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Obama’s Last Years Will Be His Most Interesting

By Cass Sunstein, Bloomberg News (TNS)

Here’s a quiz. Why did President Barack Obama take steps to normalize relations with Cuba? (a) To polish his legacy. (b) To improve the position of the Democratic Party for the 2016 election. (c) To weaken the Cuba lobby. (d) To show leadership. (e) None of the above.

If you answered anything other than (e), you’re wrong.

Here’s another one. Why did Obama initiate immigration reform on his own? (a) To punish the Republican Party, which repeatedly blocked legislation on that question. (b) To improve his sagging approval ratings. (c) To secure the Hispanic vote for the Democratic Party. (d) To polish his legacy. (e) None of the above.

Here again, (e) is the right answer.

On both Cuba and immigration, Obama isn’t taking action out of concern for politics or for his legacy. He’s taking action because these are things he actually cares about, and time for action will soon start to become scarce. In the 2008 campaign, he made it altogether clear that he wanted to start normalizing relations with Cuba. Immigration reform has long been among his highest priorities. No one should have doubted that, if Congress failed to act, he would do whatever he could to achieve that reform.

Obama is now entering the fourth quarter of his presidency and, as he recently said, “Interesting things happen in the fourth quarter.” In politics as in football, what makes the fourth quarter interesting is straightforward: an increased sense of urgency.

Especially in his early years, any president has to engage in a lot of priority-setting in order to decide what to press today, this month, this quarter, or this year, and what to put on hold. (Every White House has its own shorthand for this process, such as “mañana” or “kick the can.” I worked in the Obama administration during the first term, and I certainly heard both phrases.) If the preparatory work or negotiation isn’t yet complete for a desired policy — as it apparently was not, until recently, with Cuba — postponement will be inevitable. And if political constraints, such as imminent midterm elections, seem to counsel delay, then there might well be delay (as was apparently the case with immigration reform).

As a result, those who support particular causes are often greatly frustrated, accusing the president, or influential people within the administration, of not caring about those causes. They’re often wrong. The problem typically lies not in indifference but in the constraints imposed by priority-setting and politics.

With two years left in a presidency, both of those constraints start to weaken. If you have ten things do, you are less likely to delay five of them if “later” means “never.” And if you don’t have to worry about your re-election, or about working to keep a house of Congress in your party’s hands, short-term political calculations recede in importance.

To the extent that the Obama administration has recently focused on environmental issues, above all climate change, it isn’t because of a desire to appeal to the base, to retain the presidency in 2016, to punish the Republican Party, or to create a legacy. It’s because reducing the risks associated with climate change is a high priority for the president, and if significant further steps are to be taken (such as regulation of power plants), they must be taken soon.

To the extent that the administration is now focusing on college education, manufacturing and housing, it’s because those are also high-priority issues, and time for significant initiatives is limited.

When a quarterback increases his focus in the fourth quarter, and marches his team down the field, he’s unlikely to be focusing on his legacy. In fact, that would be a ridiculous and probably self-defeating thought. He’s in the moment, and he wants to win the game. Any president, faced with an ever- shortening time in office, seeks to do the political equivalent, which is to try to put policies in place that fit with his deepest convictions. That’s what we should expect in the next two years.

Cass Sunstein is a Bloomberg View columnist. Readers may send the author email at csunstein1@bloomberg.net.

Photo: President Barack Obama talks on the phone with Alan Gross, who was en route to the United States from Cuba, in the Oval Office, Dec. 17, 2014. (Official White House Photo by Pete Souza)

Political Party Prejudice Is Bigger Than Racism

Sept. 22 (Bloomberg View) — If you are a Democrat, would you marry a Republican? Would you be upset if your sister did?

Researchers have long asked such questions about race, and have found that along important dimensions, racial prejudice is decreasing. At the same time, party prejudice in the U.S. has jumped, infecting not only politics but also decisions about dating, marriage and hiring. By some measures, “partyism” now exceeds racial prejudice — which helps explain the intensity of some midterm election campaigns.

In 1960, 5 percent of Republicans and 4 percent of Democrats said that they would feel “displeased” if their son or daughter married outside their political party. By 2010, those numbers had reached 49 percent and 33 percent. Republicans have been found to like Democrats less than they like people on welfare or gays and lesbians. Democrats dislike Republicans more than they dislike big business.

Consider one of the most influential measures of prejudice: the implicit-association test, which is simple to take. You see words on the upper corners of a screen — for example, “white” paired with either “good” or “bad” in the upper left corner, and “black” paired with one of those same adjectives in the upper right. Then you see a picture or a word in the middle of the screen — for example, a white face, an African-American face, or the word “joy” or “terrible.” Your task is to click on the upper corner that matches either the picture or the word in the middle.

Many white people quickly associate “joy” with the upper left corner when it says “white” and “good” — but have a harder time associating “joy” with the left corner when the words there are “black” and “good.” So too, many white people quickly associate “terrible” with the left corner when it says “black” and “bad,” but go a lot more slowly when the left corner says “white” and “bad.”

To test for political prejudice, Shanto Iyengar and Sean Westwood, political scientists at Stanford University, conducted a large-scale implicit association test with 2,000 adults. They found people’s political bias to be much larger than their racial bias. When Democrats see “joy,” it’s much easier for them to click on a corner that says “Democratic” and “good” than on one that says “Republican” and “good.”

To find out whether such attitudes predict behavior, Iyengar and Westwood undertook a follow-up study. They asked more than 1,000 people to look at the résumés of several high-school seniors and say which ones should be awarded a scholarship. Some of these resumes contained racial cues (“president of the African-American Student Association”) while others had political ones (“president of the Young Republicans”).

Race mattered. African-American participants preferred the African-American candidates 73 percent to 27 percent. Whites showed a modest preference for African-American candidates, as well, though by a significantly smaller margin. But partisanship made a much bigger difference. Both Democrats and Republicans selected their in-party candidate about 80 percent of the time.

Even when a candidate from the opposing party had better credentials, most people chose the candidate from their own party. With respect to race, in contrast, merit prevailed.

In a further test of political prejudice, Iyengar and Westwood asked 800 people to play the trust game, well known among behavioral scientists: Player One is given some money (say, $10) and told that she can give some, all or none of it to Player Two. Player One is then told that the researcher will triple the amount she allocates to Player Two — and that Player Two can give some of that back to Player One. When Player One decides how much money to give Player Two, a central question is how well she trusts him to return an equivalent or greater amount.

Are people less willing to trust people of a different race or party affiliation? The researchers found that race didn’t matter — but party did. People are significantly more trusting of others who share their party affiliation.

What accounts for the explosive growth of political prejudice? Modern campaigns deserve some of the blame. Iyengar and his colleagues show that when people are exposed to messages that attack members of the opposing party, their biases increase. But the destructive power of partyism is extending well beyond politics into people’s behavior in daily life.

Photo: Frank Vest via Flickr

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Greatest Win For Gay Marriage Is Just Two Words

The movement for marriage equality last week received its greatest legal victory. Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit, wrote a powerful opinion ordering Indiana and Wisconsin to recognize same-sex marriages. In the process, he eviscerated the states’ efforts to defend their discriminatory laws.

