October 27, 2005

Miers Out: Looking back, the thing that sank her nomination was the release of her correspondence with the President, which reinforced the argument that she wasn't simply a crony of the President, but a particulary sycophantic one. Her response to the Senate Judiciary Committee's written questionnaire didn't help either; the net result was that she seemed like the female Abe Fortas, without the brains. And that was a shame; her resume indicated that she was someone who had risen to great heights within her profession in spite of many obstacles, including overcoming an extremely sexist culture, both in her home state and in her profession, to helm a top lawfirm, and later to become White House Counsel. The worst news about the defeat of Harriet Miers is that future Presidents will be reticent about nominating anyone to the high court outside the insular club of Ivy League graduates, law professors, former Supreme Court clerks, and appellate litigators and judges. What we will gain in intellectual quality we will lose in having people on the court with different life experiences and perspectives; no more Lewis Powells or John Marshall Harlans.

But the best news about her defeat is the simple fact that Democrats didn't have to lift a finger on this one. Credit goes entirely to the far right punditocracy on this one. It was they who decided to ditch every argument they ever made in the past to justify the silence of any of their stealth nominees, dating back to Clarence Thomas, who decided that suddenly the public had the right to know about conversations with the President that he deemed privileged, who felt that litmus tests on issues ranging from abortion to gay civil rights to the right of privacy were suddenly appropriate. Everything is now back on the table for Democrats. Assuming that O'Connor doesn't do the wise thing at this point and withdraw her resignation, we should run out the clock until the next election, using the conservatives' own playbook to oppose any inapt pick.
I think we can safely stipulate that Andrew Sullivan, champion of the Bell Curve, is probably the last person who should be denouncing something as "racist", no matter how ugly or detestable the post in question may have been. Even so, Dr. Sullivan got it wrong. An African-American blogger who calls his foes "Toms" and photoshops them to look like minstrels may have all the subtlety of a beerfart in a crowded elevator, but he can be no more called a racist than a Jewish blogger who labels his ideological adversaries as "self-hating Jews" or "objectively pro-terrorist" can be labeled "anti-Semitic". Buffoonish? Yes. Racist? That's a bit of a stretch....

October 25, 2005

YBK [The Bloody Aftermath]: Good article in this morning's New York Times about the visitation of the Law of Unintended Consequences on the credit industry. Apparently now, they realize they got scammed by their lobbyists:
For more than eight years, big banks lobbied aggressively to make it harder for consumers to file for bankruptcy.

Now that the new bankruptcy law has taken effect, was the investment worth it? The early data suggest that sometimes, you have to be careful what you wish for.

Bankruptcy filings were supposed to snowball in the months before the tough new law went into effect on Oct. 17. But the avalanche of petitions, and the lines of debtors streaming out the courthouse doors caught even the credit card issuers who supported the new law by surprise.

In recent days, the five biggest bank issuers of credit cards have said that the unexpectedly large flood of filings shaved hundreds of million of dollars off their earnings in the third quarter.

But with tens of thousands of petitions still being processed and Hurricane Katrina's impact on cardholders still being sorted out, the bankruptcy rush is likely to result in well over a billion dollars worth of losses by the end of the year.

"We thought it would cause a bubble," James Dimon, the president of J. P. Morgan Chase, said last week. "The bubble is just bigger than we thought."

Sallie L. Krawcheck, the chief financial officer for Citigroup, said, "It's clearly done some short-term earnings damage to the card industry."

Of course, most banks projected a tidal wave of filings in anticipation of the new, more restrictive rules. They weighed the long-term benefits of a bankruptcy overhaul against the short-term costs of the expected surge of bad, uncollectible debts. What they misjudged, however, was the extent.

More than 500,000 Americans filed for bankruptcy protection in the 10 days before the law took effect on Oct. 17, according to estimates by Lundquist Consulting, a research firm in Burlingame, Calif. That is roughly a third of the total number of bankruptcies filed in 2004. And though the number is expected to soon slow to a trickle, some bankruptcy courts were so inundated with filers that thousands more could be counted this week.

