TEA Party "Ideology" is Just "Power."

Much digital "ink" has been spilled of late trying to sort out the ideological basis of TEA Party politics. It's a waste of time.

One thoughtful case in point is this essay by Sean Wilentz in Democracy Journal, which argues that the party is not "Jacksonian" in the strict sense. Wilentz is a smart guy, and he's a heckuva lot more famous than me, but I think he misses the point entirely. As he notes himself in this piece, Jackson was not entirely consistent in his own behavior -- that is, he was not always a "Jacksonian." He opposed the growth of federal power until he himself was at the pinnacle of federal power. He railed against undue influence from the rich, but he was among the wealthiest men in North America. In theory, though, Jackson ran for the White House as the champion of the little guy, as the uncorrupted, transparent remedy to the cabal of insiders who had been running the country until then. Jackson tapped into the same strain of paranoia that fed the Antimasons and the attacks on Mormons.

Andrew Jackson

In that sense -- the most important one -- Ted Cruz his ilk are exactly like Jackson. What they want is control. They want to protect their own personal interests, most of them racially and economically exclusive. It's no coincidence that Jackson made his wealth on slavery and expelled the Cherokee from Gerogia. It's no coincidence that Ted Cruz barely conceals his racism when he complains about immigration reform and Obamacare. Cruz just wants power.

Ted Cruz

Cruz is a dangerous man, just as Jackson was. Let's not confuse ourselves by pretending that he has an ideology beyond Himself.

What Civil Debate Can Do

Republicans are still throwing temper tantrums over the end of confirmation filibusters, but maybe that the new rules will allow the whole federal government to begin functioning more effectively. Already we have people stepping into major jobs in the administration, and the Washington DC Circuit Court may actually be adequately staffed for the first time Obama was elected.

Meanwhile, Congress actually passed a budget bill without bringing the world economy to the brink of a crisis. Bad-ass budget boy Paul Ryan helped broker the agreement, and at least one fellow Republican even praised him for it.

Paul Ryan

Even Fox News seems to think that passing a budget is not a major moral failing.

Maybe these people are actually planning to do their jobs now, instead of engaging in endless nonsense. 

Why "Right-Wingers" are Right on the 17th Amendment

According to this piece in the Huffington Post, it's "right-wing" to have reservations about the 17th Amendment. I don't consider myself "right-wing," but I'm no fan of this particular amendment.

Before 1913, when the constitution was changed, federal senators were chosen by state legislatures. The Senate was to be removed from popular opinion in a way the House of Representatives was not. Not only did senators serve for six years, but they would never have to campaign in the way that their colleagues in the house had to do. In theory, the filter of the state legislatures would provide more able senators than the base tastes of the masses could produce.

In the early 20th century, Progressives systematically opposed government by elites. They advocated for popular votes in primaries and Senate elections, demanded greater transparency in local executives, railed against special interests like railroads and food producers who did harm to people, and defended the rights of minorities, women and children, all of whom were essentially defenseless against the back-room power of caucuses and state legislatures. And for sure, cronyism and corruption wafted from the halls of capitol buildings everywhere from Albany to Sacramento. Calling for greater public accountability made (and makes) a lot of sense.

But the direct election of the US Senate does change the basic structure of the federal government and alters the way the constitution works. It's not at all clear to me, for example, that a guy like Ted Cruz could have made it to the Senate through the Texas legislature, because the crass demagoguery characteristic of his campaigns would be irrelevant. Maybe the Texas legislature is also filled with TEA Party yahoos, but in the case nothing could be done. Both houses of Congress now must bow to popular whims; would people like Arlen Spector lose their jobs if they were not directly elected? And look at the effect of direct election on the House: John Boehner has to behave like a craven dog at the feet of a tiny minority because he's worried about the next election.

So repeal of the 17th Amendment, or even an end-around of it, may not be the best idea, but at least it's not just "right wing."

The Filibuster and Partisanship

In the wake of the Senate's vote to change internal rules on the filibuster, Republicans are vowing revenge, and The New York Times has expressed fear that partisan disputes will intensify. Both are nonsense.

First, what would revenge look like? The nomination and confirmation of responsible appointees to federal positions? Are we supposed to fear such a thing? Charles Krauthammer seems to think so. He says,

The Democrats will absolutely rue the day, because not only are they going to allow a Republican majority, which will come one day anyway, to get its nominees through, but Chuck Grassley has said that when Republicans come into power, they’re going to include Supreme Court nominees. And that would be a devastating blow to the liberals on the court, and to the liberals in the country.

Say again, why don't we want the elected majority to confirm its nominees? Krauthammer is saying that the Republicans intend to be irresponsible in their nominations just to spite the Democratic Party, then they need to examine their priorities. (I have already said they need to do so, anyway.) What kind of bizarre argument is that?

As for increased partisanship, the filibuster allows a small faction to interfere with the functioning of the system. That's the height of partisanship, and the Times itself published the data to show how bad it already is. Interference with nominations not only has increased steadily, but it's spiked since the election of Obama. How much worse can it get.

I'm glad to see the filibuster reduced. I never liked the thing in the first place. I think it fundamentally violates the principles of Article I section 7 of the Constitution.

Jason Whitlock on Illegitimacy and Society

This column is among the best I have read on any social issue in a long time. It is concise, precise, direct and entirely free from nonsensical party affiliation. I hope it gets a lot of attention.

The highlights:

"Dez Bryant's inability to control his emotions is not a racial issue. It's a family dysfunction issue...

"But the reality is, Dez Bryant is swirling in a cultural tsunami every bit as destructive and powerful as climate change.

Let's call it 'Hurricane Illegitimacy.'

Its victims are primarily black and brown, but Hurricane Illegitimacy is a not black or brown problem. It's an American problem that is denied and exacerbated on the left and mischaracterized and exploited on the right.

