Commentary Magazine


Posts For: July 16, 2009

Panetta — Not Right for the Job

The news that CIA Director Leon Panetta has canceled a secret program that would have, if carried out properly, covertly killed top al Qaeda leaders, has dominated recent headlines. That’s right — not the lowly al-Qaeda operatives that American forces have been targeting in Afghanistan for the last eight years, but top leaders who have been elusively traversing the territories of Afghanistan and Pakistan, plotting terrorist attacks against the United States of America at home and abroad.

That a program of this nature exists should be a non-starter. If our intelligence community is not hunting down our enemies, then what exactly are they doing? The real story is that Panetta has not the stomach to implement this program fully. It’s helpful to recall the criticism levied at Obama and Panetta when the nomination for CIA director was announced:

The selection pairs a top military man with a quintessential Washington insider – but that combination appeared to irk some key Senate Democrats, who expressed concern that Panetta does not have an intelligence background. “My position has consistently been that I believe the agency is best-served by having an intelligence professional in charge at this time,” said California Sen. Diane Feinstein, who will oversee Panetta’s confirmation as chair of the Select Committee on Intelligence.

Sen. Kit Bond (R-Mo.), the vice chairman of the committee, also questioned the choice of Panetta. “Job number one at the CIA is to track down and stop terrorists. In a post-9-11 world, intelligence experience would seem to be a prerequisite for the job of CIA Director. While I will reserve final judgment on President-elect Obama’s nomination for the leader of our terror-fighting agency, I will be looking hard at Panetta’s intelligence expertise and qualifications.”

And in a quintessential Washington-insider move, Panetta revealed the secret plans for this program soon after hearing about it. In this case, Senators Feinstein and Bond were exactly right: Leon Panetta is not the right man for the job.

The news that CIA Director Leon Panetta has canceled a secret program that would have, if carried out properly, covertly killed top al Qaeda leaders, has dominated recent headlines. That’s right — not the lowly al-Qaeda operatives that American forces have been targeting in Afghanistan for the last eight years, but top leaders who have been elusively traversing the territories of Afghanistan and Pakistan, plotting terrorist attacks against the United States of America at home and abroad.

That a program of this nature exists should be a non-starter. If our intelligence community is not hunting down our enemies, then what exactly are they doing? The real story is that Panetta has not the stomach to implement this program fully. It’s helpful to recall the criticism levied at Obama and Panetta when the nomination for CIA director was announced:

The selection pairs a top military man with a quintessential Washington insider – but that combination appeared to irk some key Senate Democrats, who expressed concern that Panetta does not have an intelligence background. “My position has consistently been that I believe the agency is best-served by having an intelligence professional in charge at this time,” said California Sen. Diane Feinstein, who will oversee Panetta’s confirmation as chair of the Select Committee on Intelligence.

Sen. Kit Bond (R-Mo.), the vice chairman of the committee, also questioned the choice of Panetta. “Job number one at the CIA is to track down and stop terrorists. In a post-9-11 world, intelligence experience would seem to be a prerequisite for the job of CIA Director. While I will reserve final judgment on President-elect Obama’s nomination for the leader of our terror-fighting agency, I will be looking hard at Panetta’s intelligence expertise and qualifications.”

And in a quintessential Washington-insider move, Panetta revealed the secret plans for this program soon after hearing about it. In this case, Senators Feinstein and Bond were exactly right: Leon Panetta is not the right man for the job.

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Re: Destroying the CIA

Jen, I wanted to pick up on your excellent posting on the efforts by leading Democrats — in Congress and in the Obama Administration — to do enormous damage to the CIA. Last night I was re-reading a speech Ronald Reagan gave to the American Conservative Union in 1977. In it, Reagan said this:

There is only one major question on the agenda of national priorities and that is the state of our national security. I refer, of course, to the state of our armed forces-but also to our state of mind, to the way we perceive the world. We cannot maintain the strength we need to survive, no matter how many missiles we have, no matter how many tanks we build, unless we are willing to reverse the trend of deteriorating faith in and continuing abuse of our national intelligence agencies. Let’s stop the sniping and the propaganda and the historical revisionism and let the CIA and the other intelligence agencies do their job.

I fully understand that this moment is in many respects different from the one Reagan lived in and that conservatism needs to make itself relevant and appealing in confronting the challenges of this era. Nevertheless, Reagan’s words seem apposite to our day and time, given what Democrats are attempting to do to our intelligence agency.

It is strange to me that Barack Obama, the candidate of “change and hope,” has, during the last six months, done a mighty fine job of building a bridge to the Democratic past. It is as if he has decided to skip the 1990’s and aimed to recreate the 1970’s and 1980’s. It seems to me that Obama most represents — in economic policies and national security affairs, if not in style and bearing — Walter Mondale and Jimmy Carter. There are of course some exceptions; but there are more similarities than Democrats ought to be comfortable with. Why Obama seems intent on resurrecting the worst of modern liberalism — from government spending (and soon, higher taxes) at home to weakness abroad — is a mystery to me. I imagine it’ll become a mystery, and perhaps a source of friction, for an increasing number of Democratic lawmakers as well.

Jen, I wanted to pick up on your excellent posting on the efforts by leading Democrats — in Congress and in the Obama Administration — to do enormous damage to the CIA. Last night I was re-reading a speech Ronald Reagan gave to the American Conservative Union in 1977. In it, Reagan said this:

There is only one major question on the agenda of national priorities and that is the state of our national security. I refer, of course, to the state of our armed forces-but also to our state of mind, to the way we perceive the world. We cannot maintain the strength we need to survive, no matter how many missiles we have, no matter how many tanks we build, unless we are willing to reverse the trend of deteriorating faith in and continuing abuse of our national intelligence agencies. Let’s stop the sniping and the propaganda and the historical revisionism and let the CIA and the other intelligence agencies do their job.

I fully understand that this moment is in many respects different from the one Reagan lived in and that conservatism needs to make itself relevant and appealing in confronting the challenges of this era. Nevertheless, Reagan’s words seem apposite to our day and time, given what Democrats are attempting to do to our intelligence agency.

It is strange to me that Barack Obama, the candidate of “change and hope,” has, during the last six months, done a mighty fine job of building a bridge to the Democratic past. It is as if he has decided to skip the 1990’s and aimed to recreate the 1970’s and 1980’s. It seems to me that Obama most represents — in economic policies and national security affairs, if not in style and bearing — Walter Mondale and Jimmy Carter. There are of course some exceptions; but there are more similarities than Democrats ought to be comfortable with. Why Obama seems intent on resurrecting the worst of modern liberalism — from government spending (and soon, higher taxes) at home to weakness abroad — is a mystery to me. I imagine it’ll become a mystery, and perhaps a source of friction, for an increasing number of Democratic lawmakers as well.

