Author Archive
A Government Man
This afternoon Politico Arena asks:
Will the president’s health care remarks today sway enough votes to pass ObamaCare through “reconciliation”?
My response:
Who knows? What they show beyond all doubt, however, is the mind-set of the president and the bill’s proponents. Consider just a few of his opening words: “Everything there is to say about health care has been said and just about everyone has said it. So now is the time to make a decision about how to finally reform health care so that it works, not just for the insurance companies, but for America’s families and businesses.”
Notice first the insinuation that health care works today for the insurance companies, but not for the rest of us. Obama has to have his foil, this man with no experience in the private sector and little understanding of how that sector works. But notice, more importantly, that we need “to finally reform health care so that it works” — the implication being that this is a collective undertaking, the only question being how to do it. “We’re all in this together.” In the private sector, if we can’t reach an agreement about some proposed undertaking, we walk away. That seems inconceivable to Obama. He’s a government man: conceiving public solutions to private problems is what his life is all about.
I suppose you could say that government is so enmeshed in health care today that there are only public solutions to the problems government is largely responsible for having created — starting with the favorable tax treatment employer-provided health care affords. But the direction of reform needn’t be toward even greater government. It might be toward less government, as with health savings accounts. But that approach has been rejected from the start by Obama and his Democratic supporters. They move in only one direction.
A Tale of Two Editorials
It’s a rare day when the New York Times gets something right editorially while the Wall Street Journal gets it wrong — and on gun rights, no less. Yet that was the case today, when the Supreme Court heard oral arguments in McDonald v. Chicago, a challenge to Chicago’s draconian gun-control law.
Not surprisingly, the Times opens with a shot against the Court’s 2008 decision in Heller v. District of Columbia, which found for the first time that the Second Amendment protects an individual’s right to keep and bear arms, quite apart from whether he’s a member of a militia. The next step, at issue in McDonald, is whether that right was good not simply against the federal government (Heller decided that) but against states and municipalities as well. Both the Times and the Journal argue, correctly, that the Bill of Rights should apply against the states, and that’s how the Court will likely rule. The difference is on the grounds for so ruling, and it’s not a trivial matter.
The Times reviews very briefly the history that gives rise to that issue. In a nutshell, and filling in some blanks, the Bill of Rights applied originally only against the federal government. With the ratification of the Fourteenth Amendment in 1868, however, U.S. citizenship was defined and elevated over state citizenship, and states were prohibited from abridging the privileges or immunities of citizens of the United States, from depriving any person of life, liberty, or property without due process of law, and from denying any person within their jurisdiction of the equal protection of the laws. But five years later, in the infamous Slaughterhouse Cases, the Court eviscerated the Privileges or Immunities Clause, which was meant to be the principal font of substantive rights under the amendment. Thereafter the Court would gradually “incorporate” various provisions of the Bill of Rights under the less substantive Due Process Clause — an uneven and sometimes mischievous process, the Court finding “rights,” from time to time, nowhere to be found in the Constitution. That’s the “substantive due process” against which conservatives have often railed over the years, often rightly so, as part of their larger assault on “judicial activism.”
Well the Times editorialists recognize that history and recognize also that scholars have long criticized the Slaughterhouse decision. Accordingly, they call on the Court to rectify its mistake of 1873 and to base its decision in McDonald on the Privileges or Immunities Clause. If the Court did, that “would be truer to the intent of the [framers of the Fourteenth Amendment], and it could open the door to a more robust constitutional jurisprudence that would be more protective of individual rights.”
And that, precisely, is what concerns the editorialists at the Journal. They too review the history — more fully than does the Times — but argue that the Court should ground its decision on the Fourteenth Amendment’s Due Process Clause. What they fear is that reviving the Privileges or Immunities Clause might lead to more judicial activism. But they offer no reason to believe that — which is all the more surprising since those of us who have long urged the Court to reverse Slaughterhouse and revive the Privileges or Immunities Clause have done so precisely to check that abuse.
As the Times rightly implies, the Due Process Clause has been the wrong clause all along for deciding most Fourteenth Amendment cases. Those cases should have been decided under the more substantive Privileges or Immunities Clause, the history of which would have better informed the Court and, accordingly, better checked the Court’s occasional activism. It’s less than clear, however, whether the editorialists at the Times appreciate that final point. Indeed, when they write, as just noted, that respecting the intent of the Fourteenth Amendment’s framers “could open the door to a more robust constitutional jurisprudence that would be more protective of individual rights,” flags go up. But if the Court did correct its mistake, the issue would then turn on what those framers meant by “privileges or immunities of citizens of the United States.” And on that question there is a rich and fairly clear historical record, unlike with the much less definite idea of “substantive due process,” the ground recommended by the Journal’s editorialists.
