Is Gingrich Really the GOP's Man?

It's hard to credit the rise of Newt Gingrich in the Republican Party primary race. He seems to represent the worst of the party's weaknesses. The "Contract with America," a pledge to behave in fiscally bizarre and short-sighted ways, resulted in the shut-down of the federal government in 1994 and the collapse of a Republican majority in Congress.  His leadership of the move to impeach Bill Clinton preceded  revelations that he had cheated on his own wife, followed by his own punishment by the House for financial indiscretions. He has taken money for years from various powerful business interests to act as their hack on the Hill. His political philosophy masquerades as scholarship as he claims to be a professor, but has been shown to be so inconsistent as to be essentially dishonest.

He should be a laughingstock -- and has been for years. 

Can Romney really be so distasteful to people that they'll swallow this instead? 

As The Economist notes, 

Nowadays, a candidate must believe not just some but all of the following things: that abortion should be illegal in all cases; that gay marriage must be banned even in states that want it; that the 12m illegal immigrants, even those who have lived in America for decades, must all be sent home; that the 46m people who lack health insurance have only themselves to blame; that global warming is a conspiracy; that any form of gun control is unconstitutional; that any form of tax increase must be vetoed, even if the increase is only the cancelling of an expensive and market-distorting perk; that Israel can do no wrong and the “so-called Palestinians”, to use Mr Gingrich’s term, can do no right; that the Environmental Protection Agency, the Department of Education and others whose names you do not have to remember should be abolished.

This is a bizarre combination, created by "fatwa," to steal another phrase from The Economist, rather than by any rational or even political process. The radical "base," led by many people so divorced from empirical reality that most of us would consider them crazy, now dictates the terms of Republican primaries.


Like The Economist, I would like to see a productive Republican Party. We need a serious discourse to replace the nonsense we get these days. 



SOURCE: The Economist December 31, 2011 (www.economist.com)

In New York, of All Places

Late last night or early this morning Governor Andrew Cuomo negotiated a budget deal for the State of New York that, according to the Albany Times-Union halved the state deficit and made members of both parties claim victory.

The Times-Union included this quote: “What are the Democrats going to run on?” said one senior GOP aide. “Hyrdrofracking? Gay marriage is off the table, the MTA tax is off the table, the millionaire’s tax is off the table.”

In other words, the state government has managed to resolve the major political disputes in its jurisdiction rather than pumping them so politicians have something to fight about.


Sounds like government. Who'd'a thunk?

Can We Govern Ourselves?

The declaration by the Congressional "Supercommittee" that it expects to fail in its manadate to arrive at a budget compromise by its deadline this week does not bode well for the state of the union. Under our constitution, no task is more fundamental than the passage of a federal budget, and while stalemate and conflict are built into the system, the current impasse arises mostly from the choice of the Republican Party to avoid the basic responsibilities of government.

The very existence of the Supercommittee stems from the intransigience of the GOP in debt ceiling negotiations this summer. Choosing rhetoric over rationality and experience, Republicans cowed by the TEA Party movement -- led by that corrupt hack, Mitch McConnell --  insisted that the recession demanded budget cuts. This declaration makes no sense, since the problem in the economy now is a lack of cash and investment, and the only entity capable of pushing enough of either into the system now is the federal government. But because the focus of the House is re-election rather than leadership, it was able to lead us into potential disaster and still feel good about itself.  Now the Republicans on the Supercommitee demand that no be raised, even on the wealthiest Americans.

Never mind that this is the perfect time to pour money into a deteriorating infrastructure, or that Republicans themselves agreed as receently as a year ago that some tax increases would be necessary. The urgency of the next election cycle overrides all.

Another Look at Occupy Wall Street

In the end, every movement has to have a target or a discernible -- not to say concrete -- goal. Steven Zunes, quoted in my last post, is right to say that protests do not in themselves make a movement. SNCC wanted the repeal of certain laws in the segregated southern United States, PORA wanted fair elections in Ukraine, Gandhi wanted changes in India's caste laws. To maintain momentum and purpose, a movement must point to outcomes.

But in the beginning, such clear, concrete goals may not be the purpose of a movement. In Montgomery, Alabama in 1957, the boycott movement began as a series of inchoate meetings of black citizens who were anngry and wanted to support each other. Right now, Occupy Wall Street is trying to figure itself out. People with something in common have rallied together in many places and have put together a program of behavior. Once they determine exactly what it is they share and what they might do about it, the movement can change.

Here's what a friend of mine, who observed the branch in Denver, wrote to me. (She gave me permission to quote her, but not to give her name.)

I hope you're teaching about the occupy together movements because they're insane. It's actually blowing my mind. Like ten years ago the Dalai Lama wrote a book called Ethics for the New Millenium and spoke about this spiritual awakening that everyone was or was going to experience whether or not they wanted to. And as a result there would be this incredible paradigm shift and I'm prettty sure thats what's happening. People everywhere are supporting each other in solidarity to fix not just their economic problems but all of their problems. It is spreading to everything ( which is mostly all still due to large corporations but still ). And while "authority" figures may stand there with the media and criticize Occupy Wall Street and say that they're protesting and protesting but not saying what they want it's because they just want change. No one can continue to survive in this type of society. People with college degrees are starving because they have student loans to pay and its disgusting. So now It's like america is waking up and realizing the difference between dependency and interdependency. They're understanding that capitalism and neoliberal free trade policies are wrong, they're the problem.


There's an Occupy Denver and basically what is happening is a true democracy. Whenever there is a problem such as sanitation or recycling or electricity the people will go directly to the GA ( General Assembly) and tell them what they need help with and the GA will have someone go and take care of it within an hour or two.You dont have to go through representative after representative you go directly to this board of people and they fix it because people are beginning to realize it's not about who has the most power, it's about us all having a community to live in that we can love and appreciate. It's crazy too because everyone is realllly supportive; people from Denver support the UCD kids and the Denver kids all support the Boulder kids and everyone shows up at each others meetings and protests and its just crazy.

She's saying that the real target in this movement is the participants themselves. They're talking to each other, not someone else. The key line is this description is that "it's not about who has the most power, it's about us all having a community to live in that we can love and appreciate." They don't like the world as it is, so they are making a small piece of the world more to their tastes.

I don't know whether this program will succeed or whether it even can. But if my friend is right, and the people in Zucotti Square are sensing or pushing a paradigm shift, they will be at the front of something quite dramatic.

 And before you dismiss the idea of a paradigm shift, think on this: is the basic idea that we can run the world on internal combustion really working? We have to make so many radical maneuvers, some of which are extraordinarily destructive, to maintain this view of the world that we can't help but fail. And if the internal combustion engine goes away, what does the world look like? More like it does now, or like Zucotti Square?

Occupy Wall Street -- Who's the Target?

As Stephen Zunes of the University of San Francisco noted recently, the protests now known around the world as "Occupy Wall Street" are not a movement just because they are protesting. He argues that

The revolutionary pretensions of a youthful counter-culture aside, Occupy Wall Street must become genuinely representative of the vast majority of Americans now struggling as a result of inordinate corporate power and political influence, reflecting also the legitimate aspirations of small business owners, small farmers, and working families of the poor and middle-class majority whose voices in the established political process are too often drowned out by powerful corporate interests.

In other words, it's not enough to be angry or frustrated, or even to act on that anger in an organized way. If the people occupying downtowns across the country have accomplished anything, it's the articulation of a particular kind of anger at unequal distribution of wealth and the ways in which government promotes it. The protests serve as an outlet for people, especially yong people, to draw attention to the sense of helplessness they feel in the face of huge multinational corporations.

But the protests so far have only highlighted the helplessness, rather than alleviating it or addressing it. Some have compared the protests here to those in Tahrir Square in Cairo, where the mere presence of protesters toppled a regime. Both groups appear to be following the script of an elderly American named Gene Sharp, who has received a fair amount of attention recently. His central tenet, according to one account (I have not read his book myself)

is that the power of dictatorships comes from the willing obedience of the people they govern – and that if the people can decide together to withhold that obedience, a regime will crumble. “Dictators are never as strong as they tell you they are,” says Sharp, “and people are never as weak as they think they are.”

What's happening in Zucotti Square, however, can't really apply this idea. From whom are they withholding obedience? The police? The mayors? When protesters break curfew, are they highlighting the injustice of such rules? Are they trying to demonstrate that the government is incapable of enforcing such rules? If so, the efforts have been a dismal failure, because the latter is false and the former would not be widely accepted even among sympathetic Americans.