The author matters in this case. Posner was appointed by Ronald Reagan, and he isn’t known for favoring an active judicial role or for thinking that courts should promote social change. He is also widely admired, and probably counts as the most influential lower court judge of the past 50 years. When he speaks, people listen.

To understand his opinion, it is important to distinguish among three quite different objections to laws forbidding same-sex marriage.

The first is that they interfere with the right to marry. On this view, under the Constitution’s due process clause, that right is fundamental, so states can’t interfere with it without a “compelling justification” (for example, to prevent marriages between parents and children).

The second is that because gays and lesbians have been subject to pervasive prejudice and hostility, and because sexual orientation is immutable, any form of discrimination against them is “suspect” under the equal protection clause — which means, again, that it can’t be allowed without a compelling justification.

The third, and simplest, argument is that laws against same-sex marriage lack any reasonable basis, so they violate the equal protection clause for being “irrational.”

Judge Posner embraced the second argument, but in the end, his opinion rested on the third.

Indiana offered just one rationale for limiting marriage to opposite-sex couples: essentially, that marriage is meant to enhance the welfare of children by reducing the risk that, in cases of “accidental births,” men will avoid taking responsibility for them. Marriage, Indiana argued, channels “unintentionally procreative sex” into a legal relationship, in which the biological father is required to assume responsibility. Because same-sex relationships can’t produce accidental births, there is no reason for marriage.

Posner had a field day with that argument. “Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”

Indiana’s argument was undermined by the fact that the state allows infertile couples to marry. Indeed, it allows first cousins to marry if they are over 65 years old, apparently because by that age, women are infertile.

If Indiana really wanted to address the problem of accidental births by ensuring that children are in stable homes, Posner added, it should promote, rather than forbid, same-sex marriages. After all, same-sex couples adopt children, and the state already presumes that children’s prospects are improved when their parents are married.

Wisconsin, for its part, emphasized that its prohibition was the product of the democratic process (a popular vote). Posner’s response was crisp: “Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”

Wisconsin pointed as well to tradition, but in Posner’s view, a tradition is a fact, not a justification. Wisconsin added that it wanted to “go slow,” because same-sex marriages might transform a “cornerstone of civilization and society.” But the state provided no evidence, or any reason to believe, that allowing such marriages would transform anything.

Posner emphasized that forbidding same-sex couples from marrying “imposes a heavy cost, financial and emotional, on them and their children.” In the most original part of his opinion, he turned the child-welfare argument on its head: “By denying marital rights to same-sex couples it reduces the incentive of such couples to adopt unwanted children and impairs the welfare of those children who are adopted by such couples.”

Posner’s opinion is uncharacteristically lengthy, but its most memorable words are just two: “Go figure.” With each decreasingly plausible effort to defend prohibitions on same-sex marriages, that may remain the best response.

AFP Photo/Scott Olson

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How To Spot A Paranoid Libertarian

Jan. 30 (Bloomberg) — In a recent essay in the New Republic, Princeton University historian Sean Wilentz contends that Edward Snowden, Glenn Greenwald and Julian Assange reflect a political impulse he calls “paranoid libertarianism.” Wilentz claims that far from being “truth-telling comrades intent on protecting the state and the Constitution from authoritarian malefactors,” they “despise the modern liberal state, and they want to wound it.”

Wilentz gives credit to Richard Hofstadter for the term “paranoid libertarianism,” but he is being generous. Although Hofstadter wrote an influential essay called “The Paranoid Style in American Politics,” he didn’t call special attention to its libertarian manifestation. Wilentz has performed an important public service in doing exactly that.

Most of Wilentz’s essay focuses on Snowden, Greenwald and Assange, and he offers a lot of details in an effort to support his conclusions about each of them. But let’s put the particular individuals to one side. Although Wilentz doesn’t say much about paranoid libertarianism as such, the general category is worth some investigation.

It can be found on the political right, in familiar objections to gun control, progressive taxation, environmental protection and health care reform. It can also be found on the left, in familiar objections to religious displays at public institutions and to efforts to reduce the risk of terrorism. Whether on the right or the left, paranoid libertarianism (which should of course be distinguished from libertarianism as such) is marked by five defining characteristics.

The first is a wildly exaggerated sense of risks — a belief that if government is engaging in certain action (such as surveillance or gun control), it will inevitably use its authority so as to jeopardize civil liberties and perhaps democracy itself. In practice, of course, the risk might be real. But paranoid libertarians are convinced of its reality whether or not they have good reason for their conviction.

The second characteristic is a presumption of bad faith on the part of government officials — a belief that their motivations must be distrusted. If, for example, officials at a state university sponsor a Christian prayer at a graduation ceremony, the problem is that they don’t believe in religious liberty at all (and thus seek to eliminate it). If officials are seeking to impose new restrictions on those who seek to purchase guns, the “real” reason is that they seek to ban gun ownership (and thus to disarm the citizenry).

The third characteristic is a sense of past, present or future victimization. Paranoid libertarians tend to believe that as individuals or as members of specified groups, they are being targeted by the government, or will be targeted imminently, or will be targeted as soon as officials have the opportunity to target them. Any evidence of victimization, however speculative or remote, is taken as vindication, and is sometimes even welcome. (Of course, some people, such as Snowden, are being targeted, because they appear to have committed crimes.)

The fourth characteristic is an indifference to tradeoffs — a belief that liberty, as paranoid libertarians understand it, is the overriding if not the only value, and that it is unreasonable and weak to see relevant considerations on both sides. Wilentz emphasizes what he regards as the national- security benefits of some forms of surveillance; paranoid libertarians tend to see such arguments as a sham. Similarly, paranoid libertarians tend to dismiss the benefits of other measures that they despise, including gun control and environmental regulation.

The fifth and final characteristic is passionate enthusiasm for slippery-slope arguments. The fear is that if government is allowed to take an apparently modest step today, it will take far less modest steps tomorrow, and on the next day, freedom itself will be in terrible trouble. Modest and apparently reasonable steps must be resisted as if they were the incarnation of tyranny itself.

In some times and places, the threats are real, and paranoid libertarians turn out to be right. As Joseph Heller wrote in Catch-22, “Just because you’re paranoid doesn’t mean they aren’t after you.”

Societies can benefit a lot from paranoid libertarians. Even if their apocalyptic warnings are wildly overstated, they might draw attention to genuine risks, or at least improve public discussion. But as a general rule, paranoia isn’t a good foundation for public policy, even if it operates in freedom’s name.

(Cass R. Sunstein, the Robert Walmsley University professor at Harvard Law School, is a Bloomberg View columnist. He is a former administrator of the White House Office of Information and Regulatory Affairs, the co-author of Nudge and author of Conspiracy Theories and Other Dangerous Ideas, forthcoming in March.)

AFP Photo/Mandel Ngan

For New War On Poverty, First Get Facts Right

Jan. 9 (Bloomberg) — The War on Poverty is now 50 years old. Has it failed? The answer varies, depending on whether we use the government’s official poverty measure or its much newer, and far more informative, one.

