I'm Moving

Figuratively, not literally.

I stopped blogging completely when I ran for State Senate in 2010, and afte living and breathing politics for eight months, didn't immediately feel like getting back into it. But I think I've had enough of a break, and in the very near future I'm going to start blogging again about North Carolina politics and my work with Organizing for America leading up to the 2012 elections.

It should be fun. I may stay on Blogger or I may use a different platfrom, but I will definitely be moving away from BAPASI. More updates to follow.

No, it's not Fido, it's still the SUV

My father and I had some great debates over the holiday break, about just about everything imaginable. I thereby introduced him to the concept of "calling bullshit." I do this when someone tries to sneak by some outrageously implausible claim that can almost certainly be proven demonstrably false with a quick Google search. This saves me the trouble of having to employ Socratic debate against the patently nonsensical. It's not quite the same thing as refuting something that educated people already know to be false, like the claim that the Founding Fathers inserted the phrase "under God" into the Pledge of Allegiance. (Palin, Sarah) Rather, this occurs when someone throws out some obscure "fact" that you've never heard used before, but common sense tells you could not possible be true, not matter how much the other person insists that it is.

In this case, the outlandish claim was that a pet cat or pet dog had a bigger carbon footprint than an SUV. Really? It turns out that our fleet of Hummers isn't melting the icecaps? It's really been little Rover the whole time? (And he chewed up my slippers! The little bastard!) That didn't pass the smell test. But he saw it on the Internet, and Lord knows if it's on the Internet then it must be true. So I looked into so no one else had to.

All the “evidence” for the idea that pets same the same carbon footprint as an SUV comes from a book written by two New Zealanders, Robert and Brenda Vale, called “Time to Eat the Dog, the Real Guide to Sustainable Living.” [No actual dogs were eaten during the course of my research.] The way this story got breathlessly hyped across the Internet reads like yet another case study in Failures in Journalism. Even mainstream news outlets like ABCNews.com linked to the story with headlines like “Pet Dogs More Damaging to the Environment Than SUVs” instead of “Two Cranks Promote Controversial Theory.” I won’t even get into the way this story was shamelessly flogged in right-wing media outlets.

The Vales are described on Wikipedia as “architects, writers, pioneer researchers, and experts in the field of sustainable housing.” You’ll notice that they’re not described as being either climatologists specifically or even scientists generally. That important fact was missing from all of the articles I read. Also, they measure “carbon footprint” in hectares, which is not the proper unit of measurement. Carbon footprint is measured in tons of carbon dioxide emissions. What the Vales seem to be measuring is something called “ecological footprint” which is different, much less used, and much less useful. Again, none of this was mentioned in the articles I read because no scientists were quoted for perspective. The rebuttals came exclusively from people arguing how swell pets are [not that I’m knocking that]. The journalistic fail here was truly epic.

Now, there’s no question that pets produce some carbon footprint. But how big is that footprint? More reputable sources estimate the carbon footprint of a pet cat at half a ton of carbon per year. Dogs produce more, but with a much wider variance because dogs vary so widely in their sizes and weights. But even with cats, carbon footprint can vary because there are things pet owners can do to minimize their pets’ footprint. (And getting more pet owners to do those things would certainly have a positive benefit on climate change.) But let’s take half a ton as a starting point. How much is that compared to, say, a car?

Well, a car really only acquires a carbon footprint once you start to drive it, so there is no such thing as “the carbon footprint of an SUV.” It all depends on how much you drive. Let’s say a person drives 1000 miles a month, which is actually unrealistically low for most drivers. A typical 4WD SUV (about 15 mpg) at that level of use produces about 9.5 tons of carbon a year, compared to about 3.5 for a car that gets 40 mpg. Assuming that most people need some kind of car, the marginal cost of the SUV is six tons a year, well more than either one cat, one dog, or one of each. And at 2000 miles a month, which is more typical, that becomes more like a 12-ton difference.

None of this changes the fact that carbon needs to be effectively priced so people can see the ecological impact of their consumption choices and adjust as they see fit—keeping the things they really value and cutting the things that they value less. So, yeah, a pet has a “paw print,” but—especially when it’s well managed—it turns not to be very big or expensive. And pets certainly shouldn’t be the scapegoat right-wing media uses to enable American gas guzzling, assuaging our consciences by fooling us into thinking that petroleum isn’t a major factor in carbon pollution.

