Covid Weather Report for Minnesota: 24 October 2020

by James J Heaney Posted on 25 October 2020

OVERALL:

After more than one false alarm, Minnesota is officially in its second wave of covid-19.

I told you many times over the summer not to worry about media-hyped “record-breaking case counts”; case counts were increasing because testing was increasing. Not this time. This one’s real.

Minnesota likely has more actual infections than it ever has before. It definitely has more hospitalizations. It may soon have more deaths.

You should take appropriate precautions. Tighten your social graph back up. Reduce shopping trips. If you started meeting with friends indoors who are not in your bubble, time to stop. If you started working from the office again and can return to working from home, make an excuse to do so for the next few weeks.

More on this at the end. First, let’s survey the situation.

DETAIL:

Basically, we have a lot of cases, even after you account for increased testing. Like so:

This data lags by seven days. “LTC” is short for “long-term care” (basically, nursing homes).

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Do Democratic Presidencies Reduce Abortions?

by James J Heaney Posted on 20 October 2020

Do Presidents Affect Abortion Rates At All?

There’s a chart going around social media that looks like this:

“If you want to prevent abortions, vote baby blue!”

This isn’t a new argument. I started encountering versions of it as early as the 2008 presidential election, and I’m sure some intrepid pioneer tried it out in the 2004 presidential election. “Abortion rates fall faster under Democratic presidents than Republican presidents, like magic, so pro-lifers should support Democrats–or at least feel guilt-free about doing so!”

There are some problems with the data (as PolitiFact points out in that link), but the data can be roughly cleaned up using Guttmacher Institute abortionist census data. (You can’t trust Guttmacher — it’s like trusting ExxonMobil’s studies on climate change — but, in the absence of a federal abortion reporting law, Guttmacher provides the closest thing we have to a consensus reality.) The cleaned-up data shows a pretty similar trend:

Sources: Abortion Incidence and Service Availability In the United States, 2011, 2014, 2017; The Accessibility of Abortion Services in the United States, 2001; math. Click to enlarge.

Oddly enough, though, very few people ever try to explain how this argument could possibly be true. Even if you buy that President Obama’s social policies drove down the abortion rate by alleviating poverty and reducing demand for abortion, President Obama’s major social policy reforms didn’t pass into law until 2010 and largely didn’t come into effect until 2011 — yet the abortion decline started in the depths of the Great Recession, just as Obama took office! Now that’s some real personal mojo!

This kind of thinking reminds me of other arguments I’ve heard over the years. For example, “If you want to increase U.S. spending on science, space, and technology, encourage more people to commit suicide by hanging!”

Or: “If you want to reduce murders by bodily force, save marriages in Mississippi specifically!”

Actually, though, come to think of it, I’ve never actually heard anyone make those arguments. That’s because they are insane. Sometimes, statistics line up with each other in funny, but entirely spurious, ways.

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Has Trump Increased or Decreased Funding for Planned Parenthood?

by James J Heaney Posted on 17 October 2020

Some pro-lifers are angry at President Trump for increasing Planned Parenthood’s funding, while some pro-choicers are angry at President Trump for cutting that funding. They can’t both be right, can they?

Here’s what’s going on. I’ll explain as simply and as neutrally as I can.

Planned Parenthood gets government money from two sources:

  • Grants and such, like the Title X federal family planning program. The government hands Planned Parenthood a chunk of money and tells them to go do something with it, like provide condoms to low-income people.
  • Reimbursements, mainly through Medicaid. Planned Parenthood performs some service for a person insured by the government, and the government pays Planned Parenthood for services rendered.

If you want to understand how much of Planned Parenthood’s clinic revenues come from doing abortions, you need to separate those two buckets of government cash. However, pro-lifers started using this data to argue that Planned Parenthood’s principal revenue-generating activity was performing abortions (which did appear to be the case), and so they stopped providing it in 2010. It’s difficult today to track exactly how much money Planned Parenthood gets from Door #1 vs. how much it gets from Door #2. However, we can see from comparing 2009’s report to 2010’s report (note footnote [c] on page 8) that, a decade ago, state and federal grants combined paid Planned Parenthood about $350 million, while Medicaid reimbursements appeared to account for about $100 million.