As a result, many banks have found themselves warning that the bankruptcy rule changes would have a big impact on fourth-quarter profits. And executives concede the bottom-line benefits of the new law will now take longer to materialize.
Understand, the estimate that it will cost "well over a billion dollar in losses" is definitely on the low side. The overwhelming number of late filings included many debtors who would have otherwise continued making payments on their past-due bills, and would have never contemplated taking the steps necessary to file bankruptcy, were it not for the sense of urgency set by the October 17 deadline. Since the average amount of credit card debt in Chapter 7 cases is approximately $20,000, the flood of last-minute filings (btw, it will be weeks before all the new petitions are counted by the undermanned courts) will probably push the immediate losses over the $10 billion mark. As I noted last week, YBK may have created the greatest transfer of wealth from the haves to the have-nots since the Great Society.

October 24, 2005

Rosa Parks, R.I.P.:
She was the perfect test-case plaintiff, a fact that activists realized only after she had been arrested. Hardworking, polite and morally upright, Parks had long seethed over the everyday indignities of segregation, from the menial rules of bus seating and store entrances to the mortal societal endorsement of lynching and imprisonment.


"I thought back to the time when I used to sit up all night and didn't sleep, and my grandfather would have his gun right by the fireplace, or if he had his one-horse wagon going anywhere, he always had his gun in the back of the wagon," she wrote. "People always say that I didn't give up my seat because I was tired, but that isn't true. I was not tired physically, or no more tired than I usually was at the end of a working day. I was not old, although some people have an image of me as being old then. I was forty-two. No, the only tired I was, was tired of giving in."
I first heard of her protest years later. I couldn't have been more than seven at the time, but it stunned me that in the recent history of my country, another human being, an adult, an American, was legally required to give up her seat on a bus so that someone else could sit there, and that the only way she could protest was break the law. That probably shaped my worldview more than any other single historical event.
Professor Balkin, on the Miers' nomination:
I have left the most important reason for Democrats to oppose the Miers nomination until the last. It has little to do with strategic political considerations. Democrats, like all Americans, should want the Supreme Court to be staffed with the best possible candidates-- candidates who have the legal skills and expertise to handle the issues that come before the nation's highest Court and who have the experience, judgment and gravitas to make good decisions when the law is unclear or unsettled. The Court needs and deserves judges who are both excellent lawyers and judicial statesmen. As of now, Harriet Miers, for all of her admirable qualities, does not seem to be that sort of person. Perhaps she will convince us otherwise in the upcoming hearings, but if she does not, the Democrats should oppose her. It is true that Bush may nominate someone even more conservative if Miers is not confirmed, but in one important sense this is beside the point. Democrats who care about the institution of the Court, and who care about the future of the Constitution, should want good people on the bench even if their views about the Constitution differ in important respects from their own. That is what it means to act in the public interest and for the public good: to safeguard and protect the vitality and the quality of the key institutions of American government-- whether they be the Congress, the President, or the courts.
I'm inclined to agree with the professor. At this point, it's going to take an unexpectedly impressive performance by the nominee before the Senate Judiciary Committee to overcome the presumption that she is not well-qualified for the Supreme Court. I have not been impressed yet by the accusations made most frequently by my ideological cohorts on the left, that she is either unprecedently unqualified or that she is ethically suspect (one blogger even went so far as to make a ludicrous comparison with Kenneth Lay because her law firm represented a client in activities that were "potentially abusive or illegal", a practice that would disqualify every tax attorney in the country from future high court consideration), but I still haven't seen anything that would lead me to believe that she is a good choice for the Court. If she seems to be as out to sea before the Judiciary Committee next week as she has been the last two weeks, the only principled course to follow should be to work to defeat her, and take what follows on its own terms.