Update on the Sotomayor Hearings
After yesterday’s bloviating—much reduced by Joe Biden’s departure from the committee—today we’ve gotten into some good stuff. Sotomayor is obviously well-prepared. She speaks in measured, dulcet tones, showing little emotion.
Judiciary Committee Chairman Leahy gave her the opportunity to explain herself on Ricci and on the “wise Latina” comment—which she has repeated in public speeches at least six times going back 15 years—and then built up the nominee’s background as a prosecutor and trial judge. Ranking Member Sessions and Senator Hatch (himself a former chairman of the committee) pounded Sotomayor on Ricci, asking her how she reconciles a race-based decision with clear Supreme Court precedent—and how her panel decided the case in two paragraphs despite the weighty statutory and constitutional questions.
Sessions in particular pointed out the inconsistency between her statement yesterday that she was guided by “fidelity to the law” and her history of calling the appellate courts as being the place where “policy is made” and profession of inability to find an objective approach of the law divorced from a judge’s ethnicity or gender. Sotomayor’s responses were not convincing; rather than agreeing with Justice O’Connor’s statement that a wise old man and a wise old woman would come out the same way on the law, the “wise Latina” comment plainly means the exact opposite.
And so the back-and-forth continues. One refreshing thing I will note is that only twice has the nominee said she can’t answer a question or elaborate on a response: on abortion, saying Griswold, Roe, and Casey are settled law; and on guns, declining to discuss whether the constitutional right to bear arms can be used to strike down state (as opposed to federal) laws. The former is a clear—but not unexpected—cop-out because, unlike a lower court judge, the Supreme Court justice revisits the nature and scope of rights all the time. The latter is actually the correct response in light of the three cert petitions pending before the Court in the latest round of Second Amendment litigation. Still, her discussion of the Second Amendment left much to be desired given her ruling in Maloney; as Jillian Bandes pointed out recently, you can’t discuss incorporation without a solid understanding of Presser.
CP Townhall
Should Judges ‘Have the Back’ of Police Officers?
Vice-president Joe Biden says we should rally behind the Supreme Court nomination of Sotomayor because she will “have the back” of the police. Biden is a lawyer, a senator, and former chairman of the Senate’s Judiciary Committee, so he should know better than to pull a political stunt like that to curry favor with law enforcement groups. The Constitution places limits on the power of the police to search, detain, wiretap, imprison, and interrogate. The separation of powers principle means that judges must maintain their impartiality and “check” the police whenever they overstep their authority. To abdicate that responsibility and to “go along with the police” is to do away with our system of checks and balances.
As it happens, The New York Times has a story today about one Jeffrey Deskovic. He got caught up in a police investigation because he was “too distraught” over the rape and murder of his classmate. When there was no DNA match, prosecutors told the jury it didn’t really matter. Does Biden really want Supreme Court justices to come to the support of the state when habeas corpus petitions arrive on their desks and the police work is sloppy, weak, or worse?
On a related note, Cato adjunct scholar Harvey Silverglate fights another miscarriage of justice in Massachusetts.
Mixed Messages on Swine Flu
The government has taken the sensible step of creating a website to disseminate information on the Swine Flu. There’s even a “Swine Flu & You” section.
Unfortunately, someone forgot to tell Vice President Biden.
On the Today Show, Biden lauded the government’s focus on identified vectors and not on a wholesale closing of the border with Mexico or shutting down commercial airline traffic. Then he contradicted this rational message by saying he “wouldn’t go anywhere in confined places now” and discourages travel by plane, subway, or automobile.
No word on whether this will impact administration plans to use “high-speed rail” to revolutionize transportation in America.
Private Zips Past Public
Govexec.com reports: “Private sector zips past government in Recovery Act tracking.”
If you want to find out where governments are spending the $800 billion in federal stimulus money, the story reports that you would do better to go to www.recovery.org than www.recovery.gov. The latter is the government website that stimulus-overseer, VP Joe Biden, could not remember the name of. The former is a project of the business research firm Onvia.