Like climate change, Hurricane Illegitimacy is powered by man-made factors:

1. A lack of proper restraints on welfare entitlement programs for single mothers and fathers.

2. America's bogus war on poor people who use and sell drugs.

3. Turning incarceration into a for-profit business model.

4. A refusal to recognize that investment in the education of our poorest and weakest citizens could strengthen our entire society.

5. Our collective lack of courage and resolve to combat popular-culture forces that celebrate, normalize and profit from baby-mama and criminal culture...

"The seeds for Hurricane Illegitimacy were planted in the late 1960s as backlash for the civil rights advances won by Dr. Martin Luther King Jr. Too much of this current generation of young people are the unwitting victims of America's unwillingness to protect the sanctity of family. The people who deny this obvious reality are every bit as delusional as climate-change deniers...

"The normalization of illegitimacy is so pervasive in black America that people are afraid to publicly address its dangers and consequences out of fear of being labeled a sellout or a racist. It's been so normalized that some people honestly don't believe it's a problem.

Ignorance is blissful and deadly. Ignorance is why we see Dez Bryant misbehave and automatically think race rather than family.

Ignorance is why we don't understand that the black family structure thrived and survived until our lawmakers launched a drug war, mass incarceration and shortsighted welfare policies.

Ignorance is why we've failed to object forcefully to pop-culture forces using their unprecedented power to promote hedonism as the ultimate high over family evolution.

Dez Bryant's behavior and our reaction to it are just symptoms of a much bigger problem."

I don't ordinarily quote at such length, and I hope this does not come as outright theft. Whitlock's words need wide circulation.

Why International Law Matters, Too

Maybe you're a "realist" -- you think pragmatism, not abstract principle ought to dictate our actions, especially in the international theater. Law, you figure, matters less than the application of influence and power in the greater national interest. And maybe you are right, in the end. But if you think that the rule of law is somehow not pragmatic, consider these two stories.

Fueled by information from Edward Snowden, The New York Times and the The Guardian have reported extensively on the widespread, even pervasive, snooping conducted by the NSA.


Edward Snowden

Now, the Agency itself is facing the consequences of its actions. In this piece by Scott Shane, who has been the lead reporter on this story, the spies consider the downside to breaking rules in the pursuit of power. The information gained may or may not be of any real value: do we really need the NSA to give us an economic advantage over Brazil? But, it turns out, our allies do not much like learning that the US government steals everything it can get its hands on. Turns out, theft undermines trust.

Not only that, but it's difficult to rally support allies against rogues like China when the US government itself sees no reason to limit its own behavior.

Likewise, the gunning down of people we do not like, even scumbags like Taliban leaders, can have unintended negative consequences. Sure, Hakimullah Mehsud was a rotten human being. He was brutal and self-centered and mean. He intended to harm American citizens and American interests. He was a liar. But his death at the hands of the US government -- really, at the hands of the President himself -- in a drone strike, may not help much in the long run.

Mehsud, from NYTimes

Just because we can kill people does not mean we ought to do so.

The underlying reasoning behind an adherence to the rule of law is that it provides long-range benefit at short-range cost. When we arrogate to ourselves the privilege of settling scores on our own, we separate ourselves from the larger community. As long as we are the biggest bully on the block, capable of defending ourselves unilaterally, that works for us, if for no one else. But what if we need help? What if we can't go it alone? How do we ask for the aid we need, and if we can we expect to get it?

So be pragmatic, if you like. Just don;t think you can do anything you want and get away with it forever.

Say Again, Who are the "Adults"?

After the fiasco of the first two weeks of October, in which the federal government ground to halt so we could all watch a few grown men throw a temper tantrum, there have been countless finger-pointing analyses. In this one, Senator Orrin Hatch laments the failure of "the adults" to take charge of the House of Representatives. He and other "establishment" Republicans, especially in the Senate would like to blame the Tea Party types like Texan Ted Cruz for making the party look like a bunch of fools.

But that's way too easy. Cruz is not in the House, and nobody has to listen to his self-serving nonsense, because he has no power and only limited influence. The people who refuse to accept the fact that Democrats, led by a black president -- that's right, I said this is about race -- won not one but two consecutive national elections represent only a small minority of the Republican Party. Why are they at fault?

Wack-jobs like those in the Tea Party movement only have seats in the government because "establishment" types gerrymandered their districts to ensure that no Democrat could win in certain parts of the country. Republicans did not invent this kind of vote rigging, but they have had to rely on it more in recent years as their policies have grown increasingly silly. Karl Rove was no rebel when he advocated this kind of cynical manipulation; in fact, he was the hero of the party back when his take-no-prisoners power grabbing helped the party win the White House. Now everybody acts like they never heard of the guy.

Furthermore, it was John Boehner's fool strategy not to accept any deal that required Democratic votes to pass it that caused the crisis. We all could have safely ignored all the noise from the wack-jobs if the two more reasonable factions had agreed to work out a deal. Instead, the "adults" insisted on enabling and coddling the "children" rather than working together to do the right thing. None of this stuff had to happen.

This Pretty Much Sums it Up

What one Congressman thinks the shut down is like:
http://gawker.com/gop-congressman-makes-park-ranger-apologize-for-shutdow-1440577868

What FoxNews thinks the shut down is like. (Actually, they call it a "slim down."):
http://www.foxnews.com/politics/2013/10/03/house-republicans-weigh-probe-monument-closures-amid-slimdown/

The Meaning of "Lawless"

Senator Mike Lee thinks that the Supreme Court's decision in National Federation of Independent Business v. Sebelius was a "lawless act." The argument, according to one sympathetic blog, goes like this:
"the people’s representatives may presume to pass laws in accordance with their constitutionally enumerated powers, but if the Supreme Court wishes to rubber stamp the president’s pronouncements and paint them with the color of law, the justices will simply substitute language permitting any imaginable act of despotism in open defiance of any congressional intent to the contrary."

