits for the needy, to defund crucial programs of care and prevention, and to shift thousands of dollars of annual costs to people – elders, the poor, the disabled – who are least able to bear them.
When the 17 million American children who live in poverty cannot get the immunizations and blood tests they need, that is rationing. When disabled Americans lack the help to keep them out of institutions and in their homes and living independently, that is rationing. When tens of thousands of Medicaid beneficiaries are thrown out of coverage, and when millions of Seniors are threatened with the withdrawal of preventive care or cannot afford their medications, and when every single one of us lives under the sword of Damocles that, if we get sick, we lose health insurance, that is rationing. And it is beneath us as a great nation to allow that to happen.
Because openly feuding with the senators who are filibustering your nomination won’t help you get confirmed?
The reason Kagan and Sotomayor were not filibustered has absolutely nothing to do with the White House scheduling lunch meetings between them and Republican Senators and everything to do with the fact that Supreme Court nominations are the only sort of nominations high profile enough to draw real media attention, including the negative press that would come from coverage of their mindless obstructionism. The only chance the White House has to break through Republican obstruction over other nominations is to try to raise their profile. Berwick should have been doing the Sunday yak-show circuit while he was up for nomination.
Now, wait a moment: Opposition to Obama’s judicial nominations might be “obstructionism”, but it’s hardly “mindless”. Rather, it’s a perfectly rational opposition to nominees who will, once on the bench, rule in keeping with an ideology you reject, and whom you have every reason to believe are lying if they claim otherwise.
And after Sotomayor’s confirmation hearings and vote in McDonald v City of Chicago, we certainly DO have reason to suppose Obama nominees will lie to get confirmed.
The Senate Judiciary Committee requires that Supreme Court nominees lie. To be confirmed, they must say that they will not make law, even though to decide a case is to make law.
I think you’re confusing “Senate Judiciary committee forces nominees to lie” with “Presidents frequently nominate candidates who wouldn’t be confirmed if they told the truth about their views”. Which is not quite the same thing: Nobody is holding a gun to their heads compelling lies, and the Senate is perfectly entitled to reject nominees whose views they don’t like.
Brett’s comment had no “Reply” option below it, so I’m replying above it. I was not referring to any nominees’ views. Every nominee, regardless of his views, is required to lie if he or she wants the job. Roberts lied when he said, “Judges are like umpires. Umpires don’t make the rules; they apply them.” Sotomayor lied when she said, “The task of a judge is not to make the law, it is to apply the law.”
Henry, there are two basic premises to your argument, both of which are false:
1. Everybody, (Or at least everybody who might be nominated to be a judge.) agrees with you about the role of a judge, and therefore can not express disagreement with your conception of that role without lying.
2. That, if you can’t get approved for a job without lying, you’re being “forced” to lie.
Now, that one’s opponents actually agree with one about what is right, and just, and true, and feign disagreement out of malign motives, seems to be a common obsession on the left, and invincible, too. So I’ll leave #1 alone.
But surely you understand that “forcing” somebody to lie must imply something stronger than their not agreeing to give you something you’re not otherwise entitled to if you tell the truth? Nobody kidnapped the nominees’ children to hold hostage. Nobody held a gun to their heads. Suppose that Sotomayor had said during that hearing, “Why, no, I think Heller was wrongly decided. That there is no individual right to own a gun. And if the subject comes up again, I will so rule; In fact, if one of the Heller majority is replaced with somebody who agrees with me, I will gladly participate in overturning the ruling using the first available test case.”
Would her family have been shot? Would she have been thrown on the street, jobless and destitute? Would a kitten have been drowned?
No. All that would have happened is that she wouldn’t have gotten the job, and would be ‘stuck’ in her former position, which was not exactly hell on earth.
Forced to lie? No, she obtained a desired position under false pretenses. She lied her way onto the Supreme court. I put it to you that somebody who’s willing to lie their way onto the Supreme court is morally unfit to be on the Supreme court. Feel free to defend the contrary position, that we need a court staffed with liars.
OK, I was speaking loosely when I used the word “forced” in saying that the threat of being denied the job constituted force, just as you are speaking loosely when you used the word “forced” in saying that the threat of having one’s family shot constitutes force. There are different degrees of force. Or perhaps the only degree of force that one should admit to being “force” is physical torture, if one believes that physical torture can overcome its victim’s will.
If I am sympathetic to nominees’ lying to get the job, it is because I do not think that they should shoulder the entire blame for the charade that the senators have established. I am not aware that any senator has called for a special prosecutor to prosecute these nominees for perjury. Certainly, I would admire a nominee who announced that he or she would not participate in the charade, and felt a duty to educate the public about the role of Supreme Court justices. (And that Supreme Court justice make law in every case they decide is not a liberal opinion; it is a fact.) But, as nominees are humans and not saints, I do not expect them to do other than play by the rules that the senators have prescribed.