It appears, in short, that the Journal’s understandable concern to check judicial activism has led it to ignore the better check and, ironically, to leave the Slaughterhouse decision, the source of the problem, uncorrected. The irony is that that decision was a paradigmatic example of judicial activism, of a Court ignoring the law. Were the Court today to perpetuate that mistake, in a case that is primed for correcting it, that would amount to one more activist decision. After all, the text is there, staring the Court in the face. Yet the Journal urges the Court to ignore it. That’s the very mark of judicial activism.
[Cross-posted at NRO's Bench Memos]
Obama: CEO of America, Inc.
Today Politico Arena asks:
Will President Obama’s proposal to block excessive rate increases by insurers help get a health care package through Congress?
My response:
Just where does President Obama think Congress finds the power to authorize the HHS secretary “to review, and to block, premium increases by private insurers, potentially superseding state insurance regulators”? My colleague David Boaz addresses the politics of this unseemly proposal just below. And elsewhere our colleague Michael Cannon offers a devastating economic critique of the proposal, citing White House economic advisor Larry Summers, no less, on the folly of it all. But the constitutional question is what concerns me.
No doubt Obama, a former lecturer in constitutional law, believes that the power of Congress to regulate interstate commerce suffices to allow it to set private heath insurance premiums. After all, once delegated to him, that same power allowed him, he believes, to take over auto companies, to fire corporate executives, to set their salaries, and to do, well, pretty much what he wanted in so many other areas. That’s the modern executive state — the president as CEO of America, Inc. The irony, however, is that the commerce power was given to Congress for precisely the opposite reason — to ensure economic liberty, not to restrict it.
Facing state impediments to free interstate commerce, which had arisen under the Articles of Confederation, the Framers empowered Congress to check such restraints and to do the few other things needed to ensure a free national market. In fact, early in our history a Hamiltonian proposal that Congress undertake a national industrial policy — ObamaCare is a stark example of such a policy — was rejected outright by the Congress as beyond its authority. Obama’s proposal speaks directly to how thoroughly we’ve turned the Constitution on its head. And as recent elections give evidence, the American people are coming increasingly to understand that. This proposal, I predict, will go nowhere.
Filed under: Health, Welfare & Entitlements; Law and Civil Liberties
Evan Bayh and Congressional Comity
Today Politico Arena asks:
Is Bayh’s lament on target?
My response:
The heart of Evan Bayh’s surprising announcement yesterday that he would not be seeking another term in the Senate was captured in three short sentences:
For some time, I have had a growing conviction that Congress is not operating as it should. There is too much partisanship and not enough progress — too much narrow ideology and not enough practical problem-solving. Even at a time of enormous challenge, the peoples’ business is not being done.
Beguilingly attractive as those sentiments may be, suggesting that some Golden Age of congressional comity has been lost, a candid look at our history shows that comity has been the exception, not the rule. And it’s occurred mainly when one party dominated Congress, as Democrats did during a fair part of the post-War period while Republicans were searching for their identity. So why not over the past year, when those conditions seemed to be in place? Is there something about today’s congressional divisiveness that distinguishes it from the past? I submit that there is, that it’s not narrow policy differences that mainly underpin what we’re seeing, but that the nation is up against a fundamental reality that much of the public is coming to see, even if many in Congress are slow to grasp it.
To barely summarize the matter, the Constitution sets forth a plan for limited government, not for government engaged in all manner of “problem-solving,” as Bayh put it – the problems of private life, mostly, from retirement security, to health care, education, job-creation, you name it. But for more than a century, Progressives have worked to overturn that design. And their something-for-nothing promises that have spurred the ever-greater socialization of life have attracted enough people to make it seem that we were, wonderfully, “all in this together,” especially since the costs of socialization were largely put off to the future. That’s the “comity” of the good life on borrowed money. But those costs cannot be put off forever. Eventually, they come due. And when they do, the differences between those who come finally to recognize reality, and those who still live the dream, are irreconcilable — because reality doesn’t “compromise.” I submit that we’re now at that point.
