" /> Glorfindel of Gondolin: October 2005 Archives

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October 28, 2005

Who's next?

Michael McConnell, Janice Rogers Brown, Edith Brown Clement, Edith Jones and Emilio Garza have all been "ruled out" by the White House for the next Supreme Court nomination, according to an article by Jan Crawford Greenburg in the Chicago Tribune.

The most likely candidates are Samuel Alito, J. Michael Luttig, Priscilla Owen and Karen Williams, with J. Harvie Wilkinson a "less likely choice."

October 27, 2005

Good news, bad news

The world is going to hell in a handbasket. The Arctic oil drillers keep trying, and they only have to win once. The Vice-President is openly supporting torture. The drug companies are trying to scare us with written-to-order novels about poisoned Canadian drugs.

On the other hand, the Chicago White Sox have won the World Series for the first time in 88 years. Things are still OK.

October 25, 2005

Rosa Parks

Rosa Parks has died at age 92. She lived a full life, but of course we'll never forget her dignified refusal to give up her seat on the bus.

What a poisonous system that was:

On Montgomery buses, the first four rows were reserved for whites. The rear was for blacks, who made up more than 75 percent of the bus system's riders. Blacks could sit in the middle rows until those seats were needed by whites. Then the blacks had to move to seats in the rear, stand or, if there was no room, leave the bus. Even getting on the bus presented hurdles: If whites were already sitting in the front, blacks could board to pay the fare but then they had to disembark and re-enter through the rear door.
How long ago did this happen in the United States? 1955. Not very long ago at all.

Our country is poisoned by this evil history, as Katrina reminded us. We will continue to be for a long time to come. The fact that we've made the progress we have is a blessing.

October 23, 2005

Ted Stevens and america's Alaska problem

Here's what Alaska's Ted Stevens had to say on the Senate floor the other day.

"I will put the Senate on notice -- and I don't kid people -- if the Senate decides to * * *, I will resign from this body."

What could so seriously tarnish his sacred honor that Stevens would threaten to resign? It certainly isn't torture. Stevens voted in favor of giving the President carte blanche to torture detainees when he stood with only nine other senators and voted against the McCain amendment. That amendment is only a very, very modest Congressional exercise of its Constitutional responsibility to make rules for the treatment of detainees, but for Ted Stevens, it was too much.

No, Ted Stevens votes for torture, but he threatens to resign over Alaska's disproportionate share of federal pork:

I will put the Senate on notice -- and I don't kid people -- if the Senate decides to discriminate against our state and take money only from our state, I will resign from this body."

I posted a while ago about America's Alaska problem:

At times when it suits them, Alaskans like to clamor for the federal government to leave them alone. Especially when it comes to wilderness land management, politicians from Alaska can be counted on to complain loudly about "federal government meddling" in a subject that is "none of the lower-48's business." Arguments that the Alaskan wilderness jewels are truly national treasures that ought to benefit all Americans fall on deaf ears in Alaska.

When it suits them to say the opposite, though, the Alaskan politicians have no problem changing their tune. Instead of asking the government to leave Alaska alone, they demand that the federal government take extra-special care of Alaska at the rest of the country's expense. Specifically, the Alaskans are never loathe to chase after the most outrageous and embarrassing federal pork. Two egregious examples are homeland-security pork and highway-bill pork.

Back then, Alaska's politicians merely had to ignore deficits and the war in Iraq to bring home the federal bacon. Now we know that the wholesale destruction of the Gulf Coast isn't enough of an added spur to get these politicians to act like statesmen. Even after Katrina, the Alaska delegation still act like tawdry lobbyists. Our Alaska problem is deeper than we thought.

October 22, 2005

Police state?

Sometimes I think the definition of a "police state" just means a country where the government is just a little bit more intrusive than ours. The beauty of this definition is that the USA can never -- by definition -- be a police state.

The New York Times reports that internet access providers are being required to "upgrade" their systems so that the government can monitor online communications:

If law enforcement officials obtain a court order to monitor the Internet communications of someone at a university, the current approach is to work quietly with campus officials to single out specific sites and install the equipment needed to carry out the surveillance. This low-tech approach has worked well in the past, officials at several campuses said.

