Author Archive
Fort Hood and Political Correctness
This morning, Politico Arena asks:
The Fort Hood tragedy: Why does it matter, or not, what we call it? Is it being politicized?
My response:
If we want to be technical, what we call the Fort Hood massacre matters, and James Taranto got it right in Monday’s Wall Street Journal: It was not a terrorist attack, targeting noncombatants, but an act of guerrilla warfare, carried out by one of our own in apparent contact with the enemy, and hence an act of treason.
But the deeper and far larger problem is why the Army didn’t act sooner against this man and, even more, why it is, as Dorothy Rabinowitz put it in yesterday’s Journal, that “the tide of pronouncements and ruminations pointing to every cause for this event other than the one obvious to everyone in the rational world continues apace.” After all, it is not as if “the Hasan problem,” richly detailed elsewhere, were unknown to the Army. So why was nothing done? We all know why. It was stated simply in an NPR report yesterday: “A key official on a [Walter Reed] review committee reportedly asked how it might look to terminate a key resident who happened to be a Muslim.” If this isn’t ”political correctness,” nothing is.
And it goes beyond the naive analyses that say we can do nothing about these kinds of problems. It infects our very culture, from the newsroom to the college campus and far beyond, crippling sound analysis and judgment. We learn just this morning, for example, again in the Journal, that the FBI may not have briefed the Army, or done so sufficiently (it’s unclear), about Hasan’s intercepted emails with Anwar al-Awlaki, the radical Yemeni imam. There may have been intelligence reasons for compartmenting that information. But in other cases it is an obsession with privacy that cripples investigation, itself a species of political correctness. Yet the conflicting “rights” at issue in risk contexts are never more than right claims until they’re delineated by statute or adjudication. Too often, however, that obsession blinds us, including in our legislation and adjudication, to the rights on the other side. After all, the 3,000 who died on 9/11 and the soldiers who died at Fort Hood had rights too.
The Fort Hood massacre cries out for further investigation. But it must be clear-eyed and free from the prejudice that today is rightly called “political correctness.”
Filed under: Foreign Policy and National Security; General
Remembering the Wall
This morning, Politico Arena asks:
Is it a “tragedy” (Newt Gingrich) that Obama did not go to Berlin to commemorate the fall of the wall?
My response:
There are many ways to characterize President Obama’s failure to appear personally today, on behalf of the American people, to commemorate the fall of the Berlin Wall. None does him credit. Yet to criticize his decision is to invite the derision of his apologists, as we are seeing already here at Politico Arena. It is as if the Cold War never ended. And at a fundamental level, it hasn’t.
The Berlin Wall fell for many reasons, ranging from the internal contradictions of communism to the moral clarity and courage of communism’s opponents. Above all, however, the Cold War marked a fundamental clash of ideas. And nothing symbolized that clash more starkly than the Berlin Wall. It was erected not to keep West Germans out of the “workers paradise” but to keep East Germans trapped behind the wall, many of whom were mercilessly shot as they tried to flee their brutal captors. What greater symbol could there be of the difference between freedom and oppression.
Yet for all that time there were apologists and temporizers in the West. “Detente,” “moral equivalence,” “convergence” — “we are now free of that inordinate fear of communism,” President Carter said in 1977, even as Aleksandr Solzhenitsyn, Vladimir Bukovsky, Natan Sharansky, and others were documenting the horrors of communism. And only two years before the wall fell, as the Wall Street Journal notes editorially this morning, we heard CBS’s Dan Rather say, “Despite what many Americans think, most Soviets do not yearn for capitalism or Western-style democracy.”
Which brings us to President Obama. What does he think? Where does he stand on this fundamental clash of ideas? What meaning is to be drawn from his decision to forgo the commemoration in Berlin today? One can only speculate from what he has said and done, but the record does not inspire. To be sure, several of his speeches suggest that he is a man of freedom — but his actions contradict those words. Where has he been on the great human rights issues of our day? When reformers were being brutalized in Iran, both over the summer and last week, he was slow, at best, to find a voice. When the Dalai Lama visited last month, Obama declined to see him — the first time, in 10 visits since 1991, that a U.S. president has done so. He’s had us join the U.N. Human Rights Council, the main mission of which seems to be to criticize the U.S. and Israel while lending credibility to its own oppressive members. There’s more, but on balance it’s a sorry record. He’s no Ronald Reagan.