Not that there haven’t been voices decrying our episodic flights from reality all along — indeed, from the nation’s founding. But the post-New Deal trends, and the critique of those trends that came to wider attention through the Goldwater-Reagan revolution within the Republican Party, which the two Bush presidencies inflamed and thus sharpened, have produced a perfect congressional storm, so to speak, with irreconcilable proposals for how to get out of the mess looming before us. At bottom, in short, two different conceptions of government are at war.
Senator Bayh tells us that he looks forward to working with the president during the next 11 months ”to get our deficit under control, get the economy moving again, regulate Wall Street to avoid future financial crises, and reform education.” Yet his party’s actions, building on many of the Bush administration’s, have given us a deficit unprecedented by orders of magnitude, an economy stagnating due largely to political uncertainty, an analysis of our financial crisis that blames Wall Street while all but ignoring the role of the Fed and government-sponsored enterprises like Fannie and Freddie, and an approach to educational “reform” that denies poor children in the District of Columbia the vouchers that have enabled them to flee our appalling public schools. Compromise? How does one compromise with a proposal to expand Medicare when the program itself is moving fast toward bankruptcy?
Which brings us to the nub of the matter. It’s easy to get into socialism. Getting out is much harder, as the nations of Eastern Europe discovered, and are still seeing. It is here that compromise and comity are needed — to chart a way out. But that will never be achieved as long as there are enough in Congress who cling to the something-for-nothing myths that have brought us to this state. A comity that shields us from this reality is no answer to the divisiveness before us. If the elections of the past few months are any indication, the people are ahead of the politicians in seeing this — and that’s a good thing. If war is needed to reclaim a footing in reality, bring it on.
Filed under: Government and Politics; Political Philosophy
Holder on the Hot Seat
Today Politico Arena asks:
Terror suspects: Eric Holder’s defense (nothing new here)–agree or disagree?
My response:
Filed under: Foreign Policy and National Security; General; Law and Civil Liberties
Look Who’s Talking Now
Today Politico Arena asks:
Should officials be talking about the Christmas-day bomber talking and what does it prove?
My response:
Amid growing bipartisan criticism of the Obama administration’s handling of the Christmas Day bombing, the Manhattan KSM trial, and much else in its approach to terrorism, it’s pretty clear that the White House put out the news last evening that Abdulmutallab is now talking simply to quiet that criticism. After all, that’s a story only because Abdulmutallab had not been talking. And why wasn’t he talking? Because shortly after he was arrested and briefly questioned by agents with no terrorism-related expertise, he was Mirandized and lawyered up, like any common criminal — consistent with the Obama administration’s law-enforcement approach to terrorism. And so he clammed up — and we were now put in the unseemly position of having to bargain with him to get intelligence. If this issue were not so serious, you’d have to call the Obama-Holder operation the Keystone Cops.
The Unrelenting Battle over Campaign Finance
Following on the heels of November’s gubernatorial elections in Virginia and New Jersey, the loss of Ted Kennedy’s Senate seat in Massachusetts two weeks ago was a devastating blow to Democratic Party hopes. But it must have been especially devastating to President Obama, who promised an adoring University of Missouri crowd, just before he was elected, that “We are five days away from fundamentally transforming the United States of America.” Yet it would appear, judging from the unrelenting commentary and from the president’s own behavior last week, that those losses pale in comparison to the government’s loss before the Supreme Court two days after the polls closed in Massachusetts. For 11 days now the wailing over the Court’s Citizens United decision has not ceased. Indeed, campaign finance regulation, intimately connected to incumbency protection, is a bedrock principle of modern liberalism.
Exhibit A is E.J. Dionne’s column today in the Washington Post — his second in a week on the subject. Last week, railing against the “reckless decision by Chief Justice John Roberts’s Supreme Court and the greed of the nation’s financial barons,” he charged the Court with “an astonishing display of judicial arrogance, overreach and unjustified activism” and urged “a new populist-progressive alliance” to demand “legislation to turn back the Supreme Court’s effort to undermine American democracy” — including a bill prohibiting political spending by corporations who hire lobbyists, no less.