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It’s the Economy

The latest McClatchy-Ipsos poll tells a story similar to other surveys:

The survey found the ranks of people who think the country is on the right track dropping to 40 percent, down 12 points since early June and the lowest since Obama took office in January.

As unemployment continues to rise, Americans who say the country’ s on the wrong track jumped to 54 percent, a 12-point rise and the highest since Obama took office.

The number of Americans who approve of the way Obama is doing his job also dropped, to 57 percent, a 7-point decline from early June and the lowest of his presidency that McClatchy-Ipsos has recorded.

His biggest loss of support was among independents, whose approval decreased from 58 percent to 50 percent. However, he also lost ground among Democrats, down 5 points, and Republicans, down 3 points.
Notably, the total of Americans who “strongly” approve of Obama’s job performance dropped 11 points in a month, to 29 percent, his lowest ever. Conversely, 22 percent said they strongly disapprove, up 6 points and the highest of his six months in office.

It seems that the voters expected the president to do something about the economy. He hasn’t, and his excuse mongering isn’t staving off public discontent. But where do we go from here? As this report makes clear, Obama isn’t likely going to be able to deliver on those “immediate” jobs any time soon:

Federal Reserve officials are preparing for an unusual recovery, in which the economy grows more robustly than they had expected but unemployment gets worse, according to minutes released Wednesday of the Fed’s policy meeting in June.

“Most participants anticipated that the employment situation was likely to be downbeat for some time,” the minutes said. The unemployment rate is currently 9.5%, a 26-year high.

According to their quarterly projections, most officials expect the jobless rate to reach between 9.8% and 10.1% at the end of this year. It is expected to remain above 9% in 2010 and 8% in 2011, they said, well above its “longer run sustainable rate.”

Well, when unemployment tops 10% we’ll see if Obama’s approval drops below 50%. Americans expect results and if those aren’t forthcoming, no amount of eloquence, charm, or spin will save the president from the voters’ wrath.

The latest McClatchy-Ipsos poll tells a story similar to other surveys:

The survey found the ranks of people who think the country is on the right track dropping to 40 percent, down 12 points since early June and the lowest since Obama took office in January.

As unemployment continues to rise, Americans who say the country’ s on the wrong track jumped to 54 percent, a 12-point rise and the highest since Obama took office.

The number of Americans who approve of the way Obama is doing his job also dropped, to 57 percent, a 7-point decline from early June and the lowest of his presidency that McClatchy-Ipsos has recorded.

His biggest loss of support was among independents, whose approval decreased from 58 percent to 50 percent. However, he also lost ground among Democrats, down 5 points, and Republicans, down 3 points.
Notably, the total of Americans who “strongly” approve of Obama’s job performance dropped 11 points in a month, to 29 percent, his lowest ever. Conversely, 22 percent said they strongly disapprove, up 6 points and the highest of his six months in office.

It seems that the voters expected the president to do something about the economy. He hasn’t, and his excuse mongering isn’t staving off public discontent. But where do we go from here? As this report makes clear, Obama isn’t likely going to be able to deliver on those “immediate” jobs any time soon:

Federal Reserve officials are preparing for an unusual recovery, in which the economy grows more robustly than they had expected but unemployment gets worse, according to minutes released Wednesday of the Fed’s policy meeting in June.

“Most participants anticipated that the employment situation was likely to be downbeat for some time,” the minutes said. The unemployment rate is currently 9.5%, a 26-year high.

According to their quarterly projections, most officials expect the jobless rate to reach between 9.8% and 10.1% at the end of this year. It is expected to remain above 9% in 2010 and 8% in 2011, they said, well above its “longer run sustainable rate.”

Well, when unemployment tops 10% we’ll see if Obama’s approval drops below 50%. Americans expect results and if those aren’t forthcoming, no amount of eloquence, charm, or spin will save the president from the voters’ wrath.

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Re: Re: Re: Did Hillary Get the Message?

Abe, you ask “Did someone on [Hillary’s] staff go through the [Council on Foreign Relations] speech beforehand and make sure to take out anything that referenced the world as it really is?” The answer is, as I will try to show, yes — although it was probably someone higher than her staff.

Hillary obviously viewed the speech as a major one — it was before the premier foreign policy group, with luminaries in the audience, at a time when her relevance to Obama’s foreign policy was becoming the subject of public speculation. The Los Angeles Times reports that “State Department aides billed Wednesday’s speech as a major foreign policy address and distributed excerpts in advance in an apparent effort to heighten interest.”

One of the people who got an advance excerpt was Greg Sargent, who posted the excerpt at the Washington Post yesterday morning, along with this prediction:

In a major foreign policy speech this afternoon, Secretary of State Hillary Clinton will take direct aim at Arab states for not doing their part towards securing Mideast peace, demanding that “all sides” do more to crack down on the “cultures of hate, intolerance and disrespect that perpetuate conflict,” according to an advance excerpt I’ve obtained.

If we compare the advance excerpt to the speech as delivered later that day, we find there was in fact a change — one I believe confirms your suspicion about the process it had gone through.

Here is a portion of the advance excerpt dealing with the responsibility of Arab states in taking steps to improve relations with Israel and prepare the public in their countries to accept it:

The Saudi peace proposal, supported by more than twenty nations, was a positive step. But so far, those who embrace it seem unwilling to do anything until the Israelis and Palestinians reach an agreement. This may be understandable, but it is not helpful. Anwar Sadat and King Hussein crossed important thresholds, and their boldness and vision mobilized peace constituencies in Israel and paved the way for lasting agreements. By providing support to the Palestinians and offering a concrete opening, however modest, to the Israelis, the Arab states could have the same impact.  [Emphasis added]

The advance excerpt reflected the world as it really is: Arab states who forever tout their “peace initiative” seem “unwilling to do anything” until after peace breaks out, and this is “not helpful.” What is required is a “concrete” opening to Israel now.

And here is how that portion came out in the speech as delivered:

The Saudi peace proposal, supported by more than twenty nations, was a positive step. But we believe that more is needed. So we are asking those who embrace the proposal to take meaningful steps now. Anwar Sadat and King Hussein crossed important thresholds, and their boldness and vision mobilized peace constituencies in Israel and paved the way for lasting agreements. By providing support to the Palestinians and offering an opening, however modest, to the Israelis, the Arab states could have the same impact.  [Emphasis added].

As delivered, the Saudi proposal is praised, together with a mild statement that “more is needed” and a notation “asking” those who embrace it to take “meaningful steps” by “offering an opening” to Israel.  Gone is the “direct aim” at Arab states: no public statement that they have been “unwilling to do anything” beyond offering a rhetorical promise of what they would do after others produce a peace agreement that meets every Palestinian demand; that this unwillingness is “not helpful;” and that what is necessary is a “concrete” opening to Israel.

Who toned down the speech in the hours before it was given?  It is highly unlikely the State Department circulated an advance excerpt of a major address before it had been fully reviewed and vetted by Hillary and her staff. It must have been someone else.