It’s on the domestic front, however, that questions loom especially large. His every move is that of a government man. True to his roots as a “community organizer,” he sees government as the solution to our problems. On autos, he has converted a bailout into ownership, fired the head of GM, and told the auto companies what kinds of cars to build, despite what the market might say. He has appointed a “pay czar” — among many other “czars,” not to go unnoticed on this day — and empowered him to set executive pay scales. He is promoting a union organizing scheme that effectively eliminates the secret ballot, environmental policies that fall most heavily on the poor, and tax and spend policies that penalize ambition and thrift while indebting us for generations to come. And his health care policy will in time make us all dependent on government. Those policies, like so much else on his agenda, will restrict rather than expand our choices. If enacted, we will all be less free.
It is the siren song of government “beneficence” that Obama seems most to hear, oblivious to the lessons of the 20th century. The tragedy would be that we ourselves forgot that the fundamental clash of ideas will always be with us, even when the Berlin Wall is a distant memory.
Filed under: International Economics and Development; Political Philosophy
This Cannot Last
This morning, Politico Arena asks:
Will the House pass healthcare this weekend — or not
My response:
In his post below, my colleague Michael Cannon links to his devastating analysis of the way House Democrats have buried the true cost of their healthcare scheme. This is legerdemain of the first order, but it is business as usual here in Washington. Here we have a Congress that cannot fix Medicare, which will go broke even before Social Security does, a Congress that still hasn’t met the October 1 budget deadline for the ninth year in a row, and it wants to fundamentally reorder healthcare in America with a scheme that no one understands and no one knows how to fund. Any private business that ran its affairs that way would long have been out of business.
Given this record of insanity, therefore, it is impossible to say whether the House this weekend will pass this 1,990-page monstrosity of a bill — whether enough sanity will come to enough members to kill the bill. One datum does loom large, however: Speaker Pelosi can afford to lose no more than 40 members of her caucus. Combine that, after Tuesday’s election results, with another datum — there are 49 House Democrats who sit in districts that John McCain carried — and one has to ask whether the insanity we see before us reaches to political suicide.
Yet whatever happens tomorrow, or in the Senate down the road, this cannot go on, simply because the money isn’t there to allow it to go on. On Tuesday at the polls and yesterday with the huge demonstration in front of the Capitol we are seeing what Charles Krauthammer this morning rightly calls the demolition of “the great realignment myth of 2008.” America is not a suicidal nation. The Founders and Framers gave us institutions that have endured for over two centuries and are the envy of the world. Whatever happens tomorrow, the seeds of sanity are in the American soil and soon will be springing forth.
Tea Party Conservatism and the GOP
This morning, Politico’s Arena asks:
Is Tea Party conservatism a help or a hazard for Republicans seeking a return to power?
My response:
Let’s start with some clarity: “Tea Party conservatism” stands for several things, but it is not the caricature one often finds in the mainstream media, to say nothing of the left wing blogs. It is a movement with deep historical roots, drawing its name and inspiration from the Boston Tea Party of 1773. As with that event, taxes brought it to the fore — on Tax Day, April 15. But taxes are simply the most obvious manifestation of modern government run amok, insinuating itself into every corner of life. Trillions of dollars of debt for our children, out-of-control government budgets, massive interventions in private affairs — the list of wrongs is endless, and under Obama has exploded. He stands for nothing if not for making us all dependent on the government he has promised us. That’s not America. That’s a foreign vision, which over the centuries countless millions have fled, searching for freedom.
To be sure, the Tea Party movement has its fringe elements, as did the revolt against British tyranny, which the establishment of its day disparaged. So too does the Obama administration, some of whom have already resigned. The basic question, however, is what does the movement stand for? What are its principles? And on that, the contrast with the Obama vision is stark: However much confusion there might be on specific issues, which is to be expected, the broad principles are clear. The Tea Party movement stands for limited constitutional government. At its rallies, on hand-written sign after sign, that was the message repeatedly seen. These are ordinary Americans – Republicans, Independents, and even Democrats — who want simply to be left alone to plan and live their own lives. They don’t want “community organizers” to help empower them to get more from government.
