Yuval Levin and Ramesh Ponnuru have a fantastic article on health care [subscription required] in the February 6 issue of National Review that, while not excusing RomneyCare, offers probably the best way that a compromised Mitt Romney could run against ObamaCare. If you don’t have a subscription, find a copy.

‘Romney vs. Obamacare: What the Presumptive Nominee Should Say’ is a post from Cato @ Liberty - Cato Institute Blog

David Frum knows that ObamaCare can’t be repealed.  But don’t worry, he also knows how to make it palatable to Republicans:

1. Move up the start date of ObamaCare’s state waiver program from 2017 to 2014.  As I explain here, that program will only produce alternatives to ObamaCare that are equally or more anti-market, such as a single-payer system.  Frum wants that to happen sooner.
2. Raise taxes, on everybody.  I swear I am not making that up.
3. Replace ObamaCare’s individual mandate with an equally coercive tax credit that accomplishes the same thing, but which the courts would probably uphold.  Bra-vo.  Frum implies it is necessary to “work around” the fact that Republicans are not “entirely rational” when it comes to the individual mandate.  (True, but they’re getting more rational all the time.)
4. Republicans should embrace government rationing of health care.  Frum counsels Republicans to “unleash the cost controllers” and become the “green eyeshade party willing to do the disagreeable work of squeezing waste from the system.”  How?  Well, he doesn’t call for Medicare vouchers, under which enrollees would ration their own care.  In fact, he has thrown cold water on that idea.  But the only alternative is to have the government ration care.  And Frum makes no distinctions between the elderly and non-elderly, which leads me to believe he wants Republicans to ration care to the under-65 crowd too.  Slap that on a bumper sticker!

In sum, Frum’s GOP-palatable alternative to ObamaCare is … ObamaCare.  But maybe more coercive.  And implemented sooner.  With higher taxes.  And less vulnerable to legal challenges.  And with Republicans playing the bad guy.

Frum laments that Republicans mistakenly threw away the opportunity to work with Democrats to implement these brilliant ideas in 2009 and 2010.  But Republicans did so because these brilliant ideas hurt people.  They were wrapped into a bill called ObamaCare, and Republicans rejected it.  They were right to do so.  And they are right that ObamaCare can’t be fixed.

(Related: Ramesh Ponnuru previously took down Ross Douthat’s ideas for fixing ObamaCare.)

(Also related: CNN has signed Frum to provide conservative commentary during the 2012 election.)

On ObamaCare, David Frum Just Doesn’t Get It is a post from Cato @ Liberty - Cato Institute Blog

• Confirmation hearings are a “vapid and hollow charade”, or at least that’s what Elena Kagan wrote fifteen years ago. National Review Online invited me to contribute to a symposium on how Republican senators can keep the coming hearings from becoming such a charade, with results that can be found here.
• The First Amendment has been among Kagan’s leading scholarly interests, and yesterday in this space Ilya Shapiro raised interesting questions of whether she will make an strong guardian of free speech values. Eugene Volokh looks at her record and guesses that she might wind up adopting a middling position similar to that of Justice Ginsburg. As Radley Balko and Jacob Sullum have noted, the departing John Paul Stevens ran up at best a mixed record on First Amendment issues, so the overall impact on the Court is far from clear.
• Kagan’s other main scholarly topic has been administrative and regulatory law, and Nate Oman at Concurring Opinions warns that everything in her career “suggests that she is intellectually geared to look at the regulatory process from the government’s point of view.” Oman took an advanced seminar she taught, and brings back this cautionary report:
  

  It was an interesting class, mainly focused on the competition between bureaucrats and political appointees. In our discussions businesses were always conceptualized as either passive objects of regulation or pernicious rent-seekers. Absent was a vision of private businesses as agents pursuing economic goals orthogonal to political considerations. We were certainly not invited to think about the regulatory process from the point of view of a private business for whom political and regulatory agendas represent a dead-weight cost.

