Coronavirus Update

Germany Treats Natural Immunity the Same as Vaccination

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Syringes of Pfizer’s COVID-19 vaccine at a pop-up community vaccination center in Valley Stream, N.Y., February 23, 2021. (Brendan McDermid/Reuters)

Watching the Smerconish program on CNN this morning, I was surprised to learn that Europe treats natural immunity attained after recovering from COVID the same as vaccination for purposes of public-health policy. The U.S. does not. Lawsuits have been filed seeking to remedy that disparity.

Smerconish asked his guest–a UCSF an infectious physician expert named Dr. Monica Ghandi–whether we or Europe had the better approach in this regard. She said that the studies are in “equipoise,” that is, some show vaccines offering better protection and some natural disease. She concluded that because natural immunity does seem to protect against severe disease upon reinfection–as this study also indicated–Europe has the better approach.

Germany also treats travelers to the country equivalently. From the Reuters story:

All travellers arriving in Germany will be required from this weekend to demonstrate immunity from COVID-19 either from a vaccine or previous infection, or present a negative test result, government sources reported.

Allowing proof of natural immunity–or negative testing–has always been the compromise answer allowing us to declare a truce in the vaccine-mandate wars and end the roiling that government and private-sector coercion has been causing throughout society and the economy. That’s the sweet spot. That’s the answer to restoring COVID comity.

There seems little reason not to follow this approach–unless the real point of mandates isn’t effective public health policy but societal control.

World

It’s Tough to Deter Putin Once You’ve Given Him the Pipeline He Wanted

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U.S. President Joe Biden and Russia’s President Vladimir Putin shake hands as they arrive for the U.S.-Russia summit at Villa La Grange in Geneva, Switzerland, June 16, 2021. (Sputnik/Sergey Bobylev/Reuters)

God only knows if this unidentified U.S. intelligence official speaking to Sky News is correct…

Russia is planning a military offensive against Ukraine, which could begin as soon as early 2022, according to United States intelligence officials.

The finding estimates that Moscow is planning to use 175,000 troops and almost half of them are already deployed along various points near Ukraine’s border, according to an anonymous official in Joe Biden’s administration.

The official added that plans call for the movement of 100 battalion tactical groups along with armour, artillery and equipment.

… but if Russia does make a surprise attack on Ukraine early next year, it will rank among the least surprising surprise attacks in recent history.

Yesterday, President Biden told reporters:

I have been in constant contact with our allies in Europe, with Ukrainians.  My Secretary of State and National Security Advisor have been engaged extensively.

And what I am doing is putting together what I believe to be will be the most comprehensive and meaningful set of initiatives to make it very, very difficult for Mr. Putin to go ahead and do what people are worried he may do.

But that’s in play right now.

We will see whether those “comprehensive and meaningful set of initiatives”  really do make “make it very, very difficult for Mr. Putin to go ahead and do what people are worried he may do.”

As John E. Herbst, former U.S. ambassador to Ukraine, observed over at the Atlantic Council:

The issue in question is Nord Stream 2, a gas pipeline project from Russia to Germany that stretches under the Baltic and North Seas. If made operational, this pipeline would enable the Kremlin to use gas for political purposes by withholding it from countries in east Europe that pursue policies it does not like, and make it easier for Moscow to expand its current war of aggression in Ukraine.

As a gesture to German Chancellor Angela Merkel and a gift to Russian President Vladimir Putin, President Joe Biden waived Congressional sanctions on Nordstream AG and its chairman last May that would have stopped the project in its tracks; in exchange for this enormous concession, the administration received only a vague commitment from Germany to take action against Russia if it used gas for political purposes. Inevitably, Moscow began to do just that this summer — without a contrary word from Berlin, and not much more from Washington.

The administration’s decision was not popular in Congress, as both Democrats and Republicans have long understood that Kremlin energy (and other) policies pose a major threat to US interests in Europe and especially in Ukraine. As a result, the House of Representatives added an amendment to the National Defense Authorization Act that would sanction Nord Stream 2 without presidential waiver authority, which would have made the sanctions bullet-proof. For the administration, this placed a premium on killing the amendment in the Senate, and Secretary Blinken spent lots of time last week lobbying Senate Democrats to do just that.

For some Democrats this poses a dilemma as they recognize that the administration’s Nord Stream 2 waiver was a disaster, and not easy to defend publicly,

Joe Biden wants to send a clear message of deterrence to Putin . . . but he also doesn’t want to have a big fight with Germany over the pipeline. To govern is to choose.

Science & Tech

Friday Evening Apocalyptic News Dump: Scientists Have Created ‘Living Robots’ That Can ‘Reproduce’

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(ipopba/iStock/Getty Images)

Ah, Friday evening. A time when, even though the news may continue, many people stop paying attention to it, as they accept the relief offered by a weekend to turn inward toward their own recuperation, recreation, or other aspects of their personal lives. As such, it is often a time taken advantage of by media outlets seeking to bury bad news amid the collective disengagement of the news-consuming population.

Today, thanks to me, National Review will be one of those outlets, to relate a development from the world of science (though a development that, in truth, emerged earlier this week). Apparently, scientists have created what CNN calls “the first living robots,” and recently discovered that this dubious spawn is capable of a kind of reproduction. From the story:

The US scientists who created the first living robots say the life forms, known as xenobots, can now reproduce — and in a way not seen in plants and animals.

Formed from the stem cells of the African clawed frog (Xenopus laevis) from which it takes its name, xenobots are less than a millimeter (0.04 inches) wide. The tiny blobs were first unveiled in 2020 after experiments showed that they could move, work together in groups and self-heal.

Now the scientists that developed them at the University of Vermont, Tufts University and Harvard University’s Wyss Institute for Biologically Inspired Engineering said they have discovered an entirely new form of biological reproduction different from any animal or plant known to science.

“I was astounded by it,” said Michael Levin, a professor of biology and director of the Allen Discovery Center at Tufts University who was co-lead author of the new research.

“Frogs have a way of reproducing that they normally use but when you … liberate (the cells) from the rest of the embryo and you give them a chance to figure out how to be in a new environment, not only do they figure out a new way to move, but they also figure out apparently a new way to reproduce.”

Oh, good: Another set of scientists scientists so preoccupied with whether or not they could, they didn’t stop to think if they should. So now we have xenobots who can self-replicate. But don’t worry, we are assured. The utmost precautions are being taken:

While the prospect of self-replicating biotechnology could spark concern, the researchers said that the living machines were entirely contained in a lab and easily extinguished, as they are biodegradable and regulated by ethics experts.

Oh, thank goodness! I am so relieved. It’s not like there are any recent examples of experts getting something wrong, or things escaping from a lab. I’m sure we’ll be just fine. Unless the supervolcano or the asteroids get us first.

Happy Friday.

Law & the Courts

Can the Supreme Court Keep a Secret If Roe Is Going Down?

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Pro-life demonstrators gather outside the Supreme Court during oral arguments in Dobbs vs. Women’s Health. (Isaac Schorr)

As is traditional, the Justices of the Supreme Court met in conference today to vote on the cases they heard this week and assign authorship of the opinions. That includes Dobbs v. Jackson Women’s Health Organization, in which the Court has been asked to overturn its 1973 abortion decision in Roe v. Wade. It appeared, from Wednesday’s argument, that there was a significant chance that there may be five votes to overturn Roe. A ruling toppling Roe would rival only Bush v. Gore and Obergefell v. Hodges (the same-sex marriage case) as the biggest blockbuster news from the Court since the Nixon years. It is expected that an opinion in Dobbs will be handed down the last week of June, when the Court is likely to finish its annual term.

The nearly seven-month delay, while customary in big Supreme Court cases, raises a number of questions if, in fact, Roe ends up falling. One is the humanitarian toll: Given the rate of abortions in the United States, there could be another half a million lives lost between today’s vote and the announcement at the end of June. The second is the uncertainty: Even if there are five or six votes today, some of them could change as the draft opinions are reviewed. A justice could die or have to resign, as happened to Justice Antonin Scalia in February 2016, and his or her votes would no longer count. (In April 1946, Chief Justice Harlan Fiske Stone suffered a cerebral hemorrhage in the midst of a session announcing opinions of the Court and died hours later; because the opinions were finished and being released, Stone’s votes counted).  A third is the Texas abortion case, which was heard a month ago and proceeded on an expedited schedule for emergency relief on the assumption that Roe is good law; will the Court decide that case on that basis, only to turn around and conclude that it is not good law?

There is another question, though, that I wonder about: If the Court is doing something as dramatic — and as upsetting to the sorts of people who clerk for the liberal justices — as overturning Roe, will it be able to keep that a secret for seven months? The Court in modern times has had a remarkable record of keeping the justices, the law clerks, and the rest of the Court’s personnel sworn to secrecy about even the most momentous pending cases. Rumors have cracked that more often in recent years, especially in Obamacare cases, but we have never really seen the dam break. It will be quite impressive if it can keep a secret this time — and if it can’t, we may see a pressure campaign on the Court (or worse, violence) unprecedented in modern times.

The most famous leak in the Court’s history dates back to 1857, when the Court decided Dred Scott v. Sandford on March 6, two days after James Buchanan’s inauguration. Buchanan was sworn into office by the chief justice, Roger Taney, who was also the author of Dred Scott, after which he gave his inaugural address. Buchanan favored the outcome the Court would reach — in particular, the part declaring that Congress had no power to prevent slavery in the territories — and his speech included a passage saying that slavery in the territories “is a judicial question, which legitimately belongs to the Supreme Court of the United States, before whom it is now pending, and will, it is understood, be speedily and finally settled. To their decision, in common with all good citizens, I shall cheerfully submit, whatever this may be.” This is, of course, the way politicians talk about decisions that they expect to come out in their favor.

When the decision arrived two days later, it spawned many conspiracy theories about political involvement in the timing and outcome of the long-delayed decision and whether Buchanan was tipped off by Taney. In his “House Divided” speech the following June, Abraham Lincoln eagerly promoted the theory that Buchanan (“James”) and Taney (“Roger”) had been in cahoots along with Stephen Douglas and the outgoing president, Franklin Pierce:

The several points of the Dred Scott decision, in connection with Senator Douglas’ “care not” policy, constitute the piece of machinery in its present state of advancement…Several things will now appear less dark and mysterious than they did when they were transpiring. The people were to be left “perfectly free,” “subject only to the Constitution.” What the Constitution had to do with it, outsiders could not then see. Plainly enough, now, it was an exactly fitted niche for the Dred Scott decision to afterward come in and declare the perfect freedom of the people [to decide on slavery in the territories] to be just no freedom at all.

Why was the amendment expressly declaring the right of the people voted down? Plainly enough, now, the adoption of it would have spoiled the niche for the Dred Scott decision. Why was the Court decision held up? Why even a senator’s individual opinion withheld till after the presidential election? Plainly enough, now, the speaking out then would have damaged the “perfectly free” argument upon which the election was to be carried. Why the outgoing President’s felicitation on the endorsement? Why the delay of a reargument? Why the incoming President’s advance exhortation in favor of the decision? These things look like the cautious patting and petting of a spirited horse preparatory to mounting him when it is dreaded that he may give the rider a fall. And why the hasty after-endorsement of the decision by the President and others?

We cannot absolutely know that all these exact adaptations are the result of preconcert. But when we see a lot of framed timbers, different portions of which we know have been gotten out at different times and places and by different workmen — Stephen, Franklin, Roger, and James, for instance — and when we see these timbers joined together and see they exactly make the frame of a house or a mill, all the tenons and mortises exactly fitting, and all the lengths and proportions of the different pieces exactly adapted to their respective places, and not a piece too many or too few, not omitting even scaffolding, or, if a single piece be lacking, we see the place in the frame exactly fitted and prepared yet to bring such piece in — in such a case, we find it impossible not to believe that Stephen and Franklin and Roger and James all understood one another from the beginning, and all worked upon a common plan or draft drawn up before the first blow was struck.