But they do need to be organized to bring that about — to get government off their backs. And the Republican Party should be the natural vehicle toward that end — the party, after all, that was formed to get government off the backs of several million slaves. But today’s Republican Party is a mixed lot: Some understand those principles; but others, as in the NY 23 race, are all but indistinguishable from their counterparts in the party of Obama. The problem in NY 23 was not that a third party entered the race. Rather, the party establishment botched things from the beginning, by picking a nominee who properly belonged in the Democratic Party, as her pathetic last-minute endorsement indicated, and that’s why a third party entered the race — with a novice of a nominee who nearly won despite the odds against him.
The question, therefore, is not whether Tea Party conservatism is a help or a hazard for Republicans seeking a return to power? To the contrary, it is whether the Republican Party is a help or a hindrance to the Tea Party movement? It will be a help only if it returns to its roots. The mainstream media, overwhelmingly of the Democratic persuasion, will continue to push Republicans to be “moderate,” of course – meaning “Democrat Lite” — to which the proper response is: Why would voters go for that when they can get the real thing on the Democratic line? If Tuesday’s returns showed anything, it is that Independents, a truly mixed lot, are up for grabs; but at the same time, they are looking for leaders who promise not simply to “solve problems” but to do so in a way that respects our traditions of individual liberty, free markets, and limited government. When Republican candidates stand clearly and firmly for those principles, they stand a far better chance of being elected than when they temporize. That is the lesson that Republicans must grasp — and not forget — if they are to return to power.
Filed under: Government and Politics; Law and Civil Liberties
One Year Later
This morning, Politico’s Arena asks:
“Election 09: What’s the message?”
My response:
A note on NY 23, then to the larger message in yesterday’s returns. Already this morning we’re seeing an effort to spin the NY 23 outcome as a warning to Republicans and a hopeful sign for Democrats. Yet the striking thing about that outcome is how close a third-party candidate came in the face of opposition from the Republican establishment. And the ultimate outcome can doubtless be explained simply by absentee ballots, plus voters unaware of the last-minute developments in the race.
Thus, given those factors, the NY 23 outcome is perfectly consistent with returns in the rest of the country. (In fact, Conservative and Republican votes in that race total more than 50 percent.) And the message will not be lost on blue-dog Democrats. If the internal inconsistencies of ObamaCare did not trouble those Democrats before yesterday, they surely must now. The silence coming from the White House last night spoke volumes.
NY 23: A Return to Principle?
At today’s Politico Arena the editors ask:
NY 23 and the GOP: The road to “first principles” or to “internecine ruin?”
My response:
In important respects, the NY 23 congressional race is a microcosm of the Goldwater/Rockefeller battle of 1964 — a battle for the soul of the Republican Party. For years during the 1950s and ’60s, “Rockefeller Republicans” were not simply ”Democrat Lite” but often to the left of Democrats, giving rise back then to the New York Conservative Party, which nominated Doug Hoffman for the NY 23 seat at stake tomorrow. And the policies those Republicans put in place, starting with taxes, were directly responsible for the relentless decline of the Empire State. As reported in a recent Empire Center study, “New York’s share of the nation’s population declined sharply in the second half of the 20th century, from 19 percent of all Americans in 1950 to less than 7 percent in 2000.”
Goldwater won that intra-party battle, of course, then lost an election all but foreordained by the Kennedy assassination. And with Goldwater’s victory for the soul of the Republican Party, the parties were at last distinguished by their principles, even if a remnant of Rockefeller Republicans, like the two Bushes, remained to muddy the waters.
The NY 23 situation captures this perfectly. Nominated not in a primary but by a few party officials, Dede Scozzafava’s indifference to Republican Party principles was no better illustrated than by her decision, when it became clear how badly she was losing, not simply to remove herself from the race but to endorse the Democratic nominee — in an apparent back-room deal with state and national Democrats. We’ll doubtless know in time just what promises were made for that endorsement. But it reeks already of the lust for power over principle: Do whatever it takes to stay in the political game.
