October 31, 2005
One liberal's positive view of Alito
Katherine (Kate) Pringle is a partner in a New York law firm. She is also a progressive Democrat who was heavily involved in John Kerry's presidential campaign. And after she graduated from law school in 1993, she spent a year working as a law clerk to Third Circuit Judge Samuel Alito, Jr.
In light of this morning's nomination of Alito to the Supreme Court, I called Pringle to get her take. The short answer: she is very pleased with the nomination. More below.
I asked Pringle to describe what kind of judge Alito is. She said that Alito is "very thoughtful, very careful, very respectful of Supreme Court precedent. He has a strong conservative intellectual approach to things, but he is respectful, honest, and straightforward." She emphasized that Alito is very respectful of the litigants in the case before the court, and also of the opinions of his colleagues - he always looks for common ground and for opportunities to build consensus. She added that he is "not out there to accomplish a specific agenda," and noted his respect for "the Supreme Court as an institution." Incidentally, Alito's "respect for litigants" was echoed in this NPR story that interviewed Clark Lombardi, also a former Alito clerk (I do not know whether Lombardi self-identifies as a liberal or a conservative). Lombardi emphasized that Alito was very aware of the "human side" of cases, and said that Alito never treated litigants as pawns in a grand ideological chess game.
I wondered what Pringle meant by a "strong conservative intellectual approach." She elaborated: "he cares a lot about the words of the statute or constitutional provision or contract" involved in the case. "He starts first and foremost with the words." Pringle added that Alito is "not interested in being expansive with judicial opinions. He decides the specific issue in front of him, and is not inclined to go beyond that."
The "deciding specific issues" approach to judicial decisionmaking has been associated with the Justice that Alito would replace, Sandra Day O'Connor. O'Connor is known for writing very narrow opinions that resolve little more than the precise set of facts presented to the Court - and some have criticized her for that practice, preferring that Justices write expansive opinions laying down broad rules for future cases. I asked Pringle whether she thought Alito was in "the O'Connor mold" in this respect. She thought that he was. She described Alito as "interested in focusing on the immediate case at hand. He is not someone who is eager to reach out and grab broad principles and institute them separate and apart from the case." I asked whether Alito might alter his case-by-case approach to judging on the Supreme Court. Pringle didn't think he would.
If you've heard any news stories about Judge Alito, you've heard that his supposed "nickname" (it remains unclear by whom it was bestowed) is "Scalito," the idea being that he's a "little Scalia." I asked Pringle if she thought this was fair to Alito. "No," she said, "I never have." Pringle noted that Scalia and Alito are of course both of Italian ancestry, are both Catholic, and are both conservative, but she thinks there are more important differences between them including temperament, personal style, and the desire (or lack thereof) to find consensus. (See also this Time article on the "Scalito" comparison. My own view, FWIW, is that this "Scalito" business is simply due to two conservative judges having Italian surnames that happen to sound similar. It is therefore insulting and juvenile and should be dropped immediately - if two Jewish judges' names were subjected to similar wordplay, the "joke" would be widely condemned as anti-semitic.)
Moving into more dangerous territory, I asked Pringle whether she had any sense of how Alito would apply stare decisis (the doctrine counseling respect for precedent) on the Supreme Court. Her view is that, because of Alito's tremendous respect for the Supreme Court as an institution, he is unlikely to overturn precedent lightly. Rather, he will grapple with existing precedent, even when he might have decided the original case differently, and will give considerable importance to the opinions and approaches of the Justices that came before him. She thought that overall Alito's approach would probably resemble that described by now-Chief Justice Roberts in Roberts' confirmation hearings. As to specifics, Pringle was not willing to hazard a guess as to whether, given the chance, Alito would vote to overrule hot-button cases like Roe v. Wade and Lawrence v. Texas.
Pringle, as I noted earlier, is a liberal Democrat. I wondered whether her ideological bent was an anomaly in Alito's chambers, or whether Alito routinely hired left-of-center law clerks. She didn't know whether Alito intentionally hires law clerks with diverse viewpoints, but she did know that she was not alone - a good number of Alito's past law clerks are far more liberal than he is. She also emphasized that Alito was always asking his clerks for their viewpoints, and that he enjoyed the debate when different opinions emerged on particular cases (this, too, was echoed in the NPR interview with ex-clerk Lombardi).
