Obsidian Wings

The Perils of Ignoring the "Real World"

by publius

Like many others, I was horrified to read about the murder of Dr. Tiller in Kansas today.  It was of course more than murder -- it was an act of political terrorism.  It simply cannot be dismissed as random violence.[*]

Anyway, this violent act also bears quite directly on the whole "empathy" debate.  What's interesting about Obama's comments is that the empathy argument doubles as both a populist argument and a high-level theoretical assault on conservative jurisprudence. 

One tenet of both originalism and textualism is that consequences of constitutional interpretation should be irrelevant.  If you take both theories seriously, then you can't really allow consequences to affect your reasoning.  What matters -- the only thing that matters -- is what the text says, or what the text was originally understood to mean.  And for now, let's assume that conservatives take these theories seriously (rather than merely using them as window-dressing for political preferences).

The Kansas terrorism illustrates why it's important to look at the real world when interpreting the constitution.  For instance, there's a First Amendment dispute about whether and to what extent the government can limit abortion protests outside of clinics. 

The argument for aggressive protection (and thus a relaxing of First Amendment scrutiny) is that abortion protests have proven to be historically dangerous.  Doctors and staffers and patients face truly dangerous risks -- risks that were tragically reaffirmed today.  The law should recognize these concrete dangers and not pretend like these protests come straight out of a Norman Rockwell painting of a townhall meeting.  It's fun to argue about free speech in the abstract -- but we don't really have that luxury.

The real world matters.  It should be relevant.  It's somewhat amazing to have to argue this.  But that's where we are.

*[I deleted a line suggesting that people who use extreme anti-abortion rhetoric (e.g., "party of death", "pro-murder") bear some responsibility.  I'm not sure how I feel about that -- and I want to think about it more before I post a view on it.]

Subsidizing American Conservatism

by publius

In today’s Outlook, Alec MacGillis argues that national health care reform would be a significant redistribution of resources from “blue” states to “red” ones.  The reason why is that health coverage numbers are far grimmer in Republican states, particularly in the South – shocking, I know.

While I tend to agree with MacGillis’s observation about distribution, this dynamic isn’t limited to health care.  It actually extends far beyond that context. 

In fact, modern American conservatism itself can be understood as a byproduct of "liberal" redistribution policies.  What I mean is that liberal federal policies subsidize modern conservative ideology.  In this respect, the ideology is a luxury item made possible by a strong, if often invisible, foundation of liberal federal policies. 

As the MacGillis piece notes, southern state governments like Texas have been historically “stingy” with their benefits.  The idealistic spin on this is that these states believe in liberty and limited government and the other bulletpoints listed on the Cato brochure.  The more cynical take is that their governments have been structured to serve the interests of the wealthy and big business through its tax code, labor laws, regulatory regimes, etc.

Unfortunately, a lot of working and middle-class people don’t agree with the latter interpretation (especially if they’re white).  They tend to think of themselves as small government people.  And political leaders like Jindal and Sanford and Palin sell themselves using this idealistic “small government” narrative. 

My own view, however, is that the American public doesn’t really understand the full implications of “small government” ideology.  Simply put, they like it only because they’ve never had to endure it. 

The federal government provides a huge (if inadequate) safety net that effectively limits the damage that red state governments can inflict on their people.  For instance, the state governments can’t eliminate Social Security.  They can’t eliminate wage guarantees and safety regulations.  They can’t eliminate Medicare or Medicaid (though they try).  They can’t reduce the marginal income rate to 15% for all people.

In short, there are a number of entrenched federal policies that prevent the full implications of “small government” ideology from playing out.  If, however, Americans actually got a taste of a world with fully privatized Social Security, or with significant elimination of environmental regulations, conservatism would soon become a wholly discredited ideology.

So it’s important to understand that the Jindal/Sanford posturing about the stimulus – along with the extreme and absurd “sovereignty” resolution proposals – all take place on top of an invisible safety net.  Liberal policies allow this posturing to happen because people understand that the potential damage will be limited.  The fact that small government ideology is so ineffective is, ironically enough, one reason why it’s proven so politically successful.

It would be nice, though, if more southern electorates realized how dramatically federal intervention has improved their lives – and sustained their economies.  But I won't be holding my breath.