It’s impossible to predict the outcome of this election, of course. Some of Scozzafava’s loyalists will probably follow her, while others will be moved by a sense of betrayal to go the other way. The larger question, however, is whether we are going to have two significantly different parties in this nation – or simply two parties vying for power, with barely a dime’s worth of difference between them. The Obama administration’s lust for power, making Bush look like a piker, has brought the Goldwater/Reagan revolution back to life. But the Wall Street Journal’s sober editorial this morning got it exactly right: Whether this revival returns the GOP to first principles or leads to internecine ruin “will depend on how GOP leaders and conservative activists respond.” Both could do worse than look to Ronald Reagan for guidance.
“Opt-Out” Smoke and Mirrors
At today’s Politico Arena the editors ask:
Reid’s Option: Does it help or hurt the chances for healthcare passage by Christmas?
My response:
Like every other part of ObamaCare, the “opt-out” proposal for the “public option” is a mystery — and almost certainly will continue to be even after the likely 1,500-page bill emerges, if ever it does. Will residents in states that opt-out be able to opt-out of the taxes needed to support the public option? (Please don’t say the public option will be self-supporting: we’re grown-ups.) Healthy taxpayers in North Dakota, after all, have no incentive to subsidize unhealthy New Yorkers. But if states can opt out of the tax part, then we’ll have “adverse selection” at the state level, the very thing the “individual mandate” is meant to stop at the individual level. Yet if states won’t be able to opt out of the tax component, then what’s the incentive for states to opt out of the public option? All pay, no benefit, is a sucker’s game.
This is all smoke and mirrors. And it’s laughable to think that the Congressional Budget Office can score any of this, when nobody knows what “this” is. For all the backroom dealings so far, enough has taken place in public to enable the public to see what’s going on, and it’s not pretty. It’s the usual something-for-nothing gimmickry, like last week’s “doc-fix” joke. The vote on that is the best predictor so far of where this whole thing is going. When labor tells us they might accept a tax on high-value insurance plans if it doesn’t hit the middle class, we know the money isn’t there. May ObamaCare rest in peace until more sober people are able to attend to what’s really required to straighten out the health care mess that Congress created in the first place.
Attending to Business
In today’s Politico Arena, the editors ask:
Is Obama “dithering” on Afghanistan (Cheney) or fulfilling his “solemn responsibility” (Gibbs)?
My response:
President Obama got some adult criticism this week from Dick Cheney, none too soon. While the risk to American troops in Afghanistan grows, Obama dithers, unable to decide whether to get in or get out — whether to be the one thing the Constitution authorizes him to be, Commander in Chief. Yet he finds time to fly off to Copenhagen to promote Chicago for the Olympics, to insinuate himself in local political campaigns, to go on “Fox hunts,” yesterday excluding Fox News from the White House pool allowed to interview his executive pay czar, and now, we learn, to slash executive salaries at companies not only partially owned but simply regulated by the government. Are there no limits to the man’s hubris?
Even the Washington Post this morning, no bastion of free-market fervor, noted that this “represents a signal moment in the history of the American economic experiment,” moving us ever closer to the European model. But it was Arena contributor Allan Meltzer who yesterday hit the nail on the head: ”All the noise about pay and pay cuts is part of an effort to divert the public’s attention from the main cause of the mortgage fiasco — the role that Congressman Frank and others had in creating the mortgage crisis by refusing to limit the activities of Fannie Mae and Freddy Mac after 2003.” That these regulators will be able to calculate the salary that is appropriate to discourage excessive risk-taking is simply comical.
And so we have here a textbook example of modern government: Obama fails to do or do well what he is authorized to do, yet he strides into matter far beyond his authority — or competence. He seems not to understand the Constitution he once taught, and more recently promised to uphold.