And what remained in both the advance and the as-delivered versions was simply the call for an opening, “however modest.” In both versions, Hillary referenced the boldness of Anwar Sadat and King Hussein and then simply asked for something, anything, “however modest.” If the speech produces any steps at all, one can safely guess they will be modest — not the public acceptance of Israel as a Jewish state that is necessary for peace to progress.

Abe, you ask “Did someone on [Hillary’s] staff go through the [Council on Foreign Relations] speech beforehand and make sure to take out anything that referenced the world as it really is?” The answer is, as I will try to show, yes — although it was probably someone higher than her staff.

Hillary obviously viewed the speech as a major one — it was before the premier foreign policy group, with luminaries in the audience, at a time when her relevance to Obama’s foreign policy was becoming the subject of public speculation. The Los Angeles Times reports that “State Department aides billed Wednesday’s speech as a major foreign policy address and distributed excerpts in advance in an apparent effort to heighten interest.”

One of the people who got an advance excerpt was Greg Sargent, who posted the excerpt at the Washington Post yesterday morning, along with this prediction:

In a major foreign policy speech this afternoon, Secretary of State Hillary Clinton will take direct aim at Arab states for not doing their part towards securing Mideast peace, demanding that “all sides” do more to crack down on the “cultures of hate, intolerance and disrespect that perpetuate conflict,” according to an advance excerpt I’ve obtained.

If we compare the advance excerpt to the speech as delivered later that day, we find there was in fact a change — one I believe confirms your suspicion about the process it had gone through.

Here is a portion of the advance excerpt dealing with the responsibility of Arab states in taking steps to improve relations with Israel and prepare the public in their countries to accept it:

The Saudi peace proposal, supported by more than twenty nations, was a positive step. But so far, those who embrace it seem unwilling to do anything until the Israelis and Palestinians reach an agreement. This may be understandable, but it is not helpful. Anwar Sadat and King Hussein crossed important thresholds, and their boldness and vision mobilized peace constituencies in Israel and paved the way for lasting agreements. By providing support to the Palestinians and offering a concrete opening, however modest, to the Israelis, the Arab states could have the same impact.  [Emphasis added]

The advance excerpt reflected the world as it really is: Arab states who forever tout their “peace initiative” seem “unwilling to do anything” until after peace breaks out, and this is “not helpful.” What is required is a “concrete” opening to Israel now.

And here is how that portion came out in the speech as delivered:

The Saudi peace proposal, supported by more than twenty nations, was a positive step. But we believe that more is needed. So we are asking those who embrace the proposal to take meaningful steps now. Anwar Sadat and King Hussein crossed important thresholds, and their boldness and vision mobilized peace constituencies in Israel and paved the way for lasting agreements. By providing support to the Palestinians and offering an opening, however modest, to the Israelis, the Arab states could have the same impact.  [Emphasis added].

As delivered, the Saudi proposal is praised, together with a mild statement that “more is needed” and a notation “asking” those who embrace it to take “meaningful steps” by “offering an opening” to Israel.  Gone is the “direct aim” at Arab states: no public statement that they have been “unwilling to do anything” beyond offering a rhetorical promise of what they would do after others produce a peace agreement that meets every Palestinian demand; that this unwillingness is “not helpful;” and that what is necessary is a “concrete” opening to Israel.

Who toned down the speech in the hours before it was given?  It is highly unlikely the State Department circulated an advance excerpt of a major address before it had been fully reviewed and vetted by Hillary and her staff. It must have been someone else.

And what remained in both the advance and the as-delivered versions was simply the call for an opening, “however modest.” In both versions, Hillary referenced the boldness of Anwar Sadat and King Hussein and then simply asked for something, anything, “however modest.” If the speech produces any steps at all, one can safely guess they will be modest — not the public acceptance of Israel as a Jewish state that is necessary for peace to progress.

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Wheels off the Bus?

Today was not a good day for ObamaCare. First, the Blue Dogs are howling in protest. Politico reports:

Arkansas Rep. Mike Ross, a key negotiator on health care for moderate Blue Dog Democrats, has warned that “there’s no way they can pass the current bill on the House floor. Not even close.”

Ross doesn’t believe the bill unveiled Tuesday comes close to curtailing the ever-escalating costs of health care spending, particularly for Medicare. The conservative Arkansas Democrat also objects to the surtaxes included in the bill, saying, “I don’t like the idea of raising taxes in the worst economic crisis since World War II.”

Whoops.

Meanwhile in the Senate,  Democrat Max Baucus attacked Obama:

Senator Max Baucus, Democrat of Montana and chairman of the Senate Finance Committee, said on Thursday that President Obama had hindered his efforts to reach a bipartisan compromise on sweeping health care legislation by opposing a tax on some employer-provided health insurance benefits.

“Basically, the president is not helping us,” Mr. Baucus told reporters outside his office. “He does not want the exclusion. That’s making it difficult.”

Whoops again.

But that was nothing compared to the blow struck by the neutral Congressional Budget Office. The Washington Post relates:

Instead of saving the federal government from fiscal catastrophe, the health reform measures being drafted by congressional Democrats would increase rather than reduce public spending on health care, potentially worsening an already bleak budget outlook, the director of the nonpartisan Congressional Budget Office said this morning.

Under questioning by members of the Senate Budget Committee, CBO director Douglas Elmendorf said bills crafted by House leaders and the Senate health committee do not propose “the sort of fundamental changes that would be necessary to reduce the trajectory of federal health spending by a significant amount.”

“On the contrary,” Elmendorf said, “the legislation significantly expands the federal responsibility for health-care costs.”

Major whoops. As Yuval Levin remarks, “Not a great day for Obamacare, but a good one for CBO, and for honesty in Washington.”

But really, what did Pelosi and the Obama team expect? They have become so allergic to serious policy-making that they apparently thought the mere magnificence of Obama’s persona would cast a spell over moderate lawmakers, CBO, and the public. What, they thought no one would spot the trillion dollar gambit to take over health care? The problem with believing your own press-clippings is that it does not prepare you to deal with reality. Today, reality showed up in the health-care debate.

Today was not a good day for ObamaCare. First, the Blue Dogs are howling in protest. Politico reports:

Arkansas Rep. Mike Ross, a key negotiator on health care for moderate Blue Dog Democrats, has warned that “there’s no way they can pass the current bill on the House floor. Not even close.”

Ross doesn’t believe the bill unveiled Tuesday comes close to curtailing the ever-escalating costs of health care spending, particularly for Medicare. The conservative Arkansas Democrat also objects to the surtaxes included in the bill, saying, “I don’t like the idea of raising taxes in the worst economic crisis since World War II.”

Whoops.