So these were both large revenue sources for Planned Parenthood, and presumably still are. Nearly half its 2010 budget came from state and federal taxpayers.

The Trump Administration has done everything in its power to reduce the flow of federal government grants to Planned Parenthood. Several measures are involved, but the most important one was their decision to implement the Title X Reagan Regulations.

Title X’s text is actually pretty clear that Title X grant money shouldn’t go to fund or even indirectly subsidize abortion. (42 USC § 300a–6 is surprisingly broadly worded.) In the 1980s, the Reagan Administration created regulations that upheld that text: programs where abortion was used as a method of family planning were excluded from funding, which obviously would include Planned Parenthood. Planned Parenthood and other abortion providers had the option to continue receiving Title X funds, but would have to either stop providing abortions or engage in much stricter separation of abortion-related and non-abortion-related funds.

However, the Reagan Regulations were tied up in court throughout the remainder of Reagan’s term and nearly the entire George H.W. Bush presidency. They were finally upheld by the Supreme Court in Rust v. Sullivan (1991). But, because the federal regulatory engine moves slow, Bill Clinton was elected President before the Reagan Regulations could actually go into effect. Clinton killed the regs immediately and substituted his own, much more permissive, interpretation of Title X’s abortion restrictions.

The G.W. Bush administration considered reinstating the Title X regulations, but decided to spend their political capital on restructuring Social Security instead. (And look where that got them.) So PP continued to pull in federal Title X money during the Bush and Obama administrations.

The Trump Administration finally heeded conservative calls to revive and implement the Reagan Regulations. And they went about it in a legally very effective manner. They spent years assembling the legal components, made sure to stay well within the boundaries described by Rust v. Sullivan, and finally rolled it out when it was ready. It was still challenged in lower courts, but what appellate court is going to let an injunction against it stand when there’s a binding Supreme Court precedent from 1991 addressing the exact issue? The Reagan Regulations (now the Trump Regulations) went into effect in June 2019. Rather than comply, Planned Parenthood withdrew from Title X funding. (So did several blue states, which then continued to fund Planned Parenthood through their own state-level Title X-style programs.)

So Planned Parenthood has been deprived of federal Title X money for about 16 months.

Even if Trump loses this fall, President Biden may have a tough time rolling back these regulations. As I said, the Trump Administration did them in a very legally sound way, and they’re already implemented. The text of the underlying law certainly reads to me like it supports the Trump Regulations more than the Clinton/Biden alternative, and our courts are increasingly wedded to legal text. Courts may be reluctant to allow a change, especially without substantial new material facts justifying said change. But we’ll see what happens.

In any event, Planned Parenthood continues to get ample funding from other sources, including especially state grants. Yet Planned Parenthood is now locked out of the major federal grant program (unless they stop performing abortions, which is an option the Administration has offered them). Private donors have not made up the shortfall, and are notoriously flighty anyway. President Trump can now tout a very big win to his pro-life supporters, along the lines of, “Three Republican Presidents have made you wait thirty years for this, but I accomplished it” — and Planned Parenthood can use this to motivate their base to get out and vote against Trump.

On the flip side, though, there’s the reimbursement bucket.

As the abortion industry in the United States continues to face a variety of legal and social pressures, small abortion providers are collapsing. In 2012, there were 510 independent abortion clinics in the United States. That was right as the giant wave of state-level pro-life legislation (resulting from 2007’s Gonzales v. Carhart decision and the 2010 wave election) began to hit. By November 2019, there were only 344 independent clinics left. Why? The abortion providers themselves are clear: independent clinics aren’t able to sustain themselves in the face of Gonzales-compliant abortion regulations, state and federal insurance payment bans (including the Executive Order Bart Stupak insisted on for Obamacare), and growing social opprobrium. This is one of several factors contributing to long-term declines in the abortion rate. There are fewer abortions in the United States today than there were in 2010, and pro-life legislation plays a substantial role in that story. (That’s another blog post, though.)