But the federal law would apply a high-tech approach, enabling law enforcement to monitor communications at campuses from remote locations at the turn of a switch.

It would require universities to re-engineer their networks so that every Net access point would send all communications not directly onto the Internet, but first to a network operations center where the data packets could be stitched together into a single package for delivery to law enforcement, university officials said.

I'd like to know a bit more about what this turning of switches means. The article makes it sound like every packet of internet data will be routinely sent to a government "network operations center" and that we'll have to trust the government not to turn any switches until it obtains a court order. If that's true, will there be any way to monitor the government's behavior? Will anyone be able to tell when the government is listening in?

This sounds like a setup for abuse. If all it takes to intercept emails is a "turn of a switch," I'll bet a dollar to a donut that the government won't always bother with the court order. The best we can hope for is that we can catch them when they cheat.

Residency applications

By now most of you know that I'm applying for a residency position in emergency medicine. To all of my law school classmates who were jealous of my free time when they were preparing their applications for judicial clerkships: you can gloat now.

Writing the personal statement for my residency application is not an easy thing to do.

After all, it's not really a personal statement, it's an argument. In one page or less, you've got to make the argument that you're a great candidate who is eager to learn, loves patients, is a joy to work with, and is someone who will eventually be a leader in the specialty (among other things). Of course I think I'm all that, but making the arguments on my own behalf isn't easy.

You want to make a powerful argument for yourself without sounding arrogant. You need to reassure the program faculty that although you're confident you'll realize your lofty ambitions, you haven't forgotten that the road to success is paved with patience (patients?) and hard work.

It'd be a lot easier if I could just say that I wanted to practice emergency medicine because it's fun. Even the drunks. At 3 a.m. on Saturday. After the internal medicine attending has chewed you out for what she thought was an inappropriate admission. Even after all that, it's still fun. Maybe I'll say that, too.

"But wait!" the program faculty will say to themselves. "He's too naive. He hasn't considered the fear of random malpractice suits. Silly lawyer!"

Ahem. I just hope that my recommenders don't remember any good military quotes.

October 20, 2005

Mathematical medicine?

Can medical research benefit from the insights of applied mathematicians?

The problem with medical research to date is that it isn't a mature science, the way physics is. It can draw connections, such as between obesity and lifespan, but it yields little understanding of why or how things are connected. And it can't predict outcomes.

"What we claim to have known is correlative rather than mechanistic," says Dr. Jim Keener, an expert in mathematical biology at the University of Utah who spoke at the centre's opening. "It's historical rather than predictive. It's qualitative rather than quantitative."

Mathematical medicine, which has been growing steadily in the past 10 years, promises to fill those gaps.

Prognosis has always been the achilles heel of medical science. No doubt the mathematicians will be useful, but we'll never be able to predict every outcome with certainty.

Even the physicists can't do that.

October 18, 2005

Emergency medicine and critical care

Despite the fact that emergency physicians specialize in identifying and caring for critically ill patients in the emergency department, they do not have access to certification in critical care medicine (CCM). For the benefit of patients, this should change. A few recent articles give me hope that it will.

Huang et. al., in an article published in both Annals of Emergency Medicine (46(3): 217-23) and Critical Care Medicine (33(9): 2104-9) lays out the argument. Recent studies have found that ICU patients do better (for less money) when they're cared for by a trained intensivist. The problem is that there are too few trained intensivists available. Internists, surgeons, anesthesiologists, and pediatricians, if they complete a CCM fellowship, are eligible to obtain certification in critical care, and have been for some time. But there is evidence that interest in CCM fellowships among residents in these specialties is low. At the same time, there are many emergency medicine residents who are chomping at the bit to specialize in critical care and would pursue fellowship training if they had a reasonable expectation that they'd be able to practice in the ICU. Without the ability to obtain certification in CCM, their prospects for finding such opportunities are highly uncertain.

