Kevin Drum

Jury Selection Follies

| Thu Sep. 16, 2010 12:49 PM EDT

Robert Lane Greene passes along an interesting case today. Apparently lawyers have taken to googling potential jurors during the jury selection process, leading to this exchange in a case a year ago:

THE COURT: Are you Googling these [potential jurors]?

[PLAINTIFFS COUNSEL]: Your Honor, there's no code law that says I'm not allowed to do that. I — any courtroom — 

THE COURT: Is that what you're doing?

[PLAINTIFFS COUNSEL]: I'm getting information on jurors — we've done it all the time, everyone does it. It's not unusual. It's not. There's no rule, no case or any suggestion in any case that says ...

THE COURT: No, no, here is the rule. The rule is it's my courtroom and I control it.

OK, two things. First, although I understand the need for judges to keep order, I've long been annoyed by their apparent belief that courtrooms are little fiefdoms to be ruled as they see fit. So I'm glad this particular exercise of arbitrary authority got overturned.

But second: can we please do away with lawyer-conducted voir dire completely? True, it produced my favorite John Grisham novel, but what a waste of time for everyone involved. Instead, let the judge do the questioning and allow the lawyers to intervene only if they have a substantive issue to present. Beyond that, just take the first twelve people who aren't plainly compromised in one way or another. It works in Britain, there's no reason it can't work here too, and I'll bet it would cut down on court time and costs by upwards of 10% or so. How about some help with this, small government types?

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Can Sarah Palin Win in 2012?

| Thu Sep. 16, 2010 12:27 PM EDT

Paul Mirengoff thinks the 2012 Republican nomination for president is Sarah Palin's to lose. He bases this on four assumptions:

The first assumption is that Palin will run....The second assumption is that the Tea Party movement will back Palin and that she will capture most of the Tea Party vote....The third assumption is that, backed by the Tea Party movement, Palin can win between 30 and 40 percent of the vote in many of the early multi-candidate primaries and caucuses....The fourth assumption is that Palin can ride a vote count of 30 to 40 percent in crowded early primaries to the front of the pack and then increase that count to 50 percent plus as the field narrow in the later primaries.

Ramesh Ponnuru isn't buying it:

It would be a real mistake, I think, to see [Christine] O’Donnell’s victory as somehow presaging one by Palin. As Mirengoff concedes, Palin, if she runs for president, won’t be running against Mike Castle. Primary voters may also behave differently when the stakes are higher. Taking a gamble on a Senate candidate who might not be able to win is different from taking a gamble on a presidential candidate. That doesn’t mean Palin can’t win. But the conventional wisdom — that the race is wide open — just may be correct.

I'm stonkered on this. A few months ago I was convinced that Palin wouldn't run at all, so it was a moot point. Now I'm not so sure. After all, she's been acting an awful lot like a presidential wannabe lately, hasn't she?1 And Lord knows that plenty of people with less chance than her have been talked into running by friends and consultants with a seductively persuasive scenario for victory.

So let's say she runs. Can she win? On the plus side: she has lots of name recognition, a proven ability to raise money, a loyal core of followers, and tons of charisma.

But then there's the minus side: she's extremely polarizing, she won't get to hide behind Facebook and Twitter if she's running for president, she's never shown much patience for the kind of organization that a presidential run requires, her opponents will be able to make a powerful case that she's unelectable in November, and she seems almost certain to make at least one major gaffe in the early stages of the campaign.

So I just don't see it. In fact, the only real winning scenario I see for Palin is one in which nobody credible really feels like running and Palin ends up getting the nomination by default as sort of a suicide run against an incumbent who's going to crush her. But I don't really see that either. I happen to believe that Obama is probably unbeatable in 2012, but there are hardly any Republicans who agree with me. They all think Obama is a dead man walking and they're almost certainly going to want to nominate someone who can beat him. Palin just isn't that person.

1And that was before I saw this. Apparently she's been acting even more wannabe-ish than I thought.

The Paradox of Healthcare Reform

| Thu Sep. 16, 2010 11:37 AM EDT

I won't pretend that I really know what this means, but here are the results from yesterday's New York Times poll related to healthcare reform. Follow the bouncing arrow:

So: 49% of Americans disapprove of healthcare reform. That's not good. But wait! Only 40% actually want it repealed. The rest figure it should be given a chance even if they don't like it much. That's better. And if you tell them that repeal would also mean repealing the preexisting condition provision, only 19% want it repealed. That's better still.

Now, none of this changes the broad political fact that "healthcare reform" as a standalone campaign pitch seems to be a loser. That's not what I expected this far after the bill was signed, but other polls confirm it. However, it's also the case that what the bill actually does seems to remain pretty popular. This poll only asks about one particular provision, but previous polls have gotten similar results for most (though not all) of the bill's other provisions.