However, pro-lifers’ success has also benefited Planned Parenthood. As small abortion clinics fail, Planned Parenthood is able to pick up some of their business. Thus, while total abortions are falling nationally, Planned Parenthood’s abortion total is going up. This seems like a paradox, but isn’t: it’s exactly the same reason the pandemic has been good for big chain restaurants even while the overall economy is in freefall.

A significant percentage of people who get abortions are also on Medicaid, or otherwise have their medical paid by the federal government (for example, federal employees). In theory, the Hyde Amendment means one of these moms can only have her abortions reimbursed by the government if the abortion is necessary to save the mother’s life or if the child was conceived in an act of rape. In practice, it’s not clear how effectively this is enforced, or how it possibly could be enforced. Many states have Hyde Amendment workarounds in place using state funds (including my home state of Minnesota, which guaranteed a constitutional right to fully-taxpayer-funded abortion in 1995’s Doe v. Gomez decision). The bottom line is, there appears to be an enormous gap between the number of abortions performed to save the life of the mother or to terminate offspring conceived in rape and the number of abortions paid for by state or federal Medicaid dollars.

The upshot of all this is: as independent clinics nationwide close, Planned Parenthood performs more abortions, which leads to Planned Parenthood taking in more government funding through reimbursement mechanisms.

Why hasn’t Trump put a stop to that? Because he can’t. Medicaid reimbursement rules for abortion are set by Congress. The President doesn’t have wiggle room on this. There’s nothing he can do. Congress tried passing a law to comprehensively remove Planned Parenthood from the government-funding trough when Republicans controlled all three branches in 2017, but the bill were stymied by Senate Democrats, who filibustered the bill in the Senate. Congress tried again to pass a similar measure through the budget reconciliation process (which would have required only 50 votes), but lacked the votes to overcome a surprising adverse ruling by the Senate parliamentarian.

So, yes, total government funding for Planned Parenthood has (probably) gone up during the Trump Administration. But this is largely due to consolidation in the abortion industry and statutory reimbursement rules. President Trump has done all in his power to close the grant-money spigots he has direct control over (plus a few he doesn’t; there are parallel battles happening within red states right now that rely on the White House’s regulatory backing, long story), and Trump has done a comprehensively thorough job of that. If Hillary Clinton, rather than Donald Trump, were president, it is almost certainly the case that Planned Parenthood would be drawing in tens of millions of dollars more from the government than it does today.

It seems to me that it is fair to say that Trump has reduced government funding to abortion providers, including Planned Parenthood. It further seems to me that it would be misleading to say that he has increased Planned Parenthood’s funding — at least, not without adding substantial context to the claim. Absolute dollar totals are not the full story there, and never have been. Whether you’re one of the crowd that thinks that’s a good thing, or part of the crowd that thinks it’s a bad thing, is up to you. I’ve tried to deliver just the facts, ma’am.

UPDATE: This article originally stated that there were 544 independent abortion clinics in the United States in 2010. According to the cited article, there were 510. That was 100% me mixing up my numbers. I regret the error.

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Endorsement: Dave Napier for Mayor, West Saint Paul

by James J Heaney Posted on 11 October 2020

I used to like politics. I forget that a lot now.

I first started following politics during Election 2000. I was 11. Even though I already believed that America was doing some terrible things, I believed in the goodness of our people and the strength of our system to eventually, falteringly, do the right thing. I loved learning that system, with its ancient checks and balances, its ins and outs, its occasional failures and the costly sacrifices that mended them. I listened to speeches, watched debates, eventually started reading judicial opinions. I wore buttons, volunteered for “my” party, did the occasional march for human rights, and, for the most part, I thought we were a nation of decent people. Even the people on the other side, even the people doing the horrible things, I thought, were by-and-large doing their best.