Filed under: Government and Politics; Law and Civil Liberties
Obama’s Fall Offensive
In today’s Politico Arena, the editors ask:
White House Strategy: Will Obama’s effort to undermine critics undermine Obama instead? Is it overdue or overdone?
My response:
Obama is losing it. His increasing moves to marginalize his critics, richly detailed this morning at Politico, mark him as an amateur. America is not Chicago. Nor are those who oppose his agenda synonymous with the Republican Party. They’re far more numerous than that, and their numbers are growing.
Politics is one thing: “It ain’t beanbag,” Mr. Dooley noted. But scorched-earth politics is something else. It’s over the edge, like Nixon’s enemies list. It has no place in America, except in political backwaters like Chicago. (Personal note: In 1972 my wife and I served as Republican election judges in the first Mayor Daley’s Chicago. On election day, when we walked into the Hyde Park polling station at 5:30 a.m., the three Democratic judges looked at us in astonishment: “Are you real Republicans?” How else are you going to control the election?! Hamid Karzai has nothing on Chicago.)
As a practical matter, in our two-party system the Republican Party is the organizational antidote to this kind of abuse. But as the Wall Street Journal editorializes this morning, the party’s going to have to get its act together before that happens. It’s claim to be a party of principle has been seriously undermined in recent years by Republican officials at all levels of government. That leaves it to private individuals and organizations to call Congress and the administration on what they’re up to. And that’s why we too are in Obama’s cross-hairs. It won’t work — unless we let it happen. Thank you, Politico, for drawing these sad facts together in one place.
‘Is Obama Punting on Human Rights?’
That’s today’s Arena question over at Politico.
This morning, both Bret Stephens, in the Wall Street Journal, and Mona Charen, at Real Clear Politics, catalogue Obama’s silence on human rights — China, Tibet, Sudan, Iran, Burma, Honduras — and his backpedaling from his campaign rhetoric. Meanwhile, Eric Posner, at the Volokh Conspiracy, rightly credits Obama for, among other things, not backing the Goldstone Report and pressuring Spain to water down its undemocratic “universal jurisdiction” statute, even as he condemns the administration, again rightly, for its decision to join “the comically named U.N. Human Rights Council,” bastion of some of the world’s worst human rights abusers.
What’s missing, it seems, is any coherent and systematic approach to those matters. During the Reagan administration I served for a time at State as director of policy for the Bureau of Human Rights and Humanitarian Affairs — now called, interestingly, the Bureau of Democracy, Human Rights, and Labor. Things were simpler during the Cold War. We focused on totalitarian regimes, somewhat less on authoritarian regimes, since people were allowed to leave those. And, yes, realpolitik played at least a part in our thinking, as inevitably it must. But the basic principles were clear: If human rights were to be respected, not simply behavioral but systematic change would be required. And Reagan kept the pressure on, publicly. With the fall of the Berlin Wall, millions saw that kind of change, in varying degrees. But the contrast between totalitarianism and democratic capitalism is less clear today than it was then, and the Obama administration, in both its foreign and domestic policies, is doing little to clarify it.
The promotion of human rights starts at home, with allowing people to plan and live their own lives, not with vast public programs that compel people to live under government planning. And in foreign affairs it requires both private and public diplomacy, quiet and not-so-quiet attention to the conditions that give rise to human rights abuses. That doesn’t mean military intervention to change those conditions. But neither does it mean remaining silent, as the Obama administration too often has. Countless victims of abuse, from Cuba to China and far beyond, have written about how important it was that they knew that the world knew about them: When America speaks, the world listens. But equally important, history demonstrates that regimes that respect their own people respect other people as well. It’s time for Obama to speak out.
Should the White House Be Taking on Fox?
Today’s Arena question over at Politico asks:
Is Fox News a “legitimate news organization?” Is the White House smart, or not so smart, to take on Fox?
Is Fox News a “legitimate news organization?” As compared to what? The New York Times? NPR? MSNBC? Please.
The Obama team, Democrats like my good friend Walter Dellinger, and the so-called Mainstream Media (MSM) howl about Fox News for two main reasons. First, Fox is covering news the MSM ignores because it doesn’t “fit.” And second, in part because of that, the Fox audience continues to grow while the MSM audience is shrinking, raising a serious question about whether the MSM is any longer “mainstream.”