The new measure demonstrates that government programs are doing a lot of good, especially for children. Nonetheless, the overall picture is more than sobering, and offers a fresh perspective on the mounting national debate over poverty and inequality.

The official poverty measure, developed in the 1960s, has drawn withering criticism for a long time. It doesn’t include a number of government transfer programs, including the Supplemental Nutrition Assistance Program — food stamps — or the earned income tax credit. Under the official measure, people might be counted as poor even though they get a significant amount of money from the government.

Another problem is that the official measure doesn’t adequately take into account the varying needs of different types of families and individuals. For example, adults with children need more money than adults without children, and a sensible measure of poverty must make sufficient adjustments for that fact.

In 1995, the National Academy of Sciences issued a report cataloging serious flaws in the official poverty measure and recommending alternatives. But it wasn’t until 2011 that the Census Bureau settled on an alternative, which it called the Supplemental Poverty Measure. Though some people see shortcomings in the new standard, it is generally agreed that it is a lot better than the old one.

Important new research, by Liana Fox of the Swedish Institute for Social Research and her colleagues at Columbia University, demonstrates that with the Supplemental Poverty Measure, some historical trends look a lot better than they do with the official measure. Using data from 1967 to the present, the researchers offer four major findings.

First, government programs have had a big impact in reducing poverty among children. In 1967, they reduced child poverty by merely 3 percentage points (from 25 percent to 22 percent). In 2012, they reduced it by 12 percentage points (from about 31 percent to about 19 percent). The beneficial impact of government programs is especially large for children in “deep poverty” — those whose families are below one-half of the poverty line.

Second, the beneficial effects of government programs are largest when the economy goes sour. Without them, the deep poverty rate for children would be about 20 percent during economic downturns. With such programs, it ranges from 4 percent to 5 percent.

Third, the beneficial effects have grown substantially over time. If we use the Supplemental Poverty Measure, we can see that government programs reduced poverty in 2012 by an impressive 15 percentage points. In 1967, the decrease was a lot smaller.

Fourth, some programs have especially big impacts. All by itself, for example, the earned income tax credit reduced child poverty by no less than 5 percentage points in 2012. Food and nutrition programs had almost as large an effect. In 1967, the impact of such programs was close to zero.

To be sure, these findings raise many questions. As Fox and her co-authors acknowledge, their research says nothing about the behavioral effect of government programs. If these policies eliminate incentives to work, they would help to entrench poverty. No statistical poverty measure, standing by itself, can capture such effects.

But this point should not be overstated. The earned income tax credit is a major driver of the findings. By making it more remunerative to work, that program hardly eliminates incentives to get or hold a job.

The bad news is that the Supplemental Poverty Measure reveals that poverty levels remain high, and haven’t fallen a lot over time — 19 percent in 1967 and 16 percent in 2012. Among children, the level has been dented only modestly, from about 22 percent in 1967 to about 19 percent in 2012 — meaning that almost one-fifth of American children now live in poverty.

With respect to children in particular, the U.S. does poorly compared with other developed nations. In recent years, its child poverty rate has been higher than that in Norway, Canada, Japan, Austria, Denmark, the Netherlands, Australia, Belgium, Slovakia, Iceland, Finland, Cyprus, Ireland, Germany, France, Malta, Italy and the UK.

This evidence is especially disturbing when combined with research showing that the U.S. now has relatively low levels of intergenerational mobility. Those who are stuck at the bottom of the economic ladder have tended to remain there.

Here is a question that can’t be asked too often: What are we going to do about this? Our answers should be informed by facts, not fictions.

Cass R. Sunstein, the Robert Walmsley University professor at Harvard Law School, is a Bloomberg View columnist. He is a former administrator of the White House Office of Information and Regulatory Affairs, the co-author of Nudge and author of Conspiracy Theories and Other Dangerous Ideas, forthcoming in March.

Photo: Jeffrey Simms Photography via Flickr

The Automatic Way To Keep Your New Year’s Resolutions

Many New Year’s resolutions are about redemption. Maybe you aren’t the sort of person you want to be. Maybe you aren’t kind enough to others (strangers, co- workers, family members). Maybe you suffer from a self-control problem involving cigarettes, alcohol or gambling. Maybe you procrastinate; maybe you’re impatient or impulsive. Maybe you haven’t taken steps that would enable you to make your life better — with more time off from work, a vacation in a gorgeous setting, an adventure or two.

On New Year’s Eve, you resolve to make a change. But within a month, you’re back to your normal patterns. How come?

Some clues can be found in a study with the revealing title, “Everyone Believes in Redemption.” The paper, by the economists Robert Letzler of the Federal Trade Commission and Joshua Tasoff of Claremont Graduate University, doesn’t involve New Year’s resolutions. But it demonstrates that people suffer from both unrealistic optimism and inertia, which make it hard for them to carry out their plans.

Letzler and Tasoff gave the participants in their study an opportunity to earn $20 by redeeming a mail-in form. The subjects were instructed to print out a “certification page,” which they were required to include with their form.

Participants were also asked to predict the likelihood that they would send in the form. As it happens, their responses were wildly optimistic. Actual redemption rates ended up being about 50 percent lower than what the participants predicted. In other words, they resolved to mail in the form, and they fully expected to do so — but ultimately they didn’t. (Similar patterns are observed in the real world; each year, American consumers fail to mail in at least $1 billion in potential rebates.)

Can anything be done to help? Letzler and Tasoff tried three different interventions.

First, they informed people about the low redemption rates of earlier participants. But this information, helpful though it would seem, had no effect on people’s optimism about what they would themselves do or on the likelihood that they would mail in the form.

Second, Letzler and Tasoff sent people emails to remind them of the approaching deadline for redemption. The researchers had reason to think that this intervention would be effective, because reminders have been found to work in (for example) getting people to pay their bills and to come to doctor appointments. But in the case of the rebates, reminders had no effect. People ignored them.

Finally, Letzler and Tasoff eliminated the requirement that subjects print out and submit a certification page as part of the redemption process. This was the only intervention that worked. By making things easier, they increased redemption rates by about 20 percent.

The important lesson here is that simplification brought people’s predictions closer in line with reality by changing their behavior, not their beliefs. Once the process became a bit easier, people became more likely to take action and thus to make good on their predictions.

When people are unrealistically optimistic about what they will do, Letzler and Tasoff conclude, it is because they don’t pay enough attention to the costs and burdens involved. When they resolve to act, and when they make inaccurate predictions about their own behavior, the benefits of action are salient, but the costs are not.

Consider New Year’s resolutions in this light. It’s easy to resolve to be more altruistic, to exercise greater self-control, to be more patient, or to enhance one’s life, but it’s costly to do these things. Suppose that you aren’t always as generous and kind as you would like to be, or that you have trouble resisting temptation, or that you don’t give yourself enough time off. If so, it’s probably because it’s costly to do those things, and it’s hard to anticipate those costs and burdens in advance.

The best remedy is to find ways to reduce such costs and burdens. If you want to be more altruistic, you might set up automatic monthly gifts to your favorite charity. If you want to increase your self-control, you might alter your environment so that you run into temptations less often — for example, by keeping less food in your refrigerator. If you want to have an adventure or two, you might accompany your New Year’s resolution with a purchase, today or tomorrow, of a plane ticket.