Bullshit successfully called and sustained.

A Season for a bit of Reason?

The fine folks at Balloon Juice have been on top of battlefield reports from The War on Christmas. Apparently Focus on the Family has a Web site where shoppers can rate various stores as Christmas-Friendly, Christmas-Negligent or Christmas-Offensive. Readers are encouraged to consider these ratings heavily in deciding where to buy Christmas gifts. Story here: http://www.balloon-juice.com/?p=30783

I think I know why this “War on Christmas” nonsense bothers me so profoundly, why I get so appalled at people who go apoplectic because Borders says “Happy Holidays” instead of “Merry Christmas.” I used to simply conclude that these people never stopped and took a second to think how those greetings would sound to people on the other side, people of other faiths. To most of us, “Happy Holidays” is just a way to be inclusive of everybody, at a time when people of from smaller communities of faith often feel especially marginalized. In other words, it’s just a form of politeness to strangers.

But as I read this Web site, the comments on it, and other sites like it, I realize this isn’t a simple case of failing to consider the other person’s perspective—something we’re all guilty of from time to time. These people are outright hostile to other people’s viewpoint. Maybe it’s gotten more pronounced in this day of polarized Tea Party politics, or maybe it was always there and I simply gave people too much credit.

For instance, Best Buy is listed as one of the most “Christmas-Offensive” stores, mostly because people found it offensive that Best Buy printed an ad wishing people a happy Eid al-Adha. (A bit of cultural instruction: the Muslim calendar and Jewish calendar are both lunar, but the Jewish calendar has leap months; as such, Hanukah moves around slightly on the Gregorian calendar, but is always fairly close to Christmas. The Muslim calendar has no leap months, which means Muslim holiday gradually cycle around our calendar, sometimes falling in the winter and sometimes not. This year, Eid al-Adha fell from Nov. 27 to 30.)

Again, this strikes me as just an inclusive thing to do. Focus on the Family’s secret shoppers found it actively offensive. Many complained that Best Buy ran no such Merry Christmas ad, probably because they were too ignorant to realize that the Eid al-Adha ad ran during the festival itself whereas Christmas was almost a month away, and that the Merry Christmas ad will probably come near Christmas, not four weeks before. (And then when it comes, the loons will declare holy victory. That’s how the game is played.)

Like I said, these people seem actively hostile to the perspectives of Those People. That’s much more profound than mere self-centeredness. Actively resenting people for having different beliefs is a way to striking at one of the most fundamental rights of all: the legitimacy of their presence among us. Resentment of common courtesy to people who are different pretty strongly implies resentment of their right to be here. Jesus himself said that those who look with hatred on another person have committed murder in their hearts. In much the same vein, those who wish that all Those People would just move away have committed an odious form of segregation in their hearts. That’s a really awful thing if you think about it, and that’s why I find this Warmongering on Christmas so toxic.

Pressuring stores into denying the existence of other holidays is asking them to pretend as if the people celebrating them don’t exist. For we Christians, the birth of Christ is the reason why we feel so merry during Christmastime. But there’s a movement out there using this “reason for the season” rhetoric to assert that if you celebrate some other holiday this time of year, you have no right to be merry or happy about it. That’s not the reason for the season—stopping trying to be festive, that’s just for us. That’s a very vengeful thing to seek to de-legitimize right to religious freedom in that way.

Certainly this doesn’t impugn anyone who likes to hear people wish them a Merry Christmas. I love Christmas, and I love when people wish me a Merry Christmas. But when a retailer wishes me Happy Holidays, it would never occur to me to feel offended. They’re there to serve everyone, and that’s a way to be uplifting to everyone. So I appreciate their kindness.

As one last bit of cultural instruction, there’s a further irony here: Eid al-Adha celebrates the willingness of Abraham to sacrifice his son in obedience to God—an event equally venerated by Christians. So I feel very comfortable continuing to shop at Best Buy.

Merry Christmas to me, and Happy Holidays to all.

And Corduroy Skirts Will Be Outlawed!