Ugly

by hilzoy

Matt Yglesias:

"As anyone who knows me can attest, I don't have what you'd call a strong "Hispanic" identity. (...) But for all that, I have to say that I am really truly deeply and personally pissed off my the tenor of a lot of the commentary on Sonia Sotomayor. The idea that any time a person with a Spanish last name is tapped for a job, his or her entire lifetime of accomplishments is going to be wiped out in a riptide of bitching and moaning about "identity politics" is not a fun concept for me to contemplated. Qualifications like time at Princeton, Yale Law, and on the Circuit Court that work well for guys with Italian names suddenly don’t work if you have a Spanish name. Heaven forbid someone were to decide that there ought to be at least one Hispanic columnist at a major American newspaper.

Somehow, when George W. Bush affects a Texas accent, that's not identity politics. When John Edwards gets a VP nomination, that's not identity politics. But Sonia Sotomayor! Oh my heavens!"

Julian Sanchez:

"I'll cop to sharing some of Yglesias' irritation at the treatment of Sonia Sotomayor, and if Republicans are managing to get a rise out of my pallid ass, I can only imagine the kind of damage they’re doing to their brand among, you know, real Latinos. (...)

Look, it's not racist to oppose a Latina judicial nominee, or to oppose affirmative action, or to point out genuine evidence of ethnic bias on the part of minorities. What we're seeing here, though, is people clinging to the belief that Sotomayor has to be some mediocrity who struck the ethnic jackpot, that whatever benefit she got from affirmative action must be vastly more significant than her own qualities, that she's got to be a harpy boiling with hatred for whitey, however overwhelming the evidence against all these propositions is.  This is really profoundly ugly. Like Yglesias, I don't think I'm especially sensitive to stuff like this, or particularly easily moved to anger, but I'm angry. I don't think Republican pundits really appreciate the kind of damage they're probably doing, for no reason I can discern given the slim odds of actually blocking the nomination. Which, perhaps, goes to Sotomayor’s point: They really have no idea how they sound to anyone else."

I don't think they do either. 

Look: I'm angry, and I'm not Hispanic at all. For the record, I am not writing about Sonia Sotomayor because I think she's the greatest thing since sliced bread. I don't. I think she's a fine nominee and will be a very good Supreme Court justice, but she does not make my heart go ding-a-ling. I'm writing about her because when people tell lies about someone who does not deserve it, it makes me angry. And if there's any point to blogging at all, it's that it gives me the opportunity to do things like actually read the Ricci case and write about what I find, thereby making it just that little bit less likely that those lies will work.

This is what comes of letting crazy people run a party. It's what comes of making pissing off liberals into a goal in itself. And it's what comes of fine-tuning ways of dismissing all criticism and all contrary evidence, so that you end up living in an epistemic cocoon. Bad news? It's the liberal media. Someone claiming that Bush did something bad? Quick: look for evidence that that person is writing a book, and disregard the fact that while some people will say anything to sell books or promote themselves, other people will not. Someone criticizing any Republican policy anywhere? That person obviously hates America/white people/success/whatever. If nothing else works, try thinking about kerning.

Go down that road and you lose the capacity to actually consider the facts. All you have left are your own preconceptions, floating free of any actual connection to evidence or reality. And if your preconceptions lead you to think that any Latina must be "some mediocrity who struck the ethnic jackpot", then no amount of actual achievement -- graduating at the top of her class, editing the Yale Law Journal, sitting on the Second Circuit -- will dissuade you.

A fantasy world in which your own preconceptions are always confirmed is a pretty sorry substitute for the actual world around us, in all its unexpected richness. But it's even worse when your own preconceptions are so very, very ugly.

Shameful

by hilzoy

From the Washington Post:

"The Obama administration, picking up the argument of its predecessor, is opposing the release of Chinese Muslim detainees at Guantanamo Bay into the United States.

In papers filed with the Supreme Court late Friday, the administration says a group of Uighurs (pronounced WEE'-gurz) are being lawfully held at the U.S. Navy base in Cuba even though they are not considered enemy combatants. (...)

The Uighurs' "continued presence at Guantanamo Bay is not unlawful detention, but rather the consequence of their lawful exclusion from the United States," Solicitor General Elena Kagan told the court.

The men are held apart from the other detainees, in the least restrictive conditions, Kagan said. "They are free to leave Guantanamo Bay to go to any country that is willing to accept them," she said."

