Kevin Drum

Conservatives Have a New Worst Enemy: Conservative Chief Justice John Roberts

| Tue Sep. 29, 2015 12:16 PM EDT

In a story which appeared sometime in the past few days,1 LA Times reporter David Savage notes something that's been nibbling at the back of my mind but hadn't quite made it to the front. It's about Chief Justice John Roberts:

He voted against gay marriage, in favor of weakening a federal law against racial bias in housing and for the Arizona Republicans who challenged the state’s independent panel that draws election districts. He joined 5-4 majorities to block an Obama administration clean-air rule and to uphold a state's use of substitute drugs to carry out lethal injections.

But as Roberts this week marks the 10th anniversary of becoming chief justice, he finds himself in the crosshairs of right-leaning pundits and GOP presidential hopefuls who brand him a disappointment and openly question his conservative credentials because of the one case of the six in which he voted with the court’s liberals. The decision marked the second time Roberts had voted to uphold President Obama’s healthcare law.

Roberts has indeed been getting a lot of flak from conservatives, despite the fact that on high-profile cases he's been pretty much a conservative's dream. The only big case in which he deviated was Obamacare. But whether conservatives like it or not, this really does demonstrate a very conservative sense of judicial restraint. Obamacare was a historic and substantial piece of legislation duly passed by Congress and signed by the president shortly after a landslide election, and in the end Roberts was unwilling to strike it down on a thin pretext.

But relitigating Obamacare isn't the point here. The point is that this is the only major case where Roberts has deviated from political conservatism, and he's been practically disowned because of it. Compare that to the fate of liberal justices Stephen Breyer and Elena Kagan. They both joined conservatives in striking down mandatory Medicaid expansion, a major piece of the law. Liberals were almost unanimously aghast.2 But that was it. It was one case. There's been no big movement among liberals to disown them and demand that future presidents appoint more reliably liberal justices.

Now, you can argue that conservatives have good reason to be ultra-vigilant, having been serially disappointed by justices Harry Blackmun, John Paul Stevens, and David Souter. Still, this backlash against Roberts carries real risks for conservatives:

That same month [when he upheld Obamacare for the second time], he joined with Kennedy and the court’s liberals to block most of an Arizona law that targeted immigrants living there illegally. Roberts agreed that federal authorities, not the states, had control over immigration policy.

Since then, [Brianne] Gorod says there has been some shift in Roberts’ votes and opinions. “He now occasionally breaks company with his conservative colleagues,” she said. “He is concerned about the reputation and legitimacy of the court. He’s also concerned about increasing partisanship in Washington. This doesn’t mean he is becoming a liberal.”

One of the things that conservatives have generally done better than liberals is to avoid mocking people who might one day join the cause. Here they're running the risk of doing just that. If conservatives make it clear that they now hate Roberts' guts, his tribal affiliations are going to weaken. That may not be judicially defensible, but it's human nature. If they don't want to end up with another David Souter, they should cool it on Roberts. Otherwise they might end up with one sooner than they think.

1It was on the front page of the print edition today. The search function says it doesn't exist at all. The online version—finally located via Google—says it went up on the 25th. Typical LA Times.

2Except for me. I continue to think it was the legally correct decision.

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Carly Fiorina Now Even Wronger About Planned Parenthood Video

| Tue Sep. 29, 2015 11:15 AM EDT

During the Republican debate earlier this month, Carly Fiorina referred to the Planned Parenthood sting videos made by the Center for Medical Progress: "Watch a fully formed fetus on the table," she said, "its heart beating, its legs kicking while someone says we have to keep it alive to harvest its brain."

That does not appear on the video. The video does include an interview with a technician who claims that she has seen this happen, and there's some spliced footage of an abortion used to illustrate her testimony. But that's it. Nevertheless, Fiorina has doubled, tripled, and quadrupled down on the accuracy of her obviously inaccurate statement.