Hopefully I'll be able to blog regularly again with the respite from teaching...

I have little patience with sociopathic liars. I think that’s the biggest reason why I’ve become increasingly concerned lately with the success of gay rights legislation—because the people on C Street in D.C. lobbying against them are such dishonest bastards. And anything that politically marginalizes sociopathic, dishonest lying bastards is probably healthy for the Republic in the long-term.

A few years ago, I got a chain e-mail describing the horrors that would be inflicted upon our nation if Congress passed the Matthew Shepard Hate Crimes Prevention Act. Aside from God’s furious wrath, the e-mail breathlessly promised that the law would make it a federal crime to read certain anti-homosexuality passages of the Bible. It invoked images of pastors being led away in handcuffs for preaching the Gospel.

So, being the good lawyer that I am, I read the bill. It of course said nothing of the sort. It said nothing that could even be remotely construed as doing anything sort of like that. The only logical conclusion, then, was that the authors of the e-mail consciously and deliberately lied to their readers in order to marshal opposition to the bill.

That bill eventually passed. It is now the law of the land. And yet there have been zero instances of preachers being hauled off in squad cars—because that’s completely unrelated to the actual law. The conservative apparatus that pushed that lie has been proven, by actual events, to be completely and demonstrably wrong.

What the bill does, by the way, is enforce the Equal Protection Clause by allowing U.S. attorneys to prosecute crimes (murder, assault, rape, arson, etc.) if evidence suggests those crimes were motivated by prejudice against the victim’s sexual orientation. Federal prosecutors have long had that prerogative in cases of crimes motivated by racial, sexual, religious or ethnic prejudice. This ensures that local authorities cannot subvert one of the bedrock principles of law and order: that no matter who you are, if people physically assault you, the state will prosecute them to the full extent of the law.

If you truly know what the law does, then in order to be against it, you basically have to argue that people who physically assault homosexuals should be able to get away with it, or at least get off lightly. Most people find that idea repulsive. Hence, people who oppose the law on its merits went to great lengths to confuse people about the law’s real purpose.

Americans also tend to be overwhelmingly against job discrimination. Even people who don’t disagree with homosexuality as a lifestyle frequently believe that no one should be fired from their job because of their personal life. There happens to also be a bill in Congress that would make it illegal “to fire, refuse to hire, or fail to promote employees simply based on sexual orientation.” Again, this is a protection already extended to every American in regards to their race, ethnicity, gender and religion. And once people understand that that’s all this bill would do, the majority tends to support it.

So anti-gay-rights lobbyists are engaged in the same strategies of deception about this bill. The Family Research Council sent out a letter to its members warning against such nonsense as the law leading to an “employer telling you to remove the Bible from your desk because it is offensive to the homosexual or cross-dresser he was forced to hire.” They also claim that religious organizations would be forced to hire non-discriminatorily, even though those are explicitly exempted from the bill. Think Progress has the story. http://thinkprogress.org/2009/12/01/frc-impose-homosexuality/

To reiterate: They are lying. There may be more polite words for it, but not more descriptive words.

I hope the bill passes, and not just because I oppose job discrimination. If the bill becomes law, employees will be protected, but none of this hooey about the government cleaning up Bibles from desks will ever come to pass, and these organizations will once again be shown, in real time, to be flatly wrong. I’d like to think that if they’re proven totally wrong enough times, people will start to notice their dubious credibility.

No, Rep. Joe Wilson, You Lie

Now that the brouhaha has died down over the juvenile delivery of Rep. Joe Wilson’s (R-SC, Bluffton) “You Lie!” epithet at the President during his address to Congress last week, I’d like to address the substance of Wilson’s charge that the President was dishonest in selling his plan. I think this is the more serious issue to focus on, because once we look at the plain facts, we see that Rep. Wilson, not President Obama, actually lied that night.

Wilson’s shriek was in response to, of all things, the President’s claim that his health care plan would not result in new benefits to illegal immigrants. Ironically, this should be one of the least controversial claims the President has made about his health care plan. The non-partisan factcheck.org called Wilson “wrong.” Probably as a bulwark against such smears, the House version of the bill explicitly includes a section that reads, “Nothing in this subtitle shall allow federal payments for affordability credits on behalf of individuals who are not lawfully in the United States.” Similar language is being drafted in the Senate.