Meanwhile in the Senate,  Democrat Max Baucus attacked Obama:

Senator Max Baucus, Democrat of Montana and chairman of the Senate Finance Committee, said on Thursday that President Obama had hindered his efforts to reach a bipartisan compromise on sweeping health care legislation by opposing a tax on some employer-provided health insurance benefits.

“Basically, the president is not helping us,” Mr. Baucus told reporters outside his office. “He does not want the exclusion. That’s making it difficult.”

Whoops again.

But that was nothing compared to the blow struck by the neutral Congressional Budget Office. The Washington Post relates:

Instead of saving the federal government from fiscal catastrophe, the health reform measures being drafted by congressional Democrats would increase rather than reduce public spending on health care, potentially worsening an already bleak budget outlook, the director of the nonpartisan Congressional Budget Office said this morning.

Under questioning by members of the Senate Budget Committee, CBO director Douglas Elmendorf said bills crafted by House leaders and the Senate health committee do not propose “the sort of fundamental changes that would be necessary to reduce the trajectory of federal health spending by a significant amount.”

“On the contrary,” Elmendorf said, “the legislation significantly expands the federal responsibility for health-care costs.”

Major whoops. As Yuval Levin remarks, “Not a great day for Obamacare, but a good one for CBO, and for honesty in Washington.”

But really, what did Pelosi and the Obama team expect? They have become so allergic to serious policy-making that they apparently thought the mere magnificence of Obama’s persona would cast a spell over moderate lawmakers, CBO, and the public. What, they thought no one would spot the trillion dollar gambit to take over health care? The problem with believing your own press-clippings is that it does not prepare you to deal with reality. Today, reality showed up in the health-care debate.

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And for His Second Act: Health Care

Karl Rove is onto the president’s two favorite ploys: “move the goalposts” and argue against straw men. In the face of the failed stimulus plan, Obama now says he never promised an immediate job recovery. Wrong. He did. And he now argues (as he did at the time) that his opponents wanted to do “nothing.” Wrong. They actually gave him lists of alternatives.

The danger for the Obama administration is not simply that his first major legislative undertaking, the stimulus plan, is failing; it is that the extent of the failure and the irritating denial of failure by Obama come at a time he most needs the public and Congress to trust him.

Health care is a massive, expensive, and daunting undertaking in which opposing sides have sharply contrasting claims. The public option will drive us all onto government health care, claims one side. That’s nonsense, says the other. The “rich” will pay for it, claims one side; that’s fiscal fantasy-land, says the other. And so it goes. So now is the time the president must appear both competent and entirely credible. If the public doesn’t buy his pitch, there isn’t going to be a sweeping health-care reform bill.

But how does that work when Obama is spewing easily disproven spin about his first major piece of legislation? That’s bound to unnerve those already suspicious of the grandiose plans for remaking the health-care system. As his poll numbers sink, lawmakers may begin to doubt the wisdom of adhering too closely to a president rapidly losing political altitude. Moreover, both members of Congress and the public may begin to lose confidence in the substance of his arguments. As Rove says: “Americans are right to wonder if their president is using his own private definitions for the words he uses to sell his policies.

If “immediate” jobs didn’t really mean we’d get job growth immediately, then maybe “you get to keep your health insurance if you like” doesn’t mean what we think it does. And “health-care reform isn’t going to add to the deficit” may be only as believable as those 3-4 million “saved or created” jobs.

In short, the American people might just get the idea that if Obama is spinning us on what he’s already done, he might just be pulling a fast one on his next undertaking.

Karl Rove is onto the president’s two favorite ploys: “move the goalposts” and argue against straw men. In the face of the failed stimulus plan, Obama now says he never promised an immediate job recovery. Wrong. He did. And he now argues (as he did at the time) that his opponents wanted to do “nothing.” Wrong. They actually gave him lists of alternatives.

The danger for the Obama administration is not simply that his first major legislative undertaking, the stimulus plan, is failing; it is that the extent of the failure and the irritating denial of failure by Obama come at a time he most needs the public and Congress to trust him.

Health care is a massive, expensive, and daunting undertaking in which opposing sides have sharply contrasting claims. The public option will drive us all onto government health care, claims one side. That’s nonsense, says the other. The “rich” will pay for it, claims one side; that’s fiscal fantasy-land, says the other. And so it goes. So now is the time the president must appear both competent and entirely credible. If the public doesn’t buy his pitch, there isn’t going to be a sweeping health-care reform bill.

But how does that work when Obama is spewing easily disproven spin about his first major piece of legislation? That’s bound to unnerve those already suspicious of the grandiose plans for remaking the health-care system. As his poll numbers sink, lawmakers may begin to doubt the wisdom of adhering too closely to a president rapidly losing political altitude. Moreover, both members of Congress and the public may begin to lose confidence in the substance of his arguments. As Rove says: “Americans are right to wonder if their president is using his own private definitions for the words he uses to sell his policies.

If “immediate” jobs didn’t really mean we’d get job growth immediately, then maybe “you get to keep your health insurance if you like” doesn’t mean what we think it does. And “health-care reform isn’t going to add to the deficit” may be only as believable as those 3-4 million “saved or created” jobs.

In short, the American people might just get the idea that if Obama is spinning us on what he’s already done, he might just be pulling a fast one on his next undertaking.

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Re: Rosen Was Right

As Jennifer has pointed out, Sonya Sotomayor has been less than impressive in her testimony before the Senate Judiciary Committee. No Frankfurter, Brandeis, or Cardozo she.

For those of us of a certain age, it’s hard not to be reminded of G. Harrold Carswell. When Abe Fortas was forced to resign from the Supreme Court because of conflicts of interest in 1969, Richard Nixon nominated a distinguished member of the 4th Circuit Court of Appeals, Clement Haynsworth of South Carolina, who had been chief judge on that circuit since 1964. A major fight erupted in the Senate — a precursor of so many to come — over his nomination. He was accused of having “unacceptable” opinions on civil rights and labor issues, although both accusations were dubious at best. He was also accused of having conflicts of interest, owning minor amounts of stock in corporations with an interest in cases before him. In the end, Haynsworth, a good and worthy man with a first-rate legal mind, fell victim to politics, his nomination rejected by the Senate 55-45, the first rejection of a Supreme Court nominee in forty years. (Interestingly, 38 Democrats and 17 Republicans voted against him while 19 Democrats and 26 Republicans voted for him, a split almost unthinkable today.)

Nixon, furious and determined to have a strict-constructionist Southerner on the court, then nominated Carswell, who was from Florida and had been a federal-district judge until he recent elevation to the 5th Circuit. Again, the opposition was fierce, especially from the burgeoning feminist movement (Betty Friedan testified at the Senate hearings). But the main objection to Carswell was that he had been so undistinguished as a judge, with a very high (58 percent) reversal rate.

Fatally, Roman Hruska, Republican Senator from Nebraska and not the sharpest knife in the Senate drawer himself, leapt to Carswell’s defense, saying, “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Frankfurters, Brandeises, and Cardozos.”