Today, however, Dionne has last Wednesday’s unseemly episode of Obama rebuking a silent Supreme Court to work with. And, like the immortal Daniel Schorr on yesterday’s NPR Sunday Morning, he puts all the blame on Justice Samuel Alito for seeming to mouth, silently, “Not true” when Obama, before all assembled and a watching nation, tendentiously misstated the holding in Citizens United. But Dionne doesn’t stop there, of course. No, he thanks Alito. You see, “Alito’s inability to restrain himself” brought a long-ignored truth to the nation: “The Supreme Court is now dominated by a highly politicized conservative majority intent on working its will, even if that means ignoring precedents and the wishes of the elected branches of government.” Likening Obama’s behavior to President Reagan’s writing a 1983 article criticizing Roe v. Wade — I didn’t make that up – Dionne chastises conservatives for their double standard: “Reagan had every right to say what he did. But why do conservatives deny the same right to Obama?” Where does one begin?
Turning finally to “the specifics of Obama’s indictment,” Dionne tries to defend the president’s misstatements, but unfortunately the precision ordinarily expected of such a wordsmith seems to have deserted him. Citing Obama’s claim that the Court had reversed “a century of law” and also opened “the floodgates for special interests — including foreign corporations,” Dionne writes that ”Obama was not simply referring to court precedents but also to the 1907 Tillman Act, which banned corporate money in electoral campaigns.” That’s not what the Tillman Act did: It banned direct corporate contributions to campaigns. Only in 1947 were independent campaign expenditures by corporations (and unions) banned — and more clearly so only in 1990, which is the ban the Court overturned. Moreover, pace Obama, foreign corporations are still specifically banned from contributing anything of value “in connection with a Federal, State or local election.” Thus, in claiming, without more, ”that the ruling opens a loophole for domestic corporations under foreign control to make unlimited campaign expenditures,” Dionne seems simply to be passing along what he’s read or heard from others. Nothing in the Court’s opinion warrants that conclusion.
But it’s Dionne’s larger claim that most demands an answer — that an “activist” Roberts Court, exercising “raw judicial power,” is ”ignoring precedents and the wishes of the elected branches of government.” That’s hardly the definition of “activism.” That’s what the Court should be doing, where it’s warranted by the Constitution, whether the Court is defending the rights of blacks to attend unsegregated schools or of gays to sexual freedom or of corporate owners, the shareholders, to engage in political speech through their corporation consistent with their articles of incorporation and by-laws. The claim that corporations aren’t people is a red herring. Corporate owners are people, and their right to speak can take many forms. Fortunately, we have a First Amendment, which protects not only corporate owners but E.J. himself from all but the error of his ways.
[Cross-posted at Politico Arena]
Filed under: Government and Politics; Law and Civil Liberties
Manhattan Says No to Terror Trials
Today, Politico Arena asks:
Terror trials: Is it time for the administration to retreat and rethink? Is it generally mishandling the terrorism issue?
My response:
On no issue is President Obama getting acquainted with reality more clearly than terrorism, or so it seems. He blazed into office, guns holstered, as the anti-Bush, putting Eric Holder’s Justice Department in charge, not of the War on Terror, a phrase he banished from his administration’s lexicon, but of “bringing those who planned and plotted the [9/11] attacks to justice,” as Holder put it in November when he announced that Khalid Sheikh Mohammed and four others would be given civilian trials in downtown Manhattan. But as the manifold costs of such a trial became increasingly apparent, and as even New York Democrats have grown increasingly restive, the White House, it seems, has backed down. We await the line of congressmen saying “Bring the trial to my district.”
How could it be otherwise? The administration’s law-enforcement approach to terrorism has been unserious and folly from the start. In an understated yet devastating piece in yesterday’s Washington Post, former CIA director Michael V. Hayden cataloged that folly, nowhere more evident than in the FBI’s handling of the would-be Christmas Day bomber, who was Mirandized and lawyered up long before he could be seriously interrogated by agents with the background to elicit the intelligence we need — not to prosecute terrorists, but to prevent future terrorist attacks. The most telling revelation in Hayden’s piece came at the end, however. In August, the government unveiled its High Value Detainee Interrogation Group (HIG) designed to interrogate people like the Christmas Day bomber, and it announced also that the FBI would begin questioning CIA officers about alleged abuses in the 2004 inspector general’s report. Was the HIG called in to interrogate the Christmas Day bomber? No — it has yet to be formed. But the interrogations of CIA officers are proceeding apace. So much for the administration’s priorities. Is it any wonder that Scott Brown’s pollsters report that terrorism, and the administration’s mishandling of the issue, polled better even than Brown’s opposition to ObamaCare?