I’m not sure I believe any of that anymore.

I’m not hopeful about the country. I still love the Republic, but I have written about my real fear that its days are numbered; the rot is already deep. As for the parties, not only have I lost my faith that the “other side” is mostly made of decent people, I’ve lost my faith that my own “side” is mostly made of decent people. Voting is a desultory experience. I hold my nose to vote for most candidates, when I can stomach it–and, more and more often, I can’t.

But, for the first time in many years, I am actually excited to vote for a candidate this fall. The race is the mayorship of my adopted home, West Saint Paul (a real independent city, which is of course south of Regular Saint Paul!), the candidates are incumbent Dave Napier (site) and challenger Kimetha “KaeJae” Johnson (site), and at stake is nothing less than control of the greatest municipal snow-plowing system south of the 49th Parallel!

I did not vote for Dave Napier in 2018. In fact, I compared Napier to a Dark Lord of the Sith and endorsed his opponent. Although I supported much of Napier’s vision for the city, I feared he would seek to impose that vision on the city, rather than persuading citizens to see things his way.

I am pleased to report that I could not have been more mistaken. Since 2018, I have picked up the healthy habit of following City Council meetings (whether watching them on TownSquare.tv or just reading the packets myself). What I’ve seen from my mayor has made me very happy.

As mayor, Napier has been guided by the simple, difficult virtues of good government. He reads the giant information packets that the City Council receives about every issue that comes before it, and he encourages the Council to do likewise. He strives to first understand, then follow, the law, and encourages the City Council to do likewise. He works hard to maintain good relationships with city staff, so that he gets the best information from them and they get the best guidance from the City Council–whom he encourages to do likewise. In all these ways, Mayor Napier always leads, and the Council usually follows. (Usually.)

Above all, Mayor Napier strove throughout his first term to listen fairly to everyone who came before the city government with a concern. His City Council chambers have been open forums, always inclined toward letting everyone have their say instead of racing to a decision. This is true when the subject being debated is dry-as-dust stuff, like revising the permitting process for food truck owners. But it remains true even when the subject is top-tier culture-war stuff, like whether poor residents should have improved access to abortion alternatives.

When citizens come to the podium to to praise the city for this or that, Napier nods and thanks them all for their input. When citizens come to the podium to excoriate the city, the Council, and each of its members in punishing detail — something I had occasion to do a couple months ago — Napier nods and thanks them all for their input, in the exact same friendly tone. I’m impressed with this, because I know I couldn’t do it.

I was wrong to doubt him two years ago: Mayor Napier really does want the city to come together before it acts, and he ensures the decision-making process is fair and open. Of course, eventually, the city must act. Up-or-down votes happen, and the Council imposes its will. Under the City Charter, however, Mayor Napier votes only to break ties, which allows him to act in the neutral facilitator role at which he excels–and it is often Napier who calls for extra consideration of an issue where all sides haven’t been heard before the vote.

Where he has committed to positions, I’ve found the Mayor’s vision for the city to be prudently forward-thinking. The Robert Street Project is in the past now–ratified one final time by voters in 2018–and, since then, I have seen Napier help the city strike a healthy balance between frugality and progress. For example, the city needs more housing (due to the Twin Cities housing crunch) and needs to rejuvenate blighted areas like the old golf course or the dead K-Mart (to attract and retain businesses and residents). To that end, Napier has guided several major apartment projects across the finish line, despite difficult questions of prevailing wages, tax-increment financing, and more. At the same time, Napier recognizes that, with these projects underway, it’s now time to slow down and re-strike the balance.