If the "movement" is achieve anything, then, it has to do something fundamentally different from what happened in Egypt or Tunisia, something even more radical and much more difficult.

I don't know whether they can pull it off, but in the next post I'll tell you what I think the aim is (or ought to be).

Foreign Affairs and the G.O.P.

The Republican Party likes to look tough. The latest indication of this desire was its effort to bar all non-US citizens from the judicial system in terrorism cases.

Their argument is that  "it would be dangerous to let terrorists exercise the protections against self-incrimination and other rights of civilian courts that they might use to avoid surrendering critical information to investigators." As the "investigators" involved keep saying, though, this line of reasoning is badly mistaken. Neither the Justice Department nor the DoD wants to lose the option of criminal trials because that option can get people into and throught the system more effectively and efficiently. Law enforcement and even spooks get better information that way.

Mainly, though, the push was an effort to look like the baddest boys on the block at a time when the president is looking pretty damn bad. Bush could not find or kill bin Laden, but Obama did. And has has been remarked on this blog on several occasions, Obama has killed more terrorists in one-to-one operations than any president in history. Not only that, but Obama did exactly what he said he would do in Libya: kick out a brutal dictator and then go home. Neither Bush did that.

That makes Republicans hopping mad. Michele Bachman reportedly complained that

Now we have a mess in Libya. We don't know who the ruling party will be going into Libya....There's tremendous uncertainty and chaos. And of course, when there's uncertainty and chaos in a nation, that's when you see trouble and potentially extremist elements that could come into power.

I suppose she can't see the desperate irony in these complaints, given her protrayal of Obama as wishy-washy compared to Bush, but I hope her audience can.

I don't much like the fact that Obama is trigger-happy; I think his policies are illegal and therefore not helpful in the long run. But the GOP has to get itself in order here.

David Brooks Advising Obama?

David Brooks is the kind of conservative I can read. He appeals to reason, maintains a laudable sense of consistency and fairness and proposes policies and ideas that attempt to help the whole country, not "the base" or the political expediency of the day. It was with some anticipation, then, that I read his recent column advising President Obama to tone down his rhetoric.

In many ways, he delivered in all the ways he generally does. His point was not to shoot the president down or to launch ad hominem attacks, but to suggest that Obama ought not abandon the virtue of calm and reason in the thick of political dogfights. Most of the time I would agree with this advice.

But I'm one the people who wants to see Obama make some hay these days. It's clear that Republicans are not trying to govern responsibly, preferring instead to do and say only what will get them short-term boosts in popularity. Too many Republican leaders, Mitch McConnell most of all, want only to attack in the interest of the next election. They are demagogues and bullies and need to be called on their nastiness.  In other words, it's not mere name-calling when Obama raises the negativity of his rhetoric. It's a form of leadership.

A Question on the Occupy Wall Street Movement

This is a remarkable moment. That people in so many American cities have taken to the streets at once may be unprecedented.

The central criticism of the movement so far has been that it is pointless -- that there is no agenda. And that may be.

But I wonder what effect it is having. Who is being pressured by the camps and occupations? Whose interests are affected? For me the issue is not about an agenda, but a target.

I plan to have my Dissent class work on this next week.

What the TEA Party Thinks is Success

Our political system faces a serious danger. It's not exactly new -- the United States has confronted similar problems periodically throughout its history -- but that does not make it any less severe.

The danger is the foolish, obstructionist behavior of people calling themselves "TEA Party conservatives." These people take pride in stopping progress, in ignoring empirical fact, in disrupting rational dialogue. They appeal to an ugly form of "patriotism" that emphasizes exclusion and strife over cooperation. They pretend that anger is a political platform rather than an emotion.

Take, for example, Michelle Bachman, who wants to make being gay or having an abortion illegal, but also wants to make it illegal to call for Sharia law. In other words, she wants to impose her religion while making it sound scary foir anyone else to try the same. She wants to protect Americans against those evil-doers who clean hotels in El Paso. She wants government to disappear completely while also ensuring that the economy grows. These are contradictory positions, but they sound good separately and they appeal to a certain irrational us-against-them mentality that drives many of her supporters.

How about Rick Perry, who insists that his environmental deregulation in Texas helped clean up the air? Not so, says "Larry Soward, a Perry-appointed member of the Texas agency's three-member ruling commission from 2001 to 2007....

Soward said that even though air quality in Texas has improved during Perry's tenure, the credit goes to increasing federal regulations, not state initiatives. With the budget cuts, the agency "simply won't have the resources, budgetary or staff-wise, to really provide a rigorous scrutiny over air quality permits or more rigorous inspections or enforcement."

Even that bastion of left-leaning MSM silliness, Business Week, can see how ridiculous Perry's claims are.And like Bachman, he tends to focus on how creepy "others" are: in his case, he finds Mitt Romney scary because he's a Mormon.

This is not leadership. We can't pull ourselves from the quagmire by crowing every time we avoid confronting our problems. Immigration is not the problem, and gay couples are not the problem. No rational person thinks they are.

Leadership consists in standing up to jingoism and racism and obstructionism and pointing us forward. The TEA Party is dangerous not only because its own ideas are stupid, but because it prevents less stupid ideas from coming forward.

President Obama and John Boehner and others have to make it clear that we will not tolerate calls by bullies for us to lash out while ignoring the problems we face.They have to confront the ignorant, dangerous voices of the TEA Party and make it clear that adults are in charge

Obama's Failures

Americans elected Barack Obama because he asked them to take a risk. Hope, the foundation of his platform, always entails a little doubt. Like faith, it suggests optimism in the face of fear or uncertainty. Considering the state of the American psyche in 2008, in which fear of the future and of ourselves dominated everything from our economy to our foreign policy, we needed a boost of hope.

Obama's first months in office reflected this aggressive optimism, as he promised early withdrawal from Iraq, quick release of the people held in Guantanamo Bay and a massive health care overhaul, among other things. In the spring of 2009 I heard Richard Haass speak at the Millbrook Country Club, and he said his major early concern about the Obama Administration was that it had kicked into high-energy emergency mode right from the start. Haass said that he worried, literally, about whether the president and his team were sleeping enough when they had the opportunity, and whether they would exhaust themselves before a real crisis arrived. Whether Obama fully recognized it or not, he was taking a lot of risks early, and that meant that his chances of failing were even higher than they otherwise would have been. He was not taking the cautiously politic approach taken by Bill Clinton, who was re-elected in part because he backed off from such measures.

The 2010 midterm elections demonstrated exactly what kind of risk he was taking. Republicans, led by fire-breathing TEA Party types, whomped on the Democrats and took control of the House. The two-house majority that allowed him to pass the huge health care bill dissolved, and he was left in a very tenuous position.Today, his pproval ratings are horrendously low, and the president has not done much to inspire the confidence so many of us had in him in 2008.

Of all people, National Review columnist Nick Shulz has given Obama the best road map out of this predicament. A few weeks ago, he wrote a piece explaining the enormous success of Steve Jobs. His central thesis is this: "Jobs did what only the greatest entrepreneurs can do: learn from their failures. I don’t mean learn from their mistakes. I mean learn from their abject, humiliating, bonehead, epic fails." He goes on to explain.

Lots of ninnies can give customers products they want. Jobs gave people products they didn’t know they wanted, and then made those products indispensable to their lives.  I didn’t know I needed the ability to read the Wall Street Journal and "The Corner" on a handsome handheld device at my breakfast table, on the Metro, on the Acela, or in any Starbucks I entered. But Steve Jobs did. I didn’t know I wanted to mix and match my music collection on a computer and take it with me wherever I went, but Steve Jobs did. I didn’t know I wanted a portable multimedia platform that would permit me and my kids to hurl angry birds out of a slingshot at thieving pigs. But Steve Jobs did.  All those successes were made possible by failure after failure after failure and the lessons learned from those failures.  

Obama has done too little to explain why his moves are indispensable. We need him, and the Democratic Party he leads, to be more aggressively optimistic. We are in a crisis now, just as Haass predicted, and we can't have the president's energy flag.

In Libya, the president implemented an extremely successful policy of intervention based not on jingoistic hyper-violence, but on cooperation and retsraint. We are not trapped in a a catastophic quagmire like in Iraq and we did not ignore a moral imperative like we did in Rwanda. Other nations are actually willing to work with the United States now because Obama has not asserted a claim to imperialistic dominance the way Republicans would prefer him to do.