Conspiracy theorists are not always wrong. While the full story of what passed between Buchanan and Taney will never be known, it was revealed much later that Buchanan had corresponded with two other justices, John Catron and Robert Grier, and not only learned where the Court was headed but actively pressured his fellow Pennsylvanian Grier to join the decision so that it would not be supported only by the Court’s Southerners. One hopes that the Court, this time, will avoid outside pressure and publicity until it can deliver an opinion.

Politics & Policy

Stephen Colbert: Overturning Roe Shows ‘We Don’t Live in a Democracy’

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Stephen Colbert inside the White House press-briefing room, July 27, 2007 (Larry Downing/Reuters)

On Thursday, The Late Show’s Stephen Colbert launched a diatribe against Roe v. Wade’s potentially imminent demise at the hands of the Supreme Court. Pointing to statistics showing that Americans oppose overturning Roe, Colbert said: “So if it is this unpopular, why is everyone saying it’s gonna happen? Well, I don’t want to get too technical, but . . . what’s the word . . . we don’t live in a democracy.”

“We don’t live in a democracy.” Huh.

Let’s get this straight. Nine unelected judges overturning abortion laws in almost every state in the Union is “democracy,” but the same judicial institution handing decision-making power on the issue back to the democratically elected legislatures in said states is anti-democratic. 

This is, of course, exactly wrong. Just to paint you a picture of how truly anti-democratic Roe was: Prior to the 1973 ruling, 30 states had bans on abortions in all instances. Sixteen states had bans with exceptions for rape, incest and the health of the mother. Three states — Hawaii, Washington and Alaska — allowed abortions, but only for residents. Only New York allowed abortions for out-of-state and in-state women, but even the liberal Empire State capped its permissiveness at 24 weeks, except if the mother’s health was in danger. (At the time, that gave New York the gruesome distinction of having “the most liberal abortion law in the world,” in the words of the pro-abortion advocate Dr. Alan Guttmacher.)

Roe changed all of that. With a sweeping 7–2 ruling, the Burger Court invalidated the abortion bans passed by actual democracy — elected representatives in state legislatures across the country — in the vast majority of states.

If overturning Roe meant a universal federal ban on abortions, then Colbert might at least be able to argue that the Court would be acting in an equally anti-democratic fashion as it was in 1973. But he’s not. He’s saying that handing power back to the people is proof that we “don’t live in a democracy.” In fact, there’s only one side arguing for a top-down mandate on the issue — and it’s not the pro-lifers.

It’s beginning to seem like “democracy” just means “progressives getting what they want.” 

Culture

Abortion-Themed ‘Art’ Wins the Turner Prize

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The Turner Prize, Britain’s biggest art award, has chosen as its winners a group of eleven “artists” from Northern Ireland for their abortion- and gay-rights-themed work. Apparently, all it takes to sweep up a $30,000 prize nowadays is to decorate a pretend pub in pro-abortion and anti-conversion-therapy posters.

In May, the Turner Prize announced that all the nominees would be groups who had helped “inspire social change through art.” This attracted quite the crowd. Also in the lineup were a group of “Black, queer, trans and nonbinary people who stage night clubs” and “Cooking Sections, whose art highlights the problems of salmon farming.”

A reviewer for the Times of London remarked on the poor quality of the contestants’ “long didactic lectures and endless filmic disquisitions and propaganda that comes freighted with what is probably meant to sound like poetry.” Still, who needs talent when you get far more credit (and money) for conforming to the world’s most boring and belligerent political agenda?

Politics & Policy

Dead Babies in Boxes and Other Realities of Life with Roe — and After

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Outside of a Planned Parenthood in lower Manhattan on October 15, 2021. (Kathryn Jean Lopez)

So, Dobbs v. Jackson Women’s Health this week makes real the prospect of Roe v. Wade being overturned. I was at the Court on Wednesday, where hope was in the air in the beautiful energy of the thousands gathered to pray and let women know we love them as much as those vulnerable babies we seek to protect in the law.

Alveda King, niece of the Reverend Martin Luther King Jr., on Wednesday morning asks the Supreme Court to end Roe.

Back in New York on Friday afternoon, I prayed the Rosary across the street from Planned Parenthood on Bleecker Street, as I try to do when I am in town. (Tomorrow morning will be the big monthly first-Saturday Witness for Life there, which has been going on for a dozen years or so.) And as I was there, the medical-waste truck arrived to take away the result of a women’s right to choose: what I assume must be dead babies.

Before things started to open up from COVID-19 shutdowns, I would often be outside Planned Parenthood praying or sidewalk-counseling every morning. And I would encounter these trucks and the boxes going in and being taken out, often thrown into the truck, sometimes dropped, as happened with the tenth box today, as it was going into the truck. No names, no burial, no even acknowledgement that there are dead babies here.

For some visuals from today:

First the boxes go in. 

The truck sits waiting. Life goes on around before the products of conception arrive. 

The boxes come out and sit before they can all be transported to the truck. All the while, life goes on around as if nothing horrific has happened. 

They make it to the truck. 

Picking up a dropped box of "medical waste" leaving Manhattan's Planned Parenthood on the afternoon of Dec. 3, 2021

One dropped. 

Would there be a constant vigil. We need to make our lives constant vigils and helps to women so that they do not feel like they have to have their babies killed by so-called health care that is harming them and killing the second patient. 

***

During the Dobbs oral arguments, there was a back-and-forth about competing interests. Can we just tell the truth and say there are two patients when a woman is pregnant, and one of them is a baby and the other of them is already a mother? She chooses now if she is going to let her baby live or not. She can let her live and chose an adoption plan — or as Amy Coney Barrett pointed out on Wednesday, she can even — no questions asked — drop the baby off with qualified people (like at an emergency room), because of safe-haven laws. Abortion is the choice to eliminate the baby. Euphemisms are how we have lived with abortion so long.

If Dobbs overthrows Roe, there will likely be more abortions in places such as New York. Governor Kathy Hochul has already implored Texas pregnant women to come here for their abortions — “Lady Liberty is here to welcome you with open arms.”

It’s also important not to look away from what is right before our eyes and to be truthful about what abortion is, because abortion is getting more hidden with chemical abortion. I’ve heard some predict there won’t need to be abortion clinics before too long, because more abortions will be done through the mail and such. What a cruel reality and prospect — to leave women and girls even more alone in the misery of abortion!

So talk about what it is and how we do better. We can’t settle for abortion post-Roe. We have to show the real resources that exist for women for life and how amazing women are when given a chance to be mothers.

Politics & Policy

Getting Weird Out There

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Pro-abortion rights activist Alicia Hurt holds a placard during a protest outside the Supreme Court building, ahead of arguments in the Mississippi abortion rights case Dobbs v. Jackson Women’s Health, in Washington, D.C., December 1, 2021. (Evelyn Hockstein/Reuters)

The New York Times today printed a defense of legal abortion in the form of a personal essay. It went under the title “I Was Adopted. I Know the Trauma It Can Inflict.

The essay grows out of the moment in oral arguments at the Supreme Court this week when Justice Barrett was questioning counsel about the burdens of parenthood that were cited in the reasoning for making abortion available before viability. Barrett asked whether those burdens were sufficiently lifted by the presence of “safe harbor” laws whereby women can surrender their parental rights shortly after birth. It was not, as has been suggested by Barrett’s critics, an attempt to suggest that adoption is easy and simple and satisfies every demand that pro-choice women want from the legal system. It was a simple inquiry into what actually constitutes relief for these supposed burdens.

In any case, the author of this Times essay explains that adoption is traumatic. That’s easy to believe. But the evidence she cites is curious:

Researchers have a term for what children who are adopted, even as infants, may suffer from later in life: relinquishment trauma. The premise is that babies bond with their mothers in utero and become familiar with their behaviors. When their first caretaker is not the biological mother, they register the difference and the stress of it has lasting effects.

This comes at the end of a long section in which she describes the bonding between unborn child and mother during pregnancy as a kind of maternal brainwashing.

But this is a curious way to defend abortion, since it seems to show that nature primes mothers and children to bond early in pregnancy and that the experience of the unborn child in utero is emotionally formative. This seems to be making the pro-life argument for the reality of an unborn child’s personhood.

Immigration

Joseph Robinette Trump on Immigration?

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People cross the Cordova of the Americas international border bridge towards El Paso, Texas, U.S. September 20, 2021. (Jose Luis Gonzalez/Reuters)

The White House has announced an agreement with Mexico to resume the “Remain in Mexico” program for certain illegal-alien “asylum-seekers” starting Monday, December 6. This, combined with other indications of stepped-up immigration enforcement, has caused dissatisfaction among the administration’s anti-borders confederates about Biden presiding over the second Trump term when it comes to immigration.

At first blush, this grumbling seems absurd. FY 2021 had the highest number of illegal-alien arrests at the southern border in history, a consequence of a historic surge across our borders. The number of deportations has plummeted. (We have a report coming out next week, based on FOIA’d information, showing an alarming drop even in the number of illegal-alien criminals being deported, at a time when crime is spiking.) Obama’s Central American Minors program has been restarted, to fly certain illegal aliens directly to the U.S. The House of Representatives has passed an amnesty for some 7 million illegal aliens, plus measures to increase legal immigration (though these provisions may yet be stripped out of the budget-reconciliation bill in the Senate). Regulations are in the works to facilitate the immigration of people likely to go on welfare and to dramatically expand asylum.

And those are only the high points of the Biden administration’s unprecedented anti-borders campaign.

On the other hand, the hard-left activists aren’t totally wrong. In addition to finally restarting Remain in Mexico (albeit in dramatically watered-down form) months after being ordered to do so by a federal judge, the Biden administration has continued limited use of Title 42 expulsions (premised on a public-health emergency), which send people back to Mexico without hearings. What’s more, DHS has been permitted to deport by air some Central American and Haitian families, as my colleague Todd Bensman has reported. Even detention of illegal aliens are up from the very low levels during the worst of the pandemic.

These are all half measures. Title 42 expulsions are applied only to single men; most Central American families are still being released into the U.S., not flown home; and even Remain in Mexico will exempt many “asylum-seekers”, including all those from the eastern hemisphere (like these guys), and people claiming to be LGBT etc., which is certain to prompt an explosion of Latin Max Klingers starting next week.

But even a little enforcement can make a difference after the open-borders free-for-all since January 20. While October border arrests, at about 5,100 illegal-alien apprehensions per day, were still the highest numbers for that month in a generation, they were down 21 percent from the historic peak in July.

This suggests that the anti-borders pragmatists in the White House have gained the upper hand, after the first six or seven months of Biden’s term, when the anti-borders fanatics were in charge. The dissension within the administration over immigration policy is not about the objective, which is de facto unlimited immigration, but about tactics and optics. Even before Biden’s overall approval ratings tanked he was already underwater on immigration with the public — and it’s only gotten worse since. While the Democrats are virtually guaranteed to lose their majority in the House of Representatives next year, they hope to retain the Senate — but that will be impossible if their man in the White House continues to preside over an epic immigration disaster.

The administration’s gestures toward border enforcement are unlikely to yield much political benefit. While anything is better than nothing, the enforcement moves’ grudging and half-hearted nature mean they will have only limited effect, doing nothing to change the broad (and accurate) public perception of the administration as hostile to America’s borders and sovereignty. At the same time, outrage among Biden’s hard-left cadres will only grow with each prospective illegal alien who is unable to get in.

Break out the popcorn.