In an editorial published in the same issue of Annals, Dr. David T. Overton writes:

There seems to be little logical rationale to limit critical care fellowship training and board certification only to graduates of internal medicine, anesthesia, general surgery, and pediatric residencies. Unlike some other subspecialties, critical care medicine has always been a multidisciplinary field. Indeed, critical care medicine has as much or more in common with emergency medicine as with these other specialties. As Huang et al point out, emergency medicine residency curricula are Residency Review Committee program requirements–mandated to include at least 2 months of critical care. In fact, they often contain considerably more (mine contains 6 months).

Drs. Somand and Zink point out in their article in Academic Emergency Medicine (12(9): 879-883) that turf wars over CCM between the new specialty of EM and other established specialties played a large part in the struggle to achieve primary board status for emergency medicine. Basically, the American Board of Internal Medicine agreed to support the American Board of Emergency Medicine's petition for primary board status only after ABEM had agreed not to pursue authorization to issue certification in critical care. The history of these turf wars are fascinating, but it reveals that there isn't much patient-care justification for excluding EM physicians from CCM certification.

As I read Somand and Zink's history, these turf wars arose because of the fear that emergency medicine physicians would start to horn in on in-hospital continuous care at the expense of internists. Well, now that we have several decades of experience with emergency medicine as a recognized specialty, I think we can put that fear to bed. EM residents go into EM because, among other things, they want to care for critically-ill patients in the ED. (If they wanted to do what most internists do, they'd have become internists.) The ICU is a quintessentially interdisciplinary place, so it's no surprise that some significant subset of EM residents would want to extend their practice to that arena. At a time when too few internists, surgeons, and anesthesiologists are specializing in ICU care, it's absurd not to welcome the emergency physicians aboard.

October 17, 2005


The Chicago White Sox have won the ALCS!

I'm not an American League guy, but for the first time in a really long time, I actually care about the outcome of the World Series. Go White Sox!

October 16, 2005

"Financial decadence" leads to cancellation of prom

Kenneth Hoagland, the principal of swanky Kellenberg Memorial High School in New York, has cancelled the prom:

"It is not primarily the sex/booze/drugs that surround this event, as problematic as they might be; it is rather the flaunting of affluence, assuming exaggerated expenses, a pursuit of vanity for vanity's sake -- in a word, financial decadence," Hoagland said, fed up with what he called the "bacchanalian aspects."

My first reaction is, "good for him!" It's about time someone makes a moral protest against something other than sex, booze, or drugs.

October 13, 2005

Stop trusting Bush about "enemy combatants"

Let's quickly tick off some recent instances where our trust in George W. Bush may have been misplaced. We trusted Bush to take homeland security seriously, and he gave us Michael Brown. We trusted Bush when he told us that Iraq was an imminent threat because of its WMDs, but there were no WMDs. Bush is now asking us to trust him about Harriet Miers, and for good reason, many of us aren't. Why, then, should we continue to trust him about Guantanamo?

Former Solicitor General Seth Waxman gave a lecture at the law school this week. He discussed the role of the judicial branch in the "Global War on Terrorism" (which he helpfully informed us is often abbreviated "GWOT") and suggested that the country might be better off if the courts changed their approach. Along the way, he read a chilling transcript from a hearing for a prisoner in Guantanamo that should make us all question the deference we've been willing to give to George W. Bush.

Waxman's argument was that the courts need to be more provocative in the face of an executive branch that has consistently staked out a "maximalist" view of its authority to direct the war on terror, and a Congress which has "fallen deafeningly silent" on the issue since it passed the Authorization for the Use of Military Force (AUMF) right after September 11.

The Bush administration has consistently maintained that it alone has the authority to decide what will be done with detained enemy combatants, even when these are U.S. citizens detained on U.S. soil. Neither the judicial nor the legislative branch, according to the Bush administration, has much of a role to play. We've seen the administration again and again take the position that enemy combatants have no right to any relief or substantive review of their treatment by the courts. But Bush has also threatened to veto the military appropriations bill passed last week in the Senate in part because it includes the McCain amendment, a modest response by Congress to the shame of Abu Ghraib to make rules for the treatment of detainees. Bush would keep Congress on the sidelines despite the Constitution's Art.I, Sec. 8, cl. 11 (giving Congress the power to "declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water") and Art. I, Sec. 8, cl. 14 (Congress has the power "To make Rules for the Government and Regulation of the land and naval Forces").