I hope to see a sidewalk on Bidwell between Thompson and Butler this term, and I know the Mayor does, too. However, when I caught him at Amore Coffee in 2019 and asked him for a sidewalk, the Mayor told me he’d get the ball rolling immediately–if I could persuade other Bidwell residents to sign a petition supporting a sidewalk. That’s the kind of self-restraint I like to see in local government, even when it means I have to wait longer for the obviously right thing to happen. (FELLOW BIDWELLIANS: c’mon, we’ve got a busy school, a sports field, and a pool! What’s even the argument against a sidewalk at this point, when the new assessment policy means we won’t have to pay for it?)

Truth to tell, though, I still have no clear idea whether the Mayor agrees with me on the issues I care most about in this city. His website lists no partisan endorsements or interest group commitments: a rare thing in this hyperpolarized, hyperpartisan age. Nor do I feel I need to know his mind on everything, even though I strongly suspect he is not a member of my political “tribe.” I trust Mayor Napier to give me the time of day and a fair hearing before the Council regardless of how he personally feels. Indeed, I trust him a good deal more than I trust most members of the actual Council.

Mayor Napier has earned my vote. More than that, he’s restored a little bit of my faith. Not in the Republic as a whole, but in the power of decency and hard work in good government. Perhaps someday he and I will diverge so sharply on some important policy issue that I will have to rethink my support, but I expect I will always respect him.

In the hellscape that is 2020 politics, please let me have this. If my fears for the future are someday realized, Mayor Napier is the steady hand that I’d like at the helm fighting to keep my little town–and all its residents, not just a partisan clique–above water. If, instead, things in America start to turn around, then Mayor Napier is the listening leader I want guiding us (gently, armed with nothing but good ideas, good data, and good relationships) into a better tomorrow.

Please join me in helping re-elect Dave Napier as Mayor of West Saint Paul.

UPDATE 11 October: For more information about the West Saint Paul mayoral race, visit the candidates’ websites (linked above), and also see here, here, here, here, here, and here.

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Covid Weather Report for Minnesota: 9 October 2020

by James J Heaney Posted on 9 October 2020

OVERALL:

After three months of stability, a significant covid surge is underway in Minnesota. We are a long way from our hospitalization capacity, and it may get itself under control in another week or two. Nevertheless, public health officials are undoubtedly trying to figure out how to mitigate it, because the surge could just as easily continue.

DETAIL:

The chart really tells the story here. A surge that looked like lots of other false alarms started in the third week of September… but then it kept going into the fourth week of September and the first couple days of October, with a small (but by no means certain) downswing just as the data runs out:

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Mark Joseph Stern is Warping Facts for Partisan Gain, Also Water Is Wet

by James J Heaney Posted on 2 October 2020

Mark Joseph Stern is a particularly shameless court-watcher for the Left. He is a classic hack. His default operating mode is spin, aided by selective reading and a determination to ascribe the absolute worst motives to his opponents, all to the great injury of his misled audience. There is no value in reading him, unless you are a court nerd monitoring left-wing spin.

In a recent column, however, Stern crossed the line into substantial factual error, and I sent a letter to Slate’s corrections box. Out of courtesy, I waited a week for Slate to clean up its own mess. They have taken no action and have not responded to my email. So, for the record, here it is:

Dear Slate,

In a September 22nd article entitled, “Expand the Court,” Mr. Mark Joseph Stern stated:

There is, of course, a key difference between McConnell’s antics and court expansion: Blockading a Supreme Court nominee for 11 months was completely unprecedented in American history; expanding the court is not. To the contrary, Congress has altered the size of the court many times throughout history, occasionally for political purposes…

This is erroneous. The longest Supreme Court confirmation battle in history began when Justice Smith Thompson died on December 18, 1843, less than a year before the 1844 presidential election. Four months later, Justice Henry Baldwin died. Baldwin’s seat would remain unfilled for 28 months, until August 4th, 1846.

