The Sotomayor Reflex

God, I hate politics. It really does make people stupid, especially those whose tribe is out of power. When Sonia Sotomayor was nominated, I knew nothing relevant about her judicial philosophy or, much more importantly, about her actual record as a judge. You’d think you’d wait to learn something about this before saying something about her, but no. People just proceeded to go crazy on cue.

Like Damon Root, I’m in favor of libertarian judicial activism. But I know that Barack Obama is no libertarian, and I knew he wasn’t going to nominate Kozinski or Posner. Too bad! So I was hoping for a relatively centrist liberal who sees some merit in libertarian arguments, especially about the protection of economic rights. As far as I can tell, there is nothing especially worrying about Sotomayor. She’s obviously super-qualified. And from what I’ve read, she seems like a highly competent, fairly moderate liberal who sticks pretty close to the law (which nobody really likes when they don’t like the law!) and is perfectly willing to side with Republican-appointed judges when that seems to her the right thing to do. What are people going batshit crazy over? I don’t get it. And I really don’t get why many Republicans have taken this opportunity to reinforce the already widespread impression that they are morally odious morons. God, I hate politics.

Ryan Avent's Innovations in the Game Theory of International Relations?

In response to my point below about the transparently inconsistent reasoning about public goods employed by many defenders of the woeful cap and trade bill, Ryan Avent writes:

This seems almost deliberately dense. In particular, it makes no distinction between the world of billions of daily, anonymous transactions and the world in which a handful of great powers attempt to hammer out a diplomatic agreement. Unsurprisingly, it’s very difficult to get millions of urban denizens to voluntarily come together to build and fund a road network or transit system in the absence of a coercive mechanism. The benefits are too broadly shared, and the incentive to free ride too great. But the smaller the number of players, the more concentrated the benefits, and the easier it is to find a mutually beneficial agreement.

I certainly wasn’t being deliberately dense. Ryan is, as always, quite charitable in allowing that my denseness might have been involuntary. I am grateful. Perhaps it is this very denseness that prevents me from grasping how I was being dense. I persist in thinking that the standard mode of reasoning about collective action problems applies. So I patiently await instruction.

Ryan evidently believes it is almost obvious that the structure of the strategic problem in securing global climate policy coordination is less complex than the problem of putting together standard-issue public goods, like a system of roads. In the case of global climate policy coordination, we’re talking not about diffuse millions but a mere “handful of great powers,” who will enjoy such concentrated benefits from an agreement that the normal worries about credible commitment, assurance, free-riding, and so forth do not really apply. So the absence of a coercive enforcement mechanism is pretty much irrelevant. Not only shouldn’t we worry about the standard logic of interdependent strategic action, but it’s almost deliberately dense to do so. My bad.

If only we’d known that global coordination problems among “a handful of great powers” was such a breeze, we’d have arrived at Kant’s global federation of perpetual peace centuries ago. Come to think of it, why were there two massive World Wars and a Cold War last century? It’s almost as if the great powers were being deliberately dense. But I guess we now know the trick of aligning the perceived interests of great powers: just make some kind of effort to cooperate. Go ahead and move unconditionally, even if your own country’s move actually signals quite clearly that there is next to zero political will to bear the costs of an agreement with teeth. And then what you do is you wait for other great powers to be impressed and encouraged and convinced by the immense advantages that will accrue to them once they jump on board. It’s easy once you know how.

Or maybe that’s not how Ryan thinks it goes. But then how does it go? I still don’t get it.

Other things I don’t get:

(a) The idea that “great powers” are headed by some kind of unified intelligence or agency that can make agreements and just stick with them. I thought the governments of states–even authoritarian ones–were semi-stable coalitions of various and often conflicting interests subject to the vagaries of mass public opinion.

(b) The idea that the benefits of global climate policy coordination — which will not be realized for many decades — will accrue to the relevant state decisionmakers and so provide them with sufficient incentive to make and stick to an agreement, but that the costs of coordination — which will be significant and immediate — will somehow not be borne by those decisionmakers (e.g., “the people” will not complain about these costs in a politically threatening way) and so will not overwhelm the posthumous payoff in the political accounting.