Pringle's bottom line is a pragmatic one. Of course, Alito would not have been on John Kerry's or any other Democrat's short list for the Supreme Court. But, as we all know, John Kerry didn't win in 2004, nor did the Democrats capture a majority in the Senate. Given that reality, Pringle said, "I'd rather have someone who has real intellectual ability, who has experience, who has a history of making these kinds of difficult decisions, and who has demonstrated respect for the Court as an institution, than a stealth candidate." And given the other candidates on the "conservative short list," Pringle is optimistic about Alito. She says that he will treat every case fairly, and that "we'll be proud to have him on the Court."
So there you have it: one view of the Alito nomination, from a lefty who knows him well. FWIW, I'm still undecided on this nomination, because I haven't read nearly as much as I want to read before taking a position. I'd encourage you to do the same: do at least some of the reading yourself - don't let the interest groups filter it for you. You can start with this site, which contains links to the full text of several important Alito opinions. Also, be sure to check out SCOTUSblog (starting with this post), which will be covering this nomination extensively, including detailed discussions of important cases, and which scrupulously avoids pushing an agenda in either direction.
House has released its health care bill
A couple of highlights (I haven't read the whole thing yet):
- Individual mandate is enforced by (1) a financial penalty of 50% of the smallest premium the individual would have been able to pay to maintain coverage, assessed either by reducing a tax refund or (if that's not enough) by an assessment from DOR; and (2) preventing driver's license renewal until the coverage issue is resolved.
- Businesses with 11-99 employees must pay an assessment of 3% of their payroll to the state's new "Commonwealth Care Fund" beginning on July 1, 2006; for 100 or more employees, the rate is 5%. These rates will rise to 4%/6%, and again to 5%/7%, at one-year intervals. Health care-related expenses incurred by the employer, including "an amount equal to the employer's expense for employee health benefits, including health insurance, and contributions to employee health savings accounts," will be credited against the contribution (so that if these expenses exceed the assessments, no contribution will be required).
Much, much more to come.
Lefties: hold your fire on Alito
I have no position yet on what the Democrats should do about Judge Alito's nomination to the Supreme Court. But I spoke this morning to a lawyer whom I know to be a partisan progressive Democrat who knows Alito, and who supports the nomination. I will be writing up our conversation today or tomorrow. Stay tuned.
Employers are NOT universally opposed to "pay or play"
Don't be fooled. To read the Globe articles discussing the House's health care bill, you would think that the "business community" is universally opposed to including a "pay or play" employer assessment in whatever health care legislation emerges from the State House. But it just ain't so.
I spoke at some length this morning with Phil Edmundson, CEO of William Gallagher Associates in Boston, and the co-founder of a group called Massachusetts Business Leaders for Quality Affordable Health Care (MBLQAHC). MBLQAHC is listed as a sponsor of Health Care For All's "Affordable Care Today" campaign, which is backing the Health Access and Affordability Act. And, importantly, MBLQAHC is squarely behind the idea of a "pay or play" type of assessment on businesses, whereby businesses over a certain size either provide health insurance to their employees or pay an assessment into a state fund that is used to subsidize free or low-cost health insurance (I'm oversimplifying, but that's basically the idea). While there are differences between the House bill and the HAAA, Edmundson describes the House bill generally - and its inclusion of an employer "pay or play" assessment in particular - as "a big step forward." Much more below.
Why would a coalition of business leaders (Edmundson won't say just yet who is in his coalition - he will announce his membership as part of his State House press conference at noon tomorrow) support an assessment on business?
Edmundson explains that the current system is terribly unfair to businesses who do the right thing by providing health insurance to their employees. These businesses pay not once but twice - once to cover their own employees, and again in the form of assessments to the state's Uncompensated Care Pool that reimburses hospitals for caring for uninsured patients. On the other hand, businesses that don't provide health care get off scot-free. A system better set up to encourage businesses not to provide health care seems difficult to imagine.