All of us, including the insurance companies who fought against reform the most, are better off as a result of the health care Obama pushed despite the political peril it entailed. He has to show us why that is so. Now.

It's fashionable now to compare Obama and FDR, because Roosevelt faced similar problems. I'm not certain of the parallels. But Obama has moved us ahead in the ways he promised. It's not our job to be patient, it's now his to continue.

If the Courts Don't Function, Do we Have a Government?

I was called to jury duty last week, and while my "service" consisted of reporting to a jury room, offering to come back the next day and then being excused, I learned a lot.

The Commissioner began our day by explaining that the State of New York, because it had no money, had restricted the way the court system could operate. In order to avoid paying court personnel, like court reporters, any overtime at all, the state's Chief Judge, Jonathan Lippman, ordered that courts operate under strict time limits: lunch must start exactly on time and court must end no later than 4:30. Furthermore, the position of family court judge was never filled when the last judge retired. As a result, Judge Stephen Greller must fill two roles in about half the time. In the morning he clears his "part" of routine pleas and motions, handles family court issues and deals with administrative tasks. Then he can preside over criminal matters for exactly three hours a day.

As the Dutchess County Commissioner (whose name, oddly enough, had disappeared from the website within the last 24 hours) pointed out to us in the room, one consequence of all these cuts is that the wheels of the system grind even more slowly than usual. Jurors only have to work half days, but for twice as long. Delays in adjudication mean that some people have to settle civil cases when they ought to go before a judge. Criminal defendants must wait longer.

During the Civil War, in a case called Ex Parte Milligan, the US Supreme Court ruled that government could be considered in tact so long as the courts were open for business. If the courts could not function, civil government effectively did not exist and martial law could be imposed. What does it say about the state of New York that our courts are operating at half steam? Might it be worth funding them fully so we could say, in all honesty, that we do have a functioning government?

Power and Governing

One of the lessons of the "Arab Spring" is that having power and governing are not the same thing. Hosni Mubarak, of Egypt, for example, spent far too much time trying to cling to power and too little time governing. He crushed dissent using torture, bribery and naked violence. He funded his efforts with outside (mostly American) money, and so did not rely on Egyptians for his resources; he never really had to appeal to them for much. As a result, his legitimacy eroded over time. Egyptians of all stripes, including, in retrospect, his own military, did not believe he deserved the support he needed to retain his position. Ironically -- but inevitably -- his concentration on power led to his loss of it.

No current American politician equates to Hosni Mubarak. Not even John Yoo ever advocated the kind of widespread use of torture employed by the Egyptian secret police. Not even Karl Rove, one of the most cynical and power-hungry men alive, seeks to refashion the constitution solely to maintain his own power. Barack Obama, no matter what your view of the health care law, is not grabbing permanent power, and Nancy Pelosi may be pushy, but she's not brutal

Over the past ten years, however, and maybe since the 2000 election, too few of our leaders have set aside considerations of pure power for the sacrifice of governing. They concentrate so closely on being elected that they forget what the ultimate purpose of those elections are. The debacle around the debt ceiling is the purest example of this folly, and the debates to come about the budget, the economy, health care, environmental regulation and the use of US foreign policy will all depend of the state of mind of our leaders regarding their final goals.

Over the next few weeks, I intend to focus on these things here, beginning with President Obama's performance in the White House.

What Government is For

Last week I drove along the Blue Ridge Parkway outside of Asheville, North Carolina, as part of a family vacation. Even more than the parkways around New York City and Washington, DC, the Blue Ridge is a park-way. It's not an especially practical way to get from one place to another if you are in any sort of hurry because the roads winds around and through several mountains. The speed limit never exceeds 50 mph. The views are stunning, and hiking trailheads apeear evey couple of miles along the way.

As a feat of engineering, the road is remarkable. The energy, resources and ingenuity it must have taken to carve the road bed from the hills without doing irreparable damage (which, I'm sure is relative) are awe-inspiring. The road was built as part of the New Deal, with federal money.

As I drove along, I was both impressed an saddened as I thought about these facts. At one time in our nation's histort, we allowed our government to acheive things like this. It built bridges and dams and roads and hospitals. Some of things may have been boondoggles, but many helped create a powerful economy and others were acts of beauty; some were all the above. Now we seem to want government only to promote private wealth. Anything the government can do for the common good or the common wealth is disparaged or even outlawed by the courts as an overextension.

We have big problems, and none bigger than the crises that will be caused by climate change. Government -- collective thinking and expenditure -- is the only way we can weather these crises. Will we allow ourselves to succeed as we once did?

Why it's Ridiculous to Complain About the "Human Factor"

Two nights ago the Pittsburgh Pirates and Atlanta Braves played a 19-inning game with playoff implications. It ended on a play at the plate that commentators immediately screamed was wrong. As has become the routine, people called once again for the use if instant replay to fix the "terrible calls" by umpires.

One of those (literally) yelling yesterday for instant replay was ESPN's Mike Greenberg, who used the typical line about the ridiculousness of preserving the "human element." "In every other area of life we try to mitigate human weakness, but not in major league baseball," he said.

This morning, however, he changed his tune, though without acknowledging it. When it was pointed out that by NFL standards requiring "indisputable visual evidence" to overturn a call this one probably would not have been changed, Greenberg said that in this case the approach should be different. "When the throw beats the runner by five feet like this one did, I think the umpire needs to see indisputable evidence that the defensive player did not tag the runner ... that's just common sense." When Greenberg's partner, Mike Golic, disagreed, and said that the only question should be whether the tag was actually applied ("we see a lot of phantom tags in baseball") Greenberg insisted that the situation should matter.

In other words, it's not only a factual question (whether the catcher tagged the runner or not), but an interpretive one (whether the situation ought to call for a default judgment.) That's something only humans can do.

And despite the vehemence of those on talk radio, I'm still not certain the guy was out.

Supporting Gay Rights with Gay Jokes?

Michelle Cottle, of The Daily Beast dicusses Michelle Bachmann's gay problem: apparently, the virulently anti-gay presidential candidate is married to a man many people suspect of being gay. To add intrigue, though not surprise, to the story, Marcus Bachmann is also virulently anti-gay, and even runs a program designed to "untrain" gay youth. Cottle focuses on the problem from Bachmann's perspective -- how she might counter the political effects of her husband being ridiculed as gay when she is so angrily anti-gay.

I'm more interested in the tension inherent in making fun of the guy because he's gay in the name of defending gay rights. Cottle refers, in particular, to a bit on the The Daily Show, in which Jon Stewart skewers Bachmann for hypocrisy. It's clear where Stewart's sympathy lies: he says repeatedly that the "gay repression therapy" Marcus Bachmann practices is "harmful to real people," and even brings in Jerry Seinfeld to extend the skit and reinforce the point. He then uses the opportunity, though, to spout a string of one-liners about gays. ("He's so gay he buys Brawny paper towels just for the label." Or, "He's so gay he refers to Top Gun as that beach volleyball movie."

These are not homophobic jokes, per se. They are jokes based on stereotypes, but so is just about everything Stewart does. The larger question, though -- and I really do not know the answer for sure -- is whether we advance gay rights by making fun of the guy for being gay.

American Sports and the Concept of Fairness

This is only a partially-formed thought, derived in part from my previous post.
I find it odd, though, that American sports commenters have a different idea of fairness that much of the world. On ESPN yesterday Scott Van Pelt whined about how "you can hit a perfect shot" at the British Open, "and still end up off the fairway." He said "you wouldn't design a golf course like that now, but it's called 'Royal' so what are you going to do?" My colleague in favor of disposing of plate umpires said the same thing: if you were inventing the game now, you would not use human umpires."
Somehow these people have reached the conclusion that if a player or a person does his job perfectly the sport owes him success. But that's not true. Success is not owed. Sometimes we do everything right and fail. Sometimes we get lucky and succeed despite ourselves.
Only the most privileged people on the planet, as we Americans are, could believe that bad luck should never play in.

Epistemology, Justice and Baseball Umpires

Major League umpires have endured a lot of flack recently, both from players and from the wonks at ESPN. The complaint is that they miss too many calls, as judged from instant replay. A colleague of mine even suggests that plate umpires ought to be replaced entirely, and that a computer like the one used on TV should call balls and strikes.

In a very limited number of cases I agree with these comments. Mostly, though, I think they are misplaced. Instant replay might serve a useful purpose from time to time, but in most circumstances I think it would make the game worse, not better. Of all proposals, the one to have machines call balls and strikes makes least sense.

