Misquoting Scalia

Earlier, an Arizona newspaper, the East Valley Tribune, attributed remarks to Justice Scalia that were quite stunning:

Using his “originalist” philosophy, Scalia said he likely would have dissented from the historic 1954 Brown v. Board of Education decision that declared school segregation illegal and struck down the system of “separate but equal” public schools. He said that decision, which overturned earlier precedent, was designed to provide an approach the majority liked better. “I will stipulate that it will,” Scalia said. But he said that doesn’t make it right. “Kings can do some stuff, some good stuff, that a democratic society could never do,” he continued. “Hitler developed a wonderful automobile,” Scalia said. “What does that prove?”

Scalia for racial segregation? Now that would be some bombshell! Talking Points Memo’s Josh Marshall initially seized on the remarks with a post headlined, “Telling Revelation.”

But as Jack Balkin at Balkinization noted after viewing the video, Scalia actually said he would have dissented in Plessy v. Ferguson, you know, the case that imposed racial segregation.

Marshall, to his credit, updated his post, but the East Valley Tribune merely deleted the erroneous paragraph from its website, without offering an offical correction. Shame on them.

UPDATE: I thought my post was pretty clear, but evidently some commenters still concluded that Scalia said that he would have dissented in Brown. So let me just repeat it again as clearly as I can: Scalia didn’t say that he would dissented in Brown. The newspaper account was wrong and the incorrect paragraph has been removed from the newspaper’s website.

UPDATE II: The East Valley Tribune has added the following editor’s note: This is an updated version of a story that was originally posted Oct. 26. It removes an incorrect reference to Brown v. Board of Education in the initial version.

House Dems Lack Votes For “Robust” Government Plan

Greg Sargeant reports :

House Dem leadership has conducted its preliminary whip count and has tallied up less than 200 likely Yes votes in support of a health care reform bill with a robust public option, well short of the 218 needed for passage, according to an internal whip count document I’ve obtained….

The document shows that 47 House Dems are committed No votes, and eight are Leaning No, for a total of 56. That means of 256 House Dems, only 200 remain, and a dozen of those are listed as undecided. The bill needs 218 votes for passage.

To be clear, “robust public option” is a code word for a government-run plan that would reimburse doctors and hospitals at Medicare rates, plus five percent. So this whip count wouldn’t necessarily apply to a weaker government plan in which rates would be negotiated. (Whether the government could fairly “negotiate” rates is another mattter). The problem is, moving to a weaker form of the government plan could win over some moderates, but also runs the risk of losing liberal members.

Snowe, Lincoln Push Back Against Gov’t Plan

Sen. Olympia Snowe has joined Joe Lieberman in vowing to support a filibuster to block a vote on a health care bill that included the government-run plan announced yesterday by Senate Majority Leader Harry Reid.

This news alone would mean that Reid doesn’t have the 60 votes he needs to proceed.

But in other news today, Arkansas Sen. Blanche Lincoln reiterated that she does not think a government plan is the way to go.

While she didn’t comment on whether or not she would go as far as to filibuster the bill, the Associated Press reports:

“Creating another government-funded option is not where we’re going. We don’t need to go there,” Lincoln told members of the Arkansas Farm Bureau during a video conference. “A government-funded option is something that I think is not the way to go.”

The problem Reid faces is that if he pulls back support for the government plan now, it will enrage liberals who will believe he’s sold them out to win the support of a few moderates. But if he charges ahead with the government plan proposal, he risks derailing the entire health care effort.

Momentum for Government Plan Stopped by Joe-Mentum

Yesterday, I wrote that Senate Majority Leader Harry Reid was taking a huge gamble by presenting health care legislation that included a government plan. Today, his bill hit a major roadblock when Sen. Joe Lieberman declared that he would outright support a filibuster of the proposal.

“I’ve told Sen. Reid that if the bill stays as it is now I will vote against cloture,” Lieberman said, according to the Politico.

Without Lieberman’s support, Reid won’t have the backing of 60 Senators he needs to bring legislation to the floor for a vote. In addition, Lieberman’s stance will take the pressure off Democrats opposed to the government plan, but torn over whether to support their party’s leadership or represent their constituents. Those Senators include Mary Landrieu of Louisiana, Ben Nelson of Nebraska, and Blanche Lincoln of Arkansas. If the bill doesn’t have the 60 votes anyway, why would these red state Senators support a bill and risk a major backlash at home?

Over the past week, the main health care story has been about the resurgence of the so-called “public option.” But this news should take some air out of that particular balloon.

Either Reid knows something that we don’t, or he just made another colossal blunder counting votes. Last week when he thought he could get 27 Republicans to support a $247 billion “doc fix” bill, but ended up losing 13 Democrats instead.