So what is this supposed to mean? It seems to suggest that President Obama "proclaimed" the Affordable Care Act without Congressional approval, and that the Supreme Court then "rubber stamped" it without reference to the actual law. If such a thing were to happen, it certainly would not be a good thing. Of course, I'm not sure how it could occur short of a military coup, but hypothetically it would be bad.

Is that what happened? Of course not. A majority of both houses passed this law, and Obama signed it into law. A series of suits arose in court questioning the constitutionality of the law, and appellate courts differed in their conclusions on the matter. The Supreme Court then accepted the case, heard it, and ruled on it. In terms of process, nothing could be more routine or lawful.

The law regulates a type of activity -- the delivery of health care -- that spans all states and therefore might be considered, though it does not have to be, an form of interstate commerce. It requires that people acquire health insurance so that individuals, and not the collective society via the government, are responsible for paying for their own health care. 

Whether medicine is commerce, and whether the delivery of medicine to a patient constitutes interstate commerce are interesting questions, though I tend to think it's pretty clear that the answer to both is "yes." But neither conclusion is "lawless." 

That's what is so damaging about the shrill, irrational declarations of people like Mike Lee. They throw themselves from ordinary political discourse into hyper-moral opposition to the whole system -- and to discourse itself. These people think they are like the antebellum abolitionists (although I doubt Lee and other Tenth Amendment aficionados would have supported abolition), battling a fundamentally corrupt system. And what's the answer to such a problem? War.

Lee and others misapply the kind of inflammatory rhetoric that leads to actual physical conflict. Over how to reduce the cost of healthcare? Really? 

Now that is lawless.

Best High School Reform? Change College Admissions

Not long ago, Andrew Delbanco, from Columbia University, visited our school to talk about his book, College: What it Was, Is, and Should Be. His argument is that American colleges have lost sight of their most important goal, which he sees as teaching young people to think for themselves and understand the world in its broadest moral and personal senses.

I agree with his priorities, and appreciated his talk, but his book seemed more like a faculty room rant than a systematic treatment of the subject.

And while it may be flip, I have an answer that does not require a book to explain. If you want to fix American secondary and university education, abolish early admission programs. Early admission robs students of one quarter of their high school careers. The perceived need to get high grades in September makes them risk-averse, they spend the first few weeks worrying (or feeling they ought to worry) about applying, and then the feel they ought to be "done" as soon as they are admitted. It takes a lot of energy, attention and sympathy to talk them out of these warped -- but understandable attitudes.

It steams me to hear college professors talk about what high school graduates can't do when they arrive as freshmen because it is the professors' employees who contribute most to that failure.

Democracy, Transparency and Foreign Policy

As Robert D. Kaplan wrote for Stratfor Glogal Intelligence Reports a couple of days ago, good foreign policy is not always entirely honest. In "Syria and Byzantine Strategy," Kaplan criticizes the Obama Administration for showing too many of its cards in the matter of Syria intervention. "Never tell your adversary what you're not going to do!" he says,  "Let your adversary stay awake all night, worrying about the extent of a military strike!"


http://superradnow.wordpress.com/2012/09/19/spy-vs-spy/

That's probably right. But in democratic governments, secrecy and deception are also problematic. In order for Obama to deceive Bashar al Assad, he would also have to deceive the American public and most of Congress, too. That's not really what he's supposed to do. Maybe that's why dictatorships -- like the Byzantine Empire Kaplan praises in the piece -- execute foreign strategy more effectively.

Obama's strength is his weakness: he's an honest man, fundamentally, and he prefers to talk straight. Such an approach to life is not helping him here. 

Syria and "Politics"

I don't watch CNN or Fox News or any of that 24-hour-news-cycle junk, but I have caught wind of the bizarre perceptions of the Syria problem just by looking at Facebook once a day. One person wanted to know why the president was "stalling." Another lauded him for following the democratic process by consulting Congress even if it did make him look weak. Another predicted that whatever Obama would do would fail, and that he would blame it on "someone else, just like he always does."

The question of whether to bomb or attack or leave Syria alone has profound consequences. Assad's use of chemical weapons on his own people is a serious breech of every norm of international law. As the most powerful military force in the world, the United States can not simply claim moral neutrality in the matter and walk away. But the alternatives to Assad may be nasty, too. One opposition group just posted a video of its most recent execution. And whether the United States can have any positive impact on the situation is not at all obvious.

That is to say, this is a problem for politics. We need to engage in a serious discussion, through legitimate political processes, about what to do as a nation. Tea Party isolationism may be a fair position to take, just as Republican interventionism or Democratic interventionism may be.

What's not helpful or productive or even justifiable is glib mudslinging or name calling. This is serious. If you don't have something serious to say, pipe down and let us work it out.

Donald Rumsfeld, for example, whose entire career has been a series of disgraceful miscalculations and cynical manipulations, should get no air time at all, especially if he is just going to be insulting.

ESPN and the Power of "The Media"

The New York Times has published a series of stories recently about the powerful influence of ESPN on college athletics and college life. Essentially, their premise is that the money offered (and earned) by ESPN to universities leads college officials to do things according to a business model focused on marketing sports television rather than by an educational model focused on student-athletes. I can't see how the argument can be refuted.

from http://sportsmediajournal.com/2007/10/02/the-goods-on-espn-part-1-the-criticisms/

But there is also the way ESPN treats individual subjects, like Texas A&M quarterback Johnny Manziel. First, ESPN led the way in hyping "Johnny Football" is his freshman season, boosting him to the Heisman Trophy. Then, it reported that in the off-season, Manziel had, among other things, taken money for signing autographs in violation of NCAA rules. Then, when the NCAA found that there was no evidence that Manziel had taken money, ESPN analysts debated endlessly over whether justice had been done. They also complained about how much of the spotlight he was hogging -- a spotlight shined almost exclusively by ESPN.