The administration's brief is here (pdf). One note: I think it's not quite accurate to say that the administration is "opposing the release" of the Uighurs in this brief; it is arguing that it cannot be compelled to do so by court order. That said:

I have no idea whether or not the administration's argument is correct as a matter of law. Moreover, I don't care. Whatever the law says about whether it can be forced to admit the Uighurs, the administration has the right to admit them voluntarily. If it cannot find another country that is willing to take them, then it should.

We set up a system that gave people incentives to turn over people they claimed were foreign fighters, whether they were or not. We then dismantled all our normal procedures for separating combatants from non-combatants. It should not surprise anyone that we ended up detaining people who were innocent. 

I have no problem with the government taking some reasonable period of time to try to identify another country that is willing to take detainees who cannot be returned to their own countries. But these detainees have been held for seven and a half years. That's not a reasonable amount of time to tie up loose ends; it's a tenth of a normal lifespan. 

We screwed up. We should step up to the plate and do what's right. Seven and a half years is too long.

And one other thing: the administration says this about the Uighurs: "Petitioners would like the federal courts to order that they be brought to the United States, because they are unwilling to return to their home country." (p. 11) As Registan notes, this is false. The reason we cannot send them back to China is not that they are "unwilling" to go back; it's that we believe, with good reason, that they would be tortured or killed if they were repatriated. That means that it would be illegal for us to send them back. 

It's also a bit disingenuous for the administration to argue that the Uighurs are free to leave. The Bush administration has previously argued that they cannot be set free in Guantanamo, for the perfectly good reason that Guantanamo is a military base, and we do not normally allow people free access to military bases. 

Barbarians At The Gate, Barbarians In Your Heart

by hilzoy

A couple of weeks ago, Rod Dreher wrote an article about what he calls our "astonishing, and astonishingly rapid, cultural collapse" in the face of "a barbaric mainstream culture that has grown hostile to our fundamental values":

"Conservatives have worked so hard over the past few decades to fight for civilized standards against a short checklist of modern barbarisms -- abortion, gay marriage, political correctness, and so forth. What we failed to consider was that we had become barbarians ourselves."

What Dreher means is that conservatives have "accepted rootlessness", worshipped capitalism uncritically, and so forth. I agree on those points, more or less (and with exceptions), but of course I think that many of the conservatives Dreher is talking about are becoming barbaric in other ways as well. I thought about this as I read this article in the NYT, about one manifestation of what Dreher calls barbarism: two women who were fixed up while one was out of town, and who fell in love over email:

"Ms. Diaz said she was at first "a little sheepish about telling people" of their love before first sight. But a little more than a year later, on May 8, the couple were legally married by Jeanne Laughlin, a Connecticut justice of the peace, in a conference room at the Stamford Government Center.

They exchanged yellow pipe-cleaner rings, saving their engraved gold bands for their public ceremony the next day, when Mr. Rogers -- who had introduced them -- led them through their vows in the three-story atrium of 632 on Hudson, an event space in a 19th-century New York town house.

"All my life I searched for you, but never thought I'd find you,” Ms. Adamick said. "All my life I dreamed of you, but never dreamed you were real."

Mr. Rogers said, "You may both kiss the bride," and their 96 friends and family cheered as the couple smiled exuberantly.

"My cheeks physically hurt since I’ve known her," Ms. Diaz said, her radiance undiminished.

But she was troubled. "Part of my identity is being a cynical New Yorker and hard-bitten lawyer," she said. "By being so happy, am I going to lose my edge?""

Read the whole thing: it's so sweet that I began to wonder whether it might cause tooth decay. Then ask yourself: what sort of person would not only forswear gay marriage for him- or herself, but actively work to deny this kind of happiness to those who do not share his or her religious views? Why would anyone think that this story is a threat to Western civilization? If two women in their forties want to get married, what sort of person would think that allowing them to do so brings the barbarians one step closer to the walls?

Dreher wonders: "How do you argue persuasively for a politics based on traditional virtue in a therapeutic postmodern capitalist culture where individual autonomy -- especially in matters sexual and economic -- is widely considered the highest good?" I don't think this is all that hard. You just try to make the best case you can for honor and decency, and to work out the difference between valuing individual autonomy -- the kind that allows Dreher to choose a set of religious beliefs that he thinks are deeply out of fashion -- and thinking that anything goes.