Filed under: Foreign Policy and National Security; Law and Civil Liberties
The Presidential Scold
Today, Politico Arena asks for comments on:
Duking it out in Baltimore
My response:
It’s all well and good that President Obama wants to meet with Republicans — giving the appearance of reaching out — but when it’s mainly to “chastise” them for opposing his programs, as the AP is reporting after his session at the House Republicans’ retreat in Baltimore today, it’s little but a continuation of the lecture he gave to Congress, the Supreme Court, and even the American people on Wednesday evening. “I am not an ideologue,” he’s reported to have said. Yet it appears that he rejected the Republicans’ proposals for a different approach to health care, a line-item veto for spending bills, and across-the-board tax cuts.
But why should that surprise? Ideologues aren’t open to new or different ideas, because they have the truth. Yet the deeper truth that’s been apparent all along is that we have here a president who, along with so many on his staff, has little grasp of economic reality, because he has no experience in the business world — indeed, appears often to be hostile to that world. Just today, for example, the White House unveiled its plan for a new tax break to spur job creation. As reported by CNN, Obama “wants to give businesses a $5,000 tax credit for each net new employee they hire this year.” The CNN headline captures it all: “Here’s $5,000. Go hire someone.” That’s not the way the world works. Temporary tax gimmicks like that, which the White House estimates will cost $33 billion, are hardly what’s needed. If businesses are to start hiring on a regular basis, they need assurance of a regular climate that will enable them to plan rationally. This administration has given them anything but that kind of assurance. And today’s meeting in Baltimore, like Wednesday night’s lecture, hasn’t helped.
An Appalling Breach of Decorum
This morning, Politico Arena invites comments on Obama’s SOTU attack on the Supreme Court.
My response:
I join my Arena colleagues, Professors Bradley Smith and Randy Barnett, in condemning the president’s remarks last night singling out the Supreme Court for its Citizens United decision last week, which overturned law that the government itself admitted would even have banned books. Not only was Obama’s behavior an appalling breach of decorum, but he didn’t even get his facts right. As Brad, former FCC chairman, noted in his Arena post last night, and a bit more fully here, the decision did nothing to upset law that prohibits foreigners, including foreign corporations, from contributing anything of value to an American election. Obama, the sometime constitutional law professor, should have known that. At the least, his aides had plenty of time to research the question before he spoke. This is just one more example of the gross incompetence or, worse, the indifference to plain fact that we’ve seen in this administration.
But it’s the breach of decorum that most appalls. By constitutional design, the Supreme Court is the non-political branch of government. Like members of the military, Supreme Court justices are invited to the State of the Union event, but they do not stand and applaud when the president makes political points that bring others to their feet. For the president to have singled the justices out for criticism, while others around them stood and applauded as they sat there still, is simply demagoguery at its worst. I would not be surprised if the justices declined next year’s invitation. And Obama wanted to change the tone in Washington? He sure has.
Obama’s ‘New’ Industrial Policy
Last night, after the SOTU, Politico Arena asked:
State of the Union: How did he do?
My response:
If you don’t look behind the stirring rhetoric, this was a fine performance — and many of Obama’s supporters will leave it right there. But behind it all is a single theme: People have problems, and government’s job is to solve those problems. Obama and his people, including many in Congress, still don’t get it. The recent elections in Virginia, New Jersey, and Massachusetts were not about government doing more or better. They were not about all the subsidies or jobs programs or green initiatives Obama spoke about tonight. They were about government getting out of the way — about lowering taxes and lifting burdensome regulations so that businesses, large and small, can once again provide the jobs and the prosperity that have been crippled by the kinds of programs Obama was promoting tonight. This was micromanagement from Washington. We need management from Main Street.
Early on in his speech Obama said that many Americans don’t understand “why Washington has been unable or unwilling to solve any of our problems.” Doubtless that’s true. But many more Americans do understand why. And so, as when he said that health care reform was in trouble because he had not explained it more clearly, Obama continues to believe that the problem is with the messenger, not with the message. Fortunately, we have elections in this country. I predict that come November the people will make it clear again that we don’t need yet another round of “industrial policy.” We need less of that, and more of what this country is really about — freedom.
Obama’s Dilemma
Today Politico Arena asks:
State of the Union: What Should Obama Say?