Today, the provider of the footage released the entire 13-minute video:

He [] made no claim that the images shown in the video had anything to do with Planned Parenthood, the organization that Fiorina and others have targeted for federal defunding. “I am neither confirming or denying the affiliation of the clinic who did this abortion,” Cunningham said.

....The full source video, which is extremely graphic, lasts about 13 minutes, and shows a fetus being extracted from the mother, placed in a metal bowl, prodded with medical instruments and handled by someone in the room. At times the fetus appears to move, and at other times it appears to have a pulse. There are no images on the full video of any attempt to harvest the brain of the fetus, and there is no sound. Cunningham said the jump cuts in the video are the result of the camera being turned off and on.

So there you have it. The video was not taken at a Planned Parenthood clinic. The fetus shows some reflexive movement, but that's all. No one says the fetus has to be kept alive. No one harvests the brain.

But other than that, Fiorina was 100 percent correct!

House Benghazi Committee Breaks Record — Sort Of

| Mon Sep. 28, 2015 7:51 PM EDT

Today's news:

The House committee investigating the Benghazi attacks is now the longest congressional investigation in history, committee Democrats announced today. As of Monday, the House Select Committee on Benghazi, has been active for 72 weeks — surpassing the record previously held by the Watergate Committee in the 1970's.

I suppose this is technically correct. But let's gaze through a broader lens and take a look at the Whitewater investigation:

  • The House Banking Committee began hearings in March 1994, and they petered out in early 1995. Call it 50 weeks or so.
  • The Senate Whitewater Committee began in May 1995 and issued its final report in June 1996. That's 57 weeks.
  • But wait! The Senate investigation was a continuation of the Senate Banking Committee investigation, which began in July 1994. If you count this as one big Senate investigation, as you really should, it lasted 98 weeks.
  • But wait again! The Whitewater investigation really started on January 20, 1994, when special counsel Robert Fiske was appointed. It ended on September 20, 2000, when Fiske's successor, Robert Ray, announced there was "insufficient evidence" to show that the Clintons had done anything wrong. That's 348 weeks.

So sure: in terms of a single congressional committee in continuous existence, Benghazi is now the all-time record holder. But in terms of how long a political investigation has lasted through all its permutations, I'd guess that 348 weeks is unlikely to be beaten anytime soon. When it comes to political witch hunts, Whitewater was—and remains—the king of fruitless idiocy.

It's Really Hard Not to Hate the Pharmaceutical Industry

| Mon Sep. 28, 2015 6:35 PM EDT

Another day, another drug. Today comes news of Nitropress, a generic blood pressure drug that was priced at $44 per vial way back in 2013. Then it was sold to Marathon Pharmaceuticals, which raised the price to $257. A few months ago it was sold yet again, this time to Valeant Pharmaceuticals, which raised the price to $806. But no worries! According to a spokesman, no one will ever be denied this medication:

“These are drugs that are only used by hospitals — they are not sold in pharmacies — in accordance with specific surgical procedures. This means that whenever the protocol calls for use of these drugs, they are used. Patients are never denied these drugs when the protocols call for their use.”

And there you have it. Hospitals have to use it, and no one else makes it, so Valeant can charge whatever they want. Satisfied?

Anyway, Democrats are "demanding answers" from Valeant, which will probably do about as much good as it did when they demanded answers from Marathon last year about their price increase. Or all the other companies they've demanded answers from ever since 10x price increases became the pharmaceutical industry's favorite new sport. That is to say, none.

It's a funny thing. I've probably read just about every reason in the book explaining why national health care is supposed to be a terrible idea. Most of these reasons are pretty lousy—either unsupported by the evidence or else directly contradicted by it. But there's one exception: the argument that a national health care plan would drive down the price of drugs—as it has everywhere else in the world—and this would stifle innovation in the pharmaceutical biz. There's some real merit to this claim.

It's not quite that simple, of course, and it would take a longish post to go through this topic in detail. Nonetheless, you can put me in the camp of those who want to tread pretty carefully when it comes to regulating pharmaceutical pricing. But these guys are sure making it hard to maintain that position, aren't they?