Edmundson also pointed out that most businesses with what he called "mobile jobs" (jobs that can be relocated outside of Massachusetts) - such as banks, insurance companies, manufacturers, and the like - already offer their employees health insurance (presumably because qualified employees expect it and will go elsewhere if they don't get it). Many of the employers that don't pay health insurance are retailers and construction contractors - and those employers can't easily relocate their jobs (as Edmundson says, if you want to pave roads or sell doughnuts in Stoughton, you've got to have people working in Stoughton). So Edmundson sees the prospect of job loss as a result of a "pay or play" assessment as minimal - the assessment will actually benefit employers who already pay for health insurance; many businesses who don't pay for health care now cannot relocate; and this plan will spread the cost of health care more equitably among all Massachusetts businesses.
I asked why the "business community" is perceived as opposed to a "pay or play" provision when it would seem to actually benefit a substantial percentage of businesses. Edmundson saw three possible reasons. First, he says, some employers who provide health insurance simply are not educated about the current system - for example, they don't understand that they pay not only for their own employees but also for the free care pool, thereby subsidizing their competitors who don't provide health insurance. Second, the business community can generally be expected to react instinctively against government regulation. Edmundson said that, being a businessman himself, he understands that instinct, but he says that it's important to take the health insurance issue in context. After all, he says, business has been dealing with worker's compensation laws and unemployment insurance laws for years, and those laws are now seen as a reasonable way of dealing with social problems that, if left unaddressed, would have morally unacceptable consequences (in the form of workers losing their jobs and facing financial ruin for reasons beyond their control). Edmundson sees health insurance as a similar situation - this sort of threshold, he says, has been crossed before. Third, Edmundson points out that employers who are now (in his words) "scamming the system" by not providing health insurance and relying on the contributions of other businesses to fund the free care pool can be expected to protest a "pay or play" provision very loudly, and it is often the loudest voices that set the terms of the debate. The point of MBLQAHC is to add some loud voices on the other side.
I asked Edmundson about the possibility of an individual mandate, and whether he thought that might make "pay or play" more palatable to business. Edmundson said he was open to the idea, though it is not part of the HAAA that MBLQAHC has formally endorsed. But he insists that an individual mandate makes no sense without ensuring that truly affordable plans are available to the individuals being forced to carry coverage - failing that, he said, an individual mandate is "a non-starter."
The support of at least some significant portion of the business community is crucial to making "pay or play" stick - a State House source told me last week (before the House announced its plan) that there was no appetite in the Senate for "pay or play" because there was no perception of any support from business. Phil Edmundson hopes to change that perception, starting tomorrow at noon when he announces who is in his coalition and what they stand for. Let's hope he succeeds.
"Guarantees are for used cars and washing machines, not Supreme Court justices," Senator Arlen Specter, the Pennsylvania Republican and chairman of the Judiciary Committee, said yesterday on CNN. Not entirely true. There is no reason Senators cannot extract a promise from judicial nominees to decide specific types of cases in specific ways before they vote to confirm them. Roberts, for example, was unnecessarily allowed to wiggle out of answers to numerous questions on grounds these subjects might come before the Court. True, the Constitution leaves judges free to decide actual cases as they think best once on the bench but violation of a general guarantee offered in a confirmation hearing could arguably be grounds for impeachment. At a minimum, getting judges to promise to decide types of cases in specific ways before confirmation by the people's representatives would set a more democratic standard for the judiciary.
Willard Weighs in for the Rich
Willard took a jog down a Cape beach in top coat and dress shoes last week to weigh in once again for the rich. The Governor spoke against the clean energy Cape Wind proposal. His Excellency was mocked by supporters of the project who carried small pinwheels. Cape Code Times reports that Willard's office, while opposing wind power on the wealthy Cape has approved permits for wind developers in the Berkshires. Meanwhile, the newspaper reported, "while Mitt was muddying the wind and the water here, Canada's wind-power capacity, already the fastest-growing form of electricity generation in Canada, took another significant step forward with the funding for two new wind-power projects in Quebec. Together, the 60 turbines at the Mount Miller and Mount Copper wind farms provide 108 megawatts of wind-energy capacity, lifting Canada's total wind-power generation capacity from 444 to more than 550 megawatts, an increase of nearly 25%."