First, let's remember why we have umpires. Until very recently, it was not assumed that they could be perfect or near-perfect mirrors of "reality." They were there to manage and faciliate the game, to make it fair. In this view, still appreciated by most players and coaches, a good umpire is consistent and efficient, and thus allows the game to be played at a good pace and on an even "playing field." A good umpire will be impartial, so any "missed" calls will balance out in the long run (and probably in the short run, too.) Bad umpires in this view are inconsistent and/or arbitrary, and make the game more difficult and frustrating to play; no one knows quite to expect and so can't adjust his own actions to any clear standard. This conception of officiating dominates the world of sports; note that when refs missed calls in the World Cup most people reponded with confusion when Americans suggested that instant replay be instituted.

Second, we should consider the relative merits of camera angle and human perception. Before going any further, let me dispose of the idea of balls and strikes being called by a machine. The process of explaining why this is a bad idea, no matter what you think the job of an umpire is, will then help elucidate my ideas on other electronic interventions.

The rule says

The STRIKE ZONE is that area over home plate the upper limit of which is a horizontal line at the midpoint between the top of the shoulders and the top of the uniform pants, and the lower level is a line at the hollow beneath the kneecap. The Strike Zone shall be determined from the batter's stance as the batter is prepared to swing at a pitched ball.

Notice: the top of the strike zone is a "midpoint ... determined ... as the batter is prepared to swing." In other words, it is not an absolute point in the universe that might be measured even with the most precise machinery. The rule (deliberately) includes a "fudge factor," as my high school chemistry teacher used to say. The ump must judge a midpoint, and he must judge when the hitter is prepared to swing. When ESPN or Fox superimpose those electronic boxes over the strike zone, then, some technician is making a judgment as to where those two points are (one in space -- the midpoint-- and one in time -- the moment the batter is prepared.)To pretend that the electronic box is any more "real" than what the ump says, especially when the difference might be a matter on an inch or less, is ridiculous.

Put another way, calling a strike is not a matter of observation in the pure sense, but a matter of interpretation. It requires the application of a rule (an abstraction) to the empirical universe. Only human beings can interpret. We can instruct machines to copy our interpretations, but we can not have the machine do the real work for us. No camera or computer interprets events, the person seeing the picture does. Those cameras only allow people to observe and interpret things in a different way. The "human factor" couldn't be removed even if we wanted to do so.

Plays in the field present a more interesting problem. In some cases, a camera can provide information that umpires ought to use. For example, balls hit just over a homerun line should be homeruns. Umpires can't always see those balls from their positions 200 feet away, and the outcome of the game might be determined quite directly by that one play. Instant replay should be used in such cases. Foul/fair balls, especially in the outfield, might be the same.

Close calls at bases, in my opinion, require the most complicated balancing. Recall that I said the ultimate object is to make the game fair. When an umpire "misses" a call at first base that requires three angles and super-slow-motion photography to see, his call is fair, one way or the other. Frankly, the base might have been positioned 1/4 closer or farther from home plate than the rule says, and that could be the difference. Get over it. The (in)famous Jim Joyce call last year is the counterpoint. He was wicked wrong, and use of replay might have served him well.

"Phantom tags" present the most difficult issue of all, in part because they often incorporate an unofficial, "unwritten" interpretive component. When the ball beats the runner and the fielder gets a tag in the general area of the runner's body, it has long been understood that the guy is out unless he is making a deliberate and extraordinary effort to evade the tag. The rule does not say this, but the fact has generally been accepted as fair. That's the way I see it. You could make a case, however, that this view is essentially arbitrary, that it should not be that way. You might convince me.

So here's my solution. Add a fifth official to every game. He would sit in the booth and watch the game on TV. If he saw a call -- not a ball or strike, but anything else -- that needed to be changed, he would change it. There would be no appeals, no limits on the number of overrides, no timeouts, no bitching. The booth official would be a member of the crew just like the four umps on the field, would have most if not all of the same training, and would not be an outside force intervening to override the umps. He could combine interpretive skill and expereince -- a human perspective -- while using the observational tool of the camera and slow motion.

In this way, we could recognoize the epistemological problem of the "right" call and still achieve justice>

If Qadhi is Restricted, Why Isn't Geert Wilders?

I reading around for my previous post, I found this website. It looks way over the top, and I fear that it may turn some peiople off as a result (would my parents trust it?) but it has a lot of good stuff.


http://www.loonwatch.com/2011/05/lw-exclusive-shocking-video-of-geert-wilders-hate-speech-on-us-soil/

Jihad and the First Amendment

Free government cannot exist without free speech. This is not a controversial proposition. Without the liberty to speak our minds publically, we cannot oppose a government seeking to infringe upon our rights, or collect the information we need to vote intelligently, or participate in what we now call “civil society.” Americans have recognized this relationship between speech and government since at least 1765.

Since about 1917, however, we have become more ambivalent about this idea. Americans began to see the world as a more threatening place, or rather, to see our government as less threatening than other governments or other people. During World War I, in defense of the draft (which raises questions of its own) the government passed a law prohibiting speech which might undermine the operations of the US military. (The further irony here is that the “Founding Fathers,” as they were, opposed the very existence of a standing army, as inherently dangerous to liberty. That the government would then create a draft and a law restricting the freedom of speech to defend the draft would have been beyond abhorrent.) Although the First Amendment says that “Congress shall make no law abridging the freedom of speech or of the press,” the federal government, including the Supreme Court, declared that when there is a “clear and present danger” to the government, people can be arrested for speaking their minds. From that time forward, the “clear and present danger test” has been assumed to be a fundamental part of our constitution.

Since 2001, our social acceptance of such restrictions has increased, especially when the people being restricted are Muslims. To be Muslim and utter the word “jihad” has become virtually illegal. Muslim leaders who don’t constantly reassure the public that they do not seek to blow us all up are treated with scorn and suspicion. Even those who do make assurances are subject to the kind of resistance met by the mosque in New York City.

In March, The New York Times Magazine did a story on Yasir Qadhi, an American Muslim who considers himself a Salafist but also a loyal citizen of this country. He wants to make the case, both to the American government and to young Muslims, that those two things are not mutually exclusive. As Andrea Elliott wrote,

[Qadhi] is the rare Western cleric fluent in the language of militants … steeped in the same tradition that spawned Osama bin Laden’s splinter movement. Arguably few American theologians are better positioned to offer an authoritative rebuttal of extremist ideology. But to do that, Qadhi says he would need to address the thorny question of what kinds of militant actions are permitted by Islamic law. It is a forbidden topic for most American clerics, who even refrain from criticizing their country’s foreign policy for fear of being branded unpatriotic … Engaging in a detailed discussion of militant jihad – a complex subject informed by centuries of scholarship – risks drawing the scrutiny of law enforcement.

In other words, this is not just an academic matter. Not only are our citizens less well-informed as a result of such informal restrictions, but our national security suffers. Qadhi might be a highly useful instrument is convincing potential terrorists that violence is not the answer. As he said himself, “how angry and overzealous are you that you simply forget everything and you think that this is the way forward?”

He’s not only talking to jihadis, is he?

Saland Does Right

I have been highly critical of Senator Stephen Saland in the past, and I still am frustrated by him in many cases. But he voted in favor of legalizing gay marriage last week, and for that he deserves as much credit as I can give him. He did it despite the flack he will take from members of his own party and from many of his constituents. That took some courage.

In his own words, here is why he voted as he did.

In 2009 when the marriage equality bill came before the Senate for a vote, I struggled with the decision. This is an issue which a great many have a deep and passionate interest, both those for marriage quality and those who support the traditional view of marriage. In part, the difficulty in arriving at my decision is that I respect and understand the views coming from both sides of the issue.

In fact, my decision today is rooted in my upbringing. My parents taught us to be respectful, tolerant and accepting of others and to do the right thing. I’ve received thousands of calls, e-mails, post cards and letters.


Many of them, whether they were from proponents or opponents, concluded by calling upon me to do the right thing. I want to do the right thing, but needless to say, that decision cannot be the “right thing” for both sides of the equation and, whatever my decision, there will be many who will be disappointed.

As a traditionalist, I have long viewed marriage as a union between a man and woman. As one who believes in equal rights, I understood that the State was denying marriage to those in same sex relationships. In 2009, I believed that civil unions for same sex couples would be a satisfactory conclusion.

Since that time, I have met with numerous groups and individuals on both sides of the issue, especially during the last few months. As I did, I anguished over the importance and significance of my vote.