(c) The triviality of time inconsistency problems. I had thought that time inconsistency problems–that the government now cannot really bind the government later–were endemic to politics. This makes it almost impossible for a current government to credibly promise that a policy will persist over time. I had thought you needed some kind of mechanism (which we do not appear to have) to align the incentives of the parade of future decisionmakers to sticking with it over time.

(d) The option value of empty gestures. The Waxman-Markey bill appears to everyone–even advocates like Ryan–to be mostly a bust, if not a complete bust. It remains unclear to me why a transparently bad bill does more to improve the U.S.’s bargaining position than no bill.

I don’t see that Ryan addresses any of this as he goes on:

[T]here are fewer than ten relevant players, and only two really relevant players not already committed to reductions — the US and China. Given that climate negotiations are part of a repeated game between the two great powers (that is, they’re more or less constantly talking about one economic or political issue or another), it seems very likely indeed that an American pre-commitment to emission reductions would facilitate a similar Chinese commitment.

India? Cheap talk?

The repeated game between the U.S. and China looks to me trickier than this. First, it’s better for China in the short and medium term if we tax carbon emissions and they don’t. They sure will be happy to see us go first. (It will, among other things such as encouraging capital flight to China, give them more slack with which to clean up things like SO2 that really do matter to them in the short term.) So then what do we do if they don’t play along? Impose carbon tariffs? Then we have probably just started a trade war with our chief source of inexpensive manufactured goods. Is this the repeated game Ryan has in mind?

Ryan sums up:

Will Wilkinson works for Cato, and Jim Manzi writes for National Review, two great outposts of climate change denialism and do-nothingism. It occurs to me that if more of their compatriots were willing to discuss the issue responsibly, then upwards of 90% of the GOP might not be committed to a policy based on utter stupidity, and a better bill might be feasible. Instead, they’re busily arguing against Waxman-Markey. That’s their right, but it certainly says quite a bit about their priorities.

I wonder if Ryan would like to be more explicit about what he thinks my priorities are. I’ll tell you what I think my priority is: to make people, especially poor people, better off. I am against this bill because I honestly believe it will leave many people worse off and make almost no one other than politically-connected domestic interest groups better off. I think Ryan has a different assessment of its likely effects, but I don’t see any need to slyly impugn his motives. If he thinks his argument is so winning, then it might benefit him to drop this kind of well-poisoning rhetoric, which is beneath him, and start actually winning the argument.


IMO, Jim Manzi continues to own defenders of the preposterous cap and trade bill. His latest assessment of the state of play:

So let’s review the overall bidding, at least as I see it:

1. Everybody agrees that if Waxman-Markey becomes law, and it does not lead to a global, binding and enforced agreement to severely reduce global greenhouse gas emissions, then it makes U.S. taxpayers worse off economically.

2. I have presented an economic argument that even if such a global agreement were achieved it would accomplish in the best case a net increase in NPV of global consumption of 0.2%, and a practical argument that it would almost certainly reduce global economic welfare. These specific arguments remain undisputed.

3. Those who argue that Waxman-Markey would lead to a global agreement have provided no evidence that it would have this negotiating effect, and are presenting what is, at best, a pretty idiosyncratic negotiating premise that by giving away our leverage as one participant in a collective action problem we will somehow increase our ability to get others to sacrifice on our behalf.

The thing is, Jim’s arguing from the basis of extremely generous assumptions.

Many of the people making a big deal about the bargaining value of this bill rarely (never?) use similar logic in similar circumstances. The idea is that coordinated international action toward carbon reduction is a global public good, and that the probability of effective coordination increases significantly if the U.S. acts unilaterally. HOW DOES THIS WORK? Standard statist-liberal reasoning about public goods is that they will not be provided unless there is a  coercive mechanism in place (e.g., a state) to solve the assurance problem. But there is no state with global jurisdiction. So am I to understand that folks making the argument about the crucial role for Waxman-Markey in solving the international collective action problem don’t really believe the standard story about the need for coercion in assuring compliance? Because that would sure change a lot of debates about a lot of things! To put it another way: if you think that the probability is low that smaller-scale public goods can be provided through voluntary mechanisms without government, shouldn’t you think the probability is even lower the larger the scope of the coordination problem?