Over the course of the conflict, which I wrote about for fun here and which you can explore for yourself on the Wikipedia (I suggest starting here), Judge Reuben Walworth was nominated by President John Tyler on March 13th, 1844. The Senate, which had political disagreements with President Tyler and wanted to keep the seat open until after the presidential election, refused to act on it. This may sound familiar.

After the Senate tabled Walworth’s nomination without action, Tyler renominated him in June 1844, but the congressional session ended, causing Walworth’s second nomination to lapse. When Congress resumed for the lame-duck session, Tyler immediately renominated Walworth. Finally, with his term nearly over, Tyler gave up on Walworth, withdrawing him on February 6th, 1845. Tyler nominated Samuel Nelson instead (who was confirmed in just 10 days).

All told, the Senate blockade against Judge Walworth lasted 10 months, 24 days. Judge Garland was blockaded for only 9 months, 18 days. 
The vacancy in Justice Thompson’s seat was open for 14 months; the vacancy in Justice Scalia’s seat for only 12.

Normally, I would overlook a little hyperbole about how something is “unprecedented in American history,” since the precedent in this case is over a hundred years old, and I don’t expect everybody to know about it. Most people, when they talk about “American history,” seem to just mean, “American history since World War II.”

However, in this case, the rest of Mr. Stern’s argument in that paragraph is built around several other precedents that are more than a hundred years old. Thus, it seems like a serious oversight to omit the Tyler-Clay-Polk Judicial Battle Royale of 1844-46. The truth is that the Republican blockade of Garland had precedent (Walworth’s saga being only the most dramatic example), and so does Stern’s court-packing plan.

I look forward to your prompt correction.

Thanks,
James J. Heaney

***

P.S. You may be wondering whose court reporting you should be reading, if not Stern’s.

IDEALLY, read the actual opinions of the justices whose opinions you DISagree with. Supreme Court opinions are written with a general audience in mind, and several justices, current and recent, are better writers than anyone in court reporting anyway. They explain themselves much better than their opponents. There’s really no good reason to get your views about the opposing justices from reporters who hate their guts when you could be getting it from the justices themselves. And, yes, you should start with the justices you disagree with, to find out their reasons; you already know the reasons of the justices you agree with!

ALTERNATIVELY, read SCOTUSBlog.com. Nobody offers more stubbornly neutral, thorough coverage of the Court. They routinely hold “symposia” on controversial questions where practicing lawyers on both sides debate the issues in a really productive way. Plus, SCOTUSBlog is often the easiest place to find the justices’ actual opinions!

FAILING THAT, if you are hellbent-for-leather on getting involved in the partisan hurly-burly, read Vox’s Ian Milhiser for the Left and National Review’s Bench Memos for the Right. I will let the contrast in quality between them speak for itself.

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The Affordable Care Act is Safe (even with Justice Barrett)

by James J Heaney Posted on 29 September 2020
Affordable Care Cat is perfectly safe, wearing a fruit helmet.
If only the Republicans had actually had a decent idea for replacing it!

As the nomination of Judge Amy Coney Barrett to the Supreme Court proceeds, Barrett’s opponents have developed a powerful argument for getting Americans to join the opposition: “Barrett is going to kill Obamacare.”

This is an effective line, because Obamacare has become popular in recent years. (Voters only hated the Affordable Care Act until 2017, when they found out what Republicans’ alternative plans were.) Reminding voters about the ACA’s protections for people with pre-existing conditions likely played a big role in the Democrats’ 2018 midterms sweep. So tying Barrett’s nomination to the destruction of the ACA seems like a surefire way to get Americans engaged in a Supreme Court battle, even when those Americans don’t care much about Democrats’ top judicial priorities: ensuring universal access to abortion on demand and protecting the administrative state through Chevron deference and suppression of the non-delegation doctrine.

(FUN FACT: according to polls, “Chevron deference,” which I care about way too much, is the 11,221st most important issue for average voters, right after “Why is The Masked Singer so watchable? Is it a CIA mind control thing?”)