In the end, Carswell also went down to defeat, 51-45. Nixon, not daring to risk three defeats in a row, nominated Harry Blackmun who was confirmed 94-0 and went on to write the majority opinion in Roe v. Wade, the most controversial decision the court has handed down in forty years. Carswell, meanwhile, resigned from the 5th Circuit and tried to exploit his sudden fame by running for the Senate. He was clobbered in the 1970 Florida Republican primary. Six years later, he was convicted of battery after making advances to an undercover policeman in a men’s room and retired from public life.

As Jennifer has pointed out, Sonya Sotomayor has been less than impressive in her testimony before the Senate Judiciary Committee. No Frankfurter, Brandeis, or Cardozo she.

For those of us of a certain age, it’s hard not to be reminded of G. Harrold Carswell. When Abe Fortas was forced to resign from the Supreme Court because of conflicts of interest in 1969, Richard Nixon nominated a distinguished member of the 4th Circuit Court of Appeals, Clement Haynsworth of South Carolina, who had been chief judge on that circuit since 1964. A major fight erupted in the Senate — a precursor of so many to come — over his nomination. He was accused of having “unacceptable” opinions on civil rights and labor issues, although both accusations were dubious at best. He was also accused of having conflicts of interest, owning minor amounts of stock in corporations with an interest in cases before him. In the end, Haynsworth, a good and worthy man with a first-rate legal mind, fell victim to politics, his nomination rejected by the Senate 55-45, the first rejection of a Supreme Court nominee in forty years. (Interestingly, 38 Democrats and 17 Republicans voted against him while 19 Democrats and 26 Republicans voted for him, a split almost unthinkable today.)

Nixon, furious and determined to have a strict-constructionist Southerner on the court, then nominated Carswell, who was from Florida and had been a federal-district judge until he recent elevation to the 5th Circuit. Again, the opposition was fierce, especially from the burgeoning feminist movement (Betty Friedan testified at the Senate hearings). But the main objection to Carswell was that he had been so undistinguished as a judge, with a very high (58 percent) reversal rate.

Fatally, Roman Hruska, Republican Senator from Nebraska and not the sharpest knife in the Senate drawer himself, leapt to Carswell’s defense, saying, “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Frankfurters, Brandeises, and Cardozos.”

In the end, Carswell also went down to defeat, 51-45. Nixon, not daring to risk three defeats in a row, nominated Harry Blackmun who was confirmed 94-0 and went on to write the majority opinion in Roe v. Wade, the most controversial decision the court has handed down in forty years. Carswell, meanwhile, resigned from the 5th Circuit and tried to exploit his sudden fame by running for the Senate. He was clobbered in the 1970 Florida Republican primary. Six years later, he was convicted of battery after making advances to an undercover policeman in a men’s room and retired from public life.

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Linda Chavez Debunks Sotomayor

CONTENTIONS contributor Linda Chavez has testified in opposition. Her complete testimony is here. Unfortunately, these witnesses get an abbreviated time to provide only the gist of their remarks. Linda’s are worth reading in full. In particular, she debunks Sotomayor’s quite misleading spin on Ricci:

As you know, the Supreme Court reversed Judge Sotomayor and ruled 5-4 in favor of the firefighters.  Even the dissenting justices did not endorse the approach taken by the lower courts, which dismissed the plaintiffs’ claims without a full hearing. What’s more, President Obama’s own legal experts thought that the Second Circuit’s decision was wrong, in light of the evidence that the city’s actions were motivated, not by any real legal concerns, but by nothing but racial politics. So the Justice Department’s brief also urged that Judge Sotomayor’s decision be reversed and sent back for more work.

Furthermore, the attempt by Judge Sotomayor’s panel to sweep the case under the rug—first with a summary order, and then withdrawing that and issuing a terse per curiam opinion which did not even mention the plaintiffs’ equal-protection claims—was unconscionable.  Such dispositions are typically limited to cases that raise unimportant or well-settled matters; the New Haven case was neither. After all, it prompted, sua sponte, an impassioned protest from other Second Circuit judges (led by another Democratic appointee, Jose Cabranes), and was granted review by the Supreme Court, which happens in only a tiny percentage of cases the Court sees.

Yes, that’s right — the Obama-Holder Justice Department couldn’t bring themselves to urge Sotomayor’s decision be affirmed. While several senators meandered around the circumstances of her cursory treatment of the firefighter’s claims (Sessions did so in the third and final round), none really got to the nub of the matter: this was a violation of court rules which provide for a per curium opinion when the issue does not raise complex issues. This did.

While never adequately pinned down by the senators, Sotomayor never provided a full explanation for why she gave the back-of-the-hand to a case so obviously fraught with serious issues. Didn’t Ricci, Vargas, and the other parties deserve better?

CONTENTIONS contributor Linda Chavez has testified in opposition. Her complete testimony is here. Unfortunately, these witnesses get an abbreviated time to provide only the gist of their remarks. Linda’s are worth reading in full. In particular, she debunks Sotomayor’s quite misleading spin on Ricci:

As you know, the Supreme Court reversed Judge Sotomayor and ruled 5-4 in favor of the firefighters.  Even the dissenting justices did not endorse the approach taken by the lower courts, which dismissed the plaintiffs’ claims without a full hearing. What’s more, President Obama’s own legal experts thought that the Second Circuit’s decision was wrong, in light of the evidence that the city’s actions were motivated, not by any real legal concerns, but by nothing but racial politics. So the Justice Department’s brief also urged that Judge Sotomayor’s decision be reversed and sent back for more work.

Furthermore, the attempt by Judge Sotomayor’s panel to sweep the case under the rug—first with a summary order, and then withdrawing that and issuing a terse per curiam opinion which did not even mention the plaintiffs’ equal-protection claims—was unconscionable.  Such dispositions are typically limited to cases that raise unimportant or well-settled matters; the New Haven case was neither. After all, it prompted, sua sponte, an impassioned protest from other Second Circuit judges (led by another Democratic appointee, Jose Cabranes), and was granted review by the Supreme Court, which happens in only a tiny percentage of cases the Court sees.

Yes, that’s right — the Obama-Holder Justice Department couldn’t bring themselves to urge Sotomayor’s decision be affirmed. While several senators meandered around the circumstances of her cursory treatment of the firefighter’s claims (Sessions did so in the third and final round), none really got to the nub of the matter: this was a violation of court rules which provide for a per curium opinion when the issue does not raise complex issues. This did.

While never adequately pinned down by the senators, Sotomayor never provided a full explanation for why she gave the back-of-the-hand to a case so obviously fraught with serious issues. Didn’t Ricci, Vargas, and the other parties deserve better?

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Re: Re: Did Hillary Get the Message?