My response:
Obama’s in a difficult spot: His head tells him to tack right, but his heart’s not in it — and he’s not the first Democrat to be in that spot. That’s brought out today in a CNN Opinion piece, “When liberals revolt,” written by Arena’s (and Princeton’s) Julian E. Zelizer. Tracing similar dilemmas that Johnson, Carter, and Clinton faced, Zelizer shows how they all paid a price for tacking right, which it looks like Obama may do. Johnson faced primary challenges that led him to withdraw from the 1968 race. Carter was challenged by Ted Kennedy. He prevailed; but weakened, he then lost to Reagan in 1980. And Clinton’s move to the center after the disastrous 1994 midterm elections helped him win reelection, Zelizer argues, but it also left him with a thin legislative record on domestic policy.
In short, moving right has its costs, Zelizer claims. Many liberals are “deeply unhappy with the president, believing that he has already drifted too far away from the promises that animated his supporters in 2008.” He’ll need those liberals in 2010 and 2012. Pointing to the “long tradition of Democratic presidents taking the left for granted at a cost to their administrations,” Zelizer notes that they learned “that the ire of the left — a constituency that is very vocal, highly mobilized and politically engaged — can cause enormous damage.”
That it can. But can the left do more than cause enormous damage? In particular: Can it govern? Zelizer cites Ted Kennedy castigating Carter, saying that ”the Democratic Party needed to ’sail against the wind’ of conservative public sentiment by using the federal government to help alleviate social problems.” Fine speechifying. But will it get you (re)elected — much less enable you to govern? The evidence is not encouraging. In fact, the deeper problem the left is facing is that self-identified conservatives in America outnumber liberals by better than two to one. Cambridge may have voted against Scott Brown by 84 to 14, but that just shows how out of touch Harvard is with the rest of Massachusetts — to say nothing of the rest of the country. Obama won not because the country was enthralled with his vague message, but because his opposition, like Clinton’s in 1996, was so uninspiring. In sum, the left’s problem — and Obama’s — is that the country isn’t buying the message, now that it’s clearer. And that’s the heart of the matter.
Populism: Good and Bad
Today, Politico Arena asks:
What is it about the word “populist”? (these days)
My response:
“Populist” (or “populism”), in its American usage, invokes the “common man,” yet the idea’s origins — in ”the people” or “the polis” — can be traced to ancient Greek democracy and, in particular, to political demagoguery. Both Plato and Aristotle had reservations about democracy as a system of government precisely because it was susceptible to corruption by populist appeals to superstition and error. In America, populism has had a long and varied history, but it is most often associated with the Populist Party that was formed in 1891 and, in particular, with the fiery speeches of the Democratic Party candidate for president in 1896 and 1900, William Jennings Bryan, and his famous ”cross of gold” speech at the 1896 Democratic National Convention.
Thus, in a fundamental way, populism stands opposed to elitism, yet it’s more complicated than that. On one hand, the populism of the late 19th and early 20th centuries contrasted with the Progressivism of the era, which held that society should be organized and run by “professionals” trained at the best schools. (Thus, the emergence of political “science,” as distinct from the older tradition of political philosophy.) But on the other hand, Progressives themselves purported to speak for “the people,” even if in practice they were often contemptuous of the people’s capacity to govern themselves, susceptible as the people were to the appeals of demagogues.
At the end of the day, therefore, populism is a double-edged sword. Used pejoratively, it stands for the idea that politicians, to obtain or preserve political power, will appeal to base popular sentiments or mistaken (often economic or legal) ideas. A good example is Obama’s reaction last week to the Supreme Court’s Citizens United decision, rooted in the First Amendment’s guarantee of political speech: He called it “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.” There is an element of truth to that sentiment, of course, because the system of government that has evolved in America under the influence of Progressive “professionals” has endowed those professionals (read: the governing class, in all its reaches) with unprecedented power over “the people,” who often feel powerless as a result. But demagogic appeals like that or like others we’ve heard lately from Obama will only exacerbate that problem. By contrast, a “populist” appeal that seeks to return power to people (N.B.: I did not say, as in the ’60s, “power to the people”) – power to run their own lives, free from unwarranted government regulation or dependency — is a side of the idea we hear too seldom. Yet it’s what our founding documents are about. They established not simply popular government but limited popular government – ensuring the right of the people to govern themselves, not mainly through government but individually or in voluntary association with others. It is that liberty that Progressive elitists who “knew better” — the folks in Cambridge who voted 84 to 15 against Scott Brown — have gradually extinguished.