Health Care

Oregon Slides toward Forever-Masking

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Oregon governor Kate Brown speaks at the state capitol building in Salem, Ore., February 20, 2015. (Steve Dipaola /Reuters)

My home state of Oregon has announced its plans to become the first permanent-masking regime in the Union. KATU’s Genevieve Reaume reports:

The Oregon Health Authority’s meeting does not mean that the move is official yet — it was a meeting with various stakeholders to iron out the details of how to write the specifics of the rule — but it signals that the instantiation of a forever mask mandate is right around the corner. As KATU writes, “this is the first step in making the rule permanent.”

To be clear, this doesn’t necessarily mean that Oregon’s mask mandate will extend in perpetuity. Reaume clarifies that “the current rule is temporary” and “can’t be in place more than 180 days,” and that “making the rule permanent allows the state to keep the rule.” Finally, she adds, “the rule can be repealed.”

Still, the possibility of a repeal in the future does not negate the simple fact that Oregon will probably pass a permanent masking law. Even on its own terms, the current rationale of using this as a workaround for the 180-day limit is bad enough as it is: Oregon is one of only nine remaining states that has any kind of mask mandate at all. It’s one of only four states that has a mask mandate that applies to vaccinated and unvaccinated individuals alike. It was the last remaining state to have an outdoor mask mandate — which also applied to vaccinated residents — until a couple of weeks ago, when the Oregon Health Authority (OHA) finally relented, repealing the outdoor-masking rule it had reinstated during a surge back in August.

The state’s public-health bureaucracy is defending the continued goalpost-moving with pandemic mandates, but its reasoning is increasingly tortured. Dr. Paul Cieslak, the medical director for OHA’s communicable diseases and immunizations division, told KATU that “permanent means indefinite. It doesn’t necessarily mean permanent.” Cieslak might benefit from consulting a thesaurus. We can play word games all day — “permanent means perpetual, unending, enduring; it doesn’t necessarily mean permanent” — but again, the simple fact is that until the rule is repealed, a permanent mask mandate is . . . a permanent mask mandate.

If and when this rule goes into effect, is it ever going to be repealed? Oregon’s public-health officials assure us that it can be. They stop short, however, of promising that it will. And their record of broken promises over the course of the last two years does not inspire confidence. Those of us who worried that pandemic restrictions were going to become permanent were accused of alarmism and conspiracy theorizing. Now — at least in Oregon — it looks like that permanence is coming to pass. Why should we trust that it won’t be here to stay?

The Economy

Jobs Data: Probably Better Than They Seem — So Stick with the Accelerated Tapering

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(REUTERS/Mike Blake )

Well, the jobs numbers were a little confusing.

The Financial Times explains, wisely deploying the word “complex”:

Employers . . . added just 210,000 jobs for the month, a steep drop-off from the 546,000 positions created in October and well below economists’ forecasts of 550,000. Since the start of the year, monthly gains have averaged 555,000.

Doesn’t look great, but:

Despite the slower-than-expected pick-up in November, the unemployment rate fell significantly, dipping 0.4 percentage points to 4.2 per cent. Less than six months ago, it hovered closer to 6 per cent.

Well, good.

The New York Times’ Neil Irwin offers at least a partial explanation for the slowdown in job creation:

Soft job creation numbers may also be evidence of a tight labor market. Employers may want to add jobs in larger numbers, but are constrained by the number of workers they’re able to find. That story is certainly consistent with many business surveys and anecdotes about labor shortage issues.

There’s probably something to that.

Back to the Financial Times:

“With this report, we get more evidence that the economy has re-accelerated from a bit of a slowdown in the third quarter,” said Ellen Gaske, an economist at PGIM Fixed Income.

She pointed to the discrepancy in the two surveys that comprise the jobs report, with one measuring households and the other employers. The “establishment” survey suggested a sharp slowdown in hiring, while the “household” survey showed a gain of 1.1m.

Are statistics in the age of COVID all that they might be? For what it’s worth, the data released today included decent upwards revisions to the number of job gains for both September and October.

It’s an iron rule that a single day’s data releases are not too determinative of anything, but a couple of takeaways seem fair enough.

The first is that — so far as employment is concerned — we are edging back toward the pre-COVID normal (I’ll make no comment about inflation).

The Financial Times:

The so-called labour force participation rate, which has stagnated since June 2020, ticked up to 61.8 per cent for November from 61.6 per cent in October, although is still about 1.5 percentage points lower than the pre-pandemic threshold.

Some of that decline will reflect the supposed “Great Retirement,” although I wonder how durable that phenomenon will really prove, particularly if inflation — no friend to those on fixed incomes — continues to bite.

The Financial Times:

For “prime age” workers aged between 24 and 54, the employment-to-population ratio, which tracks the percentage of Americans in the age bracket who currently have jobs, improved substantially in November, rising to 78.8 per cent, from 78.3 per cent the previous month. That is the highest level since early 2020.

However, there are still 3.9 million more Americans out of work than there were before the pandemic.

So, there is still quite some way to go, and that some way may be extended because of the Omicron variant, or, perhaps more likely, because of government overreaction to Omicron. This new variant must, of course, be taken seriously. However, a panic-stricken overreaction is not taking it seriously, but an evasion of the sort of thinking that is needed in the face of a problem of this nature. One way or another, we are going to have to “live with” this virus. That’s not a takeaway from these numbers, but it is a takeaway unchanged by them. It’s worth pointing out that retail employment actually declined (albeit by a small number, some 20,000), and leisure and hospitality jobs were flat. These are sectors that will be hit very hard in the event of an Omicron panic.

Meanwhile, the FT notes that “average hourly earnings rose another 0.3 percent month over month in November, the slowest monthly pace since March, bringing the annual pace of wage growth to 4.8 per cent.” Comparing these numbers with the data since March 2020 is tricky, as much of those were distorted by changes in the composition of the workforce. Thus the spike in the spring of 2020 reflected the fact that lower-paid workers suffered a disproportionate percentage of the jobs lost when the pandemic struck. Equally, the decline in wage growth seen briefly earlier this year was, at least partially, a reflection of the return of more of the lower-paid into the workforce.

It is thus more useful to compare wage growth with data from before the pandemic, when annual growth rates were around 3 percent. The comparison suggests some wage pressure now, but perhaps not an inordinate amount. In fact, this was the lowest month-on-month figure for wage growth since March, and was indeed slightly below expectations. That might well be in line with the uptick in people joining the workforce: Even if they are still not the whole way there (see Irwin’s comment about possible difficulties in filling jobs), are employers now beginning to find wage levels that will secure them the workers they need? (The ending of various federal pandemic-relief programs will have almost certainly played its part in this too, as will the inevitable erosion of any savings accumulated during the pandemic.)

The Times’ Irwin sees the overall picture in rosy terms:

The speed with which unemployment has gone from a grave crisis to a benign situation is astounding. Unemployment was 6.7 percent last December. In one year, we’ve experienced an improvement that took three and a half years in the last economic cycle (March 2014 to September 2017).

There’s no doubt that we have seen a remarkable turnaround, but we should forget neither the extraordinary amounts of money thrown at the problem, nor the fact that this crisis was brought about by, so to speak, a bolt from the blue (and almost certainly exacerbated by some of the steps taken by governments to deal with it). The latter type of crisis is very different from one that was home-grown and created by flaws within the financial system. The cure for that was always likely to take time, “financial” crises tend to.

Edmund Andrews, writing for the Stanford School of Business in 2019:

new study of financial crises going back to 1870, coauthored by Arvind Krishnamurthy at Stanford Graduate School of Business, finds that the recession of 2007–09 played out pretty much as expected . . .

If anything, Krishnamurthy says, the recovery that began in 2009 was quicker than the historical patterns would have suggested.

And my last takeaway from today’s data (so far) is that they are no reason to reverse the acceleration of the taper now advocated by the Fed.

The NYT’s Irwin:

[A] more aggressive tapering plan from the Fed will be an effort to adjust its policy stance with the facts on the ground without causing too much disruption to markets or the economy.

If the Fed succeeds, the economy will keep growing steadily and the labor market will continue its gradual improvement. But it’s worth noting just how rapid the improvement has already been. In February — a mere nine months ago — the Congressional Budget Office was forecasting the unemployment rate would be 5.3 percent in the current quarter. It has ended up a full percentage point below that level.

Ultimately, this has been a speedy labor market recovery, and one that appears to have more room to run. Policymakers have every reason to take the win and continue adjusting to that reality.

Politics & Policy

Parsing the Admin’s Stance against Uyghur Forced-Labor Legislation

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Dusk falls over the U.S. Capitol in Washington, D.C., November 18, 2021. (Tom Brenner/Reuters)

Josh Rogin’s bombshell report over at the Washington Post last night was the final piece in the puzzle for those following the Biden administration’s lobbying against the Uyghur Forced Labor Prevention Act. His report provided confirmation that a senior administration official (Deputy Secretary of State Wendy Sherman) was leaning on lawmakers — in this case, Senator Jeff Merkley — to “slow down and water down” the bill, which would put severe restrictions on imports originating from the Xinjiang region. And Rogin received a comment approximating an on-the-record confirmation from Merkley.

The White House is trying to deflect the accusations, telling Real Clear Politics’ Philip Wegmann that “the Administration is not lobbying against the passage of this bill.” But there’s no mistaking the significance of Rogin’s scoop: Biden officials are lobbying against the legislation by attempting to weaken it, even if they are not telling lawmakers to vote against it. Here’s the key portion of the report:

Biden administration officials have been quietly telling lawmakers to slow down. Administration sources confirmed that in an October call between Deputy Secretary of State Wendy R. Sherman and Sen. Jeff Merkley (D-Ore.), the other co-sponsor, Sherman made it clear that the administration prefers a more targeted and deliberative approach to determining which goods are the products of forced labor. She also told Merkley that getting allied buy-in was critical and more effective than unilateral action.

Senior administration officials are lobbying against the bill’s key component, namely that it requires customs officials to presume that goods from Xinjiang were produced using forced labor. That’s a lobbying campaign against the bill, no matter what White House flacks say.

Rogin’s scoop was also significant because he received on-the-record comment from Merkley urging his colleagues to get the Uyghur legislation “over the finish line.” The quote from Merkley did not directly address the information sourced elsewhere in the piece — which Rogin attributes to “administration sources” — but it’s telling that Merkley opted to give a response for the column at all.

The piece also reveals that the lobbying campaign isn’t solely the John Kerry production that previous reports revealed. The lobbying effort surrounding the forced-labor bill, the Rogin report suggests, isn’t a rogue mission that’s been undertaken by the climate envoy’s office. Secretary Antony Blinken’s deputy is a key figure in the effort. What role has Blinken played in this? The president and White House aides?

It’s possible that the extent of this effort was Sherman’s call to Merkley, but the campaign could well be more extensive than that. It likely is more extensive. Congressional Democratic leadership has been particularly cagey about Uyghur forced-labor measures, as shown by this week’s blowup over an effort by Marco Rubio to get the forced-labor provision inserted into the annual defense-authorization package. Rubio and his Senate allies — including, prominently, Mitt Romney — claimed that corporate interests were leading on congressional Democrats to stonewall the legislation. But that was before Rogin’s column dropped, providing direct, irrefutable evidence of a sliver of what could be a much larger lobbying effort by top U.S. officials.

White House press secretary Jen Psaki confirmed last month that the administration is providing “technical assistance” on human-rights legislation — which seems to refer to the administration’s work to water down this sort of legislation. Psaki hasn’t said anything more than that, but it demands asking who, in addition to Merkley, have been the targets of the administration’s outreach.

After Speaker Nancy Pelosi gave a shaky press conference Thursday morning in which she addressed the kerfuffle over Rubio’s amendment by promising that the House would vote on a version of the legislation put forth by Representative Jim McGovern, the Connecticut Democrat said that his bill would come to a vote next week. Getting a House vote on the bill is a promising step, but that would be just one hurdle surmounted before it can become law. And congressional leaders have already proven adept at hiding behind a smokescreen of procedural excuses.