“If I am sympathetic to nominees’ lying to get the job, it is because I do not think that they should shoulder the entire blame for the charade that the senators have established.”
Blame is not conserved, when people collaborate on something they can both shoulder the entire blame.
In fact, I don’t think it’s all that surprising that nominees aren’t charged with perjury for lying in their testimony. It’s a kind of “wink, wink” lying; The Senators are in on it, it’s the public that’s really being lied to. The Senate is, by and large, getting the sort of judiciary they want: One with little interest in enforcing limits on federal power, which is, after all, in part Senatorial power.
But this, of course, does not change the fact that they’re not being forced to lie, they’re choosing to.
And your conviction that everybody agrees with you about the role of judges, and is lying if they say otherwise, is, frankly, delusional. I know it’s hopeless, but try to distinguish between your ideology and objective facts.
I agree that it’s a kind of “wink, wink” lying; The Senators are in on it, it’s the public that’s really being lied to. In fact, that was my point. I do not see, though, why you believe that the Senate does this to get justices with little interest in enforcing limits on federal power. I see their motivation as to be able to continue to blame judges for being “activist,” especially when the judges declare unconstitutional the statutes that the senators violated their oath to uphold the Constitution in enacting.
As for your disagreement with my claim that every Supreme Court decision constitutes making law, you might be more persuasive (though I doubt it) if, instead of calling me names, you explained why you disagree.
For starters, Henry, it might occur to you that people who write laws think they’re the ones making the law. And that a great many cases consist of the judge simply pointing out that the law is what it says it is. A great many more cases could be resolved so, if not for the fact that the judges would rather not do it in that manner.
For another, you know quite well that the “umpire” view of judging is quite common; Do you really believe that nobody who could be nominated as a judge shares it? That everybody who claims to agree with it is lying?
Makes law vs enforces it isn’t just a descriptive matter, (On that level I might agree with you about most of the Supreme court’s behavior.) its also a prescriptive matter. Declaring this to be just a matter of indisputable fact is nothing more than trying to rule out a priori the positions of people who have a normative disagreement with you, not a factual dispute.
Brett, Let’s drop the “it might occur to you” (your language) and “though I doubt it” (my parenthetical) and both be civil. To get to the substance, one need not be a deconstructionist or a postmodernist or whatever the current term is to recognize that the law does not “say” what it is. Words must be interpreted by human beings. A judge, therefore, cannot “simply point[ ] out that the law is what it says it is.” What you must mean by that is that the judge can agree with what most people find the obvious facial meaning of the statute. In some case, though, a judge might reasonably find that a statute was poorly drafted, and that its obvious facial meaning is not its real meaning. Therefore, even if a judge rules in accord with what most people find the obvious facial meaning of a statute, he is assigning a meaning to the statute and thereby is making law. If a judge honestly believes in the umpire view, then he lacks the intelligence and the self-understanding to be a judge. I give Roberts and Sotomayor more credit than that.
Ok, Henry: In a properly operating, healthy legal/political system, the courts at the bottom will be (mostly) engaged in mechanical umpiring, and the court at the top will be engaged, (mostly) in resolving ambiguity. (Which, one might/i> refer to as “making” law, though “making” law is subject to a lot less constraint than resolving ambiguities in law somebody else already wrote.)
We do not have a healthy legal/political system. We have one which is caught in that downward deconstructionist spiral which takes place when it is realized that ambiguity is empowering, that language can only constrain you to the extent you permit it to. That communication requires good faith on the receiving end, and that good faith is a choice you can’t be forced to make.
That spiral has been driven by the fact that the political culture finds itself stuck with a constitution whose provisions it doesn’t like but which it “can’t” change. (Can’t, not because there’s no mechanism, but because that mechanism requires popular consent to the changes desired, and that consent is lacking.)
Since the words can’t be changed, but who reads them can, the political culture has responded by staffing the judiciary with sophists. Judges who will reliably “see” ambiguity anywhere that constitution doesn’t clearly say something to their liking. But this state of affairs can’t be publicly acknowledged without losing the system crucial legitimacy, because the public is not in on it.
So a charade is entered into where judicial candidates profess their fealty to clear meaning, while everyone knows they are lying their heads off. This is the “wink wink” nature of lying in Senate Judiciary interviews.
But, just because the Senate is being sent sophists who must lie in order to avoid exposing themselves, does not mean they are being forced to lie, or that hypothetical nominees who weren’t sophists couldn’t utter the same words in full honesty.
In short, ambiguity exists, but that doesn’t mean that everything is ambiguous.