Let’s not pretend that the MSM doesn’t “manage” the news. It does it mainly by deciding daily what is and is not “news” and then by deciding how to report that news. Do we need any better example than the current ACORN story? As Fox was bringing the facts to light, nowhere were those facts to be found in the MSM — until they could be ignored no longer. Or take the huge 9/12 anti-big-government rally here in Washington. Fox covered it for the event that it was. Where was it covered in The New York Times? On page A37. And more revealing still, in the NYT electronic edition, the second of three stories posted under “Politics” was headlined “Thousands Rally in Minnesota Behind Obama’s Call for Health Care Overhaul,” the third was headlined “Thousands Rally in Capital to Protest Big Government” — the implication being that the two rallies were equivalent in size when in fact the protest rally dwarfed the Obama rally by many multiples.
But why pretend it’s otherwise? The president himself admits the MSM bias. Speaking at the May 9 White House Correspondents’ Association Dinner, “I am Barack Obama. Most of you covered me. All of you voted for me. (Laughter and applause.) Apologies to the Fox table.” A good laugh line in that setting, to be sure, but only because he’s said at last what we all know to be true.
Walter Dellinger may write, citing no evidence, that the Tax Day Tea Party protests were “conceived and executed by Fox News,” but he surely knows that’s not true. He hails from North Carolina, albeit now from Duke. He knows that outside that cloister there’s protest in the land. Fox News isn’t generating that opposition to the Obama juggernaut. It’s real, but it’s so much easier for the MSM to blame the bearer of that news than to face the reasons for their own falling numbers: Their “news” doesn’t fit with what so many people see with their own eyes. I’m reminded of the great Groucho Marx line: “Who are you going to believe, me or your own eyes?”
C/P Politico’s Arena
ACORN and Health Care
Last week, editors at Politico posed two questions to an online panel to which I contribute: “ACORN: Underplayed or overblown?” and “Will the Dems ever get their act together on healthcare?”
The two are intimately connected by a simple proposition: “Most people want more housing and health care than they can afford.” Of course, for “housing” or “health care” one could substitute whatever one wishes: food, clothing, cars, education, entertainment, vacations, you name it. Economists call this the problem of scarcity, and it’s the beginning of economics.
In a free society, most individuals, families, and firms will deal with that problem through such homely measures as creating and husbanding wealth, planning for the future, and living within their means. Some, however, will be indifferent to such discipline and will demand more than they can afford. Enter thus ACORN and the Dems — the party of government. ACORN, like our president, is in the “community organizing” business — a euphemism for putting (some) people in a position to better demand things from government. Some of those demands are perfectly legitimate: reduce crime; fix the potholes. But others, the demands ACORN specializes in, are not thus “common.” They can be satisfied, in a world of scarcity, only by taking from some and giving to others.
And that’s what the housing and health care debates today are largely about. And it’s why on both, the Dems are having difficulty getting their act together, because however much they turn a blind eye toward scarcity or pretend that they all agree, the truth is that they represent discrete constituencies, with discrete conflicting interests. That’s what happens when we’re all thrown into the common pot. What once was decided by individuals, reflecting their own particular interests, is now decided by government — and it’s a Hobbesian war of all against all.
Supremes Take Gun Rights Issue Nationwide
With its decision today to hear the case of McDonald v. Chicago, the Supreme Court should settle the question of whether states must recognize the Second Amendment right to keep and bear arms. In June of 2008, in District of Columbia v. Heller, the Court found, for the first time, that the federal government must recognize the Second Amendment right of individuals, quite apart from their belonging to a militia, to have an operational firearm in their home. But the decision left open the question whether states were similarly bound.
Thus, the so-called incorporation doctrine will be at issue in this case – the question of whether the Fourteenth Amendment “incorporates” the guarantees of the Bill of Rights against the states. The Bill of Rights applied originally only against the federal government. But the Fourteenth Amendment, ratified in 1868, left open the question of which rights states were bound to recognize. The modern Court has incorporated most of the rights found in the Bill of Rights, but the Second Amendment’s guarantees have yet to be incorporated.