In other words, ESPN made the story and then complained about the story. No journalist individually may have violated any ethical principals, but the monolith of the "worldwide leader" acted irresponsibly.

Replay continued

The Mets lost a game yesterday in the 10th. With two outs in the inning, a Braves batter hit a ground ball to the infield and was called safe by the 1st base umpire. Replay showed that the batter probably was out "by an eyelash," to use Gary Cohen's phrase. Next guy up hit a three-run home run and one player and the manager were ejected.

For the rest of the game, Cohen and Keith Hernandez referred with increasing frequency the "blown call" that allowed the Braves half to continue. This is perhaps false, and anyway is a waste of time and energy.

First, it is not for sure that the film speed of the cameras used by SNY is fast enough to have gotten the call right. The difference in the play may well have been less than one frame, and if that's true then the camera would be not better than the umpire's eye at getting it right. Second, it was so incredibly close that everyone needs to accept that it could go either way and move on. The game was lost by the first pitch fastball the Braves hit into the stands.

Exactly Wrong

Major League Baseball has heard the noise emanating from all the commentators calling for instant replay. It will expand the use of instant replay in 2014, in an effort to "just get it right."

On the surface, this call to "just get it right" is unobjectionable. Generally speaking, umpires ought to call plays accurately. No intrinsic good comes from missed calls. Also, fields ought to be perfect, weather ought not interfere with play, and schedules ought to be absolutely balanced. These things don't happen, of course, and there is rarely any whining about how grossly unfair it all is. (I say "rarely" because I have heard complaints about all of these things before.) To say that missed calls are lamentable is too obvious.

It's the tone of the complaining I can't take, as if these things were intolerable injustices. Not only that, sometimes I see the same replays the booth guys see, and I can't understand what they are complaining about. Missed calls are not really unjust, most of the time. They are "could have gone either way" kind of deals, and everybody should move on.

But MLB got the fix wrong. By allowing managers to appeal calls, they encourage benches to be planning for umpires to make mistakes, and to schedule their complaints. That's not productive. First, giving everyone three appeals is ridiculous -- I have never seen a game in which there are three calls worthy of appeal. Second, the time wasted in these things will be silly, because the rule has a "use it or lose it" approach that means teams will complain just out of desire not to waste a resource. Third, the dugout is absolutely the worst place to judge just about any call, because you can't see jacksquat from there. Finally, the appeal has to be made to a person sitting in a booth in New York. Why?

What the league should do is hire a fifth ump to sit in the booth and decide when a call is egregious enough to overturn. He would have the experience to judge well, and could check all the ones that need checking without wasting time on silliness.

Democracy and the Rule of Law

Egypt burns once again, as the new regime cracks down on the Muslim Brotherhood and other Islamist organizations.

The violence there illustrates once again the crucial distinction -- and the vital interaction -- between democracy as such and the rule of law as such. As long ago as 1776, Thomas Paine argued, following Jean-Jacques Rousseau and others,  that there can be know true law without democracy. Monarchs and dictators, they showed, rule with no legitimacy because only the people can authorize a government. But experience since shows, no more vividly than in Cairo, that democracy is necessary but not sufficient to a society governed by the rule of law. Morsi and his group were properly elected but then promptly trampled on the principles of power-sharing necessary for any democratic government to work. And so the government collapsed, and we have returned to a dictatorship much like the one run by Hosni Mubarek.

It's a sad time for the Arab Spring, one that I hope passes and allows Egyptians and others in the magrib to find a government that works for them.

Dropping the N-Bomb

Riley Cooper says he does not understand how he allowed himself to yell the "N word" at a black security guard at a country music concert. His apologies sound sincere to me, and his confusion real. At least one teammate has said that Cooper was not an obvious candidate for dropping the bomb, and that he had been a reasonably good teammate to that point.

At least Cooper himself recognizes that we do not live in a "post-racial" world. In the wake of the acquittal of George Zimmerman in the killing of an unarmed young black kid, African-Americans are a little raw. As they see it, had the roles been reversed, Trayvon Martin would be in jail right now. They have reason to believe so, since Marissa Alexander was sentenced to 20 years in prison for firing warning shots at her husband; a black woman is not permitted to stand her ground, I guess.

As I begin to plan for the teaching of Huckleberry Finn this fall, this storm is instructive. The word has power, even with a black man in the White House. It conjures not distant memories but current injustices, and is not easily to be dismissed.

A column published on Foxnews.com (but without an obvious author, strangely enough) had this to say about the furor:

Since I'm not a African American, I don't feel comfortable telling a race of people to ignore an issue they might feel passionate about. What I am able to say unequivocally is that a word only has power if you allow it to have power and we as a society have given the word Cooper used far too much potency and authority during a time of substantial progress in race relations.

Whoever this author is, he is entirely right. But it's not the African-American community that has imbued the word with so much power. It is the pervasively racist society in which we live; it's the violence against young black men and women going back centuries; it's the indignities even the President of the United States must endure because of the racial label with which he lives. 

The "substantial progress" is real, but let's not forget who we really are and have been.

FISA and the Independent Judiciary

All the executive-branch access to phone records and whatnot only concerns me a little. The fact is that we live in public, and efforts to guarantee that all our conversations -- though held while walking down the street -- are perfectly secret are misplaced.

On the other hand, these things do need to be watched carefully, and we have people in place with the legal and constitutional authority to do all the necessary watching: judges. As long as we require the executive to ask a judge before wiretaps are secured or records are collected, we should be fine ... as long as the judges do their jobs. If the judges see themselves not as independent arbiters but as extensions of the executive, we do have a serious problem.


The courts established by the Foreign Intelligence Security Act have blurred that important line. The very fact that their decisions are secret and that they do not have to publish their rationale is a problem. Courts should never operate in secret. Whether the judges like it or not, when they work out of the public eye, they are more liable to be considered "rubber stamps" for the government.