Newt Blasts Conservatives’ “Purge” Mentality

Asked about his support for liberal Republican Dede Scozzafava in the New York-23 special election, Newt Gingrich said on Fox last night:

GINGRICH: Well, there’s no question, on social policy, she’s a liberal Republican.

VAN SUSTEREN: On such as abortion?

GINGRICH: On such as abortion, gay marriage, which means that she’s about where Rudy Giuliani was when he became mayor. And yet Rudy Giuliani was a great mayor. And so this idea that we’re suddenly going to establish litmus tests, and all across the country, we’re going to purge the party of anybody who doesn’t agree with us 100 percent — that guarantees Obama’s reelection. That guarantees Pelosi is Speaker for life. I mean, I think that is a very destructive model for the Republican Party.

The problem is that Gingrich is making a valid point in general, but one that doesn’t apply in this specific instance. There’s no doubt that if you want to build a majority, you have to be willing to accept less conservative candidates in certain regions where a conservative has no chance of winning. As many problems as I have with Olympia Snowe and Susan Collins, I concede that it’s unrealistic to believe that we could get a genuine conservative Senator elected in Maine, which Obama won by 17 points. In the case of Giuliani, you were dealing with a city that hadn’t elected a Republican who remained a Republican in over 50 years. He was conservative on economic issues, and uniquely suited to deal with the most pressing problem facing the city — rampant crime. The only option was to support him, or allow David Dinkins to have another disastrous term as mayor.

But the New York Congressional race is entirely different. Scozzafava isn’t just a social liberal — she’s an economic liberal, too. She supports card check legislation that would allow labor unions to expand their ranks through intimidation. She called the cops on a conservative journalist who was asking her questions about her position on taxes. And there’s actually a conservative in the race who has a realistic chance of winning.

Gingrich made a clear mistake here. Maybe he privately realizes it, maybe he doesn’t. But his efforts to double down and explain his decision keep making him look sillier.

Washington Post Draws Attention to How AARP Would Benefit from Obamacare

Last month, I wrote about how AARP stood to benefit financially from health care legislation moving through Congress. While the group purports to represent the interests of seniors, it has given its full-throated support to Obamacare even though it would cut hundreds of billions from Medicare and older Americans remain more opposed to pending legislation than any other age group. Today, the Washington Post finally caught on, and took a closer look at the dual role the group plays as an lobbyist and an insurance company.

“We’re a consumer advocacy organization; we’re not an insurance firm,” David Certner, the group’s legislative director, told the Post.

But as the article notes, the numbers tell a different story:

AARP’s ties to the insurance business date to its founding by former educator Ethel Percy Andrus, who started a group to help retired schoolteachers find health insurance in the years before Medicare; the effort led to the creation of AARP in 1958.

Now, the group relies more than ever on payments from auto, health and life insurers, according to financial statements. From 2007 to 2008, AARP royalties from insurance plans, credit cards and other branded products shot up 31 percent — from less than $500 million to $652 million — making such fees the primary source of revenue for the group last year, the records show. AARP’s annual financial report shows that 63 percent of that, or about $400 million, came from the nation’s largest health insurance carrier, UnitedHealth Group, which underwrites four major AARP Medigap policies. Other carriers with AARP-branded plans include Aetna Life Insurance, Genworth Life Insurance and Delta Dental.

AARP has every right to lobby for legislation that would be in its financial interest — and that would be consistent with the liberal political leanings of its leadership —  but the group should at least be exposed for what it is so that we can stop pretending that they’re actually representing older Americans.

Will an Opt-Out Approach Really Give States a Choice?

While we don’t yet know the details, Senate Majority Leader Harry Reid unvieled a plan today to create a national government health care plan, but allow states to opt-out of it if they choose. While supporters of the measure have touted it as simply federalism, the reality is far different.

The problem is that even if legislation allows individual states to opt out of a government plan, any national plan will incur costs that would likely be borne by all taxpayers, regardless of whether or not their state carries the plan. For instance, any government plan would have to have initial start up costs — in the House Democrats’ bill these amount to $2 billion, which would be given to the Secretary of Health and Human Services. And if the government plan begins losing money and needs to be bailed out by the federal government, taxpayers in all states would bear the burden.

While the House bill includes a provision that would prevent a federal bailout, nobody seriously believes — especially after the events of the past year — that future lawmakers would allow a government plan with millions of beneficiaries to fail rather then pump federal money into it.

Reid Rolls the Dice

Senate Majority Leader Harry Reid just announced that the consolidated Senate health care bill would include a government plan that states would be able to opt out of by 2014.