The Economy

Private Supply-Chain Investment Explodes

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Trucks arrive to pick up containers at the Port of Los Angeles in Los Angeles, Calif., November 22, 2021. (Mike Blake/Reuters)

If you have a business with a bright idea on how to make supply-chains run better, come collect your winnings. Venture-capital investment in supply-chain technology has gone through the roof this year. According to FreightWaves, investment exceeded $7 billion for the third straight quarter. That’s approximately double the investment made in the fourth quarter of 2020. Investment in 2017 was below $2 billion per quarter.

This explosion in capital is exactly what one would expect in a free-market system experiencing a crisis. Lots of people are upset right now with skyrocketing shipping costs. That means there’s a lot of money to be made in solving the problems that are making people upset. So the supply-chain sector becomes more attractive for investment than it was before, and lots of ideas that might not have gotten funding last year will now be able to get funding.

Plenty of these investments won’t pan out. There’s lots of failure in venture capital. But some of these investments might have huge positive impacts on the future of transportation in the U.S., and the sheer volume of investment means there are lots of chances for breakthroughs.

Private investment is especially important in transportation since many of the most important parts of the sector are privately owned. Trucks, trailers, trains, tracks, ships, port terminals, airplanes, and the information systems they all run on are privately owned. The government is certainly involved, with publicly owned highways, airports, and seaports. But solutions are much more likely to come from private money than public money.

Public spending, such as the new infrastructure law, is beset by myriad concerns that have little to do with transportation. Disbursing the funds appropriated in the law has been left to a larger-than-ever Department of Transportation, thereby making transportation secretary Pete Buttigieg very powerful in determining what projects get funded. It’s safe to say that private investors working with supply-chain businesses probably know more about where investment is needed than the former mayor of South Bend.

Public funding also won’t touch certain areas. The government spending on port infrastructure, for example, is not allowed to go towards port automation technology because politicians wanted to protect union dockworker jobs. Private investment faces no such strictures.

Where public–private partnerships exist in transportation, they mostly involve state and local governments, not the federal government. State and local government revenues are way up in 2021, and those governments can use that money to invest in ports and highways when needed.

There’s also reason to believe that in some respects federal spending will make outcomes worse because of all the strings attached. As Scott Lincicome and Ilana Blumsack pointed out in October, the infrastructure bill includes “Buy America” provisions, prevailing wage rules, and burdensome environmental-review requirements that will make projects take longer, cost more, and be less effective than they otherwise would be.

The influx in private investment into supply-chain technology is a cause for optimism. It indicates that market signals are reaching the people they need to reach to get money flowing to the right places to have a chance at making a difference. Our supply-chain problems did not arise overnight, and pandemic-emergency measures won’t solve them. The trial-and-error process of innovation is well under way. Solutions will mostly be piecemeal and won’t grab headlines. But there is considerable room for new ideas, and entrepreneurs see a chance to make money implementing them.

Science & Tech

Popularizing Uterus Transplants into Biological Males

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3d rendered illustration of an x-ray of the uterus on a blue background. ( fruttipics/Getty Images)

The “patriach of bioethics” was a man named Joseph Fletcher. A former Episopal priest turned atheist, he was a wild utilitarian for which virtually nothing was inherently wrong. In his last book, he pitched the then unthinkable idea that uteruses could be transplanted into men, writing back in 1988:

Transplant or replacement medicine foresees the day, after the automatic rejection of alien tissue is overcome, when a uterus can be implanted in a human male’s body—his abdomen has spaces—and gestation started by artificial fertilization and egg transfer.

Hypogonadism could be used to stimulate milk from the man’s rudimentary breasts—men too have mammary glands. If surgery could not construct a cervical canal the delivery could be effected by a Caesarean section and the male or transsexualized mother could nurse his own baby.

Fletcher wasn’t crazy, just ahead of his time (except for the use of the masculine pronoun).

Advocacy in bioethics has continued to touch on this subject, a few even calling it a fundamental human right for a biological male to receive a uterine transplant, gestate, and give birth.

Now, the idea is following the usual progressive political formula, moving from academic discourse into left-wing popular media advocacy. From an article just published in Salon:

Eyvazzadeh added that the risks and cost do not mean the transplant won’t become a more common operation in the future. Surprisingly, she thinks uterus transplants could become an option for an unexpected population: men.

“I predict with our aging population, and the rise of infertility, we will need men to share the burden of growing our population,” Eyvazzadeh said. “While some people may think this is far-fetched, it is not for the near future; I predict in maybe 200 years from now, it will be a reality.”

Transgender female patients will also be another group of people to benefit from the research into uterus transplants.

“Transgender females are also good candidates,” Eyvazzadeh said. “I am not aware of a transgender female having a uterine transplant yet.” Indeed, many doctors believe a uterus transplant could work for a transgender woman.

However, as with most surgeries and procedures that involve a uterus, Eyvazzadeh said to “absolutely” expect many future debates.

“Anytime a treatment involves a woman’s uterus, there will definitely be a debate especially when it involves IVF,” Eyvazzadeh said. “As with all new technology, they will get safer and more effective and ultimately more cost effective.”

I want us to notice a few things.

  • There is absolutely no discussion or concern of the impact on the baby — both with regard to safety and socially. I mean, do we not think that women’s biology beyond the uterus has any impact on the baby’s thriving? Are we going to say that having a “mother” who is biologically male would not impact the child’s social development?
  • There is no discussion about the primary societal purposes and limitations of medicine. The sector is increasingly viewed as a means of attaining life satisfaction and facilitating personal fulfillment, as much as promoting wellness and curing disease (starting, in my view, with cosmetic surgery and moving on from there). This has an impact on available medical resources for other necessaries. Bodily recreationism of males giving birth would materially add to this growing problem.
  • There are no moral boundaries that some don’t want to cross anymore. The impact of such social anarchy and collapse of norms beyond “anything goes” is hard to predict.
  • The transgender movement is evolving into an a subversion of the unique contributions women make to society. Mothering is too important to allow the social anarchists to distort its importance to children and the formation of families.
  • What kind of unethical research and experiments would be required to make males giving birth even workable? We already have witnessed cruelty to animals in an experiment in which researchers enabled male rats to give birth by surgically attaching them to females. Think of the other animal research that would be required to perfect the procedure and then, the human experimentation necessary to get all of the hormones and other necessaries of gestation right. This should be simply beyond contemplating.

We are so becoming so morally and socially paralized that we can’t even say “no” to the most bizarre and unnatural proposals anymore. Enabling males to give birth is not a proper role for medicine. Learning how to do it would be an abuse of the purposes of science. And it would be immoral social policy.

The idea should be rejected out of hand and no resources invested for the research required to effectuate the nightmare.

Culture

Noah Smith Says the Quiet Part out Loud on Abortion

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Planned Parenthood employees look out from their building, St. Louis, Mo., June 4, 2019. (Lawrence Bryant/Reuters)

Since oral arguments in the landmark Dobbs v. Jackson Women’s Health Organization Supreme Court case on the constitutionality of Mississippi’s abortion ban concluded, we’ve been treated to a long line of bad takes from the pro-abortion crowd. But blogger Noah Smith might have taken the cake. On Wednesday night, he tweeted:

Think about what Smith is admitting here: Abortions disproportionately take the lives of non-white — and particularly black — babies. According to the pro-abortion Guttmacher Institute, Hispanic women have double the amount of abortions that white women do. Black women have five times the amount. In cities such as New York, more black babies are killed in the womb than are born every year. Nationally, some 474 black children are aborted for every 1,000 live births to black women — in other words, almost a third of black babies are aborted every year. These are staggering, horrific numbers to contemplate.

In fact, contra Smith’s odd assumption that conservatives aren’t aware of these racial disparities in abortion rates, the numbers on black and Hispanic abortions are cited regularly by pro-life activists — and particularly black pro-lifers, who often refer to abortion as “black genocide.” The African-American Issues4Life Foundation deemed our national abortion regime “the Darfur of America.” Even Jesse Jackson was once pro-life, regularly referring to the procedure as “murder” before eventually reversing his position in preparation for his 1984 presidential run. In 1977, Jackson said:

Politicians argue for abortion largely because they do not want to spend the necessary money to feed, clothe and educate more people. Here arguments for inconvenience and economic savings take precedence over arguments for human value and human life. . . .

Psychiatrists, social workers and doctors often argue for abortion on the basis that the child will grow up mentally and emotionally scarred. But who of us is complete? If incompleteness were the criteri(on) for taking life, we would all be dead. If you can justify abortion on the basis of emotional incompleteness, then your logic could also lead you to killing for other forms of incompleteness — blindness, crippleness, old age.

The abortion lobby and its activist allies argue that these disparities are the result of racism and poverty, but as Jason Riley pointed out in the Wall Street Journal, “black women have much higher abortion rates even after you control for income.” In fact, non-white abortion rates have much more to do with abortion’s well-documented racist roots. It’s no coincidence that 79 percent of Planned Parenthoods are situated in minority neighborhoods. Pro-lifers are all too familiar with the racist and eugenicist views of Planned Parenthood’s founder, Margaret Sanger, who (though not pro-abortion herself) vigorously pushed for forced sterilization of “morons, mental defectives and epileptics,” and framed this belief — and her support for birth control — in explicitly racist terms. In a 1939 letter to a friend discussing her Negro Project initiative, which targeted black neighborhoods with birth-control programs and tried to persuade community leaders to push contraception and sterilization, Sanger wrote: “We don’t want word to go out that we want to exterminate the Negro population, and the [African-American] minister is the man who can straighten out that idea if it ever occurs to any of their more rebellious members.”

This is abortion’s legacy. It’s what the abortion industry has always been. Despite what flowery messaging from Planned Parenthood and NARAL would have you believe, this is very much still a part of the abortion regime today. None other than Ruth Bader Ginsburg herself described abortion as a way to control “populations that we don’t want to have too many of” in 2014. And in pitching abortifacients to Bill Clinton, Ron Weddington, a co-counsel for the pro-choice advocates in Roe v. Wade, said: “You can start immediately to eliminate the barely educated, unhealthy, and poor segment of our country. It’s what we all know is true, but we only whisper it.”

Kudos to Smith for his honesty — he just comes out and says that “people of color are disproportionately high users of abortion.” That’s why the alt-right embraces the practice. Richard Spencer applauded the fact that it is only “the unintelligent and blacks and Hispanics who use abortion as birth control.” As Elliot Kaufman pointed out, the alt-right doesn’t “oppose abortion because it’s good for racial minorities; they support abortion because it kills them. They hate black people and think America would be better if fewer of them were born.” Smith and other pro-choicers who make this argument simply don’t know what pro-lifers actually believe. 

Editor’s note: This post originally stated that almost half of black babies are aborted every year. It has since been corrected. 

White House

Amateur Criminologist Jen Psaki: Retail-Store Looting Is Caused by the Pandemic

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White House Press Secretary Jen Psaki speaks during a press briefing at the White House in Washington, D.C., November 12, 2021. (Kevin Lamarque/Reuters)

In yesterday’s White House press briefing, when asked about large-scale looting of stores in places such as Los Angeles, San Jose, San Francisco and Lakewood, Press Secretary Jen Psaki said she thinks the root cause of the crimes is the COVID-19 pandemic:

Q    And does the President still think that crime is up because of the pandemic?

MS. PSAKI:  I think many people have conveyed that, and also one of the reasons that crime — one of the root reasons crime we’ve — root causes of crime in communities is guns and gun violence.  And we’ve seen that statistically around the country.

Q    But, to your point, so when a huge group of criminals organizes themselves and they want to go loot a store — a CVS, a Nordstrom, a Home Depot — until the shelves are clean, do you think that’s because of the pandemic?