Months or even weeks after New Year’s, many people learn that optimism and inertia are a potent combination. To overcome them, it helps to make redemption automatic — or at least a lot simpler.

Cass R. Sunstein, a Bloomberg View columnist, is the Robert Walmsley University professor at Harvard Law School and a former administrator of the White House Office of Information and Regulatory Affairs. He is the co-author of  Nudge and the author of  Simpler. He is also author of  Conspiracy Theories and Other Dangerous Ideas, forthcoming in March.

Photo: nigelhowe via Flickr

A Pardon For War Hero Convicted Of Being Gay

Alan Turing was a brilliant mathematician and also a genuine war hero, not because he fought in combat, but because he did crucial work for the British government during World War II. Turing broke a number of German codes, including communications that had been scrambled by the Enigma machines. In 1945, King George VI awarded Turing the Order of the British Empire.

In the following years, Turing made numerous contributions to knowledge, including the domain of pattern recognition. Many people consider him the father of computer science. Since 1966, the Association of Computing Machinery has awarded the Turing Award, perhaps the highest distinction in all of computer science, for contributions “of lasting and major technical importance to the computer field.”

Turing was gay, and in 1952, he was convicted of the criminal offense of “gross indecency” for a sexual act with a man. Upon conviction, he was asked to choose between imprisonment or probation, with the latter conditioned on acceptance of hormonal treatment, which would reduce his sex drive. He chose the latter. He lost his security clearance and his consulting position with the UK government. In 1954, he died, almost certainly of suicide.

This week, Queen Elizabeth II pardoned Turing. Justice Minister Chris Grayling, who requested the pardon, said, “Turing deserves to be remembered and recognised for his fantastic contribution to the war effort and his legacy to science. A pardon from the Queen is a fitting tribute to an exceptional man.”

In every decade, it is tempting to look back on previous practices and to wonder how good people could have acquiesced to, or even approved of, a wide range of cruelties and injustices. We tend to marvel at how far we have come. As 2014 begins, and Turing finally stands pardoned, it isn’t so easy to resist that temptation.

But here is an irony and a warning: There is no question that in 1952, many good people acquiesced to or supported Turing’s conviction while also marveling about how far they had come — how the obvious cruelties and injustices of previous ages had been eradicated, and how many of their contemporary questions were difficult ones, without clear answers.

In much of the world, same-sex relations remain a criminal offense. Just last week, the Ugandan legislature passed a law that would impose life imprisonment for homosexual activities. It wasn’t until 2003 that the U.S. Supreme Court ruled that same-sex acts couldn’t be criminalized. Most states continue to forbid same-sex marriages. In other domains, even democratic nations authorize practices that will be seen a few decades from now as cruel and unjust, prompting future generations to ask: How could they have done that?

This week’s long-overdue pardon was a good way to pay tribute to Alan Turing. An even better way would be to scrutinize our own practices with that question in mind.

(Cass R. Sunstein, the Robert Walmsley University professor at Harvard Law School, is a Bloomberg View columnist. He is a former administrator of the White House Office of Information and Regulatory Affairs, the co-author of Nudge and author of Conspiracy Theories and Other Dangerous Ideas, forthcoming in March 2014.)

Photo of Alan Turing statue via Wikimedia Commons

1 Percent’s Surge Is 40 Years In The Making

Dec. 10 (Bloomberg) — From 2009 to 2012, the U.S. experienced a significant economic recovery, in which average real income growth jumped by 6 percent. That’s the good news. The bad news is that almost all of that increase — 95 percent — was enjoyed by those in the top 1 percent of the income distribution.

To appreciate this remarkable finding, set out in an important paper by University of California economist Emmanuel Saez, we need to add some context. From 2007 to 2009, the recession produced a 17.4 percent decline in average real income — the largest drop since the Great Depression. Every income class was hit hard, but in percentage terms, those at the top of the economic ladder suffered the biggest decreases.

During the recovery — from 2009 to 2012 — members of the top 1 percent have enjoyed a big boost in their average income: 31.4 percent. As Saez shows, this figure almost wiped out the loss from the recession, returning the top 1 percent to essentially where it was in 2007.

By contrast, the remaining 99 percent saw measly growth of 0.4 percent, about a 30th of the 11.6 percent loss they experienced in the recession. By the end of 2012, the bottom 99 percent wasn’t close to where it was in 2007.

If we go back to 1993, we can see how extreme these patterns have been. Under Presidents Bill Clinton and George W. Bush, the U.S. enjoyed significant expansions. Both expansions were quite lopsided in favor of the top 1 percent, but at least everyone gained.

In both periods, the top 1 percent did great, enjoying annual income growth of 98.7 percent (under Clinton) and 61.8 percent (under Bush). The bottom 99 percent did well, too, with annual gains of 20.3 percent under Clinton and 6.8 percent under Bush.

It should be plain that during both expansions, the U.S. saw nothing close to the disparities of the first years of the current recovery.

Here’s another way to see the point. From 1993 to 2012, the top 1 percent has enjoyed an increase of 86.1 percent in annual income, with the rest of us getting 6.6 percent. That means the top 1 percent received 68 percent of total income growth over the period — a high figure, but much lower than the whopping 95 percent from 2009 to 2012.

Extreme as that figure is, it can be seen as consistent with the broader pattern of continuing increases in economic inequality since the early 1970s, when the top 10 percent received about 33 percent of total annual income (a figure that had remained pretty much constant since the 1940s). Over the next decades, the share of the top decile grew fairly steadily until 2007, when it ended up with about 50 percent of the whole.

The recession reduced that figure to about 47 percent, but in 2012, it climbed back to more than 50 percent. Focusing on just the top 1 percent, Saez finds a broadly similar pattern, with a generally growing share since the 1970s, to the point where its members could claim about 22 percent of total income in 2012.

Are these patterns a reason for concern? Americans certainly don’t believe in equal results, but they do believe that whether or not your parents are rich, you should have a fair chance to get ahead.

The troubling fact is that in the top and bottom 10 percent, U.S. families show a degree of economic “stickiness.” If a child has rich parents, there is a good chance he will stay in the economic elite, but if his parents are poor, he has a decent chance of remaining poor.

A disturbing implication is that if the top earners experience big income growth while everyone else gets stuck, there will be growing disparities in the opportunities of rich children and poor children.

A lot of work needs to be done to specify the reasons for the post-1970s increases in economic inequality. But one point is clear: Through 2012, the gains from the current recovery were concentrated among the top 1 percent, and that pattern, extreme though it is, fits with a general surge in economic inequality over the last 40 years.

(Cass R. Sunstein, the Robert Walmsley University professor at Harvard Law School, is a Bloomberg View columnist. He is a former administrator of the White House Office of Information and Regulatory Affairs, the co-author of Nudge and author of Conspiracy Theories and Other Dangerous Ideas, forthcoming in March 2014.)

Photo: Sebastian Alvarez via Flickr

The Government Shutdown Has A Simple Explanation

Oct. 1 (Bloomberg) — The best explanation of the U.S. government shutdown points to two factors. The first involves information, or what people think they know. The second involves incentives, or what motivates our elected representatives.