It helps, though, to take seriously the possibility that one has become a barbarian oneself, and that, as Dreher notes, one way to do this is to define others as barbarians in order to remove oneself from scrutiny. This is a standing danger for anyone who cares about morality, and the only defense against it that I'm aware of is to question your own motives, and never to forget that the place where you can most effectively combat barbarism is in your own heart and your own life.

If I were Dreher, I would ask myself: of all the things in the world to be concerned about, why on earth would this couple's happiness be anywhere near the top of the list? Even if you were concerned above all with sexual morality, why not argue against people who don't treat sex or human relationships with the respect they deserve, rather than inveighing against two women who want to cleave to one another, forsaking all others, until death do them part?

Christ commanded his followers to love one another. There are plenty of things that Christians disapprove of in which love plays no part: anger, pride, envy, cruelty, vanity. The worst a Christian should say about these two women is that while, by loving one another and taking their love fully seriously, they get one very important thing very, very right, by falling in love with the wrong person, they have gotten another thing somewhat wrong. Of course, if these women are not Christian, or take a different view of the handful of passages in the Bible that concern homosexuality, they might not agree, which makes Dreher's desire to impose his religious views on them all the more peculiar. (He would surely not accept my right to impose secularism on him, supposing I had any desire to do so.) 

But even in Christian terms, why not concentrate on any one of the innumerable things in which there is much less good to be found, if any, rather than trying to force his views on people who are genuinely in love, want only to be able to marry, and do not accept any of the religious views on which Rod bases his view that gay marriage is wrong? 

Sotomayor: Actual Facts!

by hilzoy

As more or less everyone has already noted, a lot of people have been claiming that Sonia Sotomayor is a racist, would decide cases based on racial solidarity rather than on the law, and so forth. One natural way to check this would be to examine her actual record. She has, after all, been a judge for quite a while, so it should not be all that hard to see how she actually makes decisions. 

Over at SCOTUSBlog, Tom Goldstein decided to do just that. He has been reading through all of Sotomayor's opinions in cases involving race. He promises to write more about them tomorrow, but here is what his analysis shows:

"Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals. 

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions.  Of the 10 cases favoring claims of discrimination, 9 were unanimous.  (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.)  Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge.  In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case.  So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.

Of the roughly 75 panel opinions rejecting claims of discrimination, Judge Sotomayor dissented 2 times.  In Neilson v. Colgate-Palmolive Co., 199 F.3d 642 (1999), she dissented from the affirmance of the district court’s order appointing a guardian for the plaintiff, an issue unrelated to race.  In Gant v. Wallingford Bd. of Educ., 195 F.3d 134 (1999), she would have allowed a black kindergartner to proceed with the claim that he was discriminated against in a school transfer.  A third dissent did not relate to race discrimination:  In Pappas v. Giuliani, 290 F.3d 143 (2002), she dissented from the majority’s holding that the NYPD could fire a white employee for distributing racist materials.

As noted in the post below, Judge Sotomayor was twice on panels reversing district court decisions agreeing with race-related claims - i.e., reversing a finding of impermissible race-based decisions. Both were criminal cases involving jury selection. (...)

In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times.  Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred.  (In another case (Pappas) she dissented to favor a white bigot.)  She particulated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims.  Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking."

I honestly don't know why so many people focus so much attention on their somewhat overwrought interpretations of one line in a speech and so little attention on ascertaining what kind of judge Sonia Sotomayor has been. Her decisions are not classified documents. They are public, and anyone can read them. Moreover, they plainly provide the best evidence of the kind of judge she will be. 

I cannot imagine why more journalists have not done the kind of analysis that Tom Goldstein has -- the ratio of reporting on what someone thinks s/he can discern in one line of Sotomayor's speech to reporting on actual cases is just about the reverse of what it ought to be. That makes me all the more grateful to SCOTUSBlog for giving us the kind of analysis we need, but get far too rarely.

One other interesting point: Sotomayor's panel has been criticized for not explaining their reasoning in the Ricci case. Whether this is plausibly construed as an attempt to duck the issues depends in part on how common it is for a panel on the Second Circuit to affirm a district court opinion without explaining why. Goldstein therefore checked this point as he was going through the race-related cases:

"In the roughly 55 cases in which the panel affirmed district court decisions rejecting a claim of employment discrimination or retaliation, the panel published its opinion or order only 5 times."

Good to know.