There’s really only one problem with the “Barrett will kill Obamacare” argument: it isn’t true. In fact, as we’ll see at the end, it can’t be true.

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Originalism vs. Textualism

by James J Heaney Posted on 27 September 2020
One critique of originalism
One popular critique of originalism. (Source unknown.)

A couple of days ago, I mentioned offhandedly that “originalism” and “textualism” are not the same thing. Then I moved on. A couple of readers have asked me to expand on this. What’s the difference between an originalist and a textualist?

I’ll start with a brief history, then the formal differences, and then a word on common usage… because, in common usage, “originalism” and “textualism” are pretty much interchangeable. I’ll explain why that is, and why it’s not a problem as long as you know what’s going on.

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Wait, What’s a “Textualist”?

by James J Heaney Posted on 22 September 2020

Very, very broadly, the nation is divided into two camps on the substantive questions surrounding judicial nominations. Roughly half the nation supports textualism, and the other half supports the living tree doctrine. I doubt most people could actually name these doctrines, but it is generally what we are arguing about when we argue about whether a judge is good or bad.

(Or, at least, it should be. Many Americans, on all sides, seem to just want judges who declare laws they like and repeal laws they dislike. But that’s the role of the legislature, not the judiciary. Anyway. Back to textualism.)

Textualists believe that a court must interpret the law according to its original public meaning. This may involve a great deal of investigation into what people actually thought a law meant at the time it was passed, and there are some common misconceptions about how this is done… but, in the end, for textualists, what judges think the law says controls what the law means.

Living-tree advocates (or “living Constitutionalists“) believe that a court should interpret the law by finding new meanings for the original text (or new text altogether) based on modern beliefs, even without going through the amendments process. In this school of thought, what judges think the law means (in a very broad sense) controls what the law says.

I’ll give two examples. First:

The Constitution’s 8th Amendment forbids “cruel and unusual punishment.” It does not give any further information.

A textualist asks: if you showed a reasonable lawyer in 1791 (when this amendment was passed) a punishment, would that person consider it “cruel and unusual”? Such a lawyer would certainly say that being drawn-and-quartered fits the definition of “cruel and unusual.” Indeed, the 8th Amendment was drafted precisely to bar well-known torture methods like that one. But such a lawyer would also certainly say that being executed by slowly cutting you into pieces with a laser is “cruel and unusual.” You’d have to show him what a laser is first, but the original public meaning of “cruel and unusual” covered that.

On the other hand, putting someone to death relatively painlessly, without intentionally inflicting pain — by hanging, firing squad, or modern lethal injection, was not part of the 8th Amendment’s ban on “cruel and unusual” punishment. A textualist may think the death penalty is a bad idea, or that it’s immoral, or that legislatures ought to ban it, or that some particular version of it is so unintentionally torturous that it crosses the line — but will never conclude that the death penalty is simply unconstitutional. If you want to make it unconstitutional, the textualist says, go pass an amendment.

The living-tree theorist looks at this quite differently. Such a judge doesn’t look at the meaning the words “cruel and unusual” had in 1791, but at what meaning they have today, both in society in general and in the judge’s own viewpoint. And that judge may well decide that taking away a criminal’s life, for any reason, is “cruel,” and thus the death penalty is unconstitutional.

Okay, example #2. It’s the most explosive example I have. It’s also what most of our substantive judicial arguments are really about, deep down.

The Constitution says nothing about a right to abortion, but it does provide guarantees of “liberty” and “equal protection.”

Based on how those terms were understood at the time, those terms would not include a right to abortion. Therefore, textualists believe there is no constitutional right to abortion.

However, based on how those terms are understood by some judges and voters today, some might argue that “liberty” should include a right to abortion “by modern standards.” Therefore, living Constitutionalists believe that there is a constitutional right to abortion.

