Generally, the WSJ knows what it's doing when it comes to economics.  After all, it's the Wall Street Journal, and up until recently, Wall Street was the economic center of the U.S.  However, they got it wrong in this article: we are already rationing health care.  Any system designed to allocate scarce resources, by its very nature, rations those resources.

The question is not, then, whether ObamaCare would ration health care.  We know it would.  The question is instead whether ObamaCare would better ration resources better than the current system does. 

Our current system rations health care (broadly speaking) according to the sick person's ability to pay.  Thus, people effectively ration themselves.  Obviously, we run into problems when ill people are unable to pay for their care, which is what led to the current cries for "free" health care.

On the other hand, government-run health care means that the government, rather than the individual, would be rationing medical benefits.  As Thomas Sowell explains in  Basic Economics:

In addition, governments can ration health care by demographics.  The elderly are often discriminated against when competing for scarce resources. 

Thus, our choice is clear.  Our current system rations according to individual choice, as demonstrated by ability to pay.  Obama and the Democratic Congress proposes a system that will ration according to long wait lists, luck, corruption, and (most troublingly) demographics.  The system we have now, however flawed it may be, is far preferable.  When rationing health care, the free market is the only rational choice.

Lithwick quotes Obama's words in The Audacity of Hope, where he described empathy as "a call to stand in somebody else's shoes and see through their eyes."  To Obama, empathy chiefly means applying a principle his mother taught him: asking, "How would that make you feel?" before acting.

Thus, Ms. Lithwick argues:

Ms. Lithwick makes an intuitively plausible case for judicial empathy.  She then selectively quotes "big tent" Republicans desparately trying to make points with the true conservative base like Michael Steele.  Recently, Mr. Steele announced, "Crazy nonsense empathetic! I'll give you empathy. Empathize right on your behind!"  Humorous, especially given that this was apparently on Good Morning America, but certainly not vaunted, ironic intellectual rhetoric like Ms. Lithwick's carefully selected prose.

So let's take Obama at his word.  Let's say that he truly believes that judicial empathy involves thinking about the law from more than one perspective, and that judicial empathy is not a mere code-word for crazed liberal activism.  And let's be real here.  I am positive that 'judicial empathy' is nothing but a code-word for radicals on the bench.  Just ask Judge Sonia Sotomayor of the 2nd Circuit Court of Appeals, caught on YouTube cackling "delightedly" that the appeals courts make policy.  But we'll leave that to the side for the moment.

Instead, we'll do something rather dangerous, which I certainly do not advocate in any normal circumstance: we'll take a politician at his word.  Is it a great idea to bring in judges who ask, "How would this make me feel?" whenever they make a ruling?

Frankly, no, it's not.  Even on the best possible reading, judicial empathy is a bad idea.  In a typical asbestos case, a judge would have to ask himself how it would make the plaintiff feel when he dismissed her claim for failure to prove that the defendant produced the asbestos that allegedly caused her mesothelioma.  That would likely make the plaintiff feel terrible.  She is positive that the defendant company produced the asbestos that put her on her deathbed, after all.   And even if that defendant didn't produce the exact product that put her in that position, surely that defendant produced some asbestos that hurt someone.

But wait--a truly empathetic judge would have to consider how it would make the defendant feel to dismiss the plaintiff's claim on summary judgment.  But the defendant is just a big, impersonal company.  The defendant company doesn't feel anything at all.  Should the judge perhaps ponder the emotions of the company's president, stockholders, or board of directors?  How about the company's lineworkers?  Those guys would probably feel great, but are their feelings as persuasive as the feelings of the plaintiff lying prone in the ICU?

Any way the judge considers the problem, he is going to come out empathetically preferring tort plaintiffs over corporate defendants, which means that this "empathy" standard is nothing but a shortcut to anti-business bias in the courtroom.  And has anyone but me noticed that this empathy standard completely leaves out any consideration of proof, or of what the law actually says?  You know, lawyer stuff?