Bush wants Alito confirmed this year
President Bush, in announcing Judge Samuel Alito's nomination, has urged the Senate to hold a vote on Alito by the end of this year. That seems very unlikely - last I heard, both Republicans and Democrats were saying that the Judiciary Committee probably would not even hold hearings before January. Bush probably would prefer to have Alito voting on the cases that the Court has already heard, rather than the arguably more centrist O'Connor, but at this point it doesn't look like that will happen.
NBC News is reporting that Sen. Schumer (D-N.Y.) is already describing Alito as a "controversial" nominee. Dems are not holding their fire on this one. Fireworks to come, no doubt.
Alito picked to replace O'Connor
Bush tried the whole "go outside the federal judiciary," "don't nominate a white male" thing once, and that didn't go so well for him. So we're back to a well-trodden path. Alito was the US attorney in New Jersey, and has been on the Third Circuit for 15 years.
Alito's most famous vote was in the case that eventually became the Supreme Court's hugely important Planned Parenthood v. Casey - Alito voted to uphold Pennsylvania's restrictive abortion law in its entirety (ultimately, the Supreme Court upheld most of the law but struck down the spousal notification part of it). But with 15 years on the court of appeals, there is a very large body of work to be pored over in the coming weeks.
Senate minority leader Harry Reid (D-Nev.) has already made loud noises against Alito, and an attempted Democratic filibuster is considered a possibility at this stage. That's going to be tough to sustain, IMHO - Alito will most likely be an impressive nominee who will do as well as Roberts did at his confirmation hearings. We'll see. The righties, incidentally, are quite pleased with this nomination.
Bush's announcement is expected at 8 a.m. Much more to come, of course.
October 30, 2005
Initial reactions to House health care plan
Here's my quick-n-dirty first take on the House's plan, to be unveiled tomorrow am. See this post for the sections to which I'm referring.
A. The expansion of MassHealth is good: It's the strategy for which we had hoped in expanding access to low-income folks -- exactly the same as the Health Access and Affordability Act. Restoration of dental services cut in 2002 is also important.
B. This creates a "purchasing mechanism" for individuals and small business to buy insurance. Now, if this creates a "pool" by which the buying power of the state is leveraged to lower rates, that's good. I'm not clear on that from the language, however.
C. "Commonwealth Care": It's a subsidized insurance program for those who are too "rich" for MassHealth (our Medicaid program) but still under 300% of poverty level. Sliding scale assistance.
D. There's that pesky personal mandate again. "Individuals for whom there are not affordable products [Who decides what's "affordable" and for what income level?] available will not be penalized." Uhh... that's good, I guess... but if there is an "affordable" product for you, you still have to pay a "penalty" based on what you would have to pay.
Look, I understand the reason why you want folks to pay in: Because otherwise the uninsured eventually end up in the hospital, and somebody pays for that care. Still, it's going to be controversial.
E. This is a good part of the plan, and one that I hope gets significant play: Currently businesses that do pay insurance have to pay into the Uncompensated Care Pool, while businesses that don't, apparently don't have to pay. In other words, there's no disincentive for not insuring your workers, while you have to pay a surcharge if you do. Obviously that's wrong, and needs to be fixed. This is a good deal for all businesses that insure their workers, and tough on those who don't. That's a positive incentive, it seems to me.
F. Addresses racial and ethnic health disparities. A-OK by me.
G. I have to say I'm pretty ignorant about the aspects that address hospital billing, though they're doubtless critical.
H. Apparently there's no extra ciggie tax or alcohol tax. The money comes from the employer assessment and tobacco settlement funds. Is this realistic?
Summary of Health Access Reform Bill
Tomorrow, 10/31, the MA House Joint Committee on Health Care Financing will approve its version of health care reform. Here's the Globe's preview. (Expect a lot of "trick or treat", "scary" clichés from the press and lobbyists. Yuk yuk.) We'll have more on this tonight and going forward -- there's a lot of good, some bad, some practical, and some improbable.
I hate pdf's because they require opening another program, and they don't really seem "interactive" enough for blogging, so I'm just cutting and pasting the entire text of their "highlights". Here's the pdf if you insist.