Now concerns arise about how judges get the job in the first place. While Republicans block nominations by the President all the time, they have no say over FISA court appointments; Chief Justice Roberts makes those appointments, and recent analysis suggests that he puts people on the court who are even more likely than most to approve of government surveillance.

FISA courts ought to operate within very narrow parameters. Mostly, open court proceedings are better. But even within those confines, they need to work under the system of checks. What they are doing now is not good enough.

Is the Filibuster Constitutional?

Republicans these days like to complain that they are being bullied by Democrats who are challenging GOP use of the filibuster to block routine nominations to the executive branch. That master of cynicism and corruption, Kentucky Senator Mitch McConnell, declared that any reform to the use of filibusters would "kill the Senate" by limiting the ability of minorities to slow things down.

Of course, this whining is just more sour-grapes entitlement from the party that does not like being told it can't have its way.

Senator Mitch McConnell (R-Ky). As corrupt as the day is long.
image from http://www.politico.com/news/stories/1110/44888.html

But it's also more than that. If McConnell is not careful, he will bring an end to the filibuster entirely, because the whole concept does not stand much scrutiny. In fact, I believe that it is probably contrary to the spirit and and letter of the US Constitution, though no direct challenge to it  is possible.

Article I section 5 allows each house of Congress to set its own procedures of deliberation. In the Senate, which fancies itself a gentleman's club, members defer to each other's desire to continue debate on a subject indefinitely. As long as someone wants to keep talking, we should allow him to do so. The practical effect of the rule is to prevent a vote on the matter at hand and to stop the Senate from doing any business at all unless the speaker agrees to sit down. (It is notable that this rule originated from Aaron Burr, famous primarily for his incessant manipulation of "gentleman's" rules for his own benefit, to the extent that he killed Alexander Hamilton and tried to organize a coup to make him King of the United States.) A filibuster is the deliberate use of this rule to obstruct the proceedings of the Senate, and can represent an important tool for a minority to prevent the majority from railroading a bill through.

Without question, the role of the Senate in the US system of government is to slow down the action of majorities. In contrast to the House of Representatives, the Senate is not especially democratic: it's elections occur less frequently, its members are fewer in number and are unattached to any specific district within a state, and under the original constitution were not elected directly. In this context, the filibuster makes sense as an extension of the spirit of the body.

But even under more recent Senate rules, which allow for cloture (the ending of debate) with a vote of 60 members, the filibuster runs counter to some of the most fundamental rule of the Constitution. Articles I, II and V outline very specific applications of majority and super-majority votes. The Constitution explicitly overturned the system of the Articles of Confederation, in which super-majorities were the norm in the national legislature, but direct majority votes ruled all elections. Article I section 7 describes in detail the ways in which a bill is to become a law, and only when both houses wish to overturn a presidential veto is a super-majority necessary. Under current rules, major legislation effectively requires 60 votes from the Senate rather than the 51 that would be required for a simple majority.I believe it therefore undercuts the essential system of government laid out in the founding document.

Especially as the rule has been applied recently, so that an obstructionist need not even speak, but can simply express his wish to stop a vote, the filibuster is dramatically un-democratic even in the context of the Senate. It has stopped the normal functioning of the government for years, and has thwarted the popular will even more than was intended for the Senate to do.

McConnell may want the Senate to remain that way, because he sees the writing on the wall: he and his ilk can not muster the support of the majority of Americans, and the trend is only moving farther away from him. He may want to maintain his privilege, and probably figures he's entitled to it, just as he thinks he's entitled to get whatever he wants all the time. But he might not want to make it so public. With a little luck, people will catch on.

What Does the Zimmerman Trial Say About Race in the Judicial System?

One of the jurors in George Zimmerman's trial in the death of Trayvon Martin has begun to talk to media outlets, less than a week after the non-guilty verdict was announced. One of the members of the all-female jury, who says she and her husband own gun permits, did not think that race played a part in the shooting or in the jury deliberations. In an interview with CNN, Juror B37 said "Anybody would think anybody walking down the road, stopping and turning and looking -- if that's exactly what happened -- is suspicious," she said. "I think all of us thought race did not play a role," the juror said . "We never had that discussion." She also said that if the person acting and dressed in that way were "white or Spanish or Asian," Zimmerman would have reached the same alarmed conclusion he did because he "just got displaced by the vandalism in the neighborhoods, and wanting to catch these people so badly that he went above and beyond what he really should have done."

I have no doubt that Juror B37 is sincere in her claims that she did not consider race, but I think she may also be mistaken. An young Korean man walking down Zimmerman's street would not have aroused the same emotions as Trayvon Martin did, and that was not Trayvon Martin's fault. Young black men scare people because of the long tortured history of racist depictions of African-Americans in almost every element of our culture. Zimmerman probably did overreact to Martin because he is a product of his time and place. And Juror B37 considers that reaction to be perfectly reasonable because she is a product of the same time and place.

To that extent, the judicial system is infused with racism. It's a problem. But I don't think it's right to say that Zimmerman's trial was unfair. I believe the jurors acted in good faith and with minds as open as they could be. I do not believe the jury was rigged.

According to Juror B37, another juror, who wanted to convict Zimmerman of manslaughter, wanted to take into consideration all of his actions leading up to the confrontation with Martin, but did not believe that she was permitted to do so under the judges instructions. This is an interesting point. At what moment did Zimmerman take action that led to Martin's death. In the popular conception, his actions began as soon as he called the local police and was told to stop following Martin. But under the law, at least in Florida as interpreted by Debra Nelson, the relevant events began with the confrontation itself.

It seems to me that this is the mistake made by the prosecutors. At least in retrospect, prosecutors overcharged the case and should have spent a lot more time trying to show that Zimmerman was culpable for Martin's death because of a series of overzealous and foolish acts. 

How to Avoid Imprisoning People? Kill Them.