My intellectual and emotional journey has at last ended. I must define doing the right thing as treating all persons with equality in the definition of law as it pertains to marriage. To do otherwise would fly in the face of my upbringing.

For me to support marriage equality, however, it was imperative that the legislation contain all the necessary religious exemptions, so as not to interfere with religious beliefs which I hold as important as equal rights.

I believe this legislation satisfactorily resolves the religious exemptions.

I was part of a trio of Senators that negotiated with the Governor and his staff for greater religious protections in this legislation – vastly in excess of the prior defeated version and substantially more than this year’s earlier version. I would be remiss if I did not acknowledge the important and direct role of the Governor in these negotiations and his genuine sensitivity and concern to the importance of religious freedoms.

While I understand that my vote will disappoint many, I also know that my vote is a vote of conscience. I have contemplated many difficult votes throughout my career and this is by far one of the most, if not the most difficult. Struggling with my traditionalist view of marriage and my deep rooted values to treat all people with respect and as equals, I believe after much deliberation, I am doing the right thing in voting to support marriage equality.

Health Care and Political Discourse

In the June 6 New Yorker, Ryan Lizza described what he called "Romney's Dilemma." The dilemma is that Republican presidential hopeful Mitt Romney once solved the problem of health care in Massachusetts. That might be a good thing -- in fact, Lizza considers it "the most significant bill of his career" -- except for the fact that he did it in the wrong way by today's standards for GOP candidates.

Romney's plan looks a lot like "Obamacare," the ultimate target for TEA Party types and therefore for Republicans in general. Essentially, it creates an open but regulated market for health care, thereby relieving the state of the burden of providing emergency (or even routine) health care in the form of emergency room services for the poor who can not afford to buy their own, or whose employers do not provide it for them. The key component in both plans is a requirement that everyone buy some form of insurance, and that's why TEA Partiers hate it.

The deep irony (or Orwellian nightmare, depending on your mood) of Romney's problem is that at the time he put the plan together, it was lauded by economic conservatives who saw it as a market solution to a government problem. And that's what it is. Now, however, it is depicted as socialism of the most sinister type.


This is creepy, and it represents the serious dysfunction of the Republican Party. Wack jobs a the forefront of the GOP are ignoring basic economic facts and riling up their constituents behind falsehood. The result is that we can not get behind a plan that could help solve two really serious problems simultaneously: the budget deficit and the health care crisis, which go hand-in-hand. Unless Obama, the Democratic leadership and some sane Republicans can get out and explain and defend this sort of thing to the public at large, we are all in trouble.

What is Kennedy About?

The United States Supreme Court is as bitterly divided as it has ever been. On one wing are Chief JusticeRoberts and Justices Scalia, Thomas and Alito. On another are Justices Kagan, Ginsburg, Breyer and Sotomayor. Then there is Justice Anthony Kennedy.

Kennedy has written some of the most important -- and some of the most difficult to reconcile -- decisions in the last twenty-five years. He wrote the majority opinion in the Citizens United decision in part because he was the swing vote. He was the author of the Court's most recent decisions on gay rights, Romer v. Evans and Lawrence v. Texas.

And last week he wrote the opinion in a decision declaring the California penal system to be in fundamental violation of the 8th Amendment because of its drastic overcrowding and abominable health conditions. Brown v. Plata announced that state governments do not have unlimited authority to manage the way they handle prisoners because the constitution requires the courts to maintain certain levels of treatment.

In each case he has made someone angry. To an extent this may be unavoidable, since the issues being considered matter so much and the differences among justices are so stark. But some of the anger arises because it is not easy to predict exactly where Kennedy will fall on any given issue. Linda Greenhouse, perhaps the most veteran Supreme Court reporter working today, called his latest decision "remarkable." Scalia called it "a judicial travesty" because it "ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity." Considering how many times Scalia has joined with Kennedy on important stuff, his anger stands out.

So what, exactly, is Kennedy's jurisprudence? This is no small question, and has drawn the attention of several scholars and reporters.

Frank Colucci says that "Kennedy’s core belief [is] that judges have a duty to ensure the word liberty in the Constitution be given its full and necessary meaning. " That kind of reading would annoy people like Scalia, who believe most deeply in judicial restraint. (Or at least say they do; I think Scalia can be a skunk on this question. See the Citizens United case.)

Helen Knowles says he is a libertarian.

Ilya Shapiro, writing in the Harvard Journal of Law and Public Policy, rejects the idea that Kennedy is a true libertarian, and argues that "Justice Kennedy may thus be better described as being in favor of good government—with liberty as a positive and welcome externality—but one that requires his workmanlike beneficence to bring the majestic law to the people."

My biggest concern here is that Kennedy may be thinking less about coherent jurisprudence and more about the politics of the Supreme Court. I don't mean this cynically. Kennedy and Sandra Day O'Connor famously made their marks by trying to maintain the civility and balance of the Court itself, as an institution. He has said that he worries about such things in our system as a whole, and I certainly agree, as I have written in this space. So Kennedy may be trying to do what John Roberts really should be doing: leading the Court as a group of people.

As senior justice in many cases, "Kennedy might keep an opinion for himself that Stevens would have handed off to another liberal justice. Kennedy might write the same decision more narrowly than Stephen Breyer or Ruth Bader Ginsburg would have." This desire to moderate pinions may have as much to do with maintaining some institutional working balance as maintaining intellectual consistency.


I'm concerned because this goal may be a good one, but it reflects a failure on the part of the (very young) chief to manage his job, and may bode badly for the future. I hope Kennedy and the Court can reach his goal without his having to abandon efforts at consistency.

Fraudulent by Nature?

By most accounts, Goldman Sachs was among the worst actors in the meltdown of the financial system in 2007. First, it blindly took profits from collections of bad bonds when it should have known that those bonds would result in a huge collapse. Then, when it finally began to pay attention, it bought instruments that would take profit from its own bad advice. In other words, it sold -- and even pushed -- products to people that it was betting against. (For a full and clear explanation of all this, I recommend The Big Short by Michael Lewis.)

Now, at least, the big Wall Street firm is facing some accountability, in the form of an SEC lawsuit. New York attorney general Eric Schneiderman is also considering prosecution for fraud. But the SEC has let the big guys off the hook by focusing on just one man, Fabrice Tourre, as if he were solely responsible for the sale of these fraudulent securities.

Not only that, but the SEC is also investigating fraud committed by a Chinese firm called Longtop Financial Technologies. One of the firms involved in that fraud was … Goldman Sachs, which helped the Chinese company go public in the United States. New York Times reporter Floyd Norris writes that "what is stunning about Longtop and some other recent disasters is the list of smart people who were fooled. "

It seems to me that Norris is being entirely too generous. At what point do we accept that the people at Goldman Sachs are either not smart or not honest. The pattern points to the latter. People who work for Goldman Sachs have to k now that the firm for which they work has a history of criminally negligent or outright fraudulent behavior. They continue to work there because they want more money. In other words, they are greedy. Let's call it what it is. Goldman Sachs is a criminal enterprise, fraudulent at its core.

Quote of the Day

"The most difficult subjects can be explained to the most slow-witted man if he has not formed any idea of them already; but the simplest thing cannot be made clear to the most intelligent man if he is firmly persuaded that he knows already, without a shadow of a doubt, what is laid before him."

-Leo Tolstoy

(Quoted in Michael Lewis, The Big Short)

Quote of the Day

"Every man is a damn fool for at least five minutes every day; wisdom consists in not exceeding the limit."
- Elbert Hubbard

Secrecy and Democracy

As soon as the United States entered World War I, Congress passed the Espionage Act and the Sedition Act in an effort to bolster security and enhance the recruitment of soldiers. The most famous element of these laws, the subject of the Supreme Court decision in Schenck v. United States made it illegal "when the United States is at war, [to] willfully utter, print, write or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States or the Constitution...or the military or naval forces of the United States, or the flag." Oliver Wendell Holmes, writing for the unanimous court, wrote that such restrictions were constitutional when there was a "clear and present danger" to the state as a whole.

Since 1919, First Amendment law has been much more fully articulated, in part through a long line of Supreme Court decisions. In contrast, the Espionage Act has garnered much less attention, in part because it does not directly implicate the Bill of Rights. The law reads, in part

Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book,signal book, sketch, photograph, photographic negative, blueprint,plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to
receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it

can be imprisoned for up to ten years.