Abe, this isn’t much, is it? What is interesting is the posturing and spin, replete with limited and carefully pre-selected quotes, by the Hillary Clinton team to give the impression — if not the reality, as you ably point out — that there is some corrective action going on. Is this a unified effort by the administration to posture, albeit with no real substantive change? Or is this Clinton, walking the tight-rope between wanting to remain a “team player” and escape some of the pointed criticism building against the administration’s mealy-mouthed foreign policy?

I caught the Q & A after her speech on C-SPAN last night. What struck me was how immersed in State Department jargon she has become in six short months. She seemed to be someone who crammed for an exam, and now wants to show the elites and her boss all she has learned. But what is the bigger picture here? What, as you point out, do her internal reviews and acronym-ridden plans have to do with the facts on the ground? Not all that much.

One wonders how long she’ll keep at this — mastering the intricacies of Indian trade and roads in Pakistan — while larger administration policies seems dominated by the White House. At some point there has to be a Senate seat opening up for her, right? One can imagine she might be counting the days when she will again be relevant.

Abe, this isn’t much, is it? What is interesting is the posturing and spin, replete with limited and carefully pre-selected quotes, by the Hillary Clinton team to give the impression — if not the reality, as you ably point out — that there is some corrective action going on. Is this a unified effort by the administration to posture, albeit with no real substantive change? Or is this Clinton, walking the tight-rope between wanting to remain a “team player” and escape some of the pointed criticism building against the administration’s mealy-mouthed foreign policy?

I caught the Q & A after her speech on C-SPAN last night. What struck me was how immersed in State Department jargon she has become in six short months. She seemed to be someone who crammed for an exam, and now wants to show the elites and her boss all she has learned. But what is the bigger picture here? What, as you point out, do her internal reviews and acronym-ridden plans have to do with the facts on the ground? Not all that much.

One wonders how long she’ll keep at this — mastering the intricacies of Indian trade and roads in Pakistan — while larger administration policies seems dominated by the White House. At some point there has to be a Senate seat opening up for her, right? One can imagine she might be counting the days when she will again be relevant.

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What Can We Say?

Sotomayor completed her testimony (more on that later). Plaintiffs Frank Ricci and Ben Vargas from the New Haven firefigher case are testifiying in compelling fashion. Vargas calls attention to the Alito concurrance which many conservatives did — saying they were looking for even-handed treatment. Vargas says he was “shocked” when after his hard work his test was thrown out. You want the argument for a colorblind society, for an end to “wise Latina” invocations to bias? This is it.

Sotomayor completed her testimony (more on that later). Plaintiffs Frank Ricci and Ben Vargas from the New Haven firefigher case are testifiying in compelling fashion. Vargas calls attention to the Alito concurrance which many conservatives did — saying they were looking for even-handed treatment. Vargas says he was “shocked” when after his hard work his test was thrown out. You want the argument for a colorblind society, for an end to “wise Latina” invocations to bias? This is it.

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Judge Sotomayor on Foreign and International Law

Yesterday, in response to a question from Sen. Coburn (R-OK) asking whether “there is no authority for a Supreme Court justice to utilize foreign law in terms of making decisions based on the Constitution or statutes,” Judge Sotomayor gave what appeared to be an unambiguous answer. As the Post‘s transcript has it:

Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn’t direct you to that law.

On the face of it, this appears to be a repudiation of her statement to the ACLU in Puerto Rico in April 2009, that:

to the extent that we have freedom of ideas, international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system.

But in reality, the two statements are compatible, and Judge Sotomayor has repudiated nothing. It is important to observe that, by its very nature, the Supreme Court deals with “unsettled issues” in the U.S. legal system: well-settled matters never reach the Court. So her original claim was that international and foreign law do not supply controlling precedents, but “will” affect how Justices think about the cases before them.

Thus, most of her statement before the Senate Judiciary Committee was merely a rephrasing of her remarks to the ACLU: her only apparently concession was to rule out using foreign law to “influence” the outcome. But, moments later, she again stated that, while foreign law does not compel a conclusion, judges should use it to “build up a story of knowledge about legal thinking, about approaches that one might consider.” That is a pure restatement of her ACLU statement.

Furthermore, in keeping with Sen. Coburn’s question, she restricted her comments yesterday to the use of “foreign law,” and did not allude to “international law,” which offers another — and for liberals often more promising — avenue for achieving the same result.

But, more fundamentally, her claim is that it is correct to use foreign law — and, one must presume, international law — as a holding, a precedent, or an influence on a decision interpreting either the Constitution or U.S. law, if the judge is directed by that law itself to consider foreign law. The weakness in this argument is that it is the position of liberal legal activists that the Constitution does require considering international — though not necessarily foreign — law.

This conclusion is difficult for mortals to follow, but since the 1980s, what is known as “customary international law” — the Law of Nations — has controversially come to be considered as part of Federal Common Law, and thus part of the Laws of the United States under the Constitution’s Supremacy Clause. Thus, the argument goes, judges are right to consider international law. Indeed, they are obligated to do so. Thus, Judge Sotomayor’s argument that judges must use this law when directed to do does not repudiate the liberal argument that Sen. Coburn was criticizing: it repeats it.

Regrettably, Sen. Coburn did follow this rabbit down the hole. Let’s hope that he, or another member of the Committee, asks a solid follow-up. It’s not likely that any answer Judge Sotomayor gives will persuade the Committee to vote her down, but she should at least be asked a clear question that exposes the issue at stake.

Yesterday, in response to a question from Sen. Coburn (R-OK) asking whether “there is no authority for a Supreme Court justice to utilize foreign law in terms of making decisions based on the Constitution or statutes,” Judge Sotomayor gave what appeared to be an unambiguous answer. As the Post‘s transcript has it:

Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn’t direct you to that law.

On the face of it, this appears to be a repudiation of her statement to the ACLU in Puerto Rico in April 2009, that:

to the extent that we have freedom of ideas, international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system.

But in reality, the two statements are compatible, and Judge Sotomayor has repudiated nothing. It is important to observe that, by its very nature, the Supreme Court deals with “unsettled issues” in the U.S. legal system: well-settled matters never reach the Court. So her original claim was that international and foreign law do not supply controlling precedents, but “will” affect how Justices think about the cases before them.

Thus, most of her statement before the Senate Judiciary Committee was merely a rephrasing of her remarks to the ACLU: her only apparently concession was to rule out using foreign law to “influence” the outcome. But, moments later, she again stated that, while foreign law does not compel a conclusion, judges should use it to “build up a story of knowledge about legal thinking, about approaches that one might consider.” That is a pure restatement of her ACLU statement.

Furthermore, in keeping with Sen. Coburn’s question, she restricted her comments yesterday to the use of “foreign law,” and did not allude to “international law,” which offers another — and for liberals often more promising — avenue for achieving the same result.

But, more fundamentally, her claim is that it is correct to use foreign law — and, one must presume, international law — as a holding, a precedent, or an influence on a decision interpreting either the Constitution or U.S. law, if the judge is directed by that law itself to consider foreign law. The weakness in this argument is that it is the position of liberal legal activists that the Constitution does require considering international — though not necessarily foreign — law.