From decades of empirical research, we know that when like-minded people speak with one another, they tend to become more extreme, more confident and more unified — the phenomenon known as group polarization. One reason involves the spread of information within echo chambers.

If you are in a group whose members think the Affordable Care Act is horrible, you will hear many arguments to that effect and very few in the other direction. After a lot of people have spoken, Obamacare will seem much worse than merely horrible; it might well be taken as a menace to the republic. In recent months, the House of Representatives has been a case study in group polarization.

In a free nation, of course, no member of Congress can really spend life in an echo chamber. They are aware that people disagree with them. To appreciate what is happening with the shutdown, we have to understand a bit more about the nature of political beliefs. It turns out that when people’s convictions are deeply held but false, efforts to correct those views can backfire. Such efforts tend to entrench and fortify those very convictions.

When the news media corrects a false proposition (say, that Iraq had weapons of mass destruction, or that George W. Bush banned stem-cell research), both conservatives and liberals may become even more committed to that proposition. Partisans and extremists know what they know, and efforts to correct what they know make them firmer still (and angrier to boot). It is for this reason that the beliefs of some of the most extreme House Republicans, and their constituents, appear almost immune to correction.

With respect to incentives, elected officials are often motivated by one goal above all: to get re-elected. They are focused on their own electoral prospects, not those of their party. They know they have to answer to their constituents, not to the nation as a whole.

Within the Republican Party, many members of Congress have no reason to fear a challenge from the left. There is no chance that they will lose their seat to a Democrat, and a moderate Republican isn’t going to run against them. The only threat is from the right. With respect to a controversy that the public is closely following, the main question may well be whether, in the view of the most extreme conservative voters, the legislators will “cave” to President Barack Obama or instead stand up for their convictions. Is it any wonder that many Republican members are willing to run the risks of a shutdown?

Some political scientists insist that elected officials are solely motivated by the goal of being re-elected, but this view is too simple. We should acknowledge that many officials are committed to certain principles. They want to do what they believe to be right. It is here that information matters. Elected in a wave of conservative outrage, fueled in part by some beast called Obamacare, many House members are standing on principle.

Because of what they think they know, they sincerely believe that the health care law is a clear and present danger. For the nation, the problem is that beliefs of this kind create a clash of absolutes — and make compromise or accommodation unusually challenging.

The framers of the Constitution fully appreciated the underlying risks. Indeed, their document was designed to ensure against situations of precisely the kind the nation is now facing.

James Madison, the father of the Constitution, was concerned above all about the risks of faction, which he defined as citizens “united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

Madison hoped that through the structures of the American republic, it would be possible “to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.”

It is an understatement to say that this kind of refinement and enlargement is not occurring. We will not see them unless the most extreme members of the Republican Party are able to move out of their echo chambers, and unless the incentives of those members are significantly altered.

(Cass R. Sunstein, the Robert Walmsley University professor at Harvard Law School, is a Bloomberg View columnist. He is the former administrator of the White House Office of Information and Regulatory Affairs, the co-author of Nudge and author of Simpler: The Future of Government.

AFP Photo/Karen Bleier

Republicans’ Immigration Bind, As Explained By Aristotle

It is tempting to believe that a political party will act in accordance with its self-interest, which is to win elections. Democrats may be wrong, and Republicans may be wrong, but in the end, neither party will act in self-destructive ways.

For this reason, many people argue that in the House and Senate, Republicans will ultimately support immigration-reform legislation, and that they will enter into some agreement to increase the debt limit and avoid a government shutdown.

The predictions might turn out to be right, but don’t be too sure. The central argument is rooted in a logical fallacy, explored by Aristotle, called “the fallacy of division.” The fallacy occurs when people believe that if the whole has some characteristic, its parts will have that characteristic as well. Because the fallacy of division is important, and because it has so many implications, let’s explore it in a little detail.

Here are three examples. 1. A motorboat can move on water. A motor is part of a motorboat. Therefore a motor can move on water. 2. Citizens of France are thin. Jacques is a citizen of France. Therefore Jacques is thin. 3. The Baltimore Orioles hit a lot of home runs. Nate McLouth is a Baltimore Oriole. Therefore McLouth hits a lot of home runs.

When people commit the fallacy of division, they fail to appreciate the fact that a whole may have characteristics or abilities that its parts lack. A boat can do things its parts cannot do. The fallacy may also rest on a failure to see that a group typically has characteristics that some group members lack. A sports team may have identifiable characteristics, but some or many of its players may lack those characteristics.

Now turn to politics. Let us stipulate that it is in the self-interest of the Republican Party to support immigration-reform legislation. Even if this is so, it may not be in the self-interest of particular Republicans to support such legislation. Indeed, it may not be in the self-interest of most Republicans to support immigration-reform legislation.

The difference between the group’s interest and the members’ interest may occur for disparate reasons. But imagine that to be re-elected, many of the party’s legislators will need the “cover” of a strong Republican vote in favor of the legislation. If individual members risk their political future if they vote for the measure, they will vote against it, unless most or many of the party’s members can make a binding commitment to vote in its favor. That commitment might be exceptionally hard to obtain.

For a party’s members, some cases are even more difficult. Suppose that many voters will be unhappy if the Republicans block immigration reform, thus weakening the appeal of the party “brand,” reducing the number of self-identified Republicans and endangering the party’s prospects for capturing the White House in 2016. From the party’s standpoint, these consequences would be pretty awful. But from the standpoint of some or many individual members of Congress, they might not come close to tipping the balance.

Suppose that a member’s constituents are very conservative, that there is a real possibility of a primary challenge from the right, and that a Democrat can’t possibly win the seat. Under these conditions, a self-interested Republican might well end up voting in a way that will hurt the party.

In the current House, a large number of Republicans appear to think in this way, and some Senate Republicans do as well. Of course, legislators’ personal convictions may well matter, and lead them to vote for legislation they favor, but the role of electoral self-interest can’t be discounted.

The same dynamic affects Democrats. Because of electoral pressures, individual Democrats may support environmental, entitlement and civil-rights legislation that is to the left of the country’s position and harmful to their party’s electoral prospects.

None of this means Congress will refuse to enact immigration reform or pass legislation to prevent a government shutdown and to raise the debt limit. At least on fiscal issues, Republicans and Democrats have been able to find a path forward.

But let’s not forget Aristotle. When contested legislation passes, it isn’t because its enactment is in the interest of the Republican Party or the Democratic Party as such. It’s usually because it’s in the interest of the particular Republicans, and the particular Democrats, who end up for voting for it.

(Cass R. Sunstein, the Robert Walmsley University professor at Harvard Law School, is a Bloomberg View columnist. He is the former administrator of the White House Office of Information and Regulatory Affairs, the co-author of Nudge and author of Simpler: The Future of Government.)

Photo: Giovanni Dall’Orto via Wikimedia Commons

Why Is U.S. Economic Mobility Worse in the South?

August 8 (Bloomberg) — Americans pride themselves on their intergenerational mobility. Our nation’s exceptionalism is organized around the American dream: No matter where you come from and no matter who your parents are, you can rise to the top of the economic ladder, so long as you are willing to commit yourself and work hard.