They Can't Help Themselves

by hilzoy

Even by Republican standards, the Sotomayor meltdown is pretty impressive. Tom Tancredo calls La Raza, which is a pretty ordinary advocacy group, "a Latino KKK without the hoods or the nooses." Newt Gingrich writes that we cannot accept Sotomayor's rather anodyne remarks about experience being helpful in judging "if Civil War, suffrage, and Civil Rights are to mean anything", which would surely be news to all the African-Americans who are not presently enslaved. 

Rush Limbaugh compares Sotomayor to David Duke. Michael Goldfarb and John Derbyshire's readers are going on about the vast privileges enjoyed by Puerto Ricans who grow up poor in the projects. The Weekly Standard's Fred Barnes thinks her summa doesn't mean much, since "there’s some schools and maybe Princeton’s not one of them, where if you don’t get Summa Cum Laude then or some kind of Cum Laude, you then, you’re a D+ student." (For the record, when I was there, Princeton gave summas to around 5% of its students.)

But really, nothing quite compares to G. Gordon Liddy saying not just that she is a member of La Raza, "which means in illegal alien, "the race"", but this:

"Let’s hope that the key conferences aren’t when she’s menstruating or something, or just before she’s going to menstruate. That would really be bad. Lord knows what we would get then."

Think of the possibilities. She could get into one of her quaint native costumes, go berserk, and start writing on the walls in menstrual blood with a tampon, like so:

(Yes, of course I know that Quetzalcoatl is an Aztec God, and Aztlan is the mythical home of the Aztecs, and Aztecs are Mexican, and Sonia Sotomayor is Puerto Rican. But I'm channeling G. Gordon Liddy's nightmares here, and do you think he knows the difference?)

Seriously: Obama is a serious student of the civil rights movement, which in turn drew a lot of inspiration from Gandhi. Both Gandhi and the Civil Rights movement made brilliant use of the following method: you do something right, which you suspect might lead your opponents to do something wrong. If you are right about them, they discredit themselves, without your having to lift a finger. If you're wrong, you are pleasantly surprised. But you do not have to do anything wrong or underhanded yourself, nor do you in any way have to hope that your opponents are bad people. 

That's what he's doing now. He has chosen a judge who is by any standard exceptionally qualified, and who has, in addition, a fairly conservative judicial temperament. She sticks close to the law; she follows precedent; having read several of her opinions, if I have any criticism of her, it's that not seen much evidence of an overarching judicial philosophy other than restraint. (To be clear: if a judge has to lack something, I'd rather it be an overarching philosophy than devotion to the law as written. But I'd rather have both.)

But she is also a Puerto Rican woman. If the Republican Party were led by sane and decent people, this would not matter. But they aren't. As a result, they seem to be unable to see anything about her besides her ethnicity and her gender. The idea that she must be a practitioner of identity politics, a person whose every success is due to preferential treatment, etc., is apparently one they absolutely cannot resist. 

All Obama had to do was nominate an excellent justice, and all that is made plain. 

And I hate it. I want to have a reasonable opposition party. I also don't want people of color, and especially kids, to have to listen to all this bigotry. We should be better than this.

Smooth Operator

by publius

I'll be honest -- I'm a bit frightened of David Petraeus's political and media savvy.  This guy is good.  I just watched him on Fox News and was very impressed with his answers on everything from Gitmo to torture to the ability of our legal system to try detainees.  The video is here, but I've posted some excerpts from the rough transcript:

On closing Gitmo:

What I do support is what has been termed I think a responsible closure of Gitmo.  Gitmo has caused us problems -- there's no question about it. I oversee a region in which the existence of Gitmo has indeed been used by the enemy against us.  We have not been without missteps or mistakes in our activities since 9/11.

On trying detainees in the US:

I don't think we should be afraid to live our values.  That's what we're fighting for.  It's what we stand for and so indeed we need to embrace them and we need to operationalize them in how we carry out what it is we're doing on the battlefield and everywhere else. So one has to have some faith I think in the legal system.  One has to have a degree of confidence that individuals that have conducted such extremist activity would indeed be found guilty in our courts of law.

On opposing torture:

PETRAEUS:  [F]or the vast majority of the cases our experience . . .is that the techniques that are in the army field manual that lays out how we treat detainees, how we interrogate them -- those techniques work. That's our experience in this business.