The problem with the US prison at Guantanamo Bay is that it has been allowed to lie outside the ordinary system of justice. Prisoners captured by the CIA, by military intelligence, and even by militias just barely allied with the United States have been hauled to Cuba because there is no legally usable evidence against them, and the American government has denied that the Geneva Conventions apply to them.

from the Guardian.com

Jess Bravin (from that hotbed of radicalism, The Wall Street Journal) described in his book The Terror Courts: Rough Justice at Guantanamo Bay the failure of the system of military commissions designed by a group of cynical men in the second Bush Administration. The courts collapsed under the weight of the negligence of the people who made it. Dick Cheney, John Yoo and others so totally disdained the concept of the rule of law that they deliberately placed incompetent judges on the courts, says Brevin, so defendants could not get a fair trial. Even when people within the administration protested, these bizarrely un-American men railroaded though a series of deliberately dysfunctional procedures.

Turns out that this kind of thing does not work. Our legal system does work, though imperfectly. We can convict bad guys while also defending their rights. Security and ordered liberty are not incompatible.

Now, I understand the problem with closing Gitmo. The people in there really do want to kill us now, whether they did before or not. Arbitrary, nasty imprisonment over 12 years radicalized them, and now we can not in good conscience free them to wreak havoc on the population.

But why is it better to just off the bad guys instead? I'm not sure I fully believe the claim that Obama is using drone strikes solely because he can't close Guantanamo. Still, the correlation is ugly.

Trust Our Courts

America's strength lies in our deep-seated belief in the value of the rule of law. At the core of that belief is a faith that questions of guilt or innocence are best resolved in a court of law, run by a judge and adjudicated, in part, by a jury.

Now we have a number of Americans, many of whom consider themselves great patriots, who argue that our system of justice can't handle its fundamental purpose. For example, John McCain and Lindsey Graham say that terrorists and other criminals, like Dzhokar Tsarnaev, should not be tried, but should be held indefinitely as "enemy combatants." "Our goal at this critical juncture," they said in a joint release "should be to gather intelligence and protect our nation from further attacks." Graham later added, “The last thing we may want to do is read Boston suspect Miranda Rights telling him to 'remain silent.'" 

These comments reflect a serious -- and tragic -- misunderstanding of the principles of justice underlying our system. This is not "Law and Order," in which some heinous criminal goes free on an arbitrary ruling from a character actor. Federal judges know their business, and federal prosecutors seldom lose cases they pursue. Not only that, but the rights of the accused do not hinder prosecution or impede justice. Quite the opposite is true: by ensuring a fair trial, courts increase the likelihood that convictions will "stick" and that sentences will be fulfilled.

McCain's comments are especially sad. This is a man who, rightfully, has argued for years against the use of torture because it reflects badly on Americans and endangers our soldiers. Why can't he see the implications of his position here/

"Guns Don't Kill People, Immigrants Kill People"

Chuck Grassley wants us to be safe. To prevent the kind of behavior that led to the Boston Marathon bombings, he wants to change the way we regulate immigration. Speaking before the Senate Judiciary Committee this week, Senator Grassley wondered

How can individuals evade authorities and plan such attacks on our soil?How can we beef up security checks on people who wish to enter the U.S.? How do we ensure that people who wish to do us harm are not eligible for benefits under the immigration laws, including this new bill before us?

What we know now is that one of the suspected bombers was a nineteen-year-old who graduated from Cambridge Rindge and Latin, a remarkably successful public school. He was a college kid who tweeted about doing laundry. Grassley may not have been able to know these details when he made his comments, but that's no excuse for the silliness of his message.

The speech is silly because just before he delivered it, he helped kill the Obama Administration's proposed gun-control bill. Why? Because it would have made owning and trading assault rifles more difficult for "law abiding citizens."

Of course Dzhokar Tsarnaev was a law-abiding citizen right up to the moment when he filled a backpack with explosives, walked to Copley Square, and detonated a bomb that killed an eight-year-old boy, among others. And the police officers he killed did not die from the explosions. They died because Tsanaev and his brother had guns and ammunition designed to kill people.

Grassley and his ilk cannot have it both ways. If they support the 2nd Amendment, they must face the fact that, if the right to own guns is a fundamental right it is so because the founders wanted to permit occasionally violent dissent against the government. Place the 2nd Amendment between the 1st and the 3rd and take the group as seriously as Grassley and that whack-job Wayne LaPierre want to do, and you get armed opposition to the government.

Like the Tsarnaevs.

What Rutgers and Horace Mann Have in Common

There's no need for another voice condemning Rutgers men's basketball coach Mike Rice; he's been fired as a result of an enormous public outcry over his "coaching methods." In light of the recent revelations about long-standing sexual abuse at Horace Mann and other schools, however, it is time to start talking about how to hold teachers accountable for important stuff.

First and foremost, the best way is decidedly not to link teachers' evaluations to arbitrary statistical performance. Test scores do not make a teacher, and won-lost records do not make a coach. Both of these measures are arbitrary because they do not take into account "distance traveled" by the students in the charge of teachers and coaches. A good coach brings his players from one level of play to another; as players improve, they ought to win more games than before, but only if the schedule and other factors allow it. Won-lost records can measure the talent of players, and some test scores can measure the talent of students, but they are not good ways of assessing educators.

On the other hand, eccentricity and bizarreness are not teaching methods. Being self-involved and weird is neither necessary nor sufficient for good teaching. I don't buy the Dead Poets' Society model of excellence, in which the teacher inspires kids to "be themselves" by himself being entirely different from anyone else. High-quality instruction also requires patience, discipline, and hard work. Individuality, free-thinking, innovation, and a certain amount of quirkiness often do reflect and allow excellent teaching. Teachers have to dig new ground and push students beyond their comfort.