In recent years, however, a great deal of comparative research has been done on intergenerational mobility, and it raises legitimate questions about the claim that the U.S. stands out as a land of opportunity. In 2006, a widely reported study found that in terms of intergenerational mobility, the U.S. lagged behind Nordic nations (including Denmark, Finland, Sweden and Norway) as well as the U.K. For example, Danish men born to households in that nation’s bottom quintile are far more likely than their U.S. counterparts to make it to the higher quintiles.

A comprehensive study published in July found that the U.S. shows less intergenerational mobility than do a number of other countries, including Germany, New ZealandCanadaAustraliaFrance and Japan. The U.S. is marked by a degree of “stickiness” in the top and bottom 10 percent. If an American is born to poor parents, he has a decent chance of staying poor, and if his parents are wealthy, it is a pretty good bet that he will end up in the economic elite.

However illuminating, the data raise many questions. The U.S. is a big country, and the aggregate numbers don’t tell us about variations across states.

Southeast Lags

Does the reality of the American dream depend on whether you are born in Mississippi, ColoradoKentucky or New Hampshire? The answer would help us to establish what, exactly, is the source of the problem. It could also help us to identify some responses.

Harvard University economist Raj Chetty and his co-authors have started to provide such an answer. The big news is that intergenerational mobility is indeed variable across regions, states and cities. If you are born in Pittsburgh, Boston, San Francisco, Minneapolis or New York, you have a fair chance of getting to the top fifth of the income distribution, even if you start out in the bottom fifth. But in other cities — such as Atlanta; Charlotte; Nashville, Tennessee; and Raleigh, North Carolina — children who are born into the bottom fifth are significantly more likely to get stuck.

The state-by-state data suggest an even more vivid picture. In almost all of the West, there is a high degree of intergenerational mobility. The Northeast and the Southwest also look pretty good. In the Midwest, the picture is more mixed, with generally high levels of mobility in Minnesota, Nebraska and North Dakota but disturbingly low levels in some cities, including Detroit, Indianapolis and Columbus, Ohio.

Intergenerational mobility is markedly low in one region above all: the Southeast. That region’s cities dominate the list of those showing the worst levels of mobility, with heavy representation from Georgia, Mississippi, South CarolinaNorth Carolina and Tennessee.

It is tempting to think that economic growth is the crucial factor, so that we will observe mobility where we also observe growth. Surprisingly, however, regional differences in mobility have little to do with differences in growth. It is also tempting to think that racial differences are involved, but essentially the same regional differences appear even after controlling for race.

The good news is that the U.S. as a whole isn’t suffering from especially low levels of intergenerational mobility. The problem is fairly localized, and we know where to find it. But two fundamental questions remain: Why, exactly, is intergenerational mobility high in some regions and low in others? And where it is low, what can be done to increase it?

Tax Effects

We don’t yet have answers, but Chetty and his co-authors offer some preliminary clues. In general, “tax expenditures aimed at low-income taxpayers have significant impacts on economic opportunity.” More specifically, intergenerational mobility is higher in states that have a generous earned income tax credit as well as progressive income taxes and tax expenditures.

To be sure, correlation is not causation. Progressive state taxes could be correlated with other policies (such as a strong educational system) that are responsible for intergenerational mobility. Researchers aren’t yet in a position to explain the high regional variations in intergenerational mobility. But we know enough to appreciate the immense importance of getting to the bottom of that particular puzzle. The American dream depends on it.

(Cass R. Sunstein, the Robert Walmsley University professor at Harvard Law School, is a Bloomberg View columnist. He is the former administrator of the White House Office of Information and Regulatory Affairs, the co-author of Nudge and author of Simpler: The Future of Government. You can contact him at csunstei@law.harvard.edu.)

Photo: Stuart Seeger via Flickr.com

Newsflash: Obamacare Haters Hate Obamacare

July 10 (Bloomberg) — Edwin Durning-Lawrence was a writer and a member of the U.K. Parliament who devoted much of his life to an obsessive, and slightly crazy, effort to demonstrate that Francis Bacon wrote the works usually attributed to William Shakespeare. Durning-Lawrence published his defining book, Bacon is Shakespeare, in 1910. (My real topic is 21st-century politics, but bear with me for a moment.)

Bacon, a contemporary of Shakespeare’s, was an influential philosopher who also served as a member of Parliament. Durning-Lawrence greatly admired Bacon, but he didn’t much like Shakespeare, whom he described as an illiterate and, more specifically, as “the mean, drunken, ignorant, and absolutely unlettered, rustic of Stratford who never in his life wrote so much as his own name and in all probability was totally unable to read one single line of print.”

In Bacon Is Shakespeare, Durning-Lawrence labored to show that all available evidence supports the thesis of the book’s title. A famous engraving of Shakespeare actually provides clues that Shakespeare wasn’t an author at all; Shakespeare’s alleged signatures are actually forgeries. All proof of Shakespeare’s authorship turns out to establish exactly the opposite, Durning-Lawrence wrote.

In his closing chapters, Durning-Lawrence gets pretty wound up. Chapter 9 ends: “The hour has come when it is desirable and necessary to state with the utmost distinctness that BACON IS SHAKESPEARE.” The conclusion of Chapter 10: “It is not possible that any doubt can any longer be entertained respecting the manifest fact that BACON IS SHAKESPEARE.”

Chapter 11’s final words, on two volumes by Bacon and Shakespeare respectively: “These two title pages were prepared with consummate skill in order to reveal to the world, when the time was ripe, that BACON IS SHAKESPEARE.”

Durning-Lawrence’s appendix collects the names of famous people who appeared to agree with his thesis. Enlisting the rhetorical strategy now known as “social proof,” Durning-Lawrence concludes: “The names that we have mentioned are amply sufficient to prove to the reader that he will be in excellent company when he himself realizes the truth that BACON IS SHAKESPEARE.”

Despite his obsessiveness, Durning-Lawrence was an intelligent and accomplished person. His inadvertently hilarious book is an extreme case of a far more general (and much less hilarious) phenomenon through which people don’t evaluate evidence on its merits, but instead enlist it opportunistically in support of their preordained conclusions. Social scientists describe the phenomenon as “confirmation bias.”

This brings us to contemporary politics. Last week, the Obama administration announced that it would postpone until 2015 enforcement of the Affordable Care Act’s so-called employer mandate, which will require employers with more than 50 employees to provide health insurance or face significant financial penalties.

Emphasizing that the underlying reporting requirements are unusually complicated, the administration said that a one-year delay would allow the government to try to simplify those requirements while creating more flexibility for the private sector.

The vast majority of large employers already provide health insurance, and a one-year delay is unlikely to have significant adverse effects on workers. The administration’s effort to postpone and simplify reporting requirements is in line with recent steps to eliminate redundancy and streamline paperwork burdens, including those placed on the health care system.

To the critics of the health care law, however, the real lesson of the announcement is clear: OBAMACARE IS A DEBACLE. And to those critics, that is the real lesson of essentially every development in health care reform.