But more fundamentally, if we take a look at what the bill actually does, it’s easy to see that there’s no way for illegal immigrants to get a free ride on health care. At its core, the Obama health care plan does four things:

Reform. The health care bill provides a number of important protections for people who buy health care in the private market. Most importantly, it prevents insurance providers from refusing to provide coverage to individuals based on pre-existing conditions, and from dropping patients from their insurance once they incur costs. These are protections already enjoyed by people who get tax-subsidized insurance through their employer. These protections would simply be extended to people who buy insurance individually, thereby cutting costs while allowing more people to get coverage. True, there are illegal residents who currently buy health insurance on the private market, and these reforms might make it easier for more illegal residents to buy private health insurance. But since this is actually a cost-cutting measure, it’s hard to see how citizen residents, who will overwhelmingly be the beneficiaries of such reforms are in any way impaired by them.

A Public Option. This is another crucial cornerstone of reform. Rather than simply regulate the most egregious and wasteful practices of the private insurance industry, this element introduces competition by giving Americans a choice of getting their coverage from either the private market or a government-run provider. Contrary to common misconception, the public option itself will be self-sufficient. People will have to buy into the system at actual cost, meaning that revenues from purchasers will cover the cost of their care. Arguing that a public option will force citizens to pay for the health care of illegal aliens is like arguing that the post office forces citizens to pay for the cost of their mail, even though illegal residents have to pay for stamps just like the rest of us.

Mandates. The importance of this prong and its effect on the overall plan is perhaps the least well understood of all. Under the Obama plan, all persons would be required to purchase health insurance, either through a public option or the private market. True, it’s tough to enforce an insurance mandate on people whose very presence in the country is technically illegal—I can vouch for this from my own professional experience working with illegal immigrants who lack mandated auto insurance. But it’s hard to see how illegal residents who benefit from a mandate—in fact; it might be one more requirement that makes it more difficult for illegal residents to escape detection. Mandates are important because they prevent healthy people from gaming the system by not paying for insurance and then forcing the taxpayer to pick up the tab if they need expensive emergency room care. However, a mandate also necessitates the costly portion of the plan: health care subsidies.

Subsidies. It’s difficult to mandate that all people buy health insurance, which is expensive, without giving them any means of paying for it. Low-income workers and the unemployed would probably have no way of complying with the mandate, thus making it toothless. Therefore, the Obama plan authorizes credits to people who can’t afford insurance so that they can buy it either in the public market or through a public option. This is where the price tag of the plan comes is, and it is admittedly a big bill. But, as stated above, you have to be a lawful citizen to qualify for any credits, so there’s no way that any of this price tag could go toward subsidizing the care of illegal residents.

Once we see what the plan actually would do, it’s obvious how patently absurd Rep. Wilson’s claim is. And yet, this claim that the Obama plan would be a big giveaway to illegal immigrants has remarkable salience among conservatives and even some independents. How could that be? My theory is that this is just another ugly manifestation of old-fashioned racism. There are a lot of people in this country whose hostility to illegal (read: Mexican) immigration is so hard-wired and irrational that any appeal to reason simply doesn’t registered because they’re so committed to seeing the brown people as the villains. And that creates a very receptive audience for Rep. Wilson’s brand of lies.

There is good news, though. People are committed to health care reform, or perhaps to the simpler concepts of honesty and decorum, are making a meaningful effort to democratically remove Rep. Wilson from office. Since the speech last week, Joe Wilson’s Democratic opponent for 2010, Rob Miller, has raised over $920,000 online. (That’s almost half a million per word.) To put that in context, Miller raised far more money in one week alone than he did in all of 2008, the first time he challenged Wilson.

That’s a lot of money, and it makes Miller, a US Marine Iraq war veteran and small business owner a major player in 2010. Miller held Wilson to an impressively narrow margin with a lot less money in 2008, and the fact that he through his hat into the ring already for a rematch meant that there was someplace tangible for this defeat-Joe-Wilson funding to go. Wilson can’t undo this kind of a moneybomb, meaning that this is likely going to be a dogfight of an election right down to Election Day. I’ll be supporting Miller and his support for health care reform and his lack of deeply ingrained odious hostility toward immigrants.