The intent of the act clearly is to protect the operations of the military from harm resulting from spying. As every president from Wilson to Obama has insisted, violation of this law can place American soldiers immediately in harm's way, and could result in disaster for whole campaigns. Given that the constitution gives the president and Congress explicit power to maintain an army, it seems perfectly reasonable to say that the government has the power to protect it from espionage.

The problem is that the government too often has used the law to shield itself from having to reveal less obviously beneficial secrets. In one early example, the federal government claimed the right to protect military secrets even from judicial scrutiny when the widow of an Air Force officer sought information on the cause of the plane crash that killed her husband. In Reynolds v. United States, the Supreme Court ruled that all the government had to do was say secrets were involved, and everyone had to keep hands off. When those documents finally were released 50 years later, we learned that there were no military secrets involved at all, but that a failure of proper maintenance, which would have exposed the government to embarrassment and legal liability, had killed the airmen. The government lied, and then used the courts to cover its lies. Since then, we know the Nixon, Reagan, Bush, Clinton and Bush administrations also cloaked their activities in ways that were later found to be unethical at least and possibly even illegal.

More recently, according to stories in The New Yorker magazine and CBS's "60 Minutes" news program, the Obama Administration is also stretching the meaning of the law to meet questionable goals. In "The Secret Sharer," Jane Meyer describes the Justice Department's (over?)zealous prosecution of Thomas Drake, a former executive in the NSA who leaked secret documents to the press. Drake says that he not a spy, but a whistle-blower, uncovering graft and incompetence, not secrets important to the US government.

Therein lies the trouble. Without utter secrecy, it's possible that the operation to assassination Osama bin Laden would not have worked. If the government fails to protect its own secrets, such missions might never work. On the other hand, not everyone agrees that the mission against bin Laden was legal -- I, for one, have my doubts. In that case, a full and unfettered public debate about targeted killings, if not specific operations, may be absolutely necessary for the proper functioning of our government. We can't have that debate without the kind of information withheld in cases like these.

My own view is that, except in the case of specific military information having to do with current operations, secrecy is gnerally not good for government. Transparency, as Obama himself once argued, is better.

Judicial Hierarchy and the Law

At the heart of the Supreme Court's power is the respect for the rule of law. This principle says that we ought to set aside our personal political preferences in deference to the determination of legitimate organs of law. (The problem of what to do when confronted with illegitimate organs of law is the subject of Jefferson and Locke, but even they argue that the rejection of false legal authority must be accompanied by an appeal to legal reason.) More than any other branch of government, the judiciary depends upon adherance to this principle because courts have no guns and no money to use as enforcement tools; they must depend on someone else to make their decisions hold.

As Ronald Dworkin argued recently in The New York Review of Books, the current five-member majority of the US Supreme Court has undermined that principle by making what he calls "embarrasingly bad decisions."
I'm not sure I agree with Dworkin in the degree of his criticism, but I do marvel at the willingness of these five people to rewrite long-standing law while at the same time declaring their allegiance to stare decisis.

But even more alarming is the possible deliberate disregard for Supreme Court rulings by the DC Circuit Court. As the circuit solely responsible for the application of Supreme Court decisions on detentions at Guantanamo, the DC court has enormous power. I can't think of a punishment harsh enough if the suspicions raised by some scholars are true -- that the DC circuit has deliberately ignored rule set down by a majority of the Supreme Court in Boumedienne v. Bush.

The Coming Apocalypse

As we all know by now, the United States government will default on its debts if it does not raise the debt ceiling soon -- by early this summer at the latest. By some accounts, such a default is unimaginable because the resultant economic catastrophe is so obviously forseeable that not even the House of Representatives could allow it to happen. Let's hope that wisdom holds true.

Of course, the more difficult question is how we reduce the necessity of having to go through this exercise repeatedly. Right now the government spends far more than it brings in, for several reasons. Some day soon, we -- and I mean "we," not just the people we elect to Congress and the White House, because it will be our money and our lives that will be affected -- will have to decise how to balance this equation. It will require compromise and probably some level of sacrfice that we have not made in too long.

The TEA Party likes to talk about the spending part of that equation. As Mark Meckler and Jenny Beth Martin wrote in Politico this week,

"The real medicine needed is to do what Congress originally intended a debt ceiling to do: stop borrowing. Every poll shows the majority of the public is against raising the debt ceiling. In poll after poll, between 60 percent and 70 percent of voters are against an increase. This despite constant wailing from politicians and bureaucrats that failure to raise the ceiling would lead to economic catastrophe.... Refusing to raise the debt limit is likely to force the politicians to deal with entitlement reform and spending cuts today — not after the 2012 elections, when it might be too late."

As far as they can see, borrowing is a moral as well as an economic issue, and sometimes moraility needs to take precedence. They don't like "entitlement" and they don't like debt.

I don't agree about the morality of the "entitlement" programs they hate. I think government has an obligation to its citizens that extend to offering some protection when they are least vulnerable. Such philosophical questions will never be fully resolved are the main stuff of political debate.

On the economic question, though, the answer is a little easier. As Robert Samuelson argued in Newsweek last month, the other side of the equation must be considered, too. That is, we do have to raise taxes while we cut spending. More particularly, we have to increase taxes on the wealthy individuals who benefit so much from the enormous profits of multinational corporations. TEA Partiers might be right about the suppressing effect of taxes on corporations -- and Samuelson argues that corportae tax rates ought to be cut and then enforced -- but

We should lower the tax on corporations. That would make the United States more attractive to U.S. and foreign multinationals. We should then raise taxes on the people who receive the benefits of corporate profits. The economists suggest cutting the corporate rate to 26 percent and increasing the capital-gains rate to 28 percent; dividends would be taxed as ordinary income. If done properly, this switch would create jobs, lower tax avoidance, and cut budget deficits. Eliminating unwarranted business tax breaks could raise extra revenues.

I have no idea whether these specific changes would have the effect Samuelson says they will, though it sounds right to me. Whether you agree with Meckler and Martin or not about the morality of providing the poor with enough food to eat, though, it can't rationally be denied that the government must collect taxes to reduce the deficit. we can't -- we won't -- reduce spending to zero.

And that means that the threats to prevent the raising of the debt ceiling are both hollow and myopic. What threats can the TEA Party people make, what concessions can they extract, that would be worth a meltdown? It's time to find a reasonable compromise.

The Mother of All Targeted Killings

Despite the widespread euphoria over the mother of all targeted killings, the attack on Osama bin Laden, the United States now faces an even greater philosophical and legal challenge surrounding government-sponsored assassinations. Not everyone in the world was especially pleased with the killing, of course, but that’s not the issue; no government, and especially not the United States, can hope to please the international community all the time. But the Navy Seals’ very success will increase some pressure on the resident to seek to replicate it. Osama bin Laden’s conduct was so patently loathsome that it’s easy to see why the US would seek his death. Even those who may not like the concept of targeted killing might look the other way in this instance. Other cases may not be so easy.

This question of general acceptance is not only “political.” Unlike domestic law, international law does not depend on written statute. Even United Nations decrees rely not on the authority to make law, but on treaty-made agreements on what constitutes acceptable international behavior. If international law allows targeted killing, that is to say that the nations that make up the “international community” says it does.

In other words, President Obama finds himself squeezed between American popular opinion and international legal opinion. Obama’s approval ratings shot up last week following the killing of bin Laden, and he needs that approval to manage his agenda here. Some Republicans may have moaned on Facebook and elsewhere that Obama was taking credit for something he did not do, but most people associated the success with the president. Things may not be going as well in Afghanistan as Obama might wish, but if he can keep picking off bad guys he may feel better about things. Problem is that to do so might run him as afoul of international law as President Bush was when he invaded Iraq.

Gay Judges and Judicial Ethics

In another example of "not clear on the concept," the lobby against gay marraiges has accused a judge in the California Proposition 8 case of bias because he is gay. This would be like saying that divorce judges could not be married -- or divorced. It would be like saying that black judges could not sit in racial discrimination cases or that women could not adjudicate gender discrimination cases.

The accusation reveals the basic misunderstanding of the anti-gay lobby: gays are not pursuing an interest, but are being themselves.

Drone Strikes and International Law

(picture from http://ssecorp.blogspot.com/2011/08/predator-drone-aircraft-wallpapers_18.html)


As it has done in Pakistan and Afghanistan, the United States has decided to employ unmanned drones to drop bombs in Libya.

The use of drones raises interesting legal, ethical and political questions. Their obvious utility lies in complete absence of risk to American lives with their use. Even if shot down, a drone can only cost us money, not airmen or soldiers. Furthermore, their aim is accurate and precise; they hit what their controllers aim at. From a military persepctive, then, they can be ideal when they can be used.