The administration is telling us to trust the President about the constitutionality of his actions both with regard to detainees and to the other branches of government. We might be prepared to do this if it was for a limited time, or if we were clearly in a war, or if he hadn't betrayed our trust in Iraq. But none of these things are true: the "war on terrorism" is endless; it's hard to believe we're in a real war when Bush himself asks for no domestic sacrifice and continues to play politics as usual; and Bush clearly mislead us, if he didn't outright lie, about the threat from Iraq. Toss in the evidence from Abu Ghraib and Guantanamo that detainees are being mistreated (to what national security end?) and the case for trusting Bush to wage this "GWOT" all by his lonesome is virtually nonexistent.

Waxman suggested that we might have been better off had the Supreme Court signed on to Justice Scalia's opinion in Hamdi v. Rumsfeld. There, Scalia wrote that unless Congress suspended the writ of habeas corpus, the only thing the government could do with an American citizen captured abroad and held in the U.S. was to charge him with a crime or release him. This, Waxman suggested, would have provoked the Congress to take its Constitutional obligations seriously, and to start making rules for the "War on Terrorism."

To demonstrate the kind of due process that the Bush administration thinks is acceptable for Guantanamo detainees, Waxman read a portion of a transcript from a military hearing that was cited at length in the publicly-available version of Judge Green's opinion in In re Guantanamo Detainee Cases, 355 F.Supp. 2d 443, 470 (D.D.C. 2005):


"The inherent lack of fairness of the CSRT's [Combatant Status Review Tribunal] consideration of classified information not disclosed to the detainees is perhaps most vividly illustrated in the following unclassified colloquy, which, though taken from a case not presently before this Judge, exemplifies the practical and severe disadvantages faced by all Guantanamo prisoners. In reading a list of allegations forming the basis for the detention of Mustafa Ait Idr, a petitioner in Boumediene v. Bush, 04-CV-1166 (RJL), the Recorder of the CSRT asserted, "While living in Bosnia, the Detainee associated with a known Al Qaida operative." In response, the following exchange occurred:

Detainee: Give me his name.

Tribunal President: I do not know.

Detainee: How can I respond to this?

Tribunal President: Did you know of anybody that was a member of Al Qaida?

Detainee: No, no.

Tribunal President: I'm sorry, what was your response?

Detainee: No.

Tribunal President: No?

Detainee: No. This is something the interrogators told me a long while ago. I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person, but not if this person is a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team. But I do not know if this person is Bosnian, Indian or whatever. If you tell me the name, then I can respond and defend myself against this accusation.

Tribunal President: We are asking you the questions and we need you to respond to what is on the unclassified summary. . . .

Detainee: ... The only thing I can tell you is I did not plan or even think of [attacking the Embassy]. Did you find any explosives with me? Any weapons? Did you find me in front of the embassy? Did you find me in contact with the Americans? Did I threaten anyone? I am prepared now to tell you, if you have anything or any evidence, even if it is just very little, that proves I went to the embassy and looked like that [Detainee made a gesture with his head and neck as if he were looking into a building or a window] at the embassy, then I am ready to be punished. I can just tell you that I did not plan anything. Point by point, when we get to the point that I am associated with Al Qaida, but we already did that one.

Recorder: It was [the] statement that preceded the first point.

Detainee: If it is the same point, but I do not want to repeat myself. These accusations, my answer to all of them is I did not do these things. But I do not have anything to prove this. The only thing is the citizenship. I can tell you where I was and I had the papers to prove so. But to tell me I planned to bomb, I can only tell you that I did not plan.

Tribunal President: Mustafa, does that conclude your statement?