MS. PSAKI:  I think a root cause in a lot of communities is the pandemic, yes.

Apparently, under Psaki’s theory, these looters believe the virus can be repelled by large amounts of cash and jewelry.

World

World’s Leading Anti-Semitic Organization Tries to Erase Jewish History

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Palestinians celebrate on the first day of Eid al-Adha on the compound known to Muslims as Noble Sanctuary and Jews as Temple Mount, in Jerusalem’s Old City, July 20, 2021. (Ammar Awad/Reuters)

Today is the sixth night of Hanukah, the celebration of the Jewish rebellion against the Seleucid Empire and the rededication of the Holy Temple in 167 b.c. — around 750 years before the birth of Mohammad. Yesterday, the United Nations General Assembly approved a resolution by a 129–11 vote that denies any Jewish ties to the Temple Mount, referring to the site solely by its Muslim name of al-Haram al-Sharif.

The resolution was supported by numerous purportedly enlightened democracies of the European Union — Belgium, France, Spain, and Italy — who now have large Muslim populations. Hungary and the Czech Republic, incidentally, did not support it.

Unlike Islam and Christianity, Judaism is not a universal faith. It is tied to a place, and that place is Jerusalem and the Temple Mount. Al-Haram al-Sharif sits on rubble of an ancient Jewish house of worship in a city with a permanent Jewish presence. It has meaning to all three Abrahamic faiths.  Yet, to avoid conflict, Israel handed custodianship of that site to Jordan’s Hashemites. And Jews are often stopped from visiting or marching near it by the Israeli government to maintain the peace. Palestinian leaders, on the other hand, often spread conspiracy theories about Jewish incursions on the site to trigger riots and create political pressure. But none of that, and certainly not the UN’s resolution, can change irrefutable historical facts.

Law & the Courts

At Confirmation Hearing, Kavanaugh Hailed Brown v. Board as ‘Single Greatest Moment in Supreme Court History’

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Supreme Court Justice Brett Kavanaugh (Doug Mills/Reuters Pool)

Congressional Democrats are claiming that originalist Supreme Court justices made comments at their confirmation hearings indicating they would vote to uphold Roe v. Wade.

The Washington Post reports that congressional Democrats believe Justice Kavanaugh’s praise of Brown v. Board at Wednesday’s oral arguments in the Dobbs case “was at odds with his tone” during his confirmation hearing:

Democrats [entertaining Court-packing or term-limits for justices] are driven in part by what they see as contradictions between what Supreme Court nominees tell senators during their confirmation hearings and their actions on the bench once they have secured a lifetime appointment.

A particular point of contention this week was comments from Kavanaugh, who said pointedly during the oral argument that the Supreme Court had overturned long-standing precedents in the past, including in Brown vs. the Board of Education, which found that segregation of public schools was unconstitutional.

For Democrats, that was at odds with his tone during his bruising confirmation fight in the Senate three years ago, when he assured senators that he believed Roe vs. Wade, the landmark 1973 case that established a constitutional right to an abortion, was settled law.

At his confirmation hearings in 2018, Kavanaugh, like every other Supreme Court nominee, said respect for precedent was important, but he never suggested he would always uphold erroneous precedents. In fact, he hailed Brown v. Board, which overturned Plessy v. Ferguson, as “the single greatest moment in Supreme Court history”:

Chairman GRASSLEY: Now to a question. I imagine that your 12 years of judicial service on the second-highest court in the land has given you plenty of opportunity to think about my first question, which is what makes a judge a good one, and what influences in your life have shaped your vision of how a judge should go about doing his job? 

Judge KAVANAUGH: Thank you, Mr. Chairman. I think the first quality of a good judge in our constitutional system is independence. Independence comes directly from Article III of the Constitution. The independence of the Federal judges really is guaranteed by the Framers in our life tenure and our protection from pay reduction. So because we have life tenure, we are independent and immune from political or public pressure. So I think the first thing that makes a good judge is independence, not being swayed by political or public pressure. That takes some backbone. That takes some judicial fortitude. The great moments in American judicial history, the judges had backbone and independence. You think about Youngstown Steel. You think about, for example, Brown v. Board of Education, where the Court came together and knew they were going to face political pressure and still enforced the promise of the Constitution. 

[…]

Senator CORNYN: But can you talk about the extraordinary circumstances under which the Supreme Court would revisit a precedent?

Judge KAVANAUGH. Well, Brown v. Board of Education, of course, overturned Plessy. Plessy was wrong the day it was decided. It was inconsistent with the text and meaning of the Fourteenth Amendment, which guaranteed equal protection. […] Brown v. Board, as I have said publicly many times before, [is] the single greatest moment in Supreme Court history

Here’s an Associated Press story suggesting Kavanaugh was misleading on Roe:

Kavanaugh repeatedly told the senators under grilling from Democrats and Republicans that the women’s right to an abortion has been affirmed.

“The Supreme Court has recognized the right to an abortion since the 1973 Roe v. Wade case — has affirmed it many times,” he told Sen. Lindsey Graham, R-S.C.

How could anyone interpret that factual statement as a commitment — or even a hint of a commitment — to not overturn Roe in the future? 

White House

The Biden Administration’s Omicron-Driven Travel Restrictions Make No Sense

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White House Press Secretary Jen Psaki speaks during a press briefing at the White House in Washington, D.C., October 6, 2021. (Kevin Lamarque/Reuters)

The Omicron variant of SARS-CoV-2 was first identified in South Africa, but that does not necessarily mean it originated in that country. As noted in yesterday’s Jolt, at least three European countries have identified cases that were tested before South Africa first reported the new strain to the WHO on November 24.

The Dutch National Institute for Public Health and the Environment said it found Omicron in samples dating from November 19 and 23. Belgium said that a case tested positive on November 22, and had developed symptoms eleven days after traveling to Egypt via Turkey. The German government said a person who tested positive for the variant had arrived at Frankfurt international airport on November 21.

In other words, the Omicron variant has probably been floating around European airports for a few weeks now. Yesterday, Biden boasted that, “on the very day the World Health Organization identified the new variant, I took an immediate step to restrict travel from the countries in South — in Southern Africa.” But that’s closing the barn door after the horses have already left — and perhaps not even the correct barn.

Whether you generally support or oppose travel restrictions as a tool to limit the spread of COVID-19, it makes little sense to have travel restrictions in place for some countries that have the variant, but not others. The variant doesn’t get any more or less contagious, or any more or less virulent, depending upon a traveler’s country of origin.

The administration is now requiring all inbound international travelers to test within one day of departure, regardless of their vaccination status or nationality. That would seem to be sufficient precaution to minimize the risk of travelers infected with Omicron entering the U.S . . . but South Africans still cannot enter the U.S., regardless of whether they test negative. Meanwhile, Europeans — who may well have already encountered the Omicron variant — are allowed to enter the U.S. with a negative test. None of this makes sense, and as many have observed, this sort of reaction effectively punishes South Africa’s government for promptly reporting the threat of Omicron to the world. Put another way, South Africa is paying a much higher price for reporting the truth than China ever paid for spending weeks insisting the virus was not contagious.

Asked about this yesterday, Jen Psaki blamed the administration’s health advisers. “As you know, we are assessing and reviewing, working 24/7 — our health and medical teams are — to evaluate, learn more about this variant.  And we will assess if additional restrictions need to be put in place.”

Media

It’s Different When Ron DeSantis Does It: CNN Edition

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Florida Governor Ron DeSantis talks to the media during a news conference in Miami, Fla., August 29, 2019. (Marco Bello/Reuters)

There’s some choice DeSantis Derangement Syndrome on CNN this morning. Check out this headline:

DeSantis proposes a new civilian military force in Florida that he would control

Gosh! A “civilian military force in Florida that he would control”! That sounds terrifying — especially when paired with the piece’s artwork, which, for some reason, shows both Ron DeSantis and Donald Trump.

And what would this “civilian military force in Florida” do?

St, Petersburg, Florida (CNN)Florida Gov. Ron DeSantis wants to reestablish a World War II-era civilian military force that he, not the Pentagon, would control.

DeSantis pitched the idea Thursday as a way to further support the Florida National Guard during emergencies, like hurricanes. The Florida National Guard has also played a vital role during the pandemic in administering Covid-19 tests and distributing vaccines.

Sounds . . . fine? Useful, even.

Ah, but this is unusual, right? Oh wait, no, it’s not:

States have the power to create defense forces separate from the national guard, though not all of them use it. If Florida moves ahead with DeSantis’ plan to reestablish the civilian force, it would become the 23rd active state guard in the country, DeSantis’ office said in a press release, joining California, Texas and New York.

So nearly half the states do it — including California and New York — and Florida itself used to have one before it was abandoned. Which makes the problem . . . what, exactly?

CNN continues:

But in a nod to the growing tension between Republican states and the Biden administration over the National Guard, DeSantis also said this unit, called the Florida State Guard, would be “not encumbered by the federal government.” He said this force would give him “the flexibility and the ability needed to respond to events in our state in the most effective way possible.” DeSantis is proposing bringing it back with a volunteer force of 200 civilians, and he is seeking $3.5 million from the state legislature in startup costs to train and equip them.

Ah, right. The problem is that this unit would be “not encumbered by the federal government,” and, thereby, that it would be under DeSantis’s control. Which is just absolutely horrifying — unlike, say, the massive, nuke-filled, “civilian military force” that is under Joe Biden’s control, which is completely different, for reasons that CNN will presumably arrive at next time a Republican is in the White House.

Politics & Policy

The Difficulty of Measuring College Learning Gains

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Colleges want us to think that their students amass a great deal of knowledge as a result of their courses. Some do, but many coast along, enjoying the “beer and circus” of campus life (as Murray Sperber puts it), graduating with little or no intellectual gain. How can we separate the wheat from the chaff?

One idea is for schools to administer an exam to assess a student’s competency. Will that work, though? In today’s Martin Center article, Richard Phelps argues that the concept is fraught with difficulty.

He writes that, “General cognitive ability, however, doesn’t change much in college. Though politically incorrect to even mention the fact, some have more to begin with through the luck of their genetic configuration. Some nurture it better than others by habit (e.g., with “thinking” activities rather than television watching, keeping physically fit). Moreover, general cognitive ability can be affected as much by activity outside the classroom as inside it.”

Phelps notes that there are many content-area exams that schools (or prospective employers) can administer to find out how much or little a student knows. Maybe the status quo isn’t so deficient after all. Also, there are a number of different college rankings that purport to measure student success. Maybe they help to steer students toward better institutions.

Phelps concludes, “With so many performance measures and so many college rankings, will every college find itself ranked high in something? No. Some will not rank highly on any measure, and those may be the colleges to avoid.”

Law & the Courts

Would Five Votes to Overturn Roe and Casey Be Just as Good as Six?

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Supreme Court Chief Justice John Roberts during a group portrait session for the new full court at the Supreme Court in Washington, D.C., November 30, 2018. (Jim Young/Reuters)

In the history of the Supreme Court, there have been many high-profile 5-4 rulings. To name a few: Obergefell (same-sex marriage), Hobby Lobby (religious liberty), Casey (abortion), Miranda (rights of criminal suspects), Heller (guns), Citizens United (campaign finance).

One should always be cautious and not read too much into questions from Supreme Court justices at oral arguments, but it seemed on Wednesday that the five self-described originalist justices are interested in fully overturning Roe and restoring the right of legislatures to enact abortion laws, while Chief Justice John Roberts seemed to be seeking some compromise that would allow the Supreme Court to uphold Mississippi’s 15-week limit on abortion without overturning Roe.