But both Horace Mann and Rutgers confused extremity with originality. Kicking kids is not quirky, it's violent, undisciplined and ineffective. Rutgers should have recognized that fact immediately. Athletic Director Tim Pernetti, also fired in the wake of the scandal, should not have entertained for a moment the idea that Rice was just "intense." Convincing kids that they only have value except insofar as they worship the teacher is not avant-garde, it's abusive and selfish. Horace Mann administrators chose to interpret clearly bent behavior as a "method," when it really was pathology. In both cases, the supervisors in question were lazy and unprofessional.

As a private school teacher myself, this stuff angers me personally. The number of comments I have seen recently suggesting that sexual abuse is rampant at prep schools, that only someone with similar pathologies would be interested in working at one, and that all students in such places are snot-nosed are not only unfair, but harmful. The comments come from the ignorant, but they are the responsibility of the bad teachers who created the impression.

The Disgrace of Horace Mann and Robert Berman

Ever since the New York Times Magazine published a story last June revealing the long pattern of sexual abuse allowed at Horace Mann over the course of thirty years, the school has had to contend with the problem of how to deal with the past crimes of its faculty. It's not an easy question to resolve, since many of the alleged perpetrators are dead, and the statute of limitations -- in the strict legal sense -- has expired. Amos Kamil, the writer of the Magazine piece, was an alum of the school, and the fact that he himself has a stake in the outcome is complicated and interesting.

My reaction to Marc Fisher's new piece in The New Yorker on the Horace Mann scandal was different. His primary subject was a particular teacher, Robert Berman, who taught English at Horace Mann for many years. As a father and a person, I am saddened and disgusted by the stories about Jerry Sandusky and the abuse by Catholic priests. But Fisher's description of Berman provokes something even more visceral.


image from http://horacemannsurvivor.org/

I teach at a private school, and have done so for more than 20 years. I am personally invested and interested in my students. I keep in touch with some of them for many years after they graduate. As a result, I feel smeared by Berman, besmirched by association. Here's what I mean: Megan McArdle, of The Daily Beast wonders aloud why we have not more generally questioned the existence or structure of private schools as an institution, given these accusations. Her hypothesis is that too many journalists and other people of privilege went to these schools, and therefore are reluctant to expose the problem. In other words, my school is probably just as bad as Horace Mann, but the issue is being covered up.

That Horace Mann administrators fell for the intellectual facade is sad in itself. That they allowed him to use it in the furtherance of a crime is beyond disgrace. They do not represent us as a profession; they are not representative as a cross-section.

To teach is to empower. Berman prowled for the weak and vulnerable, found them at their lowest ebb, and then exploited them. He belittled them, according to Fisher, and exalted himself.That he could abuse his power in that particular way is worthy not only of anger, but of contempt. If Fisher's story is even half right, Berman is a despicable human being, the lowest of the low.

Not only that, but he appears from Fisher's account to be a loser. The beatnik affectation of suits and sunglasses, the writing of lists (the refuge of intellectual dwarfs), and the tedious, pedantic writing he did, using big words in an attempt to mask small ideas, indicate a wannabe seeking approval.

What Gitmo Means

When President Obama promised five years ago to close the detention center at Guantanamo Bay, he recognized the blight of an American regime of indefinite imprisonment. All of the fundamental principles of American government abhor the imprisonment of people without trial and without the opportunity to confront the charges against them. Even the current Supreme Court, which includes staunch security-state advocates like Samuel Alito and John Roberts, has repudiated the claim that the executive has the power to hold people at its whim.

Today, prisoners at the camp continue a hunger strike in protest of their 11-year detention. That the United States government is a target of such protests is itself shameful. Only people in the weakest of positions, facing the most egregious abuses, resort to such tactics. They should never be necessary against a government committed to individual liberty.

Student Ability Tracking and Educational Policy

Where I teach, at an independent school,students must pass through a relatively rigorous filter before attending. Our admission office considers standardized tests, essays and interviews, and accepts those it figures are best suited for the school. In other words, the whole school is "tracked." Only people who have chosen to undergo the process and then have met certain standards ever enroll.

Even so, teachers will sometimes remark on how difficult it is to teach classes in which the range of students' ability is too wide. These complaints bug me in part because of their factual context, but also because I think they represent a kind of professional laziness.

In its latest report on educational policies and trends, the Brookings Institute includes similar comments from a survey of public school teachers:

A substantial number of teachers believe that heterogeneous classes are difficult to teach. The 2008 MetLife Survey of the American Teacher asked teachers to react to the following statement: “My class/classes in my school have become so mixed in terms of students’ learning ability that I/teachers can’t teach them.” Responses were: 14% “agree strongly,” 29% “agree somewhat,” 28% “disagree somewhat,” and 27% “disagree strongly.”³¹ The percentages are surprising given the questionnaire’s blunt assertion that heterogeneous classes are impossible to teach. Moreover, the 43 percent of respondents that either agree strongly or somewhat agree with the prompt is up from 39 percent on the same survey item in 1988. Teachers’ beliefs about the impact of achievement heterogeneity on instruction undergird the use of ability grouping and tracking.

Now, public school teachers have problems that I don't. They don't have an admission office, and they don't always have the support of the parents. But this extreme hand-wringing is embarrassing. It's our job to teach kids where they are, not where we wish they were. Just get on it.

Tracking in certain subjects -- math, foreign language -- may facilitate certain kinds of learning and may even be necessary. But I'm not positive that's true all the time, and I think it's time for teachers to think carefully about what they are doing and why. I do not think it's right for teachers to call on administrators to filter student differences just to make the teachers' job easier

John Boehner is an Idiot

This is why the Republican Party has ceased to function as a viable political option these days: the leadership seems not to understand its own basic economic platform or its consequences.

First, the Republicans created a massive federal deficit by slashing taxes and raising military spending. Remember, when Bill Clinton left office in 2000, the federal government had a surplus. Then, they contributed to the economic crash by insisting on deregulation of financial practices. (To be fair, Clinton and the Democrats were foolish enough to think deregulation was a good idea, and Clinton himself signed the laws putting it in place.