Now there are two ways you can work with this result. The first is the complicated way: you explain that the bill bans companies from dropping customers with preexisting conditions (hooray!), but if you do that then you also have to insist that healthy people all get insurance too. Otherwise insurance companies will go out of business due to cherry picking. And if you do that, then you have to subsidize working class families that can't afford insurance and expand Medicaid for poor families who can't even afford subsidized private care. And once you've done that, that's 90% of healthcare reform right there.

This is all true, but your audience's eyes will glaze over about five seconds after the word "preexisting." Still, there's also an easy way to do this: just stop. Don't explain the whole bill, just campaign on the preexisting condition clause. And also the tax credits, the end of the doughnut hole, the end of copayments for preventive care, the end of lifetime limits, the subsidies, and the Medicaid expansion. Oddly, though, that seems to be harder than it appears. Tim Kaine tried this tack on Jon Stewart the other night, and Stewart practically sneered him off the stage for it. It's true that Kaine didn't do a very good job, but still. Stewart is a pretty sympathetic audience.'s a mystery. People generally like the provisions of the law, but they yawn (or worse) when you tell them about all those provisions. I'm not sure what to make of this aside from concluding that people are just in a bad mood and it doesn't matter what you say to them.

Staffing Up

| Thu Sep. 16, 2010 10:06 AM EDT

So Obama isn't going to officially nominate Elizabeth Warren to head up the new Consumer Financial Protection Bureau. Josh Marshall comments on what Obama is going to do:

ABC's Jake Tapper has a curious scoop, reporting that President Obama will name Elizabeth Warren not to run the new consumer financial protection bureau but instead will give her the previously unheralded "special position reporting to both him and to the Treasury Department and tasked with heading the effort to get the new federal agency standing." Get that?....I tend to agree with Matt Yglesias on this: "With Warren, Obama showing real innovation in developing odd, satisfying to nobody compromises."

Matt seems to have changed his mind here, and I think his second take is the right one. It's pretty obvious to anyone with a pulse that Republicans will filibuster Warren, thus sucking up Senate floor time that no one can afford with only a few weeks left before Congress goes into recess. At the same time, the CFBP needs to get off the ground, and appointing an unofficial interim head is a way of doing it. Warren is clearly the best choice for this.

I have no inside scoop on whether Obama or Tim Geithner "really" like Warren, but honestly, I've seen no serious evidence that either one of them is standing in her way. Geithner supposedly doesn't like the grillings Warren has given him in the past, but come on. He's a big boy, and in any case what better way of getting Warren out of his hair than giving her a job that will keep her too busy to bother him much? If George Bush had done something like this we'd all be gnashing our teeth about how he and Karl Rove were so committed to their base that they were once again cleverly bending the rules to evade Democratic opposition and why can't wussy Democrats ever act like that too? Well, now one is. So bravo. Given the realities of Republican subjugation to whatever the Chamber of Commerce wants, this is a good solution. Then next year maybe Obama will just give Warren a recess appointment and that will keep her in place for a couple of years. What's good for the goose is good for the gander, no?

The Mind of America, Part 2

| Thu Sep. 16, 2010 12:52 AM EDT

Via the latest New York Times poll, here's the Obama administration's problem in a nutshell:

This is, of course, a simple factual question with a simple factual answer: Obama has lowered taxes for virtually all Americans. Unfortunately, hardly anyone knows it.

In other news, people hate Democrats but hate Republicans even more; they're unsure if Obama has a clear plan for solving the nation's problems but they're absolutely sure Republicans don't; they think Democrats have better ideas than Republicans; they think Democrats are more likely than Republicans to help the middle class and small businesses; they blame George Bush and Wall Street for the crappy economy; they think the stimulus package probably improved the economy;1 they support Obama's plan to allow Bush's tax cuts for the rich to expire; they think Obama is doing more to improve the economy than congressional Republicans; and they hate Sarah Palin and are less likely to vote for anyone she supports.2

Oh, and they're going to kick Democrats out of office this November anyway. Bummer, guys.

1But they're less likely to vote for someone who supported it anyway.

2In fairness, the public also continues to dislike the healthcare bill and they continue to think that Republicans are better on terrorism than Democrats. That's about it for favorable impressions of Republicans.

Public vs. Private

| Thu Sep. 16, 2010 12:21 AM EDT

On the ever popular subject of whether public employees are coddled and overpaid, EPI steps in with a new bit of research from Jeffrey Keefe of Rutgers today. I'll spare you the suspense and get right to the results:

This is pretty much what you'd expect. Public employees get a bigger share of their compensation in benefits than private sector employees (34% of total comp vs. 26-33%), and because of this the lower rungs of the public sector ladder get paid a bit more than their private sector counterparts. Anyone with a college education or more, however, is paid far less, and this brings the overall average for the public sector a bit below the private sector.