This conclusion is difficult for mortals to follow, but since the 1980s, what is known as “customary international law” — the Law of Nations — has controversially come to be considered as part of Federal Common Law, and thus part of the Laws of the United States under the Constitution’s Supremacy Clause. Thus, the argument goes, judges are right to consider international law. Indeed, they are obligated to do so. Thus, Judge Sotomayor’s argument that judges must use this law when directed to do does not repudiate the liberal argument that Sen. Coburn was criticizing: it repeats it.

Regrettably, Sen. Coburn did follow this rabbit down the hole. Let’s hope that he, or another member of the Committee, asks a solid follow-up. It’s not likely that any answer Judge Sotomayor gives will persuade the Committee to vote her down, but she should at least be asked a clear question that exposes the issue at stake.

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Destroying the CIA

David Ignatius, who already has expressed distaste for the political assault launched by the administration and Congress on the CIA, is beside himself after the latest shenanigans. He writes:

The latest “scandals” involving the Central Intelligence Agency are genuinely hard to understand, other than in terms of political payback. Attorney General Eric Holder is considering appointing a prosecutor to investigate criminal actions by CIA officers involved in the harsh interrogation of al-Qaeda prisoners. But the internal CIA report on which he’s said to be basing this decision was referred five years ago to the Justice Department, where attorneys concluded that no prosecution was warranted.
Meanwhile, Democrats in Congress are indignant that they were never briefed about a program to assassinate al-Qaeda operatives in friendly countries. Never mind that the program wasn’t implemented, or that the United States is routinely assassinating al-Qaeda operatives using unmanned drones. And never mind that Leon Panetta, the new CIA director — fearing a potential flap — briefed Congress about the program soon after he became aware of it. There was a flap anyway — with a new hemorrhage of secrets and a new shudder from America’s intelligence partners around the world.

His contempt for the latest “scandal” will no doubt be bolstered by the latest intelligence official, Admiral Dennis Blair, stepping forward to announce there was no legal obligation to brief Congress on a program that never came to fruition.

Ignatius sympathizes with the president who he says is trying (really, he is!) not to look back. He continues:

CIA veterans were skeptical about Obama’s promise, especially when the president said the next day that Holder would make the final decision. But lawyers who studied the case thought Holder would decide against a prosecutor because he almost certainly couldn’t get convictions. It would be impossible to prove “criminal intent” for CIA interrogators who operated within the framework of the Justice Department’s guidance. And as for “unauthorized practices” outside the guidelines — such as kicks, threats and other abuse — that were revealed in a 2004 report by the CIA’s inspector general, Justice Department attorneys had already concluded that these actions didn’t warrant criminal prosecution.

But then there is Eric Holder marching forward, preparing prosecution with no legal basis. So what’s a president to do? Well, that’s where Ignatius frankly cops out. The president has made some pretty speeches, but what is he doing to halt this travesty? He is either a bystander in his own administration, allowing Holder to run amok, or he is playing a deceitful game of good cop-bad cop, perfectly content to allow Holder to proceed and more than happy to satisfy his craven netroot base. Which is it?

It is the president who is responsible for demoralizing our intelligence community. It is he who can put a halt to the name-calling, the prosecutions, and the politicization of the intelligence community (which is what he said he would do during the campaign). That he has not, is shameful. And media pundits like Ignatius who are savvy enough to figure out the danger this pathetic state of affairs poses to our country, should lay the blame where it belongs — at the feet of the president.

David Ignatius, who already has expressed distaste for the political assault launched by the administration and Congress on the CIA, is beside himself after the latest shenanigans. He writes:

The latest “scandals” involving the Central Intelligence Agency are genuinely hard to understand, other than in terms of political payback. Attorney General Eric Holder is considering appointing a prosecutor to investigate criminal actions by CIA officers involved in the harsh interrogation of al-Qaeda prisoners. But the internal CIA report on which he’s said to be basing this decision was referred five years ago to the Justice Department, where attorneys concluded that no prosecution was warranted.
Meanwhile, Democrats in Congress are indignant that they were never briefed about a program to assassinate al-Qaeda operatives in friendly countries. Never mind that the program wasn’t implemented, or that the United States is routinely assassinating al-Qaeda operatives using unmanned drones. And never mind that Leon Panetta, the new CIA director — fearing a potential flap — briefed Congress about the program soon after he became aware of it. There was a flap anyway — with a new hemorrhage of secrets and a new shudder from America’s intelligence partners around the world.

His contempt for the latest “scandal” will no doubt be bolstered by the latest intelligence official, Admiral Dennis Blair, stepping forward to announce there was no legal obligation to brief Congress on a program that never came to fruition.

Ignatius sympathizes with the president who he says is trying (really, he is!) not to look back. He continues:

CIA veterans were skeptical about Obama’s promise, especially when the president said the next day that Holder would make the final decision. But lawyers who studied the case thought Holder would decide against a prosecutor because he almost certainly couldn’t get convictions. It would be impossible to prove “criminal intent” for CIA interrogators who operated within the framework of the Justice Department’s guidance. And as for “unauthorized practices” outside the guidelines — such as kicks, threats and other abuse — that were revealed in a 2004 report by the CIA’s inspector general, Justice Department attorneys had already concluded that these actions didn’t warrant criminal prosecution.

But then there is Eric Holder marching forward, preparing prosecution with no legal basis. So what’s a president to do? Well, that’s where Ignatius frankly cops out. The president has made some pretty speeches, but what is he doing to halt this travesty? He is either a bystander in his own administration, allowing Holder to run amok, or he is playing a deceitful game of good cop-bad cop, perfectly content to allow Holder to proceed and more than happy to satisfy his craven netroot base. Which is it?

It is the president who is responsible for demoralizing our intelligence community. It is he who can put a halt to the name-calling, the prosecutions, and the politicization of the intelligence community (which is what he said he would do during the campaign). That he has not, is shameful. And media pundits like Ignatius who are savvy enough to figure out the danger this pathetic state of affairs poses to our country, should lay the blame where it belongs — at the feet of the president.

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Re: Did Hillary Get the Message?

Jennifer, I fail to see anything encouraging in Hillary Clinton’s recent comments about Arab-Israeli peace. She’s peddling a line identical to, if not worse than, the one we hear from President Obama. She said yesterday:

We’ve been working with the Israelis to deal with the issue of settlements, to ease the living conditions of Palestinians and create circumstances that can lead to the establishment of a viable Palestinian state.  For the last few decades American administrations have held consistent positions on the settlement issue, and while we expect action from Israel, we recognize that these decisions are politically challenging and we know that progress toward peace cannot be the responsibility of the United States or Israel alone.  Ending the conflict requires action on all sides.