If governors decline to establish state exchanges, leaving that task to the federal government, then Obamacare is a debacle. If the administration releases a complex application form for the coming exchanges, then Obamacare is a debacle (even if the application is just a draft). If states opt out of the Medicaid expansion, then Obamacare is a debacle.

No one should doubt that the implementation of the health care law is creating serious challenges. Reasonable people have objections and concerns. But as with Durning-Lawrence, so it is with many of Obamacare’s critics, whose conclusions are motivated and preordained.

The same phenomenon can be found among people with diverse political views; it is hardly limited to those on the right. When public officials reduce regulatory costs imposed on the private sector, or decline to issue environmental or other regulations, left-wing critics often conclude that BUSINESS INTERESTS CONTROL GOVERNMENT. This is so even if the regulatory costs are likely to hurt workers and consumers, not merely some abstraction called “business.”

Francis Bacon, who wasn’t Shakespeare, said it well: “They who have presumed to dogmatize on Nature, as on some well-investigated subject … have inflicted the greatest injury on philosophy and learning. For they have tended to stifle and interrupt inquiry exactly in proportion as they have prevailed in bringing others to their opinion.”

Shakespeare said it better: “Ignorance is the curse of God, knowledge the wing wherewith we fly to heaven.”

(Cass R. Sunstein, the Robert Walmsley University professor at Harvard Law School, is a Bloomberg View columnist. He is the former administrator of the White House Office of Information and Regulatory Affairs, the co-author of Nudge and author of Simpler: The Future of Government.)

Photo: Fibonacci Blue via Flickr.com

Why Second-Term Scandals Are Almost Inevitable

In the last month, there has been a lot of talk about whether American presidents face a second-term curse. It’s not clear that such a thing exists, but any second-term president is likely to have to deal with some real or apparent scandals. The reason isn’t arrogance, distraction or hubris. It’s a matter of arithmetic.

Whether a president will face an alleged or actual scandal depends on two variables. The first is whether something inappropriate, or at least apparently so, has happened either at his direction or on his watch. The second is whether someone has both the incentive and the ability to bring the allegedly inappropriate action to the attention of the public.

With respect to the first variable, a great deal depends on how long a president has been in office. As time passes, the incumbent becomes more likely than his predecessor to be held responsible for bad outcomes. Even more important, the sheer number of executive-branch decisions increases substantially over time. With every month, it becomes more likely that at least one of those decisions will turn out to be incorrect, inappropriate or worse.

If the president encourages or tolerates misconduct, the likelihood of scandals is high by definition. It will only grow over time.

The same is true even if the president is entirely honorable. Because the executive branch is exceptionally large, no president, however vigilant, can possibly control everything that happens there. Many thousands of federal officials, working in dozens of different agencies, are in a position to make important decisions, some of which may turn out to be wrong, inappropriate or worse.

True, an honorable and diligent president can significantly reduce the risk of misconduct. But after a period of four years, a bad or troubling decision is almost inevitable, given the sheer number of choices that will have been made. The real question is whether a troubling decision will turn into an apparent or actual scandal.

Which brings us to the second variable. Having been defeated twice, an opposing party will be angry and frustrated. It will seek to undermine the incumbent president however it can. Investigating real or apparent scandals can be an excellent way to weaken him. A losing party may see an alleged scandal, or an apparently reasonable claim for an investigation, as a political winner.

If the House and the Senate are both in the hands of the president’s party, the threshold for a serious investigation is obviously far higher than if either is controlled by the opposing party.

The media matter, as well. A honeymoon period is far more likely in the president’s first term than in the second. And if the media are well disposed toward him, they are far less likely to investigate and publicize apparently troubling decisions than if journalists are skeptical about him. At the same time, the media are less likely to focus on scandals if they are preoccupied with other matters (such as an economic crisis, a war or other high-profile issues).

In an impressive study, Brendan Nyhan of Dartmouth College demonstrates the importance of the opposing party and of media incentives. Focusing on the period from 1977 to 2008, Nyhan finds an unmistakable increase in scandals in the second term.

Strikingly, he also shows that when the president is held in especially low regard by the opposing party, media attention is far more likely to be given to scandals, real or apparent.

Nyhan demonstrates how significant events (such as the Sept. 11 attacks and the Iraq War in 2003) claim the nation’s attention and tend to deprive real or apparent scandals of oxygen. Some big news events may also draw the media and the public to the president’s side, further reducing the incentive to focus on other matters.

None of this should suggest that we haven’t seen genuine scandals in recent history. But real ones can be ignored, and made-up ones can get a lot of public attention. While in office, President John F. Kennedy had an unusually colorful private life. It never turned into a problem because no one was willing to discuss it publicly (even though Kennedy had plenty of enemies). Some alleged or actual executive branch offenses wouldn’t have gotten much attention in the absence of intense hostility, on the part of some, to the incumbent president.

Political predictions are hazardous, but here’s a safe one: However wonderful his character, and whatever his political party, any second-term president will have to deal with a real or apparent scandal (or two, or three). The reason? Arithmetic.

(Cass R. Sunstein, the Robert Walmsley university professor at Harvard Law School, is a Bloomberg View columnist. He is the former administrator of the White House Office of Information and Regulatory Affairs, the co-author of Nudge and author of Simpler: The Future of Government. The opinions expressed are his own.)

AP Photp/Pablo Martinez Monsivais

Same-Sex Marriage Law Has Four Possible Paths

Judges and lawyers think in terms of analogies. For this week’s Supreme Court arguments involving same-sex marriage, the available analogies include some of the most famous rulings in the Court’s history.

Many people are hoping for what they would see as a heroic decision, requiring states to recognize same-sex marriages. In their view, the Court has an opportunity to issue this generation’s Brown v. Board of Education.

In the 1954 Brown ruling, a unanimous Court struck down school segregation, famously declaring that separate is inherently unequal. A lot of people think exactly the same should be said about separate legal status for same-sex couples.

Brown was exceptionally controversial in its time, but it has been vindicated by history. Indeed, it commands near-complete agreement. No justice is likely to want to participate in another Plessy v. Ferguson, the 1896 case upholding racial segregation that Brown overruled.

Other people insist that the Court should allow state and federal governments to define marriage as they like. In their view, the best analogy is Roe v. Wade. Many people (including Associate Justice Ruth Bader Ginsburg) believe that with its broad pro-choice ruling in Roe, the Court badly overreached.

To agree with Roe’s critics, it isn’t necessary to think that human life begins at conception or that abortion is a morally unacceptable act. The central objection is that the abortion right lacks clear Constitutional foundations — and that in its first encounter with the abortion question, the Court wrongly pre-empted democratic processes and imposed a national solution of its own.

To these critics, the Court engaged in an act of hubris, aggravating political polarization in a way that has had enduring and harmful consequences for American democracy. If the Court essentially requires states to recognize same-sex marriage, will it be creating this generation’s Roe?

If so, the right path isn’t one of heroism but of restraint, and the closest analogy is the Court’s 1937 decision in West Coast Hotel Co. v. Parrish. In that case, the Court rejected the view that the Constitution creates a broad right to freedom of contract, which had raised serious doubts about minimum-wage and maximum-hour legislation.