The private www.recovery.org does have useful data and charts. But Onvia should have paired the chart ”Estimated Jobs Created by State” with another one titled “Estimated Jobs Destroyed by State” to illustrate the financing burden of all the new spending.
No No-Fly Zones over Darfur
Should the United States lead a Western coalition to enforce a no-fly zone over Darfur, Sudan?
This idea, which has been kicking around since at least 2006, was articulated recently in the Washington Post by former Air Force Chief of Staff and Obama advisor Tony McPeak, writing with Kurt Bassuener. Back when they were campaigning, President Obama, Vice President Joe Biden and Secretary of State Hillary Clinton all backed it. So it stands a good chance of becoming US policy.
The goal is to protect Darfurians from their nominal government without a costly US effort. But the opposite seems a more likely outcome. The no-fly zone may increase the violence in Darfur. And by committing the US to Darfur’s protection and failing, it may suck us deeper into Sudan’s civil war.
Like most advocates of U.S. intervention in Sudan, McPeak and Bassuener avoid saying that what is occurring in Sudan is a war with sides rather than an irrational slaughter. Attacks on civilians in Darfur, however reprehensible, are a tactic used by a weak, brutal central government to maintain power.
Sudan has some helicopters and Russian cargo aircraft converted into bombers that they use to support a counterinsurgency campaign executed mainly by its army and allied militias, some of which used to be rebels. The militias, in particular the horse-riding Janjaweed, kill and displace civilians because Darfur’s insurgent groups rely on them for things rebels need: intelligence, supply, and recruits. According to the Christian Science Monitor, about 400 civilians died as result of air strikes in 2007 and 2008, a fraction of the total killed by ground forces.
Take away the air strikes, McPeak and Bassuener say, and you get leverage over Sudan’s government. The leverage can be used to compel Sudan to accept a UN peacekeeping force to augment the largely useless African Union force there now.
Leaving aside the question of logistics (patrolling Darfur would be very costly given its the massive size), this plan simply doesn’t bear much logical scrutiny.
It is an application of strategic airpower theory, which tends to make magical assumptions about the political impact of aircraft. That theory tends to depict the enemy as an extremely cost sensitive actor ripped from the pages of economic textbooks rather than what we find in history: governments motivated by nationalistic norms to pursue their political aims at extraordinary cost. Sudan is not going to give up trying to unify its country because we won’t let helicopters and aircraft fly over it.
Because Darfur’s rebels could arm and police their territory behind the peacekeeper lines, allowing a real peacekeeping force into Sudan would be de facto recognition of Darfur’s secession. What leader of Sudan would accept that?
Beyond that, a no-fly zone is likely to make life worse for Darfur’s civilians. As Alan Kuperman notes, a no-fly zone, rather than forcing Khartoum to the table, is likely to drive it to increase ground attacks. We might see accelerated ethnic cleaning and slaughter occurring beneath NATO aircraft powerless to stop it, a repetition of past experience. Likewise, a no-fly zone may further discourage Darfurian rebels from coming to terms with the government, pouring further accelerant on the war. It would also keep Sudan from allowing aid workers to travel to Darfur.
A no-fly zone will also symbolize a US commitment to the dissolution of Sudan and the protection of Darfurian civilians. By accomplishing neither, it would likely produce calls for a more robust intervention — either US boots on the ground or air strikes against people on the ground. Acceding to these calls would make the United States a combatant in Sudan’s civil war. Those who push military intervention in Sudan should recognize that is the logical result of their position.
That position is not unreasonable. Full fledged intervention might protect civilians. And who wouldn’t be sympathetic to a revolt against an awful central government like Sudan’s?
But the United States needs to get out of the other people’s civil war business, not double down. We are participating in two civil conflicts abroad now. That is too many already. And Darfur is not the world’s only humanitarian nightmare. Peacekeeping the Congo might have more humanitarian payoff. We can’t fix everything.