You can see these arguments play out in the current key Supreme Court precedent on abortion, Planned Parenthood v. Casey, where Justice Scalia turns in a straightforward textual argument (which starts on page 979) that abortion rights are a matter for states to decide, while Justice Kennedy’s plurality opinion (which starts on page 844) contends that abortion lies at “the heart of liberty… to define one’s own concept of existence.”

Because abortion has become the central polarized issue in our judiciary, Republicans, who support unborn rights, have become strongly aligned with textualists, while Democrats, who support abortion rights, have become strongly aligned with the living Constitution theory. Every single person on President Trump’s Supreme Court List is a vetted textualist. By contrast, Justice Ginsburg was the clear leader of the living-tree movement in the United States at the time of her death.

Because of this strong political alignment, textualists are often referred to as “conservative” or “right-wing” judges, and living-tree theorists as “liberal” or “progressive” or “left-wing” judges. And this alignment is more than a historical accident; there really is some degree of natural sympathy between progressivism and living-tree theory, and between conservatism and textualism. But that’s another post for another day. You now know the vocab and can get back to whatever you were reading before you found this article.

Full disclosure: I’m a committed textualist. It will not take you long looking around this blog to find strong evidence of that, and I think a pretty good, quick, funny intro argument for textualism is Michael Stokes Paulsen’s “Is Bill Clinton Unconstitutional?: The Case for President Strom Thurmond”.

EDIT: In this post, I referred exclusively to textualism, implying a distinction between textualism and originalism. Some readers asked about this on Facebook, and I’ve followed up with another follow-up post explaining the relationship between the originalists and the textualists.

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Five Kinds of Argument about Judicial Nominations (and Whether They Matter)

by James J Heaney Posted on 21 September 2020

There are several types of arguments about nearly all judicial nominations in the modern United States. Given the debate over filling Justice Ruth Bader Ginsburg’s seat, it is worth sorting out what those types are:

1. The Substantive Arguments: These are arguments about the actual merits of a specific nominee, or about the general qualifications and appropriate interpretive philosophy of a justice who will sit on a federal court.

Example: “The Senate [should / should not] replace Ruth Bader Ginsburg with a textualist.”

[EDITOR’S NOTE: If you don’t know what a “textualist” is, click here. “Textualism” comes up a lot in this article.]

2. The Tactical Arguments: These are arguments about whether some particular action actually supports a substantive objective in the long run, or if there’s a risk of backfire.

Example: “The Senate should replace Ruth Bader Ginsburg with a textualist, but [should / should not] do it right now, because Democrats [will / will not] retaliate by packing the courts.”

3. The Legal Arguments: These are arguments about whether and how a nominee may be confirmed. There have not been a lot of these lately, because the Constitution and Senate procedure are pretty clear, but there were genuine legal questions over the judicial filibuster (and whether and how it could be bypassed) after Senate Democrats developed and deployed it in 2003 against Miguel Estrada.

Example: “Martha McSally [can / can not] vote to confirm a nominee to replace Ruth Bader Ginsburg during the month of December if she loses her election, because the special election [will / will not] seat her opponent on December 1st.”

4. The Process Arguments: These are arguments that are not about the law, but institutional norms and precedents. These norms are not legally binding, but many people argue that (A) they exist, and (B) they should be obeyed, except (C) when there is a very good reason to violate them.

Example: “The Senate [should / should not] wait to vote on a nominee until after Inauguration Day, because there [is / is not] an institutional norm against confirming a nominee in the last year of a presidential term, and Senators [should / should not] follow that norm in this case.”

5. The Moral Arguments: All other arguments that make moral claims about a nomination go here. They are often (but not always) fairly tangential to the immediate issue.

Example 1: “Mitt Romney [should / should not] vote against any Trump nominee, because President Trump [is / is not] a fascist and Romney should not cooperate with fascism in any way.”

Example 2: “There is no actual institutional norm regarding election-year confirmations. However, Lindsey Graham said there was. Therefore, Lindsey Graham [is / is not] bound to refuse any nominee until after Inauguration Day.”

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