I thought President Obama gave an excellent speech last week, one that significantly increases the chances of passing meaningful health care reform. And I’m willing to bet that the next time President Obama gives a speech before Congress, Joe Wilson sits in the back, smiles, has a Coke and shuts the f--- up. Call it a hunch.

Playing Politics with Carbon

It's good to be back on the blog. In my absence, the House Energy and Commerce Committee approved--largely along party lines--the American Clean Energy and Security Act. This bill, which creates a cap-and-trade system to regulate carbon emissions, represents the most ambitious and far-reaching climate change bill ever to emerge from a congressional committee. And while it is a very important bill and a fair sight better than nothing (which is all the U.S. has had up to this point), it is a deeply flawed bill in several ways. And the nature of the flaws helps to illustrate the problems that arise when one party totally removes itself from the business of good government.

Among environmental geeks, there is something of a debate about what would be the ideal way to regulate carbon in a perfect world, politically speaking. Some people favor a carbon tax. It is, as it sounds, a tax on every ton of carbon emitted into the atmosphere. It would make pollution more expensive, and as a result it would give businesses and consumers a financial incentive to change their behaviors in ways that reduced emissions. A carbon tax has certain benefits, not least of all its simplicity. The government would just have to figure out how high the tax would need to be in order to have the desired effect on behavior, implement it, and just let the magic of the marketplace go to work.

I've actually become a fan of a cap-and-trade system, however, for several reasons, some of which fall into the realm of political considerations. In a cap-and-trade system, the government sets a limit on the amount of carbon that can be emitted in a given year nationwide. It then auctions off permits to emit carbon, up to that amount. Businesses would not be allowed to emit any more carbon than they had purchased permits for, and businesses that cut emissions below what they had permits for would be able to sell their excess on the open market. As such, the cost of cutting emissions would naturally be borne by the industries that could do it most cheaply: those industries would develop and implement new, carbon-reducing technologies and then sell their excess permits to industries where the cost of cutting carbon is higher. As a result, market forces allow our carbon footprint to be reduced in the most cost-effective manner possible. Cap-and-trade is already used in a lot of places, most notably in Europe.

In a world with perfect information and without political constraints, the choice between a carbon tax and cap-and-trade would be trivial, since both would have exactly the same effects. But that is not our world, and thus I find cap-and-trade to be preferable for several reasons. First is that a cap-and-trade system creates a finite and controllable level of emissions, whereas it's tougher to predict what rate of carbon tax would be necessary to achieve the same result, and legislators would almost certainly set the rate too low. More importantly, congresspeople are inherently susceptible to those special interests that drive their district's economy. In many districts, these industries include some of the worst polluters, like the coal and auto industries. Congresspeople from those districts will, and indeed have, run around willy-nilly demanding that their pet industry get special treatment. With a carbon tax, exemptions for certain industries mean that they pay no tax and have little incentive to reduce emissions. In a cap-and-trade scheme, it just means that those industries get their emission permits for free instead of having to pay for them. While this reduces revenue, it doesn't eliminate the incentive to curb emissions--if the politically connected industries can cheaply reduce emissions, then those permits become a valuable asset that they can resell on the open market as an additional source of revenue. So, given that exemptions are a political fact of life, I'd rather have the cap-and-trade.

The problem, is, however, that you can only take the free permits thing so far, and the House has gone well past that point. As the bill is currently marked up, about 85 percent of the permits are given away for free. That's problematic for several reasons, including the reduction in revenue and the fact that you'd like energy companies to have to absorb some top-line costs as an impetus to cut emissions. But the big reason is that with so many of the permits going to the energy and coal industries, the bill begins to take on some of the government micromanagement problems that cap-and-trade is designed to prevent in the first place. It's not environmentally sound for Congress to favor the coal industry just because West Virginia's senators have more seniority than God. What's sound is for Congress to set targets, provide the financial incentives necessary to meet those targets, and let the market shift the cost of meeting those targets to where they can borne least expensively.