Detainee: That is it, but I was hoping you had evidence that you can give me. If I was in your place--and I apologize in advance for these words--but if a supervisor came to me and showed me accusations like these, I would take these accusations and I would hit him in the face with them. Sorry about that.
[Everyone in the Tribunal room laughs.]

Tribunal President: We had to laugh, but it is okay.

Detainee: Why? Because these are accusations that I can't even answer. I am not able to answer them. You tell me I am from Al Qaida, but I am not an Al Qaida. I don't have any proof to give you except to ask you to catch Bin Laden and ask him if I am a part of Al Qaida. To tell me that I thought, I'll just tell you that I did not. I don't have proof regarding this. What should be done is you should give me evidence regarding these accusations because I am not able to give you any evidence. I can just tell you no, and that is it.

The laughter reflected in the transcript is understandable, and this exchange might have been truly humorous had the consequences of the detainee's "enemy combatant" status not been so terribly serious and had the detainee's criticism of the process not been so piercingly accurate [footnotes omitted]."

One can only guess whether the redacted portions of the opinion contain anything more shameful and embarrassing.

October 09, 2005

Rush in Rio

Note: All of you out there who aren't Rush fans, and who don't understand why anyone would be, can stop reading now. The rest of you can follow me. . . .

Rush in Rio DVD

Last night I sat down and watched the Rush in Rio DVD for the first time. I thought it was a fantastic show -- although I have to say I miss the Miami Vice jackets from the Grace Under Pressure VHS. All that clean living has caught up with the band members, who still look like they're in great shape. It'll be cool in another ten years to see Alex up there with a big bald spot on the back of his head.

Some of the reviews on Amazon complained about the sound quality of this DVD, but I thought it was great. The guitar sounded a little muddy on a few songs, but I think that may be because it's amped with a lot heavier bass for these live shows than it is for the studio recording. That flaw (if it is one) was more than compensated for by the guitar solo on "Freewill."

One of the best things about seeing Rush these days is the range of the songs they can play, from early songs like "By-Tor and the Snow Dog," obviously the product of youthful early '70s enthusiasm:

Across the River Styx, out of the lamplight
His nemesis is waiting at the gate
The Snow Dog, ermine glowing in the damp night
Coal-black eyes shimmering with hate

By-Tor and the Snow Dog
Square for battle, let the fray begin

all the way up to "Earthshine," obviously written by guys in their 40s who could write something like "By-Tor" when they were young:

On certain nights
When the angles are right
And the moon is a slender crescent

Its circle shows
In a ghostly glow
Of earthly luminescence

That song makes the hair on the back of my neck stand up, probably because it brings back memories of staring at the moon on stormy nights during my NOLS course.

It's also good to see some of the newer stuff that Rush does on stage these days, like the acoustic Geddy/Alex duet on "Resist," or the strangeness in "La Villa Strangiato" that includes Alex Lifeson introducing himself as Stan Getz.

I guess this DVD just makes me feel lucky that my youthful enthusiasm was directed at a rock band that's chosen to stick together for so long, and one that's still putting out great new songs and great live shows. By I try not to parade it around too much, lest my non-Rush fan friends get all jealous and stuff.

October 07, 2005

I will now link approvingly to Ann Coulter

I know my friends can hardly believe it.

However -- this Ann Coulter article about the Miers nomination is laced with delights.

Unfortunately for Bush, he could nominate his Scottish terrier Barney, and some conservatives would rush to defend him, claiming to be in possession of secret information convincing them that the pooch is a true conservative and listing Barney's many virtues -- loyalty, courage, never jumps on the furniture ...

I love to see Ann Coulter taking her rhetorical knife to fellow conservatives. At least Coulter realizes that fawning deference is an embarrassing thing to watch, no matter who's doing it.

Here, Coulter deftly explains why people like Hugh Hewitt and the nine republican senators who voted against the McCain amendment can plausibly be accused of "fawning deference" to George W. Bush:

First, Bush has no right to say "Trust me." He was elected to represent the American people, not to be dictator for eight years. Among the coalitions that elected Bush are people who have been laboring in the trenches for a quarter-century to change the legal order in America. While Bush was still boozing it up in the early '80s, Ed Meese, Antonin Scalia, Robert Bork and all the founders of the Federalist Society began creating a farm team of massive legal talent on the right.