FOX NEWS:  So is sending this signal that we're not going to use these kind of techniques anymore . . . What kind of impact does that have on people who do us harm in the in the field that you operate in?

PETRAEUS:  Well actually what I would ask is -- does that not take away from our enemies a tool which again they've beaten us around the head and shoulders in the court of public opinion. When we have taken steps that have violated the Geneva convention, we rightly have been criticized.  And so as we move forward I think it's important to . . . live our values, to live the agreements that we have made in the international justice arena into practice.

Very smooth.  Obviously, that's all good stuff.  But I'm a little wary of relying too much on any argument that begins, "Well, I'm right because General Petraeus says X."  Most obviously, he is a direct subordinate of Obama -- just like he used to be a direct subordinate of Bush back when he was saying arguably unhelpful things about the surge.  And more generally, I don't like the idea of relying heavily on the public statements of active military officials in political policy debates. 

But I do think this passage shows Petraeus's political dexterity.  He's someone who can go on Fox News and articulate Obama's political message, while simultaneously retaining the sympathies of all parties. 

If he ever runs for anything, I hope it's not as a Republican.

Encouraging Signals on Settlements

by publius

I must say that I've been encouraged by the Obama administration's public stance on Israeli settlements.  Obama has made it a point to emphasize that settlement growth must stop.  And Clinton used even stronger language:

Secretary of State Hillary Rodham Clinton said, “He wants to see a stop to settlements — not some settlements, not outposts, not ‘natural growth’ exceptions.” Talking to reporters after a meeting with the Egyptian foreign minister, Ahmed Aboul Gheit, she said: “That is our position. That is what we have communicated very clearly.”

The administration needs to follow through of course, but the forcefulness of the rhetoric is encouraging -- and suggests that the US is finally serious about playing a more constructive role in the peace process.

Ending settlement growth is a no-brainer on both policy and moral grounds.  And I think most Israeli leaders recognize this (certainly most Americans do).  However, as in many countries, there are domestic political constraints on the leaders' ability to do the right thing.  (It's similar in this respect to our Cuba policy).

But that's where America could play a productive role.  It could provide Israeli leaders with the political cover they need to do the right thing.  And it's not like ending settlement growth is a controversial measure that would threaten Israel's national security.  It's a land grab.  And stopping it would be a meaningful commitment that could hopefully snowball into even better developments.

One last note -- the whole episode illustrates another benefit of choosing Clinton for Secretary of State.  Coming from her, the strong words take on additional strength -- more so than if they had come from, say, Kerry (who also would have been an excellent SoS).

Eat Your Spinach!

by hilzoy

This is one of those dull bills that really matters:

"The nation's complex food supply chain would become more transparent, inspections of food facilities would become more frequent and manufacturers would be required to take steps aimed at preventing food-borne illnesses under legislation proposed yesterday by key House leaders who have pledged to modernize the food safety system.

The bill, introduced by Energy and Commerce Committee Chairman Henry A. Waxman (D-Calif.) and Rep. John D. Dingell (D-Mich.), would give the Food and Drug Administration broad new enforcement tools, including the authority to recall tainted food, the ability to "quarantine" suspect food, and the power to impose civil penalties and increased criminal sanctions on violators.

Among other things, the proposal would put greater responsibility on growers, manufacturers and food handlers by requiring them to identify contamination risks, document the steps they take to prevent them and provide those records to federal regulators. The legislation also would allow the FDA to require private laboratories used by food manufacturers to report the detection of pathogens in food products directly to the government.

"This is a major step forward," said Erik Olson, director of food and consumer product safety at the Pew Charitable Trusts. "This has really been needed for decades. We're still operating under a food and drug law signed by Teddy Roosevelt.""

Rick Perlstein coined the wonderful phrase "e. coli conservatism". We've been living with, and in some cases dying from, e. coli conservatism for years. It's nice to know that we're getting back to serious food safety liberalism, which, frankly, ought to be just plain common sense, and perfectly acceptable to any conservatives who care about a strong defense. After all, food-borne illness kills about 2,000 more people every year than died on 9/11; why we should spend over half a trillion dollars a year defending ourselves against human invaders while leaving ourselves open to bacteria that are every bit as lethal is a mystery that passeth all understanding.

***

Special FDA bonus: the new FDA commissioner and her principal deputy have an article outlining their plans for the agency in the New England Journal of Medicine. It's quite good. Merrill Goozner has some good analysis here.