What's Wrong With Empathy?

I truly don’t get it. Empathy is “code” for judicial activism? “Judicial activism” is obviously code for the judging of Democratic judges. What “empathy” is obviously code for is a group-identity-based nomination, in particular the nomination of a woman. And what’s wrong with that?

One of the deepest problems in philosophy is the relationship between general rules and their application in particular instances. Rules don’t apply themselves. And there can be no infinte regress of rules that tell us how to apply rules. Judgment is completely unavoidable. And, hey, maybe there’s a reason we call judges “judges”!

Anyway, suppose there’s a fact of the matter about the external totality of facts that constitute a “situation.” (This is a problematic supposition; it’s not so easy to individuate “situations”– but suppose.) This totality can’t possibly fit in anyone’s head, so the situation has to be edited by selective awareness. So we’re left with a perception of the situation as edited by habits of attention. Within one’s perception of the situation, certain features will stand out as especially salient. This can be moral or legal salience or something else, depending on the purposes of judgment. One’s history is obviously relevant to the habits one brings to attention and to the recognition of features of a situation relevant to judgment.  One way a rule may be misapplied is to fail to recognize the relevance of an objective feature of the situation to the rule. This can happen at the initial step of editing — one doesn’t notice the feature at all — or at the step of the judgment of salience or relevance — one doesn’t see why it matters.

Even when there is unanimity about the meaning of a rule, there may be disagreement about whether and how a rule applies in a particular instance due to differences in the habits of attention and sentiment that guide judgment. If a society has a history of inequality, people within different groups may have developed very developed very different but also very reasonable habits, and will therefore make very different judgments, for good reasons, even if there is zero disagreement in the abstract meaning of rules.

The Supreme Court is a deliberative body. If it is extremely homogenous in composition, there’s a good chance that judgment will become biased in the direction of the characteristic habits of the largest group. Difference in ideology provide some check, but they may also paper over subtle an not-so-subtle uniform assumptions that lurk behind political and methodological disagreement. Some of this sort of disagreement may be over the relevance of things like empathy to legal judgment in constitutional cases, but surely the capacity to put oneself in the position of parties involved in a case before the court is relevant. And the ability to put oneself in the position of another is certainly improved if one has at some point been in a similar position. (E.g., No man was ever a teenage girl; white people rarely face the kind of subtle discrimination routinely experienced by even privileged black people; etc.) One plausible understanding of “empathy” in this context is simply a heightened sensitivity to features of certain kinds of cases that are missed or downplayed due to the habits of mind and sentiment common to most current judges.

I think that, other things equal, the Court would improve the quality of its judgment by including more women and minorities. However, other things aren’t equal. My sense is that the best-qualified women and minorities are likely to have substantive views about Constitutional interpretation I disagree with. So I’m likely to be unhappy with Obama’s nominess because of ideology. But holding ideology fixed, I think there’s a strong reason to prefer a well-qualified woman to a well-qualified man. And I think another woman would likely increase the scope of empathy on the court in a pretty straightforward and desirable sense.

Anyway, I’m just being dense. The Republicans were going to attack basically any Obama nominee as a monster of judicial activism anyway, and so they used the unusual and thus salient appearance of the word “empathy” to get started. It’s stupid, but politics is stupid.

The U.S. Defense Subsidy

Matt Yglesias writes:

[B]oth Cato’s Will Wilkinson and Joseph Heath from the University of Toronto agree that America’s massive defense spending is, in effect, subsidizing the national defense of other countries and both agree that it’s perverse that American conservatives like this. As they say, the right would be none-too-keen on the idea of the United States paying for Italians’ health care, so why should they like paying for Italians’ defense?

I like the conclusion of this argument (that defense spending should be cut) and I like the subsidiary thesis that conservatives are stupid and hypocritical. But I’m not 100 percent satisfied with the conclusion. Is it really the case that cutting U.S. defense spending would force Canada to increase its defense spending? In a generic sense, it’s hard to see the argument. If our military were smaller, Canada would need a bigger military to defend it against . . . what? Invasion from the United States? An amphibious attack mounted by Peru?