A 5-4 decision has just as much force as a 6-3 decision, but the practical benefit of the latter is that in normal circumstances it is a little more secure. If a single justice who was in the majority of a 5-4 decision is replaced by a justice with a different judicial philosophy, the ruling may be reversed.

But in the Dobbs case, it would seem that a five-justice majority to overturn Roe and Casey would have the same practical benefit as a six-justice majority. Even if Chief Justice Roberts does not vote to overturn Roe now, it is almost impossible to imagine Roberts voting to reinstate Roe in the event a Democratic appointee fills the seat of one the five originalist judges. There is no stare decisis rationale for reinstating an overturned precedent, and Roberts can’t believe there’s a case for Roe on the merits.

Each justice has a duty to faithfully interpret the Constitution, of course, and each justice’s conclusion should not depend on whether he would be a lone dissenter or part of a five-justice decision or part of a unanimous decision.

Fiscal Policy

Analysis: SALT Cap Relief Is Costly and Regressive

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(Michael Burrell/Getty Images)

No matter how you slice it, there’s no way to avoid one conclusion on the state and local tax deduction: The benefits go to people who are already well-off.

A new analysis out today from the Committee for a Responsible Federal Budget (CRFB) shows that Democrats’ latest attempt to expand the SALT deduction (which was capped at $10,000 per year by Republicans in 2017) “will be both costly and regressive.” Democrats think they’ve found a way for the restoration of the deduction to be revenue-neutral, but it’s just another budget gimmick.

Here’s how it would work. Because of Congress’s budget-scoring rules during the legislative process that led to the Tax Cuts and Jobs Act (TCJA) of 2017, the SALT deduction cap is set to expire in 2026. The cap increases revenue, which is why Republicans put it in the TCJA to begin with. Democrats oppose the cap, but they need the revenue. So they want to extend the cap through 2031 to get more revenue on paper that they will then use to remove the cap through 2025. Instead of robbing Peter to pay Paul, they’re hypothetically robbing Paul from 2026 to 2031 to actually pay Paul from 2021 to 2025.

Of course, when 2025 rolls around, Democrats aren’t just going to let the deduction go away. They will then try to extend it again, which is why this is a gimmick.

To get a deficit impact without the gimmick, the CRFB scores the proposal for only the first five years. It finds that it will add $250 billion to the debt in that time. The deduction would be fully restored for individuals making up to $550,000 and couples making up to $1.1 million. Those income limits are supposed to make the measure less regressive, but the CRFB finds it will still be regressive.

The analysis finds that 93 percent of the benefit would go to the top quintile of income earners, and 65 percent of the benefit would go to the top 5 percent. The SALT provision would be the second most expensive part of the Build Back Better bill, which Democrats say is about expanding the social safety net and rebuilding the economy, not giving more money to wealthy taxpayers.

SALT promises to become a sticking point in the Senate. Joe Manchin has expressed skepticism about a bill that relies on budget gimmicks, and relatively few taxpayers in West Virginia took the SALT deduction the last time it existed in full (the state in total got only 0.2 percent of the deduction’s nationwide benefit; California got 20.7 percent, and New York got 13.1 percent). Bob Menendez, from high-tax New Jersey, has been focused on getting the deduction restored from the very beginning. Democrats can’t lose a single vote in the Senate, and a tax cut for the well-off is set to divide them now.

World

When China Says ‘Jump,’ Much of the Business World Asks ‘How High’?

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Ray Dalio defends the indefensible in the latest illustration of the power the CCP has over American capitalists.

 
Politics & Policy

How Would an End to Roe Play Politically?

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An anti-abortion demonstrator holds an issue of National Review, End Roe, ahead of arguments in the Mississippi abortion rights case Dobbs v. Jackson Women’s Health, in Washington, D.C., December 1, 2021. (Anthony Bolognese, Capitol Hill Photo)

I’ve been talking to some colleagues about how maybe it would be less consequential politically than we think, and wrote about that today in Politico:

The initial political reaction to overturning Roe and Casey would be thermonuclear, and it’s easy to see elected Republicans, who have no discernible post-Roe strategy, set on their back heels. The fallout from the Court’s moving against Roe is the foreseeable event that has the greatest potential to affect the trajectory of the midterm elections next year.

On the other hand, in the bluest states, where voters are most supportive of abortion rights, nothing would change in the post-Roe world. Red states would move to restrict abortion, but there’s a good chance that these measures would be popular locally. Would they anger and motivate voters in the blue states? Maybe. But Democrat Terry McAuliffe got nowhere trying to use the Texas abortion law as a political cudgel on the Virginia gubernatorial candidate race last month; few voters really believed Richmond was going to follow Austin’s lead.

It could be, then, that the decentralized nature of the American system — with various state legislatures working their will in a messy patchwork befitting a vast, diverse continental nation — comes up with an arrangement on abortion that is broadly acceptable to most people, if not necessarily morally or logically coherent.

That may not be satisfying to either side, but it would be more democratic and sensible than looking to nine justices to, in their wisdom, dictate a policy from on high.

Immigration

CBO: Amnesty in the Reconciliation Bill Would Impose Major Long-Term Costs

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The Capitol Building viewed from the Washington Mall in Washington D.C., August 5, 2021 (Brent Buterbaugh/National Review)

Although the Senate parliamentarian ruled back in September that the Democrats’ proposed amnesty for 8 million illegal immigrants could not be included in the Senate’s budget-reconciliation process, Democrats are trying again with a smaller-scale amnesty that recently passed in the House as part of its own reconciliation bill. This version would offer “parole” (lawful status) to the roughly 6.5 million illegal immigrants who arrived before 2011. Theoretically, the parole would last only five to ten years, but these amnesty recipients will probably hold on to their lawful status indefinitely, given the political pressures that have sustained other allegedly time-limited reprieves such as TPS and DACA.

Like the proposal rejected in September, this new amnesty would have wide-ranging legal, social, and economic effects that go far beyond the budgetary matters on which the reconciliation process is supposed to be focused. The Senate parliamentarian probably will (and should) rule the proposal out of order.

But regardless of how the parliamentarian rules, amnesty in one form or another will inevitably be proposed again, so it’s instructive to examine how the CBO has scored this latest proposal. It estimates that the net fiscal impact over ten years will be $124 billion. As I had been warning, however, a ten-year time horizon excludes most of the entitlement costs associated with amnesty. Illegal immigrants generally cannot collect Social Security and Medicare benefits, but many still pay taxes into the system. These taxes are essentially free contributions to our entitlement programs. Once illegal immigrants receive amnesty and become eligible for benefits, however, the free contributions turn into IOUs from taxpayers. Earlier this year, I estimated that the cost of amnesty to Social Security and the hospital insurance portion of Medicare would come to $1 trillion in present value, yet almost all of this cost would occur beyond the CBO’s usual ten-year window.

I’m pleased to see that the CBO has partially addressed this problem. In its score of the bill, the CBO notes that the immigration provisions “would have long-term budgetary effects that are noticeably greater than those in the first decade,” and so it extends its budgetary estimates for immigration by another ten years. On top of the $124 billion in the first ten years, amnesty would increase the deficit by $359 billion in the second decade, “and by larger amounts in the subsequent decade.” So the total cost is $483 billion over the first 20 years, with an even larger cost coming after that. Although the CBO’s methods here are characteristically hidden, it’s likely that the escalating costs are due to entitlement spending.

I would still prefer direct calculations of the impact on Social Security and Medicare, similar to the long-term analyses published by the trustees of those programs, but the CBO’s extended budget window is welcome, and I hope to see it applied again to future immigration proposals.

World

We Can’t Let Genocide Get in the Way of a Good Investment Opportunity, Right?

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Ray Dalio attends the China Development Forum in Beijing, China, March 23, 2019. (Thomas Peter/Reuters)

There is nothing in Ray Dalio’s defense of investing in China that would not also apply to U.S. investments in Nazi Germany in the 1930s.

Then, as now, not every U.S. investor can “be an expert in those types of things.”

Then, as now, the United States had its own controversies and flaws and failures to live up to its own professed values; Dalio asked, “should I not invest in the United States because our own human rights issues and other things?”

Then, as now, it was legal for Americans to invest in Nazi Germany — until 1941, in fact — and so businessmen could “leave it to the government to make those decisions.”

No doubt the Nazis also saw the state as “an extension of the family” and “as a top-down country, what they are doing is they behave like a strict parent.” Indeed, a strict abusive parent.

I realize comparisons to Nazi Germany can often be overwrought and inappropriate, but it does seem to fit, since that was the last time a genocide-minded government hosted the Olympics.

White House

Nobody Wants to Work for Kamala Harris

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Vice President Kamala Harris delivers remarks during the official launch of the CDC Southeast Asia Regional Office in Hanoi, Vietnam, August, 25, 2021. (Evelyn Hockstein/Pool via Reuters)

We’re less than a year into Kamala Harris’s term as vice president, and it is already a labor just to collect all the ways in which she is bad at her job and the target of sniping even from her own administration and her own ideological allies — see, for example, here from Charlie Cooke, here from Jim Geraghty, here from Michael Brendan Dougherty, and here, here, here, and here from my own writings, all compiling those failures. Democratic pundits are already running through the stages of denial and bargaining. Maybe she will agree to a Supreme Court appointment to get her off the ticket! Maybe if Biden can’t run again, we can get Pete Buttigieg to be her running mate or set him up to challenge her in the primary!

Meanwhile, the people who are actually stuck working for Harris are tiring of trying to spin this as a successful vice presidency, and are voting with their feet, now including her most prominent staffer:

Symone Sanders, the senior adviser and chief spokesperson for Vice President Kamala Harris, is expected to leave the White House at the end of the year. . . . It was not immediately clear where Sanders is heading next or when she will be leaving the vice president’s office. Sanders is the highest profile exit and the second high-profile one from the Harris team in the last month. Ashley Etienne, Harris’ communications director, is also set to depart in the coming weeks. . . . One of the most publicly recognizable individuals in the Biden administration, Sanders transitioned to Harris’ vice presidential team after serving as a Biden campaign senior adviser during the 2020 election.

Sanders has been a recognizable public face for Democrats since she was press secretary for the 2016 presidential campaign of Bernie Sanders (no relation), then switched from Bernie to Joe Biden in 2020. Biden, of course, will turn 82 in 2024, and while no president has declined to seek another term after just four years on the job since Rutherford B. Hayes in 1880, Biden’s age makes it a very real possibility. If Harris was likely to succeed him as the next president — becoming the first woman ever to hold the job — it would be enormously desirable to be her press secretary now, and thus be set up to play a major role in her presidency. The fact that Sanders is bailing out a little over ten months into the job tells you quite a lot about her assessment of the likely trajectory of Kamala Harris’s career.

Elections

A Pennsylvania Senate Ad against Biden’s Spending Plan

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The U.S. Ambassador to Denmark, Carla Sands, poses at the U.S. election party at the National Museum in Copenhagen, Denmark, November 3, 2020. (Martin Sylvest/Ritzau Scanpix via Reuters)

As I noted on Tuesday, the crowded Republican field in the Pennsylvania Senate race somehow has no candidates who have ever been elected to public office. It now has a major celebrity candidate in Mehmet Oz. Republicans ought to give Dr. Oz a hearing, given the electoral assets he brings to the table, but it would be foolhardy to let him walk to a nomination without proving himself against a serious primary test.

The one experienced public servant in the race, former ambassador Carla Sands, just dropped a $1 million TV buy behind an ad attacking Joe Biden’s Build Back Better spending plan. It’s perhaps the first major ad campaign, at least in a big swing state, by a Republican candidate taking direct aim at Biden’s plan, and while the ad is a simple one, it is a reminder: Sometimes, the best way to stand out in a primary race is not by attacking your primary opponents but by previewing your willingness to go on offense against the other party.