A) MassHealth Expansion
The bill expands MassHealth coverage for children, parents and childless adults. Currently, children in families up to 200% of the Federal Poverty Level (FPL) are eligible for MassHealth. The bill increases eligibility to children in families earning up to 300% FPL ($38,500/yr for a family of 2). MassHealth coverage for parents would be expanded from 133% FPL to 200% FPL ($32,200/yr for a family of 3).
This bill also provides MassHealth coverage for all childless adults up to 100% FPL ($9,600/yr). Currently, the majority of childless adults are not eligible for Medicaid at any income level, unless eligible because of circumstances such as disability or long-term unemployment.
The bill enhances outreach and enrollment for Medicaid-eligible families and individuals by providing support to community-based agencies for sustainable outreach programs. An additional $80 million is provided to increase Medicaid hospital rates, while keeping within the budget neutrality limits of federal financing under the new Medicaid waiver. These rate increases are tied to performance goals of quality, efficiency, and improved outcomes for patients. The bill also creates a 2-year pilot program for smoking cessation treatment for MassHealth enrollees, and restores dental services that were cut in 2002.
B) Commonwealth Health Insurance Connector
The bill creates a public, central purchasing mechanism, called the Commonwealth Health Insurance Connector. It connects individuals and small businesses with health insurance products. The Connector certifies and offers products of high value and good quality. Individuals who are employed are able to purchase insurance using pre-tax dollars. The Connector allows for portability of insurance as individuals move from job to job, and permits more than one employer to contribute to an employee’s health insurance premium. New, lower-cost, specially designed products are offered through the Connector to 19 to 26-year-olds. The Connector is to be operated by the Group Insurance Commission and overseen by a separate, appointed Board of private and public representatives.
C) Commonwealth Care Insurance Program
The bill creates a subsidized insurance program called the Commonwealth Care Insurance Program. Individuals who earn less than 300% FPL and are ineligible for MassHealth will qualify for coverage. Premiums for the program will be set on a sliding scale based on household income. The program will be operated through the Connector, and retain any employer contribution to an employee’s health insurance premium. The subsidized products must be certified by the Connector as high value and good quality.
D) Individual Investment in Health Care
The bill provides that all residents of the Commonwealth shall maintain health insurance coverage. Individuals for whom there are not affordable products available will not be penalized for not having insurance coverage. A sliding scale schedule of affordability for insurance products will be set by the Board of the Connector.
Beginning in 2007, Massachusetts residents shall confirm health insurance coverage by reporting on state income tax forms, and coverage will be verified through a database of insurance coverage for all individuals. The Department of Revenue shall enforce this provision with penalties based upon a portion of what an individual would have paid toward an affordable premium.
E) Employer Contributions to a Healthy Workforce
The bill eliminates the current $160 million Uncompensated Care Pool assessment on insurers and businesses. All businesses with more than 10 employees will make a contribution, based on their total payroll, to a new “Commonwealth Care Fund.” Businesses with 10 or fewer employees will be exempted from this contribution. Employers will receive a credit for their employee health expenses. Revenue from the assessment, along with other state and federal funds, will support the subsidized Commonwealth Care Insurance Program.
F) Reduction of Racial and Ethnic Health Disparities
The bill aims to reduce racial and ethnic health disparities by requiring hospitals to collect and report on health care data related to race, ethnicity and language. In addition, the bill creates a study of a sustainable Community Health Outreach Worker Program to target vulnerable populations in an effort to eliminate health disparities and remove linguistic barriers to health access.
G) Health Safety Net Fund
The current Uncompensated Care Pool is eliminated by this legislation. The bill maintains the safety net by creating the Health Safety Net Fund to reimburse hospitals and community health centers for uncompensated care. Hospital reimbursements will be made using a new standard fee schedule, instead of the current charges-based payment system. The plan anticipates the transfer of funds to the Commonwealth Care Insurance Program as free care use declines.
The plan leverages federal dollars to enhance and match state spending, and uses revenue generated by employer contributions to fund health insurance coverage. The bill applies tobacco settlement funds that the state receives each year toward health coverage for Massachusetts residents.