That does not mean doing nothing. We should push Sudan to allow humanitarian workers full access to Darfur, condemn atrocities, and push the rebel factions to sign the peace deal outlined in 2006 or something like it.
Hillary’s Shock Doctrine
Hillary Rodham Clinton, the secretary of state who no doubt thinks of herself as “fourth in the line of succession,” tells a European audience how the Obama administration will pass an agenda that Americans have previously rejected: “Never waste a good crisis … Don’t waste it when it can have a very positive impact on climate change and energy security.”
As I’ve written several times, governments throughout the decades have taken advantage of wars and economic crises to expand their size, scope, and power. Bob Higgs wrote about “Crisis and Leviathan” long before Naomi Klein called it “The Shock Doctrine.”
But the striking thing about the Obama administration is that they openly acknowledge that’s what they’re doing — using a crisis to ram through their entire policy agenda while people are in a state of panic. Projects like national health insurance, raising the price of energy, and subsidizing more schooling — the three prongs of President Obama’s speech to Congress — have nothing to do with solving the current economic crisis. But the administration is trying to push them all through as “stimulus” measures. And they keep proclaiming their strategy.
First it was Rahm Emanuel: “You never want a serious crisis to go to waste. And this crisis provides the opportunity for us to do things that you could not do before.” Then Joe Biden: “Opportunity presents itself in the middle of a crisis.” Not to mention Paul Krugman and Arianna Huffington. And now Hillary.
Not since George Bush the elder told the media that his campaign theme was “Message: I care” has a president been so open about his political strategy. But these people are displaying a contempt for the voters. They’re telling us that we’re so dumb, we’ll go along with a sweeping agenda of economic and social change because we’re in a state of shock. They may be right.
But voters and members of Congress should remember Bill Niskanen’s sobering analysis of previous laws passed in a panic.
What Is It Good For? Centralizing Power.
The Politico reports that Vice President-elect Joe Biden has been comparing our current economic troubles to the 9/11 attacks.
“We’re at war,” Biden told congressional leaders of both parties during their sit-down with Barack Obama in the Capitol, according to two sources familiar with the exchange.
Libertarians and conservatives who fear that Obama’s inauguration heralds the coming of a new New Deal have new cause for discomfort, then. FDR’s embrace of the war metaphor was central to building support for the New Deal:
Franklin Delano Roosevelt, elected in a landslide in 1932, wasn’t the only political figure to analogize America’s economic collapse to an attack by a hostile power; his predecessor Hoover had made the comparison regularly. F.D.R. employed the war metaphor far more effectively, however. Roosevelt’s first inaugural address tends to be remembered as an attempt to calm the public, a warning against “fear itself.” The martial metaphors that appear throughout the speech make clear, though, that F.D.R. wanted fear replaced by collectivist ardor. Americans were to move forward as “a trained and loyal army,” with “a unity of duty hitherto evoked only in time of armed strife.” Should the normal balance of legislative and executive powers prove insufficient, Roosevelt concluded, “I shall ask the Congress for the one remaining instrument to meet the crisis–broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.
Two days after his inauguration, Roosevelt used the Trading with the Enemy Act to order the closure of all American banks. Passed during World War I, the act was designed to restrict trade with hostile foreign powers “during the time of war.” Ignoring that limitation, Roosevelt wielded it in peacetime against Americans. It would not be the last time his administration would invoke powers forged in the Great War to battle the Depression. “Progressives turned instinctively to the war mobilization as a design for recovery,” wrote historian William Leuchtenburg in his essay “The New Deal and the Analogue of War,” “There was scarcely a New Deal act or agency that did not owe something to the experience of World War I.”
Of course, viewing anything Joe Biden says as an example of calculated rhetoric may be a mistake. As the character Hesh Rabkin once noted of the Sopranos matriarch Livia, “Between brain and mouth there is no interlocutor.”
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