Maybe Brett should look up the definition of “common law”. And it really goes to show you how low the Right side of this debate has limboed when the mere reminder that we live in a common law system is hysterically attacked as an assertion of ideological Liberalism.
And perhaps you could look up “written constitution”; You seem not to notice we have one.
“For reasons I don’t entirely understand, the Obama administration and Senate Democrats seem to have issued marching orders that quiet their party’s own people facing the harshest Republican attacks. This isn’t making visible progress in getting people confirmed. Moreover, many of those muzzled are also the most articulate advocates for the Obama administration’s signature achievements.”
I think you have to at least entertain the unpleasant possibility that Obama does not particularly want liberals (for lack of a better term — I know some commenters/readers here will be confused) in power. I don’t see how the current alignment of strategies and coalitions in partisan politics gets us anything, but paralysis, corruption, authoritarianism and rank policy incompetence, going forward. I find it very discouraging.
You know, there would be a much simpler way of not having liberals running federal agencies if that’s what Obama wanted to do: don’t nominate them. Your paranoia is getting the better of you. Far, far more likely is that Barack Obama is, by nature, not confrontational. This has sometimes been a real problem, though far less often than his critics from the left contend. It is also something that anyone with a brain could have figured out before he was elected with a but of reflection. Anyone who thought that the first black man elected President of this country *wouldn’t* be pathologically non-confrontational was deluding themselves. If Barack Obama wasn’t of this personality, he would have been the Angry Black Man and his career would have died long before the Oval Office. All of the available evidence suggests that the ceiling would have been a seat in the House.
This may have been a good reason not to nominate Obama had more people realized the obvious. I disagree, in part because that would have been telling the most loyal constituency of the party that one of them would *never* be nominated to be president, because too many within the party would have demanded someone who wouldn’t compromise all the time and the electorate would have been terrified of someone who didn’t. This was a bullet that had to be bitten at some point, but more importantly, rejecting Obama for that reason would have legitimately caused African Americans to reject the party. The extent to which you feel marginalized by the Democratic Party would have paled before what they would have felt.
The Democrats have relied upon African American votes for decades. No other demographic has been as loyal. The people who walked away to vote for Nader aren’t within light years of that kind of loyalty. Once consequence of that is that you need to accept the limitations of that demographic, and being willing to accept that someone of Obama’s personality would be the first black elected president is what was called for.
The tragedy isn’t that Obama is too prone to compromise. The tragedy is that no black man who wasn’t could have been elected.
One excuse for fecklessness is as good as another. It’s impossible to believe that someone as sophisticated, articulate, attractive, and downright “American” as Barack Obama cannot practice politics, even in this political climate, without coming across as an “Angry Black Man.” Except to the 35% who will never vote for a Democrat of any sex, color, or religion (or lack thereof), but lo, such stupidity is always with us. Had Obama practiced politics even remotely as he ran, the practical results may have been virtually identical to what has happened. But he, and we, would be in a much stronger position going forward (certainly now and probably from the 2010 election). The truth will eventually prevail, but only if you fight for it (see King, M.L., Jr). If you *always* cede the field to fight again another day, perhaps when the time is right, you will soon find yourself on ground that has become indefensible. The “Hope and Change” we so desperately needed has become “We Don’t Suck As Bad As Those Guys.” Of course, there is always the possibility that the truth as perceived by Barack Obama is the same as that perceived by those “savvy businessmen,” Jamie Dimon and Lloyd Blankfein. Feckless or faithless? A distinction without a difference.
I think that you are utterly clueless about the American electorate if you think that Barack Obama could have won were he a more confrontational person than he is. Given all of the other ways in which a black man that doesn’t compromise is immediately disbelieved by the public at large, why in the world would you think that it would be different for one who is running to be president?
Clueless? Probably. That has been mentioned by those closest to me. But I don’t accept your premise: “Given all of the other ways in which a black man that doesn’t compromise is immediately disbelieved by the public at large…” We are not talking about allegedly “scary” people such as Angela Davis, Muhammed Ali, Kareem Abdul-Jabbar, Huey Newton, Dick Gregory, or even Ron Dellums. In any case, when he was running for President, I didn’t detect much reticence in the confrontational department from Obama, both before and after he won the nomination. I suspect the same is true for Hillary and McCain. Direct, serious, reasoned, and straightforward are not necessarily viewed as confrontational in the sense you seem to use it. And IIRC, the President did win by a substantial margin, and could have built on that had he not caved on virtually everything he based his candidacy on. I do tend to think that people will eventually respond to reason, except for that 35%, led by Rush and Friends (more cluelessness on my part). But you have to work at it. That arc of justice bends only when you force it to. But if the people finally won’t respond despite a genuine effort, you have done all you could do, and that’s that. Cheers!