Filed under: Government and Politics; Law and Civil Liberties
Speech For Me, But Not for Thee
Politico Arena asked a second question today:
Will Citizens United alter American campaigns and if so, how?
My response:
Ideological Arrogance
Today Politico Arena asks:
The road ahead for the White House? Are the Clinton and Reagan lessons useful for Obama?
My response:
Are the Clinton and Reagan lessons useful for Obama? Sure — if he paid them any heed. Reagan had a game plan from day one, grounded in reality, and he stuck with it even after the modest but expected electoral set-backs of 1982: Lower taxes, less regulation, and, with those signals, the economy would correct itself, as it did. Clinton was less focused and therefore was able eventually to shift when reality, in the form of the 1994 elections, forced itself upon him: He finally accepted the welfare reform congressional Republicans had crafted, admitted that “the era of big government is over,” and the stability that Reagan had secured after the turbulent Carter years continued.
So far, however, there are few signs that Obama will heed such lessons. He’s perhaps the most ideologically driven president we’ve ever had, but his ideology comes out of the left, which means that it clashes with the real world and with the larger part of the American electorate, once they’ve come to see it in practice. In that respect, in fact, a single example sometimes captures the character of an entire administration. Although there’s no shortage of such examples in this case, the eminent historian James Q. Wilson discusses one such in this morning’s Wall Street Journal – the administration’s decision to try confessed 9/11 mastermind Khalid Sheikh Mohammed and his four al-Qaeda cohorts in a civilian court in downtown Manhattan.
Set aside the profound legal questions that decision has raised — classified evidence, confrontation rights, finding an impartial jury, speedy-trial rights, protecting witnesses and jurors, pre-trial prejudice (Obama: “when he’s convicted and when the death penalty is applied to him”; AG Holder: “failure [to convict] is not an option”), procedural compromises needed to convict spilling over to ordinary trials, to cite just a few – Wilson asks a simple question: Will Washington pay for the terror trials? He starts with the nonmonetary costs, zeroing in on the actual real estate at play in the “inner perimeter” — the government buildings, churches, apartment buildings, public garages: Everyone who wants to get to one of those, he notes, ”will face road blocks, car searches, radiation monitors and pedestrian checks,” for the year the trial is expected to last. And the monetary costs, excluding those of the federal government, are estimated to be $216 million, for a city that has lost over 6,000 officers in recent years due to budget cutbacks. And here’s the kicker: The decision to hold this trial not before a military commission on a secure army base but in crowded downtown Manhattan was made with no consultation with city officials.
The indifference to the practical, to say nothing of the legal and political, problems surrounding this decision bespeaks an arrogance so surpassing that it can be explained only by an ideologically driven vision of the world — an arrogance that in other hands and other centuries has led to human tragedies of incalculable proportions. We’re fortunate in America that we have constitutional checks on such power, as we saw yesterday, when the Court put a halt to congressional incumbents’ efforts to hobble challengers, and on Tuesday, when the people themselves put a halt to machine politics as usual. So will Obama learn? Not likely, but if he doesn’t, we are not without recourse.
Democracy Will Survive Citizens United
At Politico Arena, today’s focus is on the Court and campaign finance.
My comment:
Reading Reality
Today, Politico Arena asks:
“Do they get it?”
My response:
Do the Democrats get it? A good many of them, like so much of the mainstream media, have long taken their cue from The New York Times editorial page. This morning the Great Gray Lady sallies forth, ideological blinders in place, to pronounce that, “To our minds, [Tuesday's result] is not remotely a verdict on Mr. Obama’s presidency, nor does it amount to a national referendum on health care reform.” Not remotely? Those Democratic office-holders who continue to sip from that purblind well will soon have plenty of time to do so.
But Republican performance in recent years has hardly inspired. To their credit, however, Republicans tend to subscribe to principles about government that are closer to the nation’s founding principles — if only they would abide by them. And so one hopes that, after Tuesday, they will come better to “get it.”
Filibuster Obama Nominees? I’m Shocked!
At Politico Arena today, Clinton’s acting U.S. Solicitor General Walter Dellinger worries that after yesterday’s vote in Massachusetts, Obama’s Supreme Court nominees may be subject to Republican filibusters.