• I’m not the only one who finds Kagan’s exclusion of military recruiters at Harvard wrongheaded, even while agreeing with her in opposing the gay ban. Peter Beinart made that argument in a widely noted post at The Daily Beast last month and now has a followup. Former Harvard law dean Robert Clark is in the Wall Street Journal today (sub-only) with an argument that Kagan’s policy was a continuation of his own and represented the sense of the law faculty as a whole. Emily Bazelon points out that the recruitment bar was overwhelmingly popular at top law schools at the time, an argument that as Ramesh Ponnuru points out may raise more questions than it answers. And Ilya Somin cautions against assuming that the wrongheadedness reflects any specifically anti-military bias.
• One of John Miller’s readers recalls John Hasnas’s wise words on “empathy” in judging. David Brooks at the Times runs with the “Revenge of the Grinds” theme. SCOTUSblog rounds up some other reactions (with thanks for the link). And Brad Smith, writing at Politico, advises us to be ready should Citizens United come up at the hearing.

Kagan Nomination: Around the Web is a post from Cato @ Liberty - Cato Institute Blog

They’re having a lively time with our study “The Libertarian Vote in the Age of Obama” over at the Corner. Ramesh Ponnuru says our results show that “libertarians moved in nearly perfect opposition to the public at large, which was swinging toward the Republicans from 2000 through 2004 and against them from then through 2008.” Guess he didn’t buy our argument that “Libertarians seem to be a lead indicator of trends in centrist, independent-minded voters,” and they’re currently leading independents in a flight from the Obama agenda.

Jonah Goldberg says there aren’t many consistent libertarians, and they don’t vote as a bloc, or swing. Veronique de Rugy kindly posted a response by me:

Jonah says consistent libertarians are rare. Sure. So are consistent conservatives who would affirm every tenet of the Sharon Statement, or an updated Ten Principles of Conservatism for today, complete with policy specifics. What we are saying, and what I think no one has actually countered, is that there are some millions of voters — maybe our 14 percent, maybe Gallup’s 23 percent, maybe even Zogby’s 44/59 percent — who don’t line up either red or blue. They don’t buy the whole package from Rush or Keith, McCain or Obama, NR or TNR. They have real libertarian tendencies on both economic and personal issues.

Does that mean they want to abolish public education and legalize drugs? Of course not. But they do oppose both health care “reform” and restrictions on abortion, or they like both lower taxes and gay marriage or civil unions. According to the 2004 exit polls, 28 million Bush voters supported either marriage or civil unions. And neither party typically offers that program. Which means that some of those people — like eight Seattle entrepreneurs who visited Cato today — are uncomfortable with both parties and don’t vote consistently for either.

Jonah says, “most of the talk about ‘libertarians’ switching sides has been exactly that, talk.” Maybe he should read the study, or at least read Table 2 on page 8. A group of people who are identifiably outside the red/blue boxes did swing toward the Democrats in 2004 and 2006, and then swung back against Obama.

Veronique’s post also linked to Ilya Somin at the Volokh Conspiracy, who makes similar points in rather more scholarly language. For more debate, Katherine Mangu-Ward’s report on the study drew more than 100 comments at reason.com.

Debating the Libertarian Vote is a post from Cato @ Liberty - Cato Institute Blog

As usual, National Review‘s Ramesh Ponnuru offers sound advice on how Republicans, etc., should approach the Democrats’ health care reforms:

Karl Rove’s WSJ op-ed on health care reflects the thinking of a lot of Republicans. He concludes, “Defeating the public option should be a top priority for the GOP this year. Otherwise, our nation will be changed in damaging ways almost impossible to reverse.” In my view, Rove is defining Republican goals too narrowly.

Congress and the president can expand federal control of the health-care system a great deal without a “public option” (that is, a new government program to provide health insurance to people who choose it). They could set mandatory minimum standards for health insurance, impose price controls, mandate that individuals or employers buy insurance, and so forth. If Republicans say that the public option is the chief defect of liberals’ approach to health care, they may be leaving themselves with no rationale for opposing these steps if the Democrats drop it—which they might just do. (Or they might cosmetically weaken the public option in various ways. They could, for example, set up a “trigger” that brings the option into being only if certain conditions in the health market are met, and then design those conditions so that they will be met.)

The public option appears to be one of the biggest political vulnerabilities of the Democrats’ emerging health-care plan, but it isn’t the only one, and it shouldn’t be targeted to the exclusion of the plan’s other features—or of its general government-first orientation. Republicans ought to be making the case against individual mandates and employer mandates as well, both of which are disguised tax increases.

It isn’t incumbent on Republicans to see that a health-care bill passes Congress. To warrant conservative support, a bill should have no public option—but also no mandates and no price controls. Which is to say: No government-directed health-care system.

Ponnuru: Stop Socialized Medicine, in All Its Forms is a post from Cato @ Liberty - Cato Institute Blog