Somebody tell that to Sen. Wayne Allard, please. But this next bit from Coulter is even more brilliant. Well, maybe it isn't brilliant, but when no one else is saying it, it looks really really smart:

To be sure, if we were looking for philosopher-kings, an SMU law grad would probably be preferable to a graduate from an elite law school. But if we're looking for lawyers with giant brains to memorize obscure legal cases and to compose clearly reasoned opinions about ERISA pre-emption, the doctrine of equivalents in patent law, limitation of liability in admiralty, and supplemental jurisdiction under Section 1367 -- I think we want the nerd from an elite law school. Bush may as well appoint his chauffeur head of NASA as put Miers on the Supreme Court.

ERISA preemption! Yes! Coulter reminds us that the Supremes do a lot of nitty-gritty work that puts most the political zealots on the left and on the right to sleep. Any monkey can overturn Roe v. Wade. Only a smart, qualified Justice can do a good job with ERISA (and sometimes even they have trouble).

Coulter even manages to get her licks in on the subject of law school rankings:

Harriet Miers went to Southern Methodist University Law School, which is not ranked at all by the serious law school reports and ranked No. 52 by US News and World Report.

Like I said, brilliant. I don't doubt that my friends will all forgive me.

October 06, 2005

Is the University of Chicago "socially irrelevant"?

Crescat Sententia's Sudeep Agarwala cites approvingly to a New Yorker article by Malcolm Gladwell in which the University of Chicago is described as "socially irrelevant":

Should our goal be to select a student body with the highest possible proportions of high-ranking students, or should it be to select, within a reasonably high range of academic ability, a student body with a certain variety of talents, qualities, attitudes, and backgrounds?” Wilbur Bender asked. To him, the answer was obvious. If you let in only the brilliant, then you produced bookworms and bench scientists: you ended up as socially irrelevant as the University of Chicago (an institution Harvard officials looked upon and shuddered).

I'm not sure what exactly this is supposed to mean. I'll ignore for the time being that it isn't at all obvious that Chicago has been more obsessed with "brilliance" at the expense of other qualities than Harvard has -- if anything, the opposite is true.

But it can't possibly mean that Chicago is societally irrelevant. Its extraordinary influence in economics is well-known. No one can say the free-market slant of "Chicago school" economics hasn't had a profound effect on domestic politics and policy, and on the policies of foreign nations (especially in latin america). Is Chicago's influence in the physical sciences "irrelevant?" Have you heard of self-sustaining nuclear reactions, and their possibly influential role in the development of nuclear weapons?

Perhaps Sudeep means to say that no one would make a movie like Legally Blonde where the main character goes to law school at the University of Chicago. Yeah, yeah; that must be it.

Bush speech about "War on Terror" today

President Bush is going to give a speech today about the "war on terror." If nothing else, it's timely.

The Senate seems to be growing a spine (by a vote of 90-9) on the issue of torturing prisoners, and our military leaders are sounding a lot less sanguine about the situation in Iraq than Bush is. Bottom line is, Bush needs to start saying more than just "stay the course" and "trust me." He needs to start making arguments for his own positions, which look more absurd by the day. And no; "I know her/his/its heart" is not an argument.

These are the nine senators who voted to give Bush carte blanche to torture prisoners:

Allard (R-CO)
Bond (R-MO)
Coburn (R-OK)
Cochran (R-MS)
Cornyn (R-TX)
Inhofe (R-OK)
Roberts (R-KS)
Sessions (R-AL)
Stevens (R-AK)

The Allard vote is yet another indication that Colorado's mild-mannered senior senator is on the extreme fringe of rabid Bush supporters. I'd like to ask the same question of Allard that I have of Hugh Hewitt: what would it take to convince you that Bush can make mistakes?

October 05, 2005

Yummy food

Go check out some pictures of the meal that Heidi made yesterday. (I helped with the gazpacho.)