Then the GOP got smoked in the 2008 elections, and demanded that overnight the new president and Congress should repair the damage done over the course of eight years. They called for more tax cuts, more spending cuts, less federal investment in infrastructure, no federal support for health care reform and argued that all these cuts in spending would cause people to open their pocketbooks and drive the economy.

Turned out they were wrong. The biggest incentive to spending appears to be political stability, and when the federal government creates severe uncertainty by refusing to pass fundamental legislation like a federal budget, the economy suffers. The "fiscal cliff" and the "sequester" lead to doubt and therefore suppress investment, both by individuals and by industry -- and it's investment, not spending that causes economic growth.

The sequester ought to be just the ticket, according to the Republicans. It will cause immediate, across the board cuts in federal spending and services, and if the Republicans believed their own stories, they should be perfectly content to allow them to happen. The Tea Party should be ecstatic.

But instead of taking credit for the cuts, which are not nearly as deep as the ones they say they really want, they are blaming Obama and the Democrats for them. The Republican-controlled House has done absolutely nothing to avoid the sequester, and that's perfectly consistent with their supposed political theory. So what's the stink?

The problem is that the Republican Party is for fools, right now. There is no plan, there is no philosophy, there is not basic adherence to political or physical facts.

It does not have to be this way. There is a coherent, sensible agenda for the GOP to build. A lot of it I probably would dislike, but that's not a problem. The problem is that the Republicans prevent useful discourse because they act like morons, and there's no use talking politics with a moron.

What's a Counter-revolution?

Egypt's Mohamed Morsi threatened the other day to crack down even more seriously on violent protests in Port Said. Calling the protesters "counter-revolutionaries," he insisted that he would maintain public order at the cost of civil liberties if necessary.

The word "counter-revolutionary" sounds dangerous to me. It implies that the revolution, whatever that is, comes first. Not the rule of law, not liberty, not democracy, not equality, not prosperity, not even order come before the revolution.

Check out his exact words:

The revolution was a turning point in Egypt's history. Egyptians have achieved unlimited freedoms and a constitution that reduced the president's powers.A structural reform is taking place in the state's institutions to fulfill the revolution's demands. I'm also working with the government to solve the problems of slum areas in Egypt.

Note the reification of the revolution here: it has demands, desires. Not only that, but it provided "unlimited freedoms." Such language does not bode well.

Stable democracy requires moderation. It requires compromise. I understand the pressure on President Morsi here, because no government can function, and few liberties can survive, in an atmosphere of chaos. People need to feel -- and to be -- secure in their personal safety before they ca engage is reasoned debate about touchy subjects. To this end, Morsi may need to make strongly-worded statements and to authorize coercion. The problem should be familiar to any 11th-grade US history student who as studied Abraham Lincoln. But language matters, too, and Morsi and the Muslim brotherhood need to learn to talk the talk.

Fame and Consequences

I don't generally take halls of fame seriously -- they're just museums. All the hubbub and dispute about who belongs in what hall of fame is the most base mental masturbation.

This week, however, the baseball writers made a statement. They refused to vote anyone into the Baseball Hall of Fame, even though some of the best players in history were candidates. Statistically, Barry Bonds is the best hitter of all time, Roger Clemens is among the best pitchers, and Mike Piazza is the best hitting catcher. None came even close to the 75% of voters they needed to be inducted.

As a museum, the Hall should include all three of these players, and probably also Craig Biggio and Jeff Bagwell (against whom I played in high school). And I have a hard time taking the morality of this kind of thing seriously. After all, Ty Cobb was a racist jerk, and Gaylord Perry only cheated through his whole career.

But I read one comment that rings most true to me: these guys made themselves rich by cheating and got to play the game at the highest level by cheating, but they did not earn honor. They'll have to live with that consequence, if none other.

"An approach that is so bureaucratically, legally and morally sound "

The Brookings Institution recently published some brief comments and illustrations on a Washington Post series on the Obama Administration's drone policy. Whether US law is ready for it or not, the Obama team has established a formal review process for the decision to kill a foreign national.

Brookings published a flow chart for the process, found here:
http://www.brookings.edu/research/interactives/2012/wittes-byman-terrorist-threat-flowchart

On the surface, the thing seems eminently reasonable and legal. The government only kills "operational" targets who can not easily be captured and prosecuted in the United States. The rationale goes like this: if there is a really bad guy out there, we would like to capture him and try him for crimes, but if we can't we just have to kill him, right?

Maybe. But I just don't think it's as easy as all that.

As the Post article put it, "Obama administration officials at times have sought to trigger debate over how long the nation might employ the kill lists, but officials said the discussions became dead ends." In other words, they are no longer doing the deep thinking here about the moral, legal and diplomatic consequences of what they are doing. Officials admit that the targets they hit these days just are not as important or as dangerous as the targets from five years ago, but the bureaucratic momentum driving the existence of a "top 20" list makes it difficult to complete it once and for all. There will always be a "most dangerous" person, even if he's not nearly so dangerous as people we killed or imprisoned already.

Here's a thought-provoking exchange from the Post: "In one instance, Mullen, the former Joint Chiefs chairman, returned from Pakistan and recounted a heated confrontation with his counterpart, Gen. Ashfaq Parvez Kayani. Mullen told White House and counterterrorism officials that the Pakistani military chief had demanded an answer to a seemingly reasonable question: After hundreds of drone strikes, how could the United States possibly still be working its way through a “top 20” list?"

We still have not conducted a clear and open debate about the legality and utility of these assassinations. Too many people don't know about them or can't be bothered to think about them carefully enough. It's not so much that I worry about a slippery slope -- what will we do if we are willing to blow people up -- though that's not as silly as most slippery slope problems are. Rather, I am concerned that we as a people are changing who we are. We are now the ones who target and kill people because we can do it. I don't think that's a good idea.