Even in the criminal context, it's really not a good idea to install empathetic judges.  On one hand, let's consider how the victim's family will feel if we cut loose a criminal defendant on a technicality.  On the other hand, how would the criminal defendant feel about the violation of his Constitutional rights?  Should we also consider the fact that the victim was "asking for it," and that the defendant had a troubled upbringing?  The point is: none of this navel-gazing matters.  None of it matters!  The "feelings" of the participants are nothing more than a distraction from the black letter of the law.

By criminalizing certain behaviors, allowing civil causes of action, and writing the laws of civil and criminal procedure, the legislature decides what to do about how people feel.  Our judges are not meant to consider everyone's emotions at every little whipstitch.  The judiciary is there to apply the law's text to a given factual situation.  If the judge's decision hurts someone's feelings, the appropriate avenue of recourse is to change the law legislatively--not to hassle judges about how the people before them are going to react.

If we, as a society, decide that we want an "empathetic" system of laws--and by that, I mean pro-plaintiff, pro-big government, pro-criminals with sob stories, pro-victims' rights (but only the right kind of victims)--fair enough.  But we need to do it the right way: through the legislature.  We need to elect people to enact these kinds of laws, not let Obama and his Democratic Congressional lackeys appoint judicial lapdogs who will enforce this statist worldview whether we have voted for it or not.

The root word of 'liberal' is 'liberty'--which progressives seek to squealch.  In the guise of protecting one's liberty to "choose" whether or not to have a child, progressives end an unborn child's liberty to simply exist.  When seeking to protect the liberty of minorities to enjoy equal opportunities, progressives kill a businessowner's liberty to choose his or her employees and clientele.  In trying to preserve one's 'liberty,' to access universal health care, progressives enslave us all with oppressive taxation.

Frankly, even the word 'progressive' is misleading.  'Progress,' according to the dictionary, means 'improvement,' 'growth,' and 'development.'  Yet, blithely stating that leftists engender progress assumes precisely what leftists need to prove to our predominately center-right country.  Instead, the term 'statist' seems the most accurate and uncontroversial.  No matter who is doing the interpreting, leftists resort to state intervention as a solution to most of life's alleged problems. 

That is, when they can't resort to the thesaurus.  The New York Times reports that terms like 'global warming,' 'cap and trade,' and 'energy efficiency' are passe.  Worse yet, the terms "turn[] people off, fostering images of shaggy-haired liberals, economic sacrifice and complex scientific dispute[s]."  In fact, these terms foster images that are entirely correct--minus my above quibble with the term 'liberal.' 

Yet, according to a leaked e-mail, statists, in their desire to cause economic sacrifice and elevate "shaggy-haired" statists to positions of power, see fit to use different terminology.

Indeed--when the world appears less and less to be warming, let's talk about something else.  When people realize that radical carbon dioxide emission cuts are counterproductive and economically unfeasible (unless we go for nuclear energy, and who other than me wants that?), by all means, let's vaguely discuss "dirty fuel" and amorphously blame "the past." 

When people realize that 'cap and trade' is an incredibly bad idea that would effectively tax the working class, let's phrase it in terms of 'cash back' and 'refunds'--how could those hurt the economy? Just as liberals co-opted the term 'liberty,' and 'progress,' so they attempt to obfuscate the true issues by misusing language yet again.

Don't be fooled.  If statism were such a great idea, statists would have no reason to make up controversial and confusing terminology to describe themselves and their ideas.

Instead, Ms. Lithwick explains that feminists often support the "different voice" theory of judging:

Men, the theory goes, prefer their law with rigid rules, clear lines, and neutral principles; women, meanwhile, want to look at the totality of the circumstances and apply broad discretion, preferring what Gilligan calls an "ethic of care" to an "ethic of rights."

I, for one, am all for an "ethic of care."  If we weren't meant be governed by an "ethic of care," then why did the Founders set forth a Bill of Care in the Constitution?  And all of this nonsense about "clear lines" and "neutrality."  Who really needs that when you can have confusing standards, arbitrary rulings, and a biased judiciary? 

Honestly, after reading Ms. Lithwick's article, I am not sure which appalled me more: the idea that liberals are finally emboldened enough about their desire to pack the judiciary with a bunch of arbitrary, biased jurists--or the fact that liberals are finally emboldened enough to state that they believe all or most women would choose to abuse judicial power so blatantly.  I suppost the first idea is ever so slightly more disgusting: it's downright misanthropic; whereas the second idea is merely misogynistic (and thus only insulting to half of the population, rather than all of the population).