It’s even harder to see when you pour into the details. Right now our nuclear arsenal has about 4,000 warheads. If we entered a bilateral agreement with Russia that cut that arsenal down to about 1,500 warheads we could spend money. But obviously that wouldn’t imperil Canada’s defenses and require it to build up a nuclear arsenal. Or say we had one fewer carrier group what would the implications of that really be for, say, Portugal.

I think Matt’s overlooking Canada’s proximity to a potentially truculent Russia, and thus badly overstating the superfluity of Canadian defensive capabilities. As I understand it, there’s a real possibility for conflict between Russia and Canada (and Denmark and Norway) over claims to arctic territories, waters, and potential shipping lanes. The Russians have acted pretty boldly so far, planting a flag on the arctic seabed and making noises about a military buildup in the Arctic (which it has subsequently backed away from.) I think it’s pretty hard to conclude that Russia would not likely be more aggressive about this if Canada and other Nato members were not so thoroughly backstopped by American power.

Canada’s likely to scale up in the north in any case, but I’m pretty sure their efforts would be greater in the absence of the American insurance policy. Canadians, Danes, Norwegians, etc. would be pretty unhappy to spend significantly more on the military, but I think that’s partly because the persistence of the American subsidy over decades has allowed them to pretend that they are, unlike the warmongering Americans, spending their budgets on things they value more than the military, instead of acknowledging that they depend upon, but largely take for granted, their U.S.-subsidized defense. Likewise, Americans have become so accustomed to subsidizing much of the world, and to the immense negotiating power that gives the American state, that they are loathe to become but one middle power among others with a merely sufficient defensive capability. So we continue to spend insane amounts of money on the military. Much of this is, as Matt argues, pure waste. But a good deal of it is actually necessary if we’re going to continue to do so much of the work in protecting our allies and thereby maintain our strategic advantage in imposing the American state’s will in the name of the “serious” foreign policy establishment’s idea of “the national interest.” USA! USA! It’s a dismal truth that many, many Americans really believe that they would be put into mortal peril should the U.S. put an end to other states’ dependency on it’s military power.

O' My Arlen

My quick take is that this sucks, because the more choke points in the policymaking process the better. That said, it probably doesn’t change all that much unless Senate Dems can muster reliable intraparty unanimity. A few things that wouldn’t have passed will, and those could be an important few things, but most final votes won’t be different. The one way this hurts the Dems is that it makes a narrative of GOP obstruction less plausible, and if various things go south by the mid-terms, the Republicans can more plausibly say that all of it’s the other guy’s fault.

Pulped Intentions

The Nation’s Chris Hayes has written a great story illustrating how Washington and environmental policy work together to create wasteful stupidity. 

Thanks to an obscure tax provision, the United States government stands to pay out as much as $8 billion this year to the ten largest paper companies. And get this: even though the money comes from a transportation bill whose manifest intent was to reduce dependence on fossil fuel, paper mills are adding diesel fuel to a process that requires none in order to qualify for the tax credit. In other words, we are paying the industry–handsomely–to use more fossil fuel. “Which is,” as a Goldman Sachs report archly noted, the “opposite of what lawmakers likely had in mind when the tax credit was established.”

What happened?! Read the whole thing. It’s a terrific example of unintended consequences. Chris says, “I’ve come to expect that even nobly conceived laws will be manipulated and distorted for private ends. But once in a while I hear a story that gives me the queasy feeling that I’m nowhere near cynical enough.”

Cap and Frayed

Here’s Kevin Drum on what he concedes is the most ambitious cap and trade legislation Democrats can realistically hope for:

First, their [the Waxman-Markey] cap-and-trade program allows a lot of offsets: two billion tons in all, which allows companies to pollute away as long as they “offset” their carbon emissions somewhere else.  In theory, this is fine, but in practice it’s an invitation to abuse, substituting purely fictional reductions for real ones.  Second, it allocates a portion of the emission credits directly to affected industries instead of auctioning 100% of them.  This is yet another invitation to abuse.

It’s possible, of course, that both of these things can be beaten into submission with the proper oversight and regulation.  But what are the odds?