In a separate calculation that controls for full-time status, education level, years of experience, age, gender, race, employer organizational size, industry, and hours worked, the report concludes that public employees are compensated 2-7% less than equivalent private sector employees.

Take from this what you will. Obviously it's hard to know for sure if all the controls are properly accounted for, and you can decide for yourself if it's fair for high school and community college grads to make more working on the taxpayer dime than they would in private industry. Overall, though, this is yet another study that tells us the numbers are pretty close no matter how you slice them. It's always easy to find a few horror stories (usually cops or firefighters who works fantastic amounts of overtime), but in the aggregate it doesn't look like there's much evidence that government jobs are overpaid compared to private jobs.

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Policy vs. the Horse Race

| Wed Sep. 15, 2010 2:35 PM EDT

Atrios on the media's distaste for policy discussions:

One thing that is continually frustrating in our media is that the people who are paid to talk about politics focus on the polls, the horse race, the "appeal" of the candidate. I was listening to NPR for a bit and it took callers to inject any issues of policy or substance.

The modern press corps obviously deserves some of the blame for this, but for what it's worth, I'd add that politicians do too. After all, when was the last time you heard a politician give a genuinely interesting answer to a policy question? It happens sometimes, but the vast majority of the time you just get a canned talking point, a refusal to answer at all combined with a switch to some other topic, or a fat dollop of obviously dishonest spin. What's more, it's usually the exact same talking point, topic switch, or spin that you've heard a hundred times before. This makes it pretty unrewarding to ask about policy.

Raw Data: Crime Rate Continues to Fall

| Wed Sep. 15, 2010 1:32 PM EDT

The FBI released its latest crime statistics this week, and although absolute levels in the U.S. are still high by international standards, they show that crime of all types was down in 2009. In some cases the numbers were quite significant: murder is down 7% and auto theft is down 17%, for example.

Why? Who knows? More policing, maybe. Demographic changes. The continuing effects of unleaded gasoline. Whatever the cause, crime rates have been falling for two decades now, and they've been falling everywhere. Not just New York City and not just places with high-profile police chiefs. So here's your raw data for the day: two decades of uniform crime reporting from the FBI, all shown in rates per 100,000 inhabitants. Just so you know.

The Future of Tea Party Conservatism

| Wed Sep. 15, 2010 12:31 PM EDT

Jason Kuznicki ponders the meaning of Christine O'Donnell's suicidal victory in the Delaware Republican primary last night:

Every so often, a party nominates an unelectably extreme candidate, possibly because it’s deliberately testing the waters, though often it happens by accident. Then the party gets stomped at the general election....The next time around, the party bosses — who tend to lack all principles whatsoever — will move the whole apparatus to the center, where it can win the general election. How? With every single means at their disposal, and these are still extensive. You can see them at work even now, quietly trying to scuttle a Palin candidacy. The median voter theorem may not be in the front of Christine O’Donnell’s mind, or of Sarah Palin’s — neither shows much evidence of having considered it — but it isn’t entirely their party. Not by a long shot. The elites still bring things back to the center.

Not so fast. O'Donnell is only one candidate, and every professional politician knows that once you get a freight train barrelling forward you can't control every last twist in the tracks. And it's quite possible that the result of the Tea Party freight train this year will be lots of ultra-conservative victories and one or two preventable losses. Is that a reasonable price to pay? I don't know, but I do know that there are plenty of liberals who'd be willing to make that trade in the opposite direction.

If O'Donnell loses in November and turns out to literally be the difference between 50 seats in the Senate and 51, then plenty of Republicans will be gnashing their teeth. But if the net result is that they get 46 seats instead of 47, and those 46 are considerably more conservative than they would have been without tea party fervor, I'll bet most of them will consider it a pretty good bargain.

Of course, there are still Ken Buck, Pat Toomey, and Sharron Angle to contend with as well. It's conceivable that they could all lose too, in which case tea party fervor might be responsible for four preventable own-goals. If that happens, then the establishment might indeed rouse itself to action. Except for one thing: the Republican establishment right now is dedicated to the tea party message heart and soul. It's going to take more than a few midterm losses to convince them that doubling down on "true conservatism" isn't the road to riches. I think sane conservatives are going to have to wait until the aftermath of 2012 at the earliest to have any chance of regaining any influence with their party.

The Tea Party Batting Average

| Wed Sep. 15, 2010 11:40 AM EDT

So with primary season officially over, how has the Tea Party done? Dave Weigel tots up the body count here and here, and concludes that they won in 24 out of 51 contests. That's a 47% winning record for the insurgents, and as Marcy Wheeler tweets, "To be fair to Tea Party, they're doing much better than Govt on habeas petitions: govt has won just 15 of 53 cases." Quite so.