Yet, liberals don't have to limit themselves to women in order to take over the judiciary.  We have but to look to one Harold Koh, Obama's nominee for State Department Legal Advisor, to see the dangers that men can wreak in the legal profession.  There are a lot of weird rumors swirling around Koh, such as the now-debunked claim that he would support the use of sharia (Islamic) law in U.S. courts.  Although Koh's philosophy would allow for the possibility of sharia in U.S. courts, Koh has probably never said as much publicly. 

That is not to say that Koh is anything other than a dangerous elitist.  Koh is a leading advocate of a legal philosophy known as "transnationalism."  According to Ed Whelan at The Corner blog, "Transnationalists aim in particular to use American courts to import international law to override the policies adopted through the processes of representative government."  This, in and of itself, isn't too unusual.  We have but to consider our sleepy friend Justice Ruth Ginsberg to find an influential advocate of using international law in U.S. courts.

However, Koh is a special kind of transnationalist.  He advocates a system in international elites, rather than state practice, generate the norms of new international law and in which those norms supposedly are binding as federal common law.  So, in order to learn our rights, instead of looking to the Constitution, or even looking to the majority of other countries' laws, we would look to . . . the opinions of Koh and his buddies.  Wow, nothing could ever go wrong with that system.  Representative government is so overrated!

The people that liberals seek to place in positions of legal power are incredibly dangerous.  Progressives are now openly stating what they want: arbitratry, biased, elites overriding our legislature and even our Constitution.  We simply cannot allow this to happen.

Of late, liberals have started categorizing themselves as 'progressives.'  For a long time, 'liberal' was something of a dirty word, associated with socialism and loose morals.  But everyone loves progress.

Recently, Republicans have engaged in a similarly disingenuous enterprise: promoting their own brand of "universal health care."  The Republican budget, unveiled last week, uses the phrase "universal access to affordable health care," seven times.  Astonished that the conservative party has seemingly co-opted one of the Democrats' favorite platforms?  Don't be.

In response to media inquiries, Sen. Bob Bennett (R) explained, "Republicans are coming to the understanding that their opposition to universal coverage is misplaced. . . . Let's understand that when we say we cover everybody . . . that is not a step toward a single-payer government-run system."

Essentially, the Republican goal is to promote universal access to health care through making health care "universally affordable" and creating tax incentives.  Presumably, this being the Republican party, we would make health care "universally affordable" through tort reform and tax breaks, but the plan is rather sketchy on the details.  The tax incentives would be used to allow people to purchase health insurance, or not, as they chose. 

However, as Christopher Beam of Slate.com points out, the Republican definition of "universal" is flawed.  First, people wouldn't be covered if they chose to use that tax money to pay off credit card bills or buy really expensive goldfish.  Second, no conservative so far has proposed forcing insurance companies to accept people with certain preexisting conditions.  So it's really not "universal" health care.

Why, then, would Republicans choose the word 'universal' to describe a health care plan that clearly is not universal?  Why not call it something more accurate, like "a freedom of choice plan"?  Non-lawyers would say that the Republican plan is "close enough" to being universal that such semantic quibbling really amounts to nothing.

But then, why not choose a name that is sufficiently differentiated from the Democrats' terminology?  If nothing else, the Republicans should wish to set themselves apart from the Democrats--particularly after having long criticized a "single payer" system as nothing more than socialism. 

This is nothing more than Republicans trying desperately to be Democrats, erroneously believing the polls that purport to show great public support for so-called "universal" health care.  Thus, our elected party leaders smear the tried-and-true Republican platform of tax breaks and tort reform with a name associated with Communism, abject failure, and nanny statism. 

We tried being Democrats for an entire election cycle in 2008, and what has that gotten us?  People don't want quasi-Democrats like McCain.  If they are going to vote for liberals, they will vote for the real thing--and they have.  The only way to take back Congress in 2010 and the Presidency in 2012 is to be true conservatives, and embrace our economic policies in substance and in name.