A bill that started out with no offsets and no allocation might eventually end up with offsets and allocation.  But what happens to a bill that caves in on these issues right at the start?  It gets even worse as it wends its way through the sausage factory, that’s what.

As Ezra says, Markey and Waxman are as good as they come on this stuff, and if they don’t believe that a clean bill stands a chance even as an opening bid, they’re probably right.

Drum is right about those “invitations to abuse,” which is to say, mechanisms that practically gurantee abuse. And Drum’s right that it’s only going to get worse. The “opening bid” comes from some of the most zealous environmental ideologues in Congress. And the sausage factory is about to come online. Yet Drum remains hopeful! We’ll see how he and his comrades feel about what I’ll bet will be a gutted and impotent scheme good for little but corporatist jockeying for government-enforced advantage over competitors. If it turns out that way, will he want to kill it then? The folks who kept telling us that cap and trade and a straight carbon tax are “equivalent” were always full of it. There’s this thing called “politics,” you see, which does not treat them equivalently. 

Here’s my column on cap and trade as a spectacular instance of corrupting and unstable political capitalism.

Are We Flirting with Fascism?

Folks are loose with ‘fascism’. The cops are fascists because they’re cops. Bush was a fascist because he blew new life into the military-industrial complex and herded protesters into “free speech zones.” And now, Obama is a fascist for sacking the executive of a private corporation and saying the government will back the warranty for your Yukon Denali. Is this fascist?

Fabio Rojas says no. He says fascists want to control capitalism, “but mainly as a tool for nationalism and clientelism, rather than redistribution.” He goes on:

Instead, we’ve got “quarterback capitalism.” The idea is pretty simple: don’t challenge the major features of capitalism, but opportunistically fix what you can with buy outs, loans, subsidies, and other ad hoc interventions. Reminds me of the great quarterback Randall Cunningham, who could scramble his way out of any mess. The idea behind Bush-Obama policy is that what ever mess you’ve got, you can probably fix with the right hodgepodge of incentives. The Federal government is the nimble quarterback who can get you out of the squeeze.

With regard to GM, Obama didn’t do what the fascists actually did – which was to make everyone dependent on the state so they could engage in militarism. Basically, the current strategy is to do what one can to save the financial and manufacturing infrstructure of United States, but not in ways the challenge the underlying structure. Better regulations for banks; new management for the auto people; a little help for homeowners. For GM, it was pushing out old management in exchange for money, a typical move in the private sector. Whether this is good is certainly for debate, but it certainly isn’t a return to fascism, socialism, or laissez-faire economics.

Sheldon Richman’s Concise Encyclopedia of Economics entry says:

Where socialism sought totalitarian control of a society’s economic processes through direct state operation of the means of production, fascism sought that control indirectly, through domination of nominally private owners. Where socialism nationalized property explicitly, fascism did so implicitly, by requiring owners to use their property in the “national interest”—that is, as the autocratic authority conceived it. (Nevertheless, a few industries were operated by the state.) Where socialism abolished all market relations outright, fascism left the appearance of market relations while planning all economic activities. Where socialism abolished money and prices, fascism controlled the monetary system and set all prices and wages politically. In doing all this, fascism denatured the marketplace. Entrepreneurship was abolished. State ministries, rather than consumers, determined what was produced and under what conditions.

If Sheldon’s right, it’s hard not to see the U.S. moving in a fascist direction. The government is indeed in the business of setting some prices and wages politically, which is troubling. But it’s pretty clear that we’re still pretty fully in the “mixed economy” mode. As Richman writes:

Fascism is to be distinguished from interventionism, or the mixed economy. Interventionism seeks to guide the market process, not eliminate it, as fascism did. Minimum-wage and antitrust laws, though they regulate the free market, are a far cry from multiyear plans from the Ministry of Economics.