The Palestinians have the responsibility to improve and extend the positive actions already taken on security, to act forcefully against incitement and to refrain from any action that would make meaningful negotiations less likely.  And Arab states have a responsibility to support the Palestinian authority with words and deeds, to take steps to improve relations with Israel and to prepare their publics to embrace peace and accept Israel’s place in the region.

[…]

So I say to all sides, sending messages of peace is not enough.  You must also act against the cultures of hate, intolerance and disrespect that perpetuate conflict.

She starts out by defending the indefensible settlement red herring, goes on to praise the Palestinians for improving security conditions, and calls on “all sides” to act against cultures of hate and intolerance. Did someone on her staff go through the speech beforehand and make sure to take out anything that referenced the world as it really is?

What about the perpetual reality that is Palestinian terrorism? The continued rocket attacks? The non-stop campaign of dehumanizing propaganda? The overarching fact that Palestinian leadership wants neither peace nor two states?

The Saudis sold the Obama administration a plan that Obama started showing off proudly in his very first interview as president. Meanwhile, the plan is already dead. Having gotten the new Israeli government to say positive things about a two-state solution, the administration went to the Saudis and got nothing. That’s why, in Cairo, Obama talked about the plan being a mere “start,” and why Hillary is echoing that point now. So what’s left? Surreal rhetoric about cruel settlements and positive Palestinian security steps. On Israel, the administration, Hillary included, is a bust.

Jennifer, I fail to see anything encouraging in Hillary Clinton’s recent comments about Arab-Israeli peace. She’s peddling a line identical to, if not worse than, the one we hear from President Obama. She said yesterday:

We’ve been working with the Israelis to deal with the issue of settlements, to ease the living conditions of Palestinians and create circumstances that can lead to the establishment of a viable Palestinian state.  For the last few decades American administrations have held consistent positions on the settlement issue, and while we expect action from Israel, we recognize that these decisions are politically challenging and we know that progress toward peace cannot be the responsibility of the United States or Israel alone.  Ending the conflict requires action on all sides.

The Palestinians have the responsibility to improve and extend the positive actions already taken on security, to act forcefully against incitement and to refrain from any action that would make meaningful negotiations less likely.  And Arab states have a responsibility to support the Palestinian authority with words and deeds, to take steps to improve relations with Israel and to prepare their publics to embrace peace and accept Israel’s place in the region.

[…]

So I say to all sides, sending messages of peace is not enough.  You must also act against the cultures of hate, intolerance and disrespect that perpetuate conflict.

She starts out by defending the indefensible settlement red herring, goes on to praise the Palestinians for improving security conditions, and calls on “all sides” to act against cultures of hate and intolerance. Did someone on her staff go through the speech beforehand and make sure to take out anything that referenced the world as it really is?

What about the perpetual reality that is Palestinian terrorism? The continued rocket attacks? The non-stop campaign of dehumanizing propaganda? The overarching fact that Palestinian leadership wants neither peace nor two states?

The Saudis sold the Obama administration a plan that Obama started showing off proudly in his very first interview as president. Meanwhile, the plan is already dead. Having gotten the new Israeli government to say positive things about a two-state solution, the administration went to the Saudis and got nothing. That’s why, in Cairo, Obama talked about the plan being a mere “start,” and why Hillary is echoing that point now. So what’s left? Surreal rhetoric about cruel settlements and positive Palestinian security steps. On Israel, the administration, Hillary included, is a bust.

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The Great Awakening

Something has changed over the course of the last five weeks. Barack Obama, who seemed politically invincible to his supporters and many media commentators, now seems vulnerable. His approval ratings are dropping, public concern is rising, the debt is exploding, and the economy is, in many respects, worsening. This may simply be a bit of a rough patch he can ride through and overcome; or it may be the beginning of a longer slide. Time will tell. But Obama seems less politically formidable than he did. The main reason for this shift is that Obama’s signature initiative to date, his $787 billion stimulus package — the first major legislation of his presidency, quickly passed in order to both avert a catastrophe and jump-start the economy — has been a bust. “I think my initial measure of success is creating or saving four million jobs,” Obama said in February, when speaking about the goals of the stimulus package. Yet unemployment is significantly higher today than when Obama took office (9.5 percent v. 7.6 percent) and significantly higher than Obama and his Administration predicted (we were told to expect a high of 8 percent this year).

The money from the stimulus package is being spent far slower than we were told (less than 8 percent has gone out the door) — and the money that has been spent has been badly targeted. The legislation itself is bloated and filled with pork, exactly the kind of incoherent product one expects when a chief executive defers almost completely to committee chairmen. The stimulus package, which the Obama administration itself said should have made things better by now, has made things worse.

This would be damaging enough to any president, but it is particularly damaging to Obama. The reason is that this represents the first significant crack in his image. Obama, we were told, is the man with the golden touch, a person of Socratic wisdom and piercing intellect, the next Lincoln, a “sort of God.” He is, we were assured, a man in command of both facts and theories, at once competent and curious, urbane and sophisticated, free of dogma and drawn to experts, a public official who can see things few others do and solve problems in ways few others can. Obama’s administration, in turn, has been stocked with the best and the brightest, people of Ivy League educations and dazzling intellects. They would show us how to govern in ways that would inspire admiration, and even awe. So it is quite damaging that the one piece of legislation which, at this early date, we can make a preliminary judgment on — the stimulus package — has been an utter failure.

This is not, by itself, something from which Obama cannot recover. His job approval ratings, in the mid-50s, hardly qualify as a meltdown. He remains personally popular. And if the economy turns around, his stimulus mistake will be long forgotten.

But if, as I suspect, it is the first in a series of mistakes and failures, it will be seen as something else again: the first item out of the gate that Obama got his hands on and has full ownership of. And the result is an unholy mess, an enormously expensive bill that is causing us to lose rather than gain ground. This isn’t the way the Smart Set was supposed to handle things. And it is, perhaps, a foreshadowing of things to come — the first indication that Obama is not quite what he was advertised as.

Call it the beginning of the Great Awakening.

Something has changed over the course of the last five weeks. Barack Obama, who seemed politically invincible to his supporters and many media commentators, now seems vulnerable. His approval ratings are dropping, public concern is rising, the debt is exploding, and the economy is, in many respects, worsening. This may simply be a bit of a rough patch he can ride through and overcome; or it may be the beginning of a longer slide. Time will tell. But Obama seems less politically formidable than he did. The main reason for this shift is that Obama’s signature initiative to date, his $787 billion stimulus package — the first major legislation of his presidency, quickly passed in order to both avert a catastrophe and jump-start the economy — has been a bust. “I think my initial measure of success is creating or saving four million jobs,” Obama said in February, when speaking about the goals of the stimulus package. Yet unemployment is significantly higher today than when Obama took office (9.5 percent v. 7.6 percent) and significantly higher than Obama and his Administration predicted (