During an afternoon news conference Reid acknowledged that inclusion of the government plan would likely mean the defection of the lone Republican who has supported this bill, Olympia Snowe. He said he was “disappointed” that the creation of a government plan “frightened” Snowe, but said he hoped she would eventually come back to supporting legislation.

By losing Snowe, Reid is taking a huge gamble that every Democrat in the chamber — even the handful opposing a government plan — will stand with him and provide the 60 votes needed to block a Republican filibuster, even if it means that some will ultimately vote against the actual bill.

Reid said he was sending the new proposals to the Congressional Budget Office for evaluation later today, but that he would not be asking them to evaluate a proposal to “trigger” a government plan if certain metrics weren’t met, which is the favored approach of Snowe.

The consolidated bill would also allow for the creation of “co-ops,” which were once viewed as a substitute for a government plan but would now be offered in addition. The “co-ops” would be non-profit insurers who would enjoy tax exempt status.

Right now, the most likely Democrats to oppose the government plan would be Mary Landrieu of Louisiana, Ben Nelson of Nebraska, and Blanche Lincoln of Arkansas, with independent Joe Lieberman being another wildcard. While Sens. Kent Conrad and Max Baucus had also opposed a form of the government plan, they would likely go along with the current bill. Baucus’s main objection to a government plan was that it wouldn’t get enough votes, but he was in the negotiations with Reid for the past several weeks, so presumably he signed off on the new proposal. And Conrad’s main objection was to a government plan based on Medicare rates, which he said would bankrupt hospitals in his state of North Dakota. Presumably, he’d be able to get behind a bill that didn’t tie payment rates to Medicare and that would allow North Dakota to opt out.

The big question is whether conservative voters in red states can put enough pressure on the remaining Democratic Senators to make them more afraid of defying their constituents than they are of defying Reid. For an idea of how much pressure red state Democrats are under over this vote, check out this article on Landrieu from the local Shreveport Times.

Reid to Announce Health Care Bill at 3:15 Press Conference

Senate Majority Leader Harry Reid has scheduled a 3:15 press conference to announce details of the consolidated Democratic health care bill he has been negotiating behind closed doors, which according to several press accounts will include a national government-plan that individual states could opt out of. The Politico reports that Reid has 56 or 57 votes for such a plan.  If this fails, Reid could support a “trigger” that would create a government plan if certain targets aren’t met, which is something Sen. Olympia Snowe supports and could get 59 votes, but is less popular among liberals. The big question is whether the handful of Democrats who oppose the government plan in some form would support a Republican filibuster, or provide the 60 votes Reid needs to bring a vote to the floor, and then vote against the final bill, which would then only need a simple majority to pass.

Medicare Official Blames Rampant Fraud on Low Admin Spending

Last Friday, I wrote an article on the main site exploring the issue of rampant Medicare fraud, noting that the problem undermines liberals’ arguments that we need a new government-run plan to bring more efficiency to the system. Last night, “60 Minutes” took up the issue, and if you haven’t seen the stunning report, I urge you to watch the video below and pass it along to all of your friends. After investigating the matter, even CBS acknowledged that it raised “troubling questions about our government’s ability to manage a medical bureaucracy.”

For the story, Steve Kroft traveled down to South Florida, where the Medicare fraud industry has become bigger than the drug trade, and visited a number of so-called clinics that billed millions of dollars to Medicare but were actually empty store fronts. He interviewed a Medicare cheat who stole $20 million from the government before getting caught, who described it as being so easy to steal that it was like “taking candy from a baby.” And the show also visited with an elderly woman who in 2003 discovered phony health care charges being paid out in her name by the federal government. Even though she has been reporting these recurring charges to the Centers for Medicare and Medicaid Services for the past 6 years, no action has been taken by the government to stop the fraudulent payments.

The most relevant moment to our current health care debate came when Kroft asked Kim Brandt, Medicare’s director of program integrity, to explain why the government couldn’t do anything to prevent the widespread fraud.

“Well, it really does come down to the size and scope of the Medicare program, and the resources that are dedicated to oversight and anti fraud work,” Brandt said. “One of our biggest challenges has been that we have a program that pays out over a billion claims a year, over $430 billion, and our oversight budget has been extremely limited.”

Liberals keep touting Medicare’s low administrative costs relative to the private sector. To start with, those estimates exclude a number of costs that show up elsewhere in the federal budget (office rent, staff salaries, the cost of raising capital through  tax collection). But to the extent that the program does have lower administrative costs, the result is far more fraud than exists in the private sector, which is more aggressive about policing claims. Estimates of the amount stolen from the government each year vary from about $60 billion to several hundred billion if you include Medicaid.


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