My response:
Walter, my good friend, where were you all during the Bush ‘43 years? I recall seeing you often in town, when you weren’t teaching down in Durham. But if I may judge from your Arena concern today that Republican senators, after the late unpleasantry in Massachusetts, may now filibuster an Obama Supreme Court nominee, you must have missed the unprecedented and repeated Democratic filibusters of Bush appellate court nominees over several of those years. Did you forget that after the Democrats took control of the Senate in May 2001, following Jim Jeffords becoming an Independent, eight of Bush’s first eleven May 2001 appellate court nominees had not had so much as a Judiciary Committee hearing as we were coming down to the 2002 elections? And after the Democrats lost control of the Senate in those elections, when they could no longer stall by refusing to hold hearings, they moved to the filibuster — over no fewer than ten nominees. Did you forget that our good friend, the eminently qualified Miguel Estrada, one of Bush’s May 2001 nominees, finally withdrew his name from consideration in September 2003, after 28 months in limbo and six failed cloture votes?
To be sure, those were appellate court nominees, but the principle is the same — and Bush’s Supreme Court nominees escaped a filibuster, let me remind you, only after the “gang of 14″ finally reached a compromise, failing which the “nuclear option” would have brought an end to the unprecedented Democratic filibuster of Bush’s nominees. (I ignore the 1968 Abe Fortas case, which had special circumstances.)
If Republicans were to filibuster an Obama nominee, therefore, instructions for doing so would be readily at hand. I’m not suggesting they do so, however. The filibuster is, as you know, an extra-constitutional procedure, with something of a checkered history. For better or worse, it has served as an additional check on the passions of the lower chamber, but its use for executive nominations, as distinct from legislation, raises difficult separation-of-powers questions, which are your main concern, I’m sure.
The Tea Party Comes Home
Today, Politico Arena asks:
The message from Massachusetts
What now for the Democratic agenda?
My response:
Listening to Scott Brown’s long, barely scripted acceptance speech last night, you had the refreshing sense that you were listening to an ordinary American, not to some political cut-out. Here’s a guy who campaigned in a pick-up truck with over 200,000 miles on the odometer, who listened to the voters and understood that they wanted not simply to block tax hikes but to lower taxes (and the last thing they wanted was for their taxes to pay terrorists’ lawyers bills!), who understood that even worse than the health care bill now before Congress were the back-room deals that brought it about, who’s served proudly for 30 years in the National Guard — in short, here’s guy you’d be comfortable having a beer with because, as he said, “I know who I am and I know who I serve.”
Which brings to mind the famous Rose Garden beer the president and vice president shared with Prof. Gates and Sgt. Crowley — speaking of (dis)comfort. And that brings to mind Cambridge, which stayed true blue, 84-15, Walter Russell Mead informs us this morning in his delightfully tongue-in-cheek Arena post. (“First, some good news for Democrats: the base is secure.”) As goes Harvard, so goes Berkeley.
But to today’s Arena question. The Democratic left is predictably outraged that “the people” they so love in the abstract have so disappointed them in the concrete. Exhibit A is last night’s Arena post by The Nation’s Katrina vanden Heuvel. Railing against “the Tea Party’s inchoate right-wing populism” (if it’s infested Massachusetts, shudder to think of it in Idaho!), Katrina tells Obama to “get tough, get bold, kiss ‘post-partisanship’ goodbye,” and “put yourself squarely back on the side of working people” by “passing the strongest possible healthcare bill as quickly as is feasible.” And there’s the cliff, Katrina.
Lanny Davis has more sober advice for Obama in this morning’s Wall Street Journal. To those who are pointing fingers at Martha Coakley, Lanny says, “This was a defeat not of the messenger but of the message” — the unrelenting leftism that has come from this White House and this Congress. And he points, by way of instruction, to Bill Clinton’s response to the disastrous elections of 1994, though he doesn’t mention Clinton’s ringing, albeit inaccurate, description of his course-change — “The era of big government is over.” Is it in Obama’s DNA to make such a course correction? Does he have a reset button?
On health care, Obama and his party are in an almost impossible situation. If they press ahead, as Nancy Pelosi and others are urging, the cliff awaits them in November. But if they abandon their project, what will they run on in November? It’s a mess of their own making, of course, so completely did they misread the election of 2008. What better evidence of the endurance of principles of sound, limited government that some two centuries later, The Tea Party has come home to Boston.
The Buck Stops with Obama
Today Politico Arena asks:
Do you feel safer from terrorism today than you did the day before? Assess Obama’s response.
My response:
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