Law & the Courts

‘End Roe’ Issue Makes Appearance at Dobbs Demonstrations

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National Review’s “End Roe” special issue was seen around the Supreme Court building on Wednesday as justices heard oral arguments in Dobbs v. Jackson Women’s Health.

A pro-life demonstrator holds an issue of National Review‘sEnd Roe‘ ahead of arguments in the Mississippi abortion case Dobbs v. Jackson Women’s Health, in Washington, D.C., December 1, 2021.
Pro-life demonstrators hold issues of National Review‘sEnd Roe‘ ahead of arguments in the Mississippi abortion case Dobbs v. Jackson Women’s Health, in Washington, D.C., December 1, 2021.
Pro-life demonstrators hold issues of National Review‘s ‘End Roe‘ ahead of arguments in the Mississippi abortion case Dobbs v. Jackson Women’s Health, in Washington, D.C., December 1, 2021.
Pro-life demonstrators hold issues of National Review‘s ‘End Roe‘ ahead of arguments in the Mississippi abortion case Dobbs v. Jackson Women’s Health, in Washington, D.C., December 1, 2021.
A pro-life demonstrator holds an issue of National Review‘s ‘End Roe‘ outside the Supreme Court in Washington, D.C., December 1, 2021.
Pro-life demonstrators hold signs ahead of arguments in the Mississippi abortion case Dobbs v. Jackson Women’s Health, in Washington, D.C., December 1, 2021.
Politics & Policy

George Washington on Respecting the Constitution as Written

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Statue of George Washington inside the Virginia State Capitol building in Richmond, Va., February 8, 2019. (Jay Paul/Reuters)

George Washington’s Farewell Address is one of the most famous speeches (actually, an address published in the newspapers) in American history. It is usually remembered for its warnings against foreign entanglements, against descent into partisan faction, and against the loss of morality, virtue, and their grounding in religion. We do not think so often of Washington’s views on the Constitution, but he was, after all, the presiding officer of the Constitutional Convention, the document’s first signer, and the man who gave form to many of its powers. Washington took the written law seriously: He once withdrew a Supreme Court nomination after it was pointed out to him that his nominee had voted for the creation of the Supreme Court and was thus ineligible for the job until there was an intervening election. He also took seriously the norms of behavior that allow the written law to prevail; he set the norm of presidents leaving office after two terms, and not until the 1940s was that norm violated, requiring a constitutional amendment to enforce it.

In the Farewell Address, Washington first urged the American people to respect and obey their constitution and oppose any effort to undermine the execution of federal law:

You have improved upon your first essay [the Articles of Confederation], by the adoption of a constitution of government better calculated than your former for an intimate union, and for the efficacious management of your common concerns. This government, the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confidence and your support. Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true liberty. The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government. All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency.

He moved on to explain that changes to the Constitution should be undertaken only with the greatest of care and the deepest respect for experience and tradition:

Towards the preservation of your government, and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts. One method of assault may be to effect, in the forms of the Constitution, alterations which will impair the energy of the system, and thus to undermine what cannot be directly overthrown. In all the changes to which you may be invited, remember that time and habit are at least as necessary to fix the true character of governments as of other human institutions; that experience is the surest standard by which to test the real tendency of the existing constitution of a country; that facility in changes, upon the credit of mere hypothesis and opinion, exposes to perpetual change, from the endless variety of hypothesis and opinion; and remember, especially, that for the efficient management of your common interests, in a country so extensive as ours, a government of as much vigor as is consistent with the perfect security of liberty is indispensable.

This brought Washington to the conclusion of his discussion of the Constitution, in which he warned against disturbing the separation of powers and other features of the constitutional order by temporary emergencies or any other method besides an amendment approved by the people:

It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.

Many of the words here were those of Alexander Hamilton, who drafted the address, as well as perhaps those of James Madison, who submitted an earlier draft. But the final draft reflected Washington’s own views. Washington recognized the need for changes; in his lifetime, he had been a leader both of the Revolution against British rule and the replacement of the Articles of Confederation. He acknowledged that innovations might sometimes be for a good purpose in the short term. And he repeatedly endorsed the amendment process. But he intended his words on this topic, as on others, as a standing warning to posterity: The Constitution was his generation’s gift to future Americans, and they should never let anyone else change it except by their own participation in amending it.

Politics & Policy

Joe Biden’s Faulty Memory about Israel

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President Joe Biden departs the White House in Washington, D.C., October 5, 2021. (Kevin Lamarque/Reuters)

President Biden, speaking during a menorah lighting in celebration of Hanukkah yesterday:

I was saying to a couple of younger members of my staff, before I came over, about the many times I’ve been to Israel.  I said — and then, all of a sudden, I realized, “God, you’re getting old, Biden.”  (Laughter.)

I have known every — every prime minister well since Golda Meir, including Golda Meir.  (Applause.)  And during the Six-Day War, I had an opportunity to — she invited me to come over because I was going to be the liaison between she and the Egyptians about the Suez, and so on and so forth.

Biden did indeed meet Golda Meir in 1973 — six years after the Six Day War — but that is . . . not how the Israelis remember that meeting, at least according to a contemporaneous classified Israeli memo from that time:

Biden warned that Israel’s actions in the territories it had captured during the Six Day War, including the West Bank and the Gaza Strip, were leading to “creeping annexation.”

Since he believed Israel was militarily dominant in the region, he suggested the Jewish state might initiate a first step for peace through unilateral withdrawals from areas with no strategic importance.

The official said Biden criticized the Nixon administration for being “dragged by Israel,” complaining that it was impossible to have a real debate in the Senate about the Middle East as senators were fearful of saying things unpopular with Jewish voters.

Meir rejected Biden’s call for unilateral steps, launching into a speech about the region and its problems (possibly the spiel Biden alluded to in his own comments years later).

The official added his own personal impressions regarding the young senator at the bottom of the document, saying Biden was full of respect toward the Israeli leader and repeatedly said he had come to learn, “and yet while speaking displayed a fervor and made comments that signaled his lack of diplomatic experience.”

Joe Biden may have thought he was going to be the liaison between Meir and the Egyptians about the Suez, but there’s no indication Meir saw Biden as her liaison.

Law & the Courts

Did Jussie Smollett Get What He Wanted?

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Jussie Smollett arrives at court on the first full day of his trial for six counts of disorderly conduct on suspicion of making false reports to police, in Chicago, Ill., November 30, 2021. (Kamil Krzaczynski/Reuters)

Oscar Wilde once said that “there is only one thing in life worse than being talked about, and that is not being talked about.” Perhaps that is also the view of Jussie Smollett, who allegedly paid two brothers, Abimbola and Olabinjo Osundario, $3,500 to stage a racist and homophobic attack in January 2019.

The story Smollett told the police had a lot of holes. Not only were the perpetrators black men — a departure from Smollett’s original claim that at least one had been white — but, when tracked down, they told the police that Smollett had paid them to stage the attack. In his jury trial this week, Smollett is facing six counts of felony disorderly conduct for filing a false report.

No matter how the trial turns out, at least Jussie Smollett is now much more famous than he was in 2019.

Law & the Courts

‘Roe’ v. Reality

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Abortion supporters and pro-life advocates demonstrate on the anniversary of the Supreme Court’s 1973 Roe v. Wade decision, Washington, D.C., January 24, 2011. (Jim Young/Reuters)

On the Economist’s “Intelligence” podcast, one of that venerable newspaper’s contributors described Justice Amy Coney Barrett as indicating by her questions that she does not “believe that a constitutional right to abortion is justified or needed.”

That may be true. But there is a prior question here that needs to be addressed — not whether there should be a constitutional right to abortion but whether there is one. The question is not whether such a right is justified or needed but whether it exists as a matter of law.

The contention of Roe critics is not necessarily or not exclusively that abortion is a great evil (it is a great evil) but that Roe is an illegitimate decision, having no actual basis in the Constitution. Illegitimate precedent gets no deference — that is why Plessy is no longer the law of the land. That Roe is an abuse of judicial power is something that honest analysts admit, including honest advocates of abortion rights. The question of whether Roe is legitimate does not depend on your view of abortion as such.

If abortion-rights activists believe there should be a right to abortion in the Constitution, then they should work for an amendment. If we imagine that limiting or prohibiting abortion would be a grave injustice (it would not), that fact alone would not create a constitutional right. Slavery was a grotesque injustice — and it took a constitutional amendment to abolish it as a matter of law. Slavery was always evil, but it wasn’t unconstitutional until the 13th Amendment made it so.

What the law should say is a question for legislators. The question for judges is what the law says.

And what the Constitution actually says about abortion is . . . nothing. If the Supreme Court does its job (never a sure bet, unfortunately) then abortion-rights advocates will still have the opportunity to argue that there should be legal protection for abortion rights. They’ll have the chance to argue for their position in every state legislature and, if it comes to a constitutional amendment, in Congress. The people who call themselves Democrats will have many opportunities to submit their position to the judgment of the people as part of the democratic process.

Progressives have grown too used to having the federal courts do their political work for them. As Barack Obama once put it: Try winning some elections.

Politics & Policy

The Biden Administration Comes Full Circle on Recommending Boosters to Everyone

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President Joe Biden makes remarks during a visit to the Flatirons Campus Laboratories and Offices of the National Renewable Energy Laboratory in Arvada, Colorado, September 14, 2021. (Leah Millis/Reuters)

Back in August, President Biden went before the country and announced that every fully vaccinated adult American would need a booster shot: “Our medical experts announced a plan for booster shots to every fully vaccinated American — adult American.”

“If you got your second shot on February 15th, you’re eligible to get your booster shot on October 15th,” Biden declared. “If you got your second shot on March 15th, go for your booster starting on November 15th. And so on. Just remember, as a simple rule — rule: Eight months after your second shot, get a booster shot. It will make you safer and for longer. And it will help us end the pandemic faster.”

But within a few weeks, the FDA and CDC contradicted Biden’s vision, recommending boosters only for the elderly and the immunocompromised. And we later learned that CDC director Dr. Rochelle Walensky overruled her own agency’s advisory panel and recommend boosters for workers who interact with the public a lot. Clearly, not every bright medical mind in the government agreed on who should get boosters and when.

This week, the CDC issued updated guidance recommending that every adult get a booster — back to the original position that President Biden announced in August. For what it’s worth, two recently retired top FDA officials who specialized in vaccines, Philip Krause and Marion Gruber, still aren’t convinced that everyone needs a booster. “We continue to think that while boosting can improve immune responses and can even further increase already very high levels of protection in some people, the need for a boost remains restricted to people who are at high risk of serious disease (including the elderly) or those at risk of exposing vulnerable household or workplace contacts if they get infected.”

In fact, the pair, along with Paul Offit, a member of the FDA vaccine advisory committee that voted against boosting for all adults last month, contend that rolling out a booster campaign that involves a third dose of the same vaccine may be counterproductive: “Our views aren’t changed by the data available so far about the potentially dangerous new omicron variant. To the contrary, the possible need for a booster shot targeting a potentially vaccine-resistant variant is a reason to hold off on a booster targeting the original variant.”

Krause, Gruber, and Offit might be wrong. But it’s hard to argue they’re not experts, or that they don’t know what they’re talking about, or that they’re nuts. (If they are nuts, it means that the FDA’s Office of Vaccine Research and Review has been run by a pair of nutjobs for about a decade.) And their objections and counter-arguments are probably worth considering, even if the broader consensus is that rolling out boosters for everyone will do more good than harm.

But at the White House today, it’s full speed ahead on rolling out boosters for every adult American — with no acknowledgement that some medical experts aren’t yet convinced that everyone needs one. Even if giving boosters to every American is the right policy, the public is not well served when the government pretends that counter-arguments and well-informed skeptics don’t exist.

And this White House wonders why so many Americans have started to tune them out when it comes to policies relating to the pandemic?