Jeb Bush's Tax Plan Is Written in Pixels, Not Stone Tablets

| Mon Sep. 28, 2015 3:01 PM EDT

There's nothing Republicans like more than talking about taxes. So Chris Wallace asked Jeb Bush about his tax plan this weekend. In particular, he wanted to know why the rich were getting such a big break under Bush's plan. Jeb replied that this was simply a law of nature:

The simple fact is 1 percent of people pay 40 percent of all the taxes. And so, of course, tax cuts for everybody is going to generate more for people that are paying a lot more. I mean that’s just the way it is.

You will be unsurprised to learn that this isn't true. Bush's plan includes new tax brackets for everyone, and the rich pay a lot less under his plan because he chose to cut taxes in their bracket a lot. He didn't have to do that. He could have left their tax rates where they are or lowered them only a little. Instead he chose to lower them a lot. However, as my comprehensive graphic below shows, this was handed down in pixels, not stone tablets. So Bush can change this anytime he wants.

Lie of the Year: Donald Trump's Tax Plan Will Cost Him a "Fortune"

| Mon Sep. 28, 2015 1:44 PM EDT

From Donald Trump, bragging about his new tax plan:

It’s going to cost me a fortune.

Let's see. I think Trump says he makes $400 million per year. Is that regular income? Investment income? Dividends? Hot air? Who knows. But that's what he says. If it's regular income, he'll save $60 million right off the top thanks to his huge cut in the top marginal rate. If it's investment income, he'll come out even. Let's just say that it's a combination of both, so he'll save $30 million. Fair?

I don't think any of his proposed tax increases would affect him except for the "other loopholes" he's allegedly going to close. So for this to cost him a "fortune," he'd need to pay $40 million more from his loss of deductions.

Does anyone think this is remotely feasible? Anyone?

Let's make this clear: Trump's claim that he's raising taxes on the wealthy is the baldest kind of lie. No one should report this with a straight face. And if Trump doesn't like it? All he has to do is offer up the details to prove his case and show me what a loser I am. Let's see 'em.

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Social Media or Not, a Primary Is Still a Primary

| Mon Sep. 28, 2015 1:12 PM EDT

I'm going to pick on my friend Ezra Klein today. He begins an essay about changes in American politics with a list of four recent developments in this year's presidential primary race:

  • First, Scott Walker, who looked to be the conservative establishment's pick for the GOP nomination, dropped out of the race.
  • Then John Boehner unexpectedly resigned from Congress....
  • Then an NBC/Wall Street Journal poll was released showing Bernie Sanders merely 7 points behind Hillary Clinton....
  • The same poll showed that Donald Trump, Ben Carson, and Carly Fiorina — the GOP's true outsider candidates — have reached a combined 52 percent in the polls, while Jeb Bush, the GOP's top insider candidate, has plummeted from 23 percent to 7 percent.

"Let's state the obvious," says Klein. "No pundit anywhere predicted any two of these things back in June. Hell, I'm not aware of a pundit who predicted even one of them....The models we typically use to understand American politics are breaking down."

Before we get to those models, let's talk about whether they're really breaking down in the first place. Klein is surely right that nobody predicted precisely the four things he mentions. But that sets the bar way too high. Nobody's ever pretended that a model of politics can do that. Instead, let's go through them in a more general sense:

  • Every observer of primaries has written about the "winnowing" effect. This is exactly what it sounds like: some candidates will turn out to be worse than expected and will lose the support of donors and voters. Then they'll drop out. Nobody ever knows exactly who this will be—that's why we run actual races—but everyone expected that at least one or two seemingly strong candidates would drop out before the Iowa caucuses.
  • Pundits have been talking about the possibility of Boehner resigning for at least a year. He has a thankless job these days and was basically forced out by the tea party. But speakers have lost support before—Newt Gingrich is the most dramatic recent example—and what happened to Boehner, though unusual, isn't unheard of.
  • Outsider candidates—Eugene McCarthy, Pat Buchanan, Ross Perot, Gary Hart, Bill Bradley—have a long history of spiking in the polls and giving establishment leaders fits. Sometimes they even win their primary battles, as George McGovern and Barack Obama did.
  • OK, this one is pretty unusual.