But all of these strenghts also raise concerns. The Christian Science Montitor quotes David Ignatius in the The Washington Post thus:

My quick reaction, as a journalist who has chronicled the growing use of drones, is that this extension to the Libyan theater is a mistake. It brings a weapon that has become for many Muslims a symbol of the arrogance of US power into a theater next door to the Egyptian and Tunisian revolutions, the most promising events in a generation. It projects American power in the most negative possible way.

I wrote late last year that the problem with the Predators is that they provide too easy an answer to political and military problems.

In other words, it looks and feels like we are playing god, floating around the skies with our ability to kill whomever we like. Send a drone to kill the one we don't like, and everything will OK, right? Well, not always and not for everyone.

Furthermore, drone strikes act more like extrajudicial executions than military maneuvers. In October of 2010, NYU professor and UN special rapporteur on extrajudicial, summary or arbitrary executions John Alston wrote

that We need the United States to be more up front and say, 'OK, we're willing to discuss some aspects of this program,' otherwise you have the really problematic bottom line that the CIA is running a program that is killing significant numbers of people and there is absolutely no accountability in terms of the relevant international laws.

At issue, in part, is that the US targets specific individuals, but keeps the reasons for their killing secret in an effort to protect the program and the hardware. These are not attacks on legitimate military targets as traditionally understood, with the necessary consequence of the death of bunches of people. Rather, the government chooses a person to kill, and then kills him. Because there is never any airing of evidence against this person, never mind a trial, the attacks raise serious concerns about due process.

It's ironic, of course, that international law will not give much resistance to the arbitrary killing of dozens of men, largely through the accidents of fate, that result from traditional bombings, but has no place for the assassination of a single person. Ethically, it seems better in some ways for the US to try to identify people who really "dserve" to die.

Millbrook School student Sarah Whalen wrote a very good essay on these questions in 2006. To quote her:

The United States’ use of targeted killing is an unwise decision in terms of its own foreign and domestic policy. It not only is contradictory to American values, but violates international law and has been frowned upon by the worldwide community. However, thus far this has not stopped its use or changed its legality within American domestic law. Although previously banned, assassination can be ordered by the executive branch from the powers delegated to the President by Congress. Even though permitted under U.S. law, the negative effects hinder the progression in the fight against hatred and violence that the world is currently facing in the twenty- first century.

The Budget and Rational Discourse

After weeks of public posturing, Congress finally passed a budget, hours before the federal government would have been forced to shut down. Of course, "public posturing" might mean "good negotiating," and there ois nothing inherently wrong with negotiating. In fact, in one view, both House Speaker John Boehner and President Obama did their jobs fairly well, preventing the economic collapse that would have followed a shut-down while aslo refusing to bail on their basic principles. In difficult moments like these compromise can be painful and expensive.

But the real question will be whether this budget or its underlying principles will achieve anything important. Mark McKinnon of The Daily Beast says that it will not, and that all Obama did was position himself to be re-elected in 2012. McKinnon says that Republican Paul Ryan's plan is the best Congressionally-proposed idea because it makes steep cuts and tries to reform the whole process. Mark Blumenthal, of The Huffington Post, on the other hand, says that Ryan's plan will be the electoral death of the GOP because nobody wants to cut Medicare and Medicaid. Obviously, these are not mutually exclusive statements: what works politically frequently fails economically. But it does make it harder to figure out what the answer is.

More important, though, is that the crisis may actually force people to have useful conversations. Political expediency will require that the government not become insolvent, that it not default on its debts, and that it avoid a new international emergency. That way, we can only hope, smart people will rise to the occasion and the old hacks will fall away.

"Conservative" States and Federal Spending

In another demonstration of the absurdity of so much political talk about government spending, the Daily Beast published a "gallery" ranking all 50 states according to how much federal tax money they take relative to the tax dollars they pay out.

The top five were Mississippi, West Virginia, New Mexico, Hawaii and Sarah Palin's Alaska. Alaska withdrew $2.24 from federal coffers for every dollar it paid in taxes. Small government, anyone?

Meanwhile, those tax-and-spend liberals in Massachusetts (#39 at $.95 per dollar), New York (.72 per dollar), Illinois (.79 per dollar) and Connecticut (.74 per dollar) actually helped carry all the deadbeats above.

What's that say? It says that everybody relies on the government for support in one way or another. That may not be good all the time -- fiscal conservatives have a point there -- but we should not pretend that conservatives are rugged individualists living off the land while liberals are welfare cheats. Let's get down to fact and decide how best to allocate resources.

That, after all, is whta politics really is for.

Egypt at (Another) Crossroads

NATO efforts to help rebels oust Qaddafi in Libya have pushed events in Egypt off the front page of American papers for the moment, but Egyptians are only now beginning to do the heavy lifting of their revolution. It took enormous courage and organizational skill for the protesters of Tahrir Square to succeed in their efforts to remove Hosni Mubarak. All that and more will be necessary for them to stabilize that accomplishment so it reaps long-term rewards.

As the Egyptian news weekly al-Ahram reports, one central problem is how to resolve the fraught relationship between the current ruling organization -- calling it a government seems a little premature -- and the protest movement which swept it into power. The military officers in power have promised to end the thirty-year-old "emergency" regime which allowed so many abuses under Mubarak, but only in some vague future "before the September elections." To take the problem further, the officers recently outlawed all protests, making the organization of such a thing punishable by a year in prison.

Of course, the protests of last month were illegal, too. For those in Tahrir Square, then, the question arises: does such a law have any legitimacy? Does a loyal Egyptian citizen have any obligation to the current regime when it imposes such restrictions?

Al-Ahram says only that the laws "raised some eyebrows." I wonder whether other body parts might be raised soon.

Obama and Executive Power

Supported by a UN resolution and urged on by Britain and France, President Obama authorized US missile attacks on Libya this week. After an initial surge of success, rebel forces fell back before a vicious and well-organized attack from the Libyan army, which remains loyal to Qaddafi. Obama said "The people of Libya must be protected, and in the absence of an immediate end to the violence against civilians our coalition is prepared to act, and to act with urgency." The initial plan, though, was to limit outside military intervention to the enforcement of a no-fly zone, but that idea gave way to more aggressive tactics for reasons never made entirely clear.

None of this is constitutional, of course. Far from being consulted on the question of US military involvement, Congress is on vacation this week and was not asked to return to Washington. Qadaffi poses no immediate threat to American security, and has been dormant as an indirect threat for at least fifteen years before two weeks ago. As a result, Obama was required by Article I section 8 and Article II section 2 to ask for Congressional authorization before he engaged US forces, even in the form of pilots.

The situation poses interesting political challenges. Democrats who opposed the invasion of Iraq on the grounds that it was a power grab now must consider their own integrity in this matter. To his credit, Senator Jim Webb of Virginia, for example, has made it clear that he does not like the president's behavior. On MSNBC the other day, he said

We have a military operation that's been put into play, but we do not have a clear diplomatic policy or a clear statement of foreign policy that is accompanying this military operation... We know we don't like the Gadhafi regime, but we do not have a clear picture of who the opposition movement really is. I’ve asked this repeatedly to State Department including Secretary Clinton in the last couple of weeks.

In contrast, Republicans would prefer to use the sitiuation against Obama, but are having a hard time figuring out how to stand behind the bizarre defense of executive power form people like John Yoo while opposing this action. (See The National Review, especially.)

I don't know whether outside military intervention is a good idea here; I don't want to see a crazy man like Qaddafi kill his own people, but the fact is that they picked a fight and they may have to finish it on their own. I do know that if the US is going to be involved, Congress has to have a role in the decision.

The Supreme Court's Credibilty Gap

Three days ago, the New York Times published an editorial entitled "The Court's Recusal Problem." The editors pointed out that justices do not have clear rules for when they recuse themseleves from particular cases, and that the result frequently is an appearance of impropriety, if not actual impropriety. Other federal judges must adhere to (often controversial) rules imposed by Congress, but Supreme Court justices are expected to set and meet their own standards.

Judges don't like rigid rules for recusal, for good reason. In the first place, they can limit judicial independence, placing judges at the mercy of the legislature for the very basis of their power -- jurisdiction. One concern is that strictly-applied rules might encourage judge shopping by attorneys, who would look for legalistic reasons to call forrecusal of judes they don't like. Such rules also imply that judges are incapable of being objective when they have minor involvement with the people coming before them, and judges pride themselves on their objectivity above all else.