I want to stress at this point that this bill still represents a major step forward for the U.S., and that passing no bill at all would be unthinkable giving the environmental repercussions. But there are other problems with this bill, even more serious than giving away permits instead of auctioning them. Far more worryingly, the bill allows industries to claim emissions reductions by investing in carbon offsets--that is, paying someone else to pollute less so that they don't have to. Allowing industries to meet their limit in this way seriously undermines the effect to the bill because most knowledgeable parties (including the GAO and almost all environmental groups) agree that it's virtually impossible to verify whether carbon offsets represent real emissions reductions. It's an incredibly stupid thing to put into a cap-and-trade bill. So why is Congress doing it? Because, in order to get the votes needed for passage, the authors need to appease certain Democrats from Midwestern states, most of whom are on the more conservative end of the caucus anyway, who insist that industries have an incentive to pay to reduce emissions of farmers, thus allowing their farming constituencies to reap an economic windfall.

Unfortunately, those votes from Democrats in coal-state and farming constituencies are utterly essential to the bill's passage, meaning that the center where a bill can pass goes right through the legislators most insistent on adding amendments that undermine the effectiveness of the bill. And the reason why those votes are essential is that Republicans simply aren't providing any. Republicans in Congress are positioning themselves to do everything possible to obstruct this bill on the chance that no bill will attract the support of enough Democrats to pass. Given how hard the White House is pushing this bill, that's not very likely; far more likely is that some cap-and-trade bill will emerge and be signed into law. And rather than recognize that a bill is going to pass try to influence the bill so that it is as effective as possible and with as little economic cost as possible, Republicans have handed all that influence to the legislators most beholden to the polluters' lobby. And the only justification they can offer is to deny the whole weight of scientific evidence on climate change and pretend that it isn't happening, because acknowledging it would be ideologically inconvenient. So committed are they to that ideology that they would actually prefer that the nation get a flawed bill rather than an effective one, because in order to wield that kind of influence, they would have to be willing to offer some actual votes for passage. This is yet another reason why it would be very helpful, at this critical junction, for our country to have two parties offering solutions to problems instead of having one that has nothing to offer but obstructionism and that the majority always has to work against, instead of with. If a couple Republicans rolled up their sleeves and decided that a good bill (and once upon a time, Republicans were all about harnessing the power of the free market) is better than passing a bad one, we'd get a better bill. But they won't, and so we won't.

Ultimately, a cap-and-trade bill will pass, and it will drastically improve America's credibility in the global effort to combat climate change. But it will be a bittersweet accomplishment, because at the end of the day, Congress' progress is impeded because it is still shackled to the dead weight of the petulant children among it.

How Bush and Obama Will Shape the Supreme Court

Let the record show that in two straight posts have I passed up opportunities to write titles making puns on the names Specter and Souter. I initially wasn't planning to blog about the retirement of Justice David Souter from the U.S. Supreme Court, because I don't have a lot of insightful analysis about any of the frontrunners President Obama is considering for his replacement. I can't venture a guess whether the next Justice will be male or female; white, black or Hispanic. It's not entirely clear to me whether Obama's choice will be a true liberal or more of a pragmatic centrist, or what the finer points of his or her legal philosophy will be. While conservatives have taken great pains to paint Justice Souter as a liberal, he's actually very much a centrist by historical standards. He is only "liberal" in comparison to the court's conservative wing of Justices Roberts, Scalia, Thomas and Alito, who comprise the most profoundly conservative bloc of judges to sit on the court since at least the New Deal Era.

I can safely predict three things about the next Supreme Court Justice: 1) the Justice will be ideologically aligned with the court's centrist/liberal wing, and will therefore be categorized as a liberal in the eyes of the press and the public, no matter what his or her specific judicial philosophy is, 2) the Justice will be appointed by Barack Obama and 3) this will not be the last Justice appointed by Obama. The confluence of these things suggest that a major shift may occur in the way the general public views both the Supreme Court and the way it is shaped by Presidential politics.