Yet I think it’s clear that we are in fact seeing fascism in vitro, though I don’t think that’s anyone’s intention. Nevertheless, we’d better swallow some gunpowder pretty quick. Like Tom Palmer, I find it extremely troubling to see Barack Obama talking like he personally looked over the GM situation and finally made some decisions because that’s obviously his job, to be the decider, and because the managers of private corporations can’t possibly do the right thing. It’s a very, very, very bad precedent. Tom says:

I was so happy to see the back of George W. Bush and his administration, with their disregard for the Constitution, foolish and unnecessary war, attempt to subvert habeas corpus, reckless spending, and overall arrogance and disregard for limits on power. His successor has decided to follow even more carefully the examples set by Benito Mussolini and Vladimir Putin, and has sacked the head of a company. That is a decision for the shareholders of a private firm to make, not for the head of state. What next? Will private firms end up in the hands of friends of the president? Will the White House Chief of Staff serve simultaneously as head of a major state-directed company? Will journalists who criticize the president end up shot in the head in elevators?

I predict that the answer to Tom’s three concluding questions will be “no.” That doesn’t mean they don’t need to be asked. It happens, and it can happen here. Asking these questions helps ensure the answers will be “no”, prepares us to stand up against overweening power. But it ought to make you a bit sick that it has become  necessary to say that, no, the President doesn’t run everything. Perhaps we’re getting “quarterback capitalism” and not yet “fascism,” but it’s still pretty troubling to anyone with a liberal bone in his body.

Hello? Excuse Me! Brrrring… Anybody Home?

Anatole Kaletsky today argues at length what I yesterday argued very briefly on Marketplace:

Which brings us to the greatest risk facing the world economy: Mr Obama’s failure to present a credible response to the financial crisis or even to assemble a proper economic policy team. After the British Government’s leaked messages of despair about nobody answering the phone at the US Treasury in the preparations for the G20, everybody is now aware that Mr Obama has nominated only two out of 18 deputy and assistant Treasury secretaries. What is less widely recognised is that this decision-making vacuum reflects a deeply worrying feature of US economic policy.

American politicians simply don’t seem to understand the existential threat that their economy is now facing. Instead of uniting to deal with a national emergency far more threatening to their way of life than the terrorist attacks of 9/11, they have responded by dividing more sharply than ever into hostile partisan camps.

Efforts to revive economic activity and to stabilise the financial system that are clearly indispensable on the basis of any economic analysis, whether Keynesian or monetarist or plain business-sense, have been denounced on the Right for interfering with free markets and on the Left for feather-bedding bankers. Instead of rallying around in a moment of crisis, many Americans are openly expressing their hope that the new President will fail and the economy collapse. Candidates for key Treasury posts have been viciously attacked in the media and Congress for trivial tax and administrative infractions inadvertently committed many years ago or simply for having once worked on Wall Street. As a result, these jobs have become almost impossible to fill.

Mr Obama himself seems to have attached a surprisingly low priority to dealing with the financial crisis. He had, for example, selected key State Department officials, from Hillary Clinton downwards even before his inauguration. He has managed to get dozens of these confirmed by Congress in the past two months and immediately put his personal stamp on US foreign policy. Yet there has been no similar focus on creating a properly functioning economic team or launching a coherent new response to the financial crisis.

The lack of urgency, of focus and of national unity in America’s response to the financial crisis is the most surprising – and most dangerous – threat to our chances of recovery.

Kaletsky’s right that conservatives are being stupidly obstructionist, especially about necessary political appointments. But as time goes on, the inattention of the administration to the truly urgent problem facing the country and the world is flabbergasting. The economic crisis does present a window of political opportunity big enough to drive a truck through, and so it’s easy to understand why Democrats have been gleefully loading up the truck with everything they’ve ever wanted ever. But it’s really the height of irresponsibility when the circumstances demand that efforts be devoted to ensuring the window doesn’t widen to the point that the house collapses on the truck. (What is a truck doing in the house? Can you drive a truck through a window? Where is the truck going? Another house? I can haz Tom Friedman!) If Obama does not luck out (and he is nothing if not lucky) and things get a good deal worse, this early episode of rather terrifying mismanagement will not be forgotten.

Those who think this is a mere partisan talking point and amounts to the idiotic claim that it is not possible to simultaneously walk and chew gum need to back away from their own partisanship and get a little perspective. Also, they should reflect on why Obama, despite his undisputed excellence in gum-chewing, has so far done such an embarrassing job of walking.