Klein's theory is that party insiders have lost a significant amount of influence in our brave new world of internet news sources and social media. And that might be true. But parties have been losing power for a long time, and changes in media infrastructure are nothing new. Candidates who took advantage of the rise of radio (FDR), then the rise of TV (Kennedy, Nixon), and then the rise of the web (Obama) have always done well. In terms of infrastructure, candidates have had to adapt to the rise of primaries, the rise of direct mail, the rise of microtargeting, and much more. Nothing ever stays the same.

Has social media fundamentally changed the landscape of presidential campaigns? I'm not really convinced. It's certainly changed things, but I'm not sure it's changed things any more than the routine-yet-seismic shifts that have been documented about once a decade in campaign tomes going back to Theodore White in 1960.1 Our traditional models of presidential politics need to keep up with the times, but my guess is that they're not quite ready for the graveyard yet.

1Off the top of my head: television in the 60s; convention/nominating rules in the 70s; direct mail in the 80s; talk radio/cable news in the 90s; web/microtargeting in the 00s; social media in the teens.

POSTSCRIPT: But I admit that there has been one big change this year: the rise of the first name. We have Bernie, Hillary, Carly, and Jeb. Has there ever been a primary campaign with more candidates going by their first names? What's up with that?

Donald Trump Releases Tax "Plan" the Rich Will Love

| Mon Sep. 28, 2015 11:53 AM EDT

Good news! Donald Trump's tax plan is out. He claims it's revenue neutral, and, remarkably, doesn't claim that this is because of dynamic effects that will supercharge the economy. It's just plain revenue neutral. But let's put aside this extremely unlikely claim for the moment and look instead only at how Trump's plan affects his rich golfing buddies. Here are all the aspects of the plan that benefit the rich:

  • Cut the top marginal rate from 39.6 percent to 25 percent
  • Eliminate the Alternative Minimum Tax
  • Eliminate the estate tax
  • Cut the corporate tax rate to 15 percent

You will note that these are all very specific proposals. When it comes to lowering taxes, everything is described in loving detail, with exact numbers attached. Now let's take a look at the aspects of Trump's plan that will hurt the rich:

  • Steepen the curve of the Personal Exemption Phaseout and the Pease Limitation on itemized deductions
  • Phase out the tax exemption on life insurance interest for high-income earners
  • End the current tax treatment of carried interest for speculative partnerships that do not grow businesses or create jobs and are not risking their own capital
  • Reduce or eliminate other loopholes for the very rich and special interests

That's…considerably less detailed, isn't it? Revenue-wise, the first three are small potatoes anyway, so it hardly matters. All the action is in the fourth one. There is exactly zero detail there, except for this: "Charitable giving and mortgage interest deductions will remain unchanged for all taxpayers." Trump can be specific when he wants to be, but he only wants to be when he's describing the way taxes for the rich will go down or be unaffected.

Here's the bottom line: The sum total of Trump's plan to offset his huge tax cuts for the rich is this: "Reduce or eliminate other loopholes for the very rich and special interests"—except for two of the biggest ones, of course. Take that, you pencil-necked geeks at the Tax Policy Center, who want to use "arithmetic" and "logic" to score Trump's plan to see if it adds up. You can't! Hah!

Two Quotes of the Day to Get Your Week Started

| Mon Sep. 28, 2015 11:04 AM EDT

From a visibly dubious Scott Pelley, after listening to Donald Trump's plan to fix every problem in the country without paying for any of them:

You know, the heart of all of your plans seems to be we're going to be rich.

Trump agreed. He's going to have universal health care, better Social Security, an expensive immigration plan, a bigger military, better infrastructure, and lower taxes—and the deficit is going to go down anyway because "we are going to do great." So there.