Law & the Courts

Justice Barrett and the Burden of Parenthood

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Judge Amy Coney Barrett reacts during her confirmation hearing on Capitol Hill in Washington, D.C., October 14, 2020. (Jonathan Ernst/Reuters)

As I noted yesterday afternoon, the oral arguments in Dobbs at the Supreme Court yesterday morning featured an exchange between U.S. solicitor general Elizabeth Prelogar and Justice Amy Coney Barrett about the burden of parenthood as it relates to abortion.

Prelogar, who argued on behalf of the U.S. against Mississippi’s 15-week abortion ban, told Barrett that “safe haven” laws — which shield mothers from prosecution if they surrender an unwanted child to a safe haven — are insufficient to guarantee women’s bodily integrity and autonomy. Being able to terminate parental rights, in other words, does not sufficiently diminish the burden of parenthood.

It struck me as especially ironic that Prelogar would suggest to Barrett, a mother of seven who sits on the highest court in the country, that the burden of parenthood is an insurmountable obstacle to women’s success.

World

The Power of One

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Peng Shuai returns a shot at the 2008 Beijing Olympics. (Toby Melville / Reuters)

In Impromptus today, I lead with jury duty, which leads to Balkanization in our country — have you filled out your “juror information” form? — which leads to politics, which leads to . . . you know how it goes. Personalities in my column include Thomas Jefferson, Jim Harbaugh, and Mark Roth. (The last of those was a bowler.) (The second is a former quarterback and current coach.) (The first is a statue, removed.) Among the countries I discuss are Taiwan — it’s still a country, for now — Ukraine, Hungary, and India. Here on the Corner, I’d like to say something about China — great, vast China — and one Chinese citizen, in particular: Peng Shuai.

She is a tennis player, who was raped by a government official and said so. As a consequence, she was banished from view. A lot of people want to know where she is. Her case has galvanized the tennis community and segments of the general public, in various countries.

A reader of mine writes something like this: “Wouldn’t it be neat if some athlete, in some democratic country, said, ‘I’m not going to the Olympics while Peng Shuai is missing’? Wouldn’t it be even more neat if an entire team said, ‘We aren’t going, as long as she is missing’?”

That would indeed be amazing.

The Chinese state pulverizes people every day — people who are anonymous, except to their loved ones, and themselves. The state brutalizes the Tibetans, brutalizes the Uyghurs. Brutalizes ordinary Han Chinese. That’s what a dictatorship does: brutalize. And yet, the case of this one young woman has caught the attention of many people. People can understand it, wrap their minds around it: tennis player has been raped by a government official and has been disappeared. I know what she looks like. There’s her picture.

You recall the statement attributed to Stalin: “One death is a tragedy; a million deaths are a statistic.”

Yelena Bonner, the wife of Andrei Sakharov, the great physicist and dissident, told me that her husband disliked talking about human rights in general. He preferred to talk about individual cases — especially cases he was involved in personally. People could relate to that. Not “human rights.”

Over 25 years or so, I have written a lot about human rights in China — human rights in general, in that country. (By the way, there is an organization, founded in the 1980s, called, simply, Human Rights in China.) But I have also written about, say, Grace Gao. Hers is a story that people can relate to, I would think. I have written about the Uyghurs. Generally. But I have also written about Gulchehra Hoja and her family — personally.

Hong Kong is interesting. Interesting and important. So are Tanya Chan and Nathan Law, individually.

I have written a lot about Russia — and about Ildar Dadin, say, or Oyub Titiev, personally.

In Saudi Arabia: Raif Badawi and Ensaf Haidar, and Loujain al-Hathloul. In Venezuela: Antonio Ledezma and Leopoldo López. In Nicaragua: Félix Maradiaga and Edipcia Dubón. In Iran: Manouchehr Honarmand and Masih Alinejad. In Cuba: Juan Carlos González Leiva and Danilo Maldonado.

And so on.

Syria is a place so dark and terrifying and murderous, it can scarcely be imagined. But one can narrow in on the life of, for example, Waad al-Kateab.

There are a billion and a half people in China. You can’t know them all. But Peng Shuai — “You know that tennis player?” I hope she does a lot of damage to that nasty, foul, life-opposing regime. It is an enemy of all mankind.

Education

The Endless Lies and Deceit over CRT

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Hans Bader turns over a rock in this Liberty Unyielding piece when he writes that, “Schools say they teach critical race theory, even as education reporters falsely deny it.”

Here’s another slice:

The Post’s Sarah Pulliam Bailey claimed that critical race theory is “an intellectual movement that examines the way policies and laws perpetuate systemic racism and is not part of the public school curriculum.

But it is in some schools’ curriculum, and it is not just an “intellectual movement” aimed at addressing racism or discrimination. Critical race theory is a radical ideology that is hostile to the free market economy, equating it with racism: “To love capitalism is to end up loving racism. To love racism is to end up loving capitalism. . . . Capitalism is essentially racist; racism is essentially capitalist,” says the best-selling book promoting critical race theory, How to Be An Antiracist. That book is a “comprehensive introduction to critical race theory,” gushes the leading progressive media organ Slate.

Read the whole thing.

Regulatory Policy

Another Imperial Regulator on the Way?

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Federal Reserve in Washington, D.C. (jjgervasi/iStock/Getty Images)

One of the features of the first year of the Biden administration has been the way that regulators are increasingly trespassing into territory more properly reserved for legislatures.

If it is true that Richard Cordray is going to be nominated to the Federal Reserve as vice chair for supervision, which is what current talk now suggests (his name is certainly under consideration), it could mean that another imperial regulator may well be on the way to being appointed.

The Wall Street Journal’s editorial board summarizes Cordray’s career here. Let’s just say that it doesn’t make entirely reassuring reading. Let’s also note that Elizabeth Warren is something of a fan.

What does the job entail (in theory)?

CNBC explains:

The Fed’s vice chair for supervision, a role created in the aftermath of the 2007-09 financial crisis, serves as one of the nation’s top bank watchdogs and is responsible for ensuring the health of the nation’s largest lenders like JPMorgan Chase, Goldman Sachs and Citi. The official monitors banks’ balance sheets, capital reserves and broader systemic risks that could arise in the event of an economic downturn.

That sounds sensible enough, but keep an eye on that phrase “systemic risk,” something that has come to mean rather more than it should, notably when it comes to climate issues, as John Cochrane discussed in a recent Supply & Demand post for Capital Matters. Here’s an extract:

A “risk to the financial system” does not mean that someone, somewhere, someday, might lose money on an unwise investment. A risk to the financial system means an event like 2008: a shock so big, so pervasive, and so fueled by short-term debt that it sparks a widespread run, a wave of defaults, and threatens the ability of the whole system to function. “Financial regulation” means looking at the assets and liabilities of financial institutions to mitigate such a risk. It can at best look a few years in the future.

So, if we use plain English, a “climate risk to the financial system” that “financial regulators” can contain must mean the climate might change so drastically, so abruptly, and so unexpectedly, in the next five years, that the economy tanks so terribly that financial institutions blow through the cushions of equity and long-term debt, to spark a widespread systemic crisis like 2008 or worse.

The trouble is, there is absolutely nothing in even the most extreme scientific speculations to support that possibility. Climate is the probability distribution of weather: the chance of heat and cold waves, floods, fires, and so forth. We know with great precision what the climate will be for the next five years. Nobody writing insurance in Florida is unaware of the chance of hurricanes. The chances of extreme weather are not going to change unexpectedly in even ten years. The sea level is rising. It will continue to rise, about 4 millimeters per year – 2 cm in the next five years – slowly and predictably. Risk is the unknown. This is known.

Moreover, even weather extremes just don’t move the economy that much. We have had many financial crises in history. Not one was sparked by an extreme weather event. Our modern, national economy is remarkably immune to weather. . . .

The Wall Street Journal:

Chairman Jerome Powell has said he will defer on regulation—which would include climate change—to whomever Mr. Biden appoints as vice chair of supervision. Was that part of the understanding when he was reappointed? Mr. Cordray, backed by vice chair nominee Lael Brainard, would have enormous power to impose a progressive agenda on big banks.

This could include making too few loans to minorities or too many to fossil-fuel companies. With control over bank capital standards and dividend policies, he would have enormous sway over Wall Street. As Nebraska Sen. Ben Sasse put it in a press release Tuesday, “Richard Cordray is a wannabe king.”

A king? Perhaps, although another Republican senator, Louisiana’s John Kennedy, has described Cordray as being to the “left of Lenin.” Either way, the message is clear. If appointed, Cordray could not be relied upon to keep within the boundaries of what this job is meant to be. In a democracy, regulators should regulate, not legislate. In the Biden era, that cannot, sadly, be taken for granted, meaning that the legislators in the Senate would not be doing their jobs if they approved Cordray or, if he’s not chosen, any other nominee who might be tempted to use his or her power to advance an agenda that ought to be decided by the elected, not the selected.

World

WTA’s Right: Athletes in China Face Risk of Arbitrary Detention

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Shuai Peng of China returns serves against Varvara Lepchenko at the U.S. Open tennis tournament at USTA Billie Jean King National Tennis Center in Flushing, N.Y., August 26, 2019. (Jerry Lai-USA TODAY Sports)

There’s a lot to be said about the Women’s Tennis Association’s commendable move to suspend its participation in tournaments in China, following the disappearance of tennis star Peng Shuai. WTA chairman Steve Simon’s statement gets at the heart of the most important issues here — foreigners who travel to China are putting themselves at significant risk, particularly if they come from a country that is at odds with Beijing politically.

Simon described this as one of the factors that prompted his organization to suspend its activities in China:

As a result, and with the full support of the WTA Board of Directors, I am announcing the immediate suspension of all WTA tournaments in China, including Hong Kong. In good conscience, I don’t see how I can ask our athletes to compete there when Peng Shuai is not allowed to communicate freely and has seemingly been pressured to contradict her allegation of sexual assault. Given the current state of affairs, I am also greatly concerned about the risks that all of our players and staff could face if we were to hold events in China in 2022.

Athletes competing in China already faced a significant risk before the Peng Shuai saga — and now they have even greater reason to fear the risk of arbitrary detention. Under the National Security Law that Beijing imposed on Hong Kong in 2020, the city’s authorities are able to seek the arrest of anyone, anywhere in the world, for any perceived offense against the Chinese Communist Party.

Even before that expansive law’s promulgation, Beijing has shown few qualms about detaining foreigners on fabricated charges to serve as political bargaining chips, as Chinese authorities did when they detained two Canadian citizens in 2018. A number of U.S. citizens have also been subject to “exit bans,” in which they were forced to remain in the country until the Biden administration brokered prisoner swaps this year. The State Department’s China travel advisory warns that Beijing uses exit bans to “compel individuals to participate in PRC government investigations” and “gain bargaining leverage over foreign governments.”

WTA’s made the smart move here, but this only casts a harsher light on the International Olympic Committee, which has shown a callous disregard for Beijing victims and attempted to help the Chinese party-state cover up Peng’s apparent detention. The IOC doesn’t seem to care about Olympic athletes — who are slated to compete in the Winter Games in a mere three months. And there’s even a lower likelihood that they’ll heed warnings that athletes competing in China could face the risk of arbitrary detention.

Former secretary of state Mike Pompeo warned about precisely this scenario in an interview with me in March, predicting that athletes who speak out about the Uyghur genocide could be prevented from leaving China:

“I can’t imagine any athlete from anywhere in the world not knowing what’s going on in Western China, and not wanting to be able to talk about that. And yet, if they chose to do so inside of China today, I think, a likely outcome is the Chinese Communist Party would deny them their exit,” Pompeo said. “That’s just dangerous and unacceptable. We shouldn’t force athletes to suffer that choice.”