Moreover, a question that will arise in this case is whether the Court, if it does decide that the states are bound by the Second Amendment, will reach that conclusion under the Fourteenth Amendment’s Due Process Clause or under its Privileges or Immunities Clause, which has been moribund since the infamous Slaughterhouse Cases of 1873. In its brief urging the Court to hear the McDonald petition, the Cato Institute urged the Court to revive the Privileges or Immunities Clause.
Supreme Court Rules on Ricci v. DeStefano
In its opinion today in Ricci v. DeStefano, the Supreme Court came down solidly for upholding the equal protection of the law.
The political implications of this decision for the Sotomayor nomination are several, but her refusal to wrestle with the important issues at stake and to side summarily with the city, together with her many statements off the bench about “identity politics,” should make for very interesting confirmation hearings just two weeks ahead.
The Court reversed the decision of the Second Circuit panel on which Judge Sonya Sotomayor sat, which had upheld, summarily, the lower court’s decision to allow the city of New Haven to throw out the results of a racially neutral promotion exam for city firefighters after whites did better than blacks on the exam.
As the Court said, all the evidence suggests that the city rejected the test results because the higher scoring candidates were white. The city’s rationale for engaging in this intentional discrimination was to avoid a suit by black firefighters. But the city could take the position it did only if there were strong evidence that its test was racially biased or not job related or that there was some other equally valid non-discriminatory test that the city refused to administer. There was no such evidence, the Court concluded. Had the city been sued by the black firefighters, it would have won.
Thus, it’s rationale for throwing out the test results will not withstand scrutiny. The city engaged in outright intentional discrimination.
Obama Chooses Sotomayor for Supreme Court Nominee
In nominating Second Circuit Judge Sonia Sotomayor to fill the seat of retiring Supreme Court Justice David Souter, President Obama chose the most radical of all the frequently mentioned candidates before him.
Given the way her panel recently summarily dismissed the Ricci case –- involving the complaint by New Haven, Connecticut, firefighters that the city had thrown out the results of an officers exam because the results did not come out “right” –- and the expectation, based on oral argument, that the Supreme Court will reverse the Second Circuit decision, there will likely be an extremely contentious confirmation battle ahead. If confirmation hearings are scheduled for summer, they will follow shortly upon the Court’s decision in that explosive case.
Are we to imagine that President Obama chose as he did because he wants that battle?
The Courts Are Right to Intervene
The Daniel Hauser standoff, in which a child’s parents are refusing chemotherapy to treat their son’s cancer, is a classic case pitting the right of parents to oversee the religious practices of the family against the interest of the state in the well-being of children.
The presumption is with parents, but it is not irrebuttable. Just as the state may interfere in family matters in the case of spousal or child abuse, so too it may in a case like this, where the scientific evidence is overwhelming that the long-term interests of the child are being ignored by a parent.
Will there be close calls in such cases? Of course. But on the facts presented here, this case does not appear to be a close call.
Vetting the Future Supreme Court Justice
In choosing a Supreme Court nominee to replace Justice Souter, President Obama will have an opportunity to avoid the partisanship he promised to reduce on the campaign trail, which his legislative agenda has thus far only exacerbated.
But given the way Bush nominees were treated by Senate Democrats, it won’t be easy. After the stormy confirmation hearings for Judges Bork and Thomas, President Clinton’s nominations of Judges Ginsburg and Breyer sailed through the confirmation process with little opposition and even less acrimony. With the return of Republican nominees after the election of George W. Bush, however, Senate Democrats resumed their scorched earth practices, starting with appellate court nominees and continuing to the nominations of Judges Roberts and Alito to the High Court.
Hearings were never held, filibusters were threatened and reputations were tarnished.
The question now for Senate Republicans will be, is turnabout fair-play?
The answer may turn on just who President Obama selects. At the least, given this recent history, there is no reason Senate Republicans need to be unduly deferential to the president’s nominee. We will need to know both the judicial philosophy and the constitutional philosophy of the nominee.