October 03, 2005

Let's all just trust him

In his post entitled "Do You Trust Him?" Hugh Hewitt attempts to placate conservatives disappointed with the Miers nomination by posing the following rhetorical question:

Wake up people: Do you really think W is going to elevate a friend who doesn't agree with him on the crucial issues of the day just because she's a friend?

Come on, Hugh. Everyone knows that there is no such thing as a person who simultaneously a) is a friend of George W. Bush, and b) disagrees with Bush on the crucial issues of the day.

The reason the hard-right social conservatives are worried about Miers is that, for good reason, they're beginning to doubt whether Bush is committed to anything beyond loyalty to his friends. If he did (these conservatives reason), Bush should have passed up a loyal friend with an asshat resume in favor of a McConnell or a Luttig -- a competent person with a proven record of supporting socially conservative values.*

The real gripe that Hewitt has with conservatives who don't like Miers is betrayed by the title of his post. Hugh Hewitt trusts Bush, and he thinks everyone else ought to trust him as well. Never mind Michael Brown; never mind Bush's willingness to tolerate the abasement of our armed forces by condoning torture in Guantanamo and Abu Ghraib. One wonders how bad Bush's performance would have to get before Hugh Hewitt would stop blindly trusting George W. Bush.

I suspect that this overenthusiasm for Bush is behind Hewitt's drivel about Miers being an "Article II-inclined justice" (whatever that means) who understands the "GWOT" (conservative code for "global war on terror"). Apparently, Hewitt thinks the best way to win the GWOT is to let a strong President do what he wants, and for the Article I and Article III branches of our government to get out of the way. I think that's just ridiculous, but it certainly does reinforce the impression that a nation of Hugh Hewitts would be a nation that would turn to fascism to defeat terrorism.

* I put aside the question about whether it makes sense to talk this way about judges.

Miers: Bush crony?

We'll learn more about Harriet Miers in the next few weeks. But at first glance, she looks like an underqualified Bush crony.

It's not that she's unqualified; she's had a long career as a lawyer and it seems to have been a reasonably successful one. It's when you compare Miers with the other qualified candidates that she looks like a lightweight.

Bush could have chosen a competent and widely respected conservative like Michael McConnell. He could have chosen a competent and very devisive conservative like J. Michael Luttig. But no -- Bush passed over all these leading lights of conservative jurisprudence to nominate one of his friends from Texas.

Senate Democrats and those Republicans who value competent governance over blind party loyalty should tell Bush to find somebody else. We've seen what damage this president's crony picks can do to an agency like FEMA. None of us want a Michael Brown on the Supreme Court.

October 02, 2005

Health care priorities

Health care resources, as we all know, are scarce. How has our country chosen to distribute these resources?

In Michigan, family medicine is "dying" as medical students are lured away from primary care.

More than a quarter of Michigan's 12,700 primary care physicians are at retirement age, according to a recent report from the Michigan State Medical Society. At the same time, today's medical students are being lured to specialty fields that promise better pay, more manageable hours and the chance to work with flashy new technologies and treatments. (Via Kevin, M.D.)

At the same time in California, EM physicians are finding it harder and harder to find specialists who will care for their patients:

Hospitals are paying $600 million a year to ensure that on-call physicians are available - and still some communities are having problems finding specialists," Emerson said.

Kivela said that if a patient shows up at the emergency room with a broken jaw and has no insurance, the emergency room physician has a dreadful task of finding an oral surgeon willing to come in and take the case.

"I'll have to call eight or 10 different doctors," he said. "I'll spend two hours making these calls while a bed is taken up in the emergency room while sick patients wait." (Via Symtym.)

This may be absurd, but it's not chaotic. We have a system that draws money and talent away from the most cost-effective fields of primary care and into the less cost-effective specialties, while this same system also makes it more and more difficult for a patient to gain access to those specialists. It's no wonder that our country performs so poorly on virtually all measures of public health like life expectancy and infant mortality.

Of course, we haven't gotten here by accident. We've chosen to endure these piss-poor public health results because we don't want to disturb our unquestioned ability to provide the world's best high-tech medical care to those patients who can afford to pay for it themselves.