And this comes from Washington Post reporter Emily Rauhala:

Not to be outdone, U.S. Twitter users responded with a similar mix of mindless put-downs.

The context here is—oh, something or other. Who cares? It would fit pretty much any context, wouldn't it?

Yet Another Look at How Our Kids Are Really Doing in School

| Mon Sep. 28, 2015 8:30 AM EDT

So how are our kids doing? I mean, really doing? In particular, how are our black high-school kids doing at math?

A few days ago I showed the results for the Long-Term NAEP math test. This is a version of the NAEP that's stayed fairly similar over the years so that it's possible to see long-term trends. But Bob Somerby isn't buying it. Why not look at the Main NAEP instead, since that's the standard version of the NAEP that usually gets all the headlines?

There are two reasons. First, the Main NAEP starts in 1990, so if you want to see longer-term trends, it's useless. More to the point, it's not even that useful for medium-term trends because there was a major break in 2005: the test changed and the scale changed, from a 500-point scale to a 300-point scale. So what happened between 2000 and 2005? No one knows. There are no official comparisons.

Still, you can do this: look at the change from 1990-2000 and the change from 2005-2013. That should give you a reasonable idea of what's happened over the past 25 years. When Somerby does this, he gets 6.11 + 5.24 = +11.34 points. That's a pretty good gain. By contrast, when you look at the Long-Term NAEP scores over that same period, you get a drop of -1 points. That's a huge difference. What's going on?

Let's take a crack at figuring this out. The long-term scores are easy: neither the test nor the scale have changed, so you just look at the numbers and multiply all of them by 3/5 to norm them to a 300-point scale. For the main test, we need to norm the 1990-2000 scores to a 300-point scale and then paste them together with the 2005-2013 scores. The chart on the right shows what you get.

On the long-term test, scores are still down by about 1 point. Nothing much has changed. But on the main test, scores are up by only 1 point instead of 11 points. What happened? Two things:

  • The 6-point increase from 1990-2000 becomes a 3.6-point increase when you renorm it to a 300-point scale.
  • There's an unrecorded drop of 7.4 points between 2000 and 2005.

Altogether, this shaves about 10 points from the raw 11-point gain. If that's accurate, it means there's no mystery. One test is up by a point and the other is down by a point. Since these tests have a margin of error of about one point, that's close enough to identical not to worry about.

Needless to say, this leaves us with some questions. Is it acceptable to casually renorm scores by simple multiplication? Is the drop between 2000 and 2005 real? Or is it because the test got harder? Why do scores on the main test bounce around considerably while scores on the long-term test stay pretty stable? There hardly seems to be any correlation between scores on the two tests at all.

Almost certainly, experts would be aghast at all this renorming and extrapolation. But I think it gets us closer to the truth. And one way or another, you have to account for that 2000-05 gap. If you ignore it, you're ignoring what could be a substantial part of the story.

In any case, this is why I think you're better off looking at the long-term test if you want to see long-term trends. That's what it's designed for, and you don't have to monkey with the data. Either way, though, we end up with pretty much the same story: black test scores (and white scores and Hispanic scores) have been pretty stagnant since 1990 for high school seniors. This doesn't mean the gains in earlier grades are nothing to celebrate. They are, and reporters should pay more attention to them. In the end, though, it doesn't matter what the score is in the sixth inning if your bullpen consistently blows big leads. What we care about is how well educated our kids are when they leave school and enter the world. Until our high schools are able to build on the big gains they're inheriting from middle schools, we're not going to see any improvement on that score.

POSTSCRIPT: If you want to look at the raw data yourself, there are plenty of ways to do it. However, the following printed reports provide easy access to all of it:

For what it's worth, two more notes. First, the main test is given to 12th graders. The long-term test is given to 17-year-olds, who are both 11th and 12th graders. Also: since 2000, the two tests have been given a year apart. Neither of these is likely to affect scores or trends in any material way.