But that's the rub. The power of the courts relies almost entirely on the perception (and the reality, of course) of their impartiality. If people believe that judges reach conclusions based on their personal predilections rather than on professional application of principle and law, no one has any reason to obey the courts. Relying on justices to judge their own cases, as it were, undermines that perception (and its corresponding reality.)

For example, it did Justice Scalia and the Court no good when he went duck hunting with Vice President Cheney just before Scalia ruled on a case in which Cheney was a litigant. Of course justices have to be free to have personal relationships with politicians. After all, Scalia lives in Washington and can hardly make himself a recluse. To be as cozy as all that, however, is a problem. Justice Thomas has all kinds of simililar problems because his wife is a conservative lobbyist who argues in public for many of the people Thomas supports in his rulings.

Recusal is therefore just a part of a much bigger problem. The Court's rulings in Bush v. Gore and Citizens United look horrible. Despite all the harrumphing about stare decisis and judicial conservativism, Scalia, Thomas and Roberts -- as well as former Chief Renquist -- have been willing to pitch all precedent in opinions that look suspiciously political. If we trusted the individual members of the Court to be more impartial, we could live with the practice of allowing them to apply their own judgment in matters of recusal. Since we don't trust them in the broader sense, we don't trsut them in the narrower.

That's a big deal. It gets to the very system of government and rule of law on which the Court depends entirely. It would serve us all, and not least the members of the Court, if they would do more to earn our trust

Who's Right in Wisconisn?

For weeks now, the Republican governor and the majority of the Wisconsin legislature have fulminated in frustration (if you'll pardon the alliteration), over the states Democrats' tactics in a battle over the right of state workers to bargain collectively. Governor Scott Walker says that state workers' unions, especially the teachers' union, costs the state too much in salaries and benefits. His intention has been to remove their right to negotiate as a union.
To combat this change, the Democratic legislators fled the state so there could be no legal quorum. State law requires that all major budget statutes be made in the presence of 60% of the full house -- the equivalent, in a sense, of the federal Senate's ludicrous filibuster rule. So they all went to Chicago, where they could not be compelled by Wisconsin state police to return to the chamber.
Walker's actions also triggered massive protests in Madison, as state workers and their supporters chanted opposition to the proposed law.
I happen to think Walker's idea is foolish. Like New Jersey Governor Christie, who is slashing the state budget there, Walker thinks that deficits are the root of all economic evil. In the long run, he may have a point, in that deficits can be destructive to the whole economy. But at the moment, when employment is down and interest rates are low, governments should be spending more, not less. The state sector could actually help revive the economy by putting cash into it. To reduce salaries and benefits -- particularly health care -- for so many people is ass-backwards.

But for the Democrats to flee the capital is an act of cowardice and silliness. They may not be able to win a vote, but to entirely subvert the system when they are supposed to be upholding it is an abdication of responsibility. What Walker is doing is mean and short-sighted, but it's not unconstitutional, and the Democrats have to stand and fight it, not run away.

An Example of Rationality

David Brooks wrote a short profile of Indiana Governor Mitch Daniels today. The point of the column was to offer Daniels as a good -- maybe the best -- Republican presidential candidate.

The profile is a little more touchy-feely than I would say the best political descriptions are, but its central thesis is crucial:

The country also needs a substantive debate about the role of government. That’s exactly what an Obama-Daniels contest would provide.

It's this debate, and the likely growth and innovation that such discussions would foster, that matters as much as any particular conclusions. Brooks and Daniels certainly have their agendas; Daniels is in the middle of a battle with Indiana Democrats over the power of labor unions in that state. They believe the budget deficit is a moral issue, and want smaller government. I doubt I would agree with a lot of what Daniels does. I don't generally agree with Brooks.
I don't always agree with President Obama, either, but what I like most about him is that he speaks like a sane person. He reasons and appeals fact and consequence, not ideology and fantasy. Brooks reports that

[Daniels] also spoke of expanding the party’s reach. In a passage that rankled some in the audience and beyond, he argued that “purity in martyrdom is for suicide bombers.” Republicans, he continued, “will need people who never tune in to Rush or Glenn or Laura or Sean.” He spoke as a practical Midwesterner, appealing to hard-core conservatives and the not so hard-core.

That sort of thing certainly would be welcome around here.

Egypt and the Rule of Law

NPR ran a story on February 16 arguing -- there really is no other word for it, since they did no serious reporting -- that the peaceful ouster of Hosni Mubarak in Egypt represented a serious setback for al Qaeda. This conclusion came from the fact that al Qaeda has issued no statement about the events of last week and from the reasoning that the peaceful overthrow of the Egyptian government shows al Qaeda's tactics to be both unnecessary and ineffective, since al Qaeda has been working to get rid of Mubarak for twenty years.

It certainly is true that these events put al Qaeda in a rhetorical bind: they can't praise the peaceful protestors for being successful since it does not appear that any of al Qaeda's goals beyond overthrow were accomplished, but they can't condemn anything about the actions either. President Obama succeeded in keeping the United States at a distance, so no one could be tainted by the smell of American interference or preference. Any statement one way or the other, especially in the context of other unrest in Yemen, Bahrain, Lebanon and Jordan, might demoralize al Qaeda members who are looking for the nexus of evil that has always been the rallying point for al Qaeda. If leadership comes out against successful revolts they look silly and self-centered, but if they support them they risk hemorrhaging recruits to another method or group.

But logic does not always prevail in history. Any disorder in Egypt could provide a crack through which al Qaeda could enter. A better-organized al Qaeda in Egypt, where anger and education come together to a greater degree than any other place in the Middle East would be an extraordinarily dangerous thing. Remember that the intellectual foundation of the September 11 attackers' motivation came from Egyptian scholars and preachers. Hasan al Bana and Sayyid Qutb came from Egypt.

That's not to say that the Muslim Brotherhood and the Islamist leadership of Egypt are al Qaeda. They are not. If the moderate Islamist movement has any geographic base, it is in Cairo, where the press (see especially al Ahram) and the resistance have for a long time been as reasoned as any in similar circumstances. It is to say that the work of those seeking the rule of law in Egypt have a lot of work to do. President Obama must be on the list of such people. Elections must occur, and order must be maintained while they are established. No one but Egyptians can succeed in these things, but other nations can help to keep outside actors from messing things up.

The Problem of Neoconservativism

In the late 1960's, apparently as a backlash against the student countercultural movement, a group of young men emerged who wanted to mesh the fervor of social activism with a rejection of communist economics. These men, led by Irving and then William Kristol, Norman Podhoretz and Henry "Scoop" Jackson.

The reason I call these ideas a "problem" is that they combine the tendencies of a coercive state like the Soviet Union with a strict belief in laissez-faire economics. By the standards of traditional American politics, this combination makes no sense. It meant that its adherants could advocate for military intervention in foreign nations and a strict federal ban on abortion while insisting that the government leave corporations alone. Neither FDR nor Ike would have recognized these ideas as coherent, and they render labels like "conservative" and "liberal" obsolete.

When neoconservatives like Paul Wolfowitz and Doug Feith put their hands on the bureaucratic controls of the executive branch, they were in the perfect position to implement their odd combination of beliefs. They had the means to apply coercive methods in foreign policy while failing to enforce the economic controls left behind by the Great Society and New Deal they so abhorred. They did not need legislative endorsement or even an elected position to take these actions, though they did need someone who would listen to them in the White House. Especially under George W. Bush, they had that person.

The Conservatice Political Action Conference and Gay Republicans

In the latest illustration of the strange new defintions of "conservativism," several "pillars of the conservative movement," as they are described by the New York Times(perhaps not the best authority on such things, admittedly, but still ...) have withdrawn from a major fundraising and organization conference over the issue of gay rights.

Their beef is that a group called GOProud has been allowed to cosponsor the affair. According to the Times,

some conservative pillars, including church-based groups like the Family Research Council, Concerned Women for America and Liberty University and others like the Heritage Foundation, are refusing to participate. They are angry that the gay organization, GOProud, has been given a seat at the planning table. These groups are implacable opponents of same-sex marriage, which they say GOProud implicitly endorses by saying that the question should be left to the states.

In years past, conservatives would say that any defense of states rights was key plank of the conservative and/or Republican platform. "Big government," in the form of federal intervention, is the bogie man of most conservative rhetoric. And such language certainly has been at the center of protests over the health care bill. So why the outrage? Why is it "conservative" to seek federal law over an essentially personal matter?