We've chosen to lower medicaid and medicare payments to primary care physicians because we're both unwilling to bear the tax burdens of these redistributive public health programs, and we prefer to spend what tax revenue we do collect on the development of high-tech medical treatments. These high-tech solutions are favored by the private sector because they're a lot more lucrative than low-tech primary care. We've chosen to funnel our finite amount of health care resources into the pockets of pharmaceutical companies, medical device manufacturers, hospitals, and specialist physicians who primarily treat the wealthy self-insured. This has been at the expense of cost-effective primary care and low-income chronically ill patients.

Is this a good thing? Some of us think not. More of us -- at least to the extent that our policies reflect our democratic preferences -- think it is.

October 01, 2005

Tort reform and HMOs

Most physicians who talk about "tort reform" today are talking about changing the mechanics of malpractice suits against doctors. I wonder, though, whether we're not overlooking some important issues that have nothing to do with malpractice liability caps.

Dr. Wax says the following:

Managed care plans require that a physician accept all patients who choose him, dictate how often he may see the patient, the amount he'll be paid and when, and, in many instances, what he can prescribe. They can rescind previously paid compensation at will, and do. In reality, HMOs are practicing medicine since they must approve every test, course of treatment, and referral to a specialist, yet they are rarely, if ever, legally responsible. Meanwhile, the physician is left to suffer the consequences of any malpractice suit.

Back in the late 90s this kind of complaint seemed to be a lot more common. Now, though, you almost never hear it anymore. The only issue that seems to matter these days is malpractice reform, specifically liability caps and the rising cost of malpractice insurance. What ever happened to the HMOs?

It might be that most HMOs have eased up on their oversight of physician decisions and moved away from the most intrusive forms of utilization review. It might be that physicians have accommodated themselves to making treatment decisions within the boundaries set by the patient's health plan administrator. The problems with HMOs might be as bad as they ever were, but the problems with malpractice premiums may have gotten so much worse that physicians feel they need to deal with this problem first and postpone their battles with the HMOs until later.

The fact is, though, that an HMO's legal ability to pressure physicians about patient-specific medical decisions remains largely intact. An HMO's immunity from liability for its participation in medical decisions also remains intact. The physician remains liable for the consequences of treatment decisions that he or she may not be solely responsible for making. If a patient has a bad outcome and wants to sue someone, in most cases the only readily available target is the physician.

It is true that the physician remains the only individual authorized by his license to order a particular treatment. But this doesn't mean that medical decisions are made solely by the physician. When an HMO utilization review concludes that a physician's choice of treatment will not be covered, the practical effect is almost always that the physician must select another treatment or the patient will not receive any treatment at all. When the HMO denies one treatment and simultaneously offers to approve an alternative treatment after reviewing the details of the patient's medical record, the HMO is even more directly implicated in the medical decision. The HMO's power under the health plan documents to pay or not to pay for a particular treatment is every bit as consequential as the physician's power under his license to order the treatment (at least for expensive treatments that the patient cannot pay for directly).

Solely as a matter of accountability, we still need to reform the current laws that make HMOs virtually immune to patient lawsuits. But there may be additional reasons for reforming these laws that relate to the current hubbub over physician malpractice premiums. If injured patients could go after their HMO, many of them might choose this route instead of concentrating on their physician. It's at least an interesting empirical question: how many malpractice lawsuits against physicians have been filed or continued in part because the patient's HMO was unavailable as a legal target? If HMOs could be held accountable in court, fewer physicians might be scapegoated in court.

Of course, exposing HMOs to liability might cause them to exercise more intrusive control over physician practice. This argument was made by the AMA in the context of a proposal to impose enterprise liability on health plans and hospitals that was part of an early draft of Clinton's health care reform legislation. Is it valid? Even if it is, would it result simply in more intrusion by HMOs into medical decision-making, or a shift of the focus of those intrusions from cost-containment exclusively to some combination of cost-containment and quality assurance? If the latter, that might not be such a bad thing for patients.