That will require respectful but sharp questioning by members of the loyal opposition. Their duty under the Constitution requires nothing less.
Pirates as Tax Collectors?
[Co-authored with Ilya Shapiro.]
As we suspected, with world attention focused on the just-concluded piracy standoff, it was only a matter of time before someone would write something like this: “the right way to think about this problem is that pirates are imposing a tax on shipping in their area. They are a bit like a pseudo-government.” Perhaps the Mafia too –- “pay, or we break your legs” –- is like a pseudo-government.
The difference between a tax and extortion is not subtle, even if it seems to have escaped the cited authorities, including Noam Chomsky. A tax, at least in principle, and most often in practice, is a charge for a service rendered –- not necessarily a wanted or an evenly distributed service, to be sure, but most relevant here, protection from third-party pirates and other lawless predators, domestic and foreign. By contrast, a pirate’s shakedown puts the victim to a choice between two of his entitlements –- his freedom and his property. That distinction –- again, hardly subtle –- is what prompted us to leave the state of nature. Those who would like to return to that state will find it waiting for them on the horn of Africa.
Filed under: Government and Politics; International Economics and Development; Law and Civil Liberties
Hyde Will Be Missed
Former Congressman Henry Hyde of Illinois, who died this 
morning in Chicago at the age of 83, was a friend of the Cato Institute who worked closely with us in our efforts to put a spotlight on the abuses flowing from America’s civil asset forfeiture law. A staunch defender of the war on drugs, Rep. Hyde saw nonetheless that not every tactic the government used in that war could be justified. In particular, the government’s seizure for itself of private property that merely “facilitated” a crime, often from completely innocent people, drove him to do whatever he could to end such abuses. He called hearings, at which Cato scholars were invited to testify. Then in 1995 Cato published his book, Forfeiting Our Property Rights: Is Your Property Safe from Seizure? The tone of the book was captured in its opening words:
Much of what you may have learned in school or college about your rights and liberties no longer applies. Increased government and police powers, rising criminal activity and violence, popular anxiety about drug use–all have become justifications for curtailing the application of the Bill of Rights and the individual security it once guaranteed.
The book was a ringing indictment of the government’s war on private property through the awful practice of civil asset forfeiture. More hearings followed its publication, culminating in a reform bill, which Hyde unveiled as the keynote speaker at a 1999 Cato conference. Hyde was tireless in shepherding the bill through both houses of Congress, fighting the Justice Department all the way, and in obtaining President Clinton’s signature. We will miss him.
NSA Coda II
A bit ago Bob Levy posted what he said he hoped would be two brief “final points” on our NSA exchange. I responded – just to him. He wrote back, suggesting that I post the response as “the last word” between us. Here it is:
Point 1: When President Carter signed the FISA bill, his attorney general, Griffin Bell, said it “does not take away the power of the president under the Constitution.” Either he’s wrong, in which case Congress is supreme; or he’s right, and FISA is merely precatory. Further on Bob’s first point, one can “explain” President Bush’s signing as his playing both sides – statutory and constitutional: (a) he didn’t want to pick a fight with Congress so he signed the bill, believing that the AUMF overrode it in any event; (b) he didn’t want to pick a fight, believing he had inherent power in any event. It’s hard to know just why he signed it, of course, or what implications can be drawn from that.
Point 2: Bob is right, to be sure, that it seems incoherent for Congress to have the greater power to defund a program but not the lesser power to regulate it. But that, I argue, is the Constitution we have. Perhaps this helps to explain it: Given the range of foreign affairs powers the president has that are inherent in the “executive Power,” the Framers wanted to place only certain checks in Congress’s hands, because regulatory checks beyond those they enumerated would begin to compromise the unitary executive, tending toward a co-presidency (as happened under the Articles in some states). So Congress was left with a few foreign-affairs regulatory powers – which Jefferson, Hamilton, and Madison all said were to be “strictly construed” – but mainly with the power of the purse, much like the arrangement that had evolved in England, with which they were familiar. Finally, pinpoint defunding of a secret program should not be a problem. Pinpoint funding is done by using obfuscatory “black hole” language.
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