Conservatives have spent much of the last 15-20 years railing against what they perceive to be an "activist" and "liberal" Supreme Court. ("Activist judge," by the way, is a term that has no meaningful definition, and is merely an epithet for any judge with whom the speaker disagrees.) The unspoken subtext of the criticisms is that the Court is also a "Democrat" one. However, since President Gerald Ford appointed Justice John Paul Stevens to the Court in 1975, there have never been less than seven Republican appointees on the court. For a while in the early 90s, eight of the nine Justices on the Court were appointed by Republicans. For the last 35 years, then, the Court has been dominated by Republicans, although not necessarily ones that today's fundamentalist and hyper-partisan conservatives appreciate. Stevens and Souter, who was appointed by the first President Bush, are both part of the court's "liberal" wing. (When Stevens was first appointed, he fell within the moderate to conservative wing of the Court of that time, which gives some idea how far to the right the court has shifted in the intervening years.) Justice Anthony Kennedy and former Justice Sandra Day O'Connor, both appointed by President Reagan, are considered moderates who side with the liberals on questions of abortion.

To illustrate, one of the most important Supreme Court cases concerning abortion is Planned Parenthood v. Casey. That case largely upheld Roe v. Wade, but also altered the law in some ways. To that extent, Casey and not Roe is actually the law of the land concerning abortion. The case was decided in 1992, when there was only one Justice appointed by a Democratic President (Byron White, who was actually part of the Court's anti-Roe wing). Thus, Roe was upheld entirely with Republican votes. The plurality opinion was written by Souter, O'Connor and Kennedy. Thus, whatever one's feelings about the liberality of the Court, it could hardly be painted as a partisan matter, or something for which Democrats were at all responsible.

Now Souter, the Republican appointee, is retiring, to be replaced by a Justice possibly no more or less liberal, but appointed by Barack Obama. Stevens, the eldest Republican appointee, is 88 years old, and speculation is rampant that he too will soon step down and allow Obama to choose his replacement. Kennedy, the moderate (up to a point, at least) Republican, is 72. Even if Obama is elected to two terms--and I strongly suspect he will--Kennedy could, if he chose, easily serve to the age of 80 and into the next Administration.

Or he might very well not. In which case, there would be a cleavage within the Court as vast as has been seen in a long time. The Court, in such a case, would consist of four highly ideological conservatives appointed by Republicans, and five liberals or moderate pragmatists appointed by Democrats. (The two remaining Justices, Ruth Bader Ginsburg and Stephen Breyer, are both liberals appointed by President Clinton. If either chose to retire during Obama's administration, it would not much change the above mentioned analysis.) In such a case, we could expect to see a lot of 5-4 opinions with the blocs on each side being very cohesive and very far apart from each other ideologically. What this would do to public perception of the Court is not easy to predict, but my concern is that it will not be for the better. Antagonism between the two blocs may exacerbate perceptions of partisanship.

This scenario may not come to pass. Justice Kennedy may sit on the Court for another decade or more. Obama may wind up appointing a replacement for one of the four conservative Justices. None of them are likely to voluntarily create such a situation, but particularly with Justice Scalia at 73 years old, it's at least a fathomable possibility. But if it does come to pass, the conservative pillorying of the Court is likely to take a more explicitly partisan air. So it's important to understand the larger context. So long as only the moderate and liberal Justices leave the Court, the Court is unlikely to undergo any significant ideological change, no matter who Obama appoints. The Court eight years from now, which may be numerically controlled by Democratic appointees, is likely to be very ideologically similar to the Court today, which is dominated by Republican appointees.

That, then, is a good metric of how far the judicial philosophy of the Republican Party has changed in the last 20 years. My title suggests that George W. Bush would be partly responsible if such a vast partisan chasm cleaved the Court. That's not just because Bush appointed two aggressively conservative Justices. It's that, despite the surfeit of Republican appointees on the Court, there wasn't a long line of Justices eager to let Bush name their replacement. Chief Justice William Rehnquist passed away. I do not profess to read Justice O'Connor's mind, but the fact that she saved her retirement until just after the hotly contested 2004 election suggests to me that it was not deeply important to her that Bush choose her replacement. Conversely, I expect to see a stream of openings, possibly as many as five, in Obama's first term. If that happens, the new Supreme Court will be profoundly influenced by Barack Obama. But it will also be the product of a sea change in judicial philosophy that had nothing to do with him at all. And while I think that the legal decisions of such a Court would follow a pattern of appropriately and judiciously applying the Constitution, the potential for widespread rancor is concerning.