The Court made it clear that the federal government and the states have a great deal of authority to set economic policy, free from Constitutional limitations. With respect to same-sex marriage, some people think the Court should show a similar degree of Constitutional humility, insisting that democratic arenas, and not federal courts, are the proper location for the resolution of current disputes.

Other observers want the Court to avoid both heroism and restraint. To them, the Ccourt should display the unique virtue of not deciding.

Outside of law schools, the Court’s 1956 action in Naim v. Naim is barely known, but that obscure case has helped to define a whole school of Constitutional thought. Not long after deciding Brown, the justices were asked to strike down a ban on racial intermarriage. The Court refused to hear the case. Protecting its political capital in a period in which it was repeatedly accused of “activism,” it remained silent on bans on racial intermarriage. (It was not until 1967 that the Court finally ruled against such bans, apparently with the thought that the nation was ready for that ruling.)

Some lawyers and judges celebrate the “passive virtues” of not deciding, especially in a period of intense democratic debate and division. They think the Court would do best to follow what they see as the honorable caution of Naim v. Naim — and find ways to punt.

But football teams hate punting, and the same may be true of the Court. Some of its members might be tempted to draw on another analogy that, while publicly obscure, is well known among judges and Constitutional specialists.

In its 1971 decision in Reed v. Reed — its first serious effort to engage the problem of sex discrimination — the Court took the path of minimalism. Striking down an odd Idaho law that gave a preference to men over women as administrators of estates, the Court declined to issue a broad pronouncement that would immediately threaten all discrimination on the basis of sex.

Instead it began a long series of case-by-case rulings — accompanying, but not pre-empting, democratic judgments — that ultimately produced strong safeguards against such discrimination.

With respect to same-sex marriage, the Court might be able to adopt a similar approach. For example, the Justice Department has sketched some ways for the Court to rule relatively narrowly, striking down the laws in question while avoiding the broadest pronouncement about marriage equality.

The arguments this week pose an unusually stark choice among the radically different paths of heroism, restraint, not deciding and minimalism. The lawyers will be offering some highly technical arguments. But the competing analogies, and history’s likely verdict, loom large in the background.

(Cass R. Sunstein, the Robert Walmsley University Professor at Harvard Law School, is a Bloomberg View columnist. He is the former administrator of the White House Office of Information and Regulatory Affairs, the co-author of Nudge and author of Simpler: The Future of Government, to be published in April. The opinions expressed are his own.)

AP Photo/Charles Dharapak, File

The Terrible, Horrible, No-Good Confirmation Process

The U.S. Senate confirmation process is badly broken. In fact it is a disgrace. It needs to be fixed. There is no time like the present.

To appreciate the problem, let’s begin with an example. It is September 2010. The universally respected and admired Jack Lew, nominated by President Barack Obama in July for the crucial position of director of the Office of Management and Budget, can’t get a floor vote for Senate confirmation. The reason? Louisiana senator Mary Landrieu, a Democrat, has placed a “hold” on his nomination — the equivalent of a filibuster, preventing a vote unless the Senate can muster a two-thirds majority (and schedule plenty of time for debate).

Landrieu has no questions about Lew’s character or qualifications. On the contrary, she doesn’t have a single negative word to say about either. Her objection is that in April, after the oil spill in the Gulf of Mexico, the Obama administration imposed a temporary moratorium on offshore drilling. As everyone knows, the director of the Office of Management and Budget didn’t make that decision, and the director would have no power to unmake it.

For several long months, a crucial position in the president’s cabinet isn’t filled. Landrieu finally lifts her hold on Nov. 18, when she becomes satisfied that the Obama administration has gotten rid of the moratorium. Landrieu explains, “I figured it would get their attention and I think it has.”

When Landrieu (a Democrat, no less) blocked Lew’s appointment, she was playing within the rules. Republican senators have used the same rules to do far worse. They required a cloture vote to overcome their opposition to Robert Groves, a superb nominee who eventually served with distinction as director of the U.S. Census Bureau.

They were able to prevent a floor vote for Donald Berwick, the immensely qualified nominee to lead the Centers for Medicare and Medicaid Services. (Obama had to give Berwick a recess appointment, and he was able to serve for only an abbreviated period.) They succeeded in blocking confirmation of Peter Diamond, the Nobel-winning economist, nominated to serve on the Federal Reserve Board.

The largest problem is the broad pattern, not individual cases. Republican senators have subjected numerous Obama nominees to lengthy delays (disclosure: I was among them), and they have prevented some of those appointees from being confirmed, even though they had no reasonable basis for doing so. The structural problem seems to be getting worse, and it isn’t the product of one party: Under Republican presidents, Democratic senators have sometimes been far too aggressive as well.

An unfortunate consequence of Senate obstructionism is that important offices can remain unfilled for long periods. An entire presidential term is just four years, and many high-level appointees end up serving for less than that. If the Senate delays confirmation for six months or more, a significant chunk of an appointee’s total time in office is lost.

The confirmation process also has a damaging effect on the president’s thinking. His question can’t only be, “Who would be the best person for the job?” It must also be, “In light of the ugliness and stupidity of the confirmation process, who is going to get through?”

Nor can we ignore the deterrent effect of the confirmation process on honorable and highly qualified people. They might view the prospect of a presidential nomination as an honor and privilege, but too nightmarish and battering to try to get through.

Both Republicans and Democrats have contended that because federal judges have life tenure, and don’t work for the president, it is legitimate for the Senate to give careful scrutiny to judicial nominees. Fair enough (though even for selection of judges, the line should be maintained between scrutiny and recalcitrance).

For executive branch officials, the assessment must be different. Those officials work for the president. Within broad limits, the president, whether Republican or Democratic, is entitled to select his own staff. So long as the president’s choices meet basic standards of character and competence, the Senate should be reluctant to stall or stop them — much less to use the confirmation process to extort presidential favors or changes in policy.

The Senate should take three steps to remedy the situation.

First, it should reduce the intensity of its scrutiny. To that end, Democrats and Republicans should agree to adopt a strong presumption (rebuttable, but strong) in favor of confirming executive branch nominees.

Second, the Senate should amend its rules to forbid a single senator, or a small group, from placing a hold on a nominee to an executive branch position.

Third, the Senate should ensure that every executive branch nominee is given a prompt up-or-down vote, probably within two months of the nomination date (with an exception for extraordinary cases involving genuinely serious issues that require longer periods).

Starting from scratch, no sane person could propose the current confirmation process, which is a parody of the constitutional design. The problem, of course, is that when the president is a Republican, Democratic senators have no short- term incentive to fix it. The same is true for Republican senators when the president is a Democrat. Sometimes it’s hard to solve long-term problems, and sometimes it’s really easy. With respect to the confirmation process, we need a sensible, not-so-grand bargain, and we need it now.

(Cass R. Sunstein, the Felix Frankfurter professor of law at Harvard University, is a Bloomberg View columnist. He is the former administrator of the White House Office of Information and Regulatory Affairs, the co-author of Nudge and the author of Simpler: The Future of Government, to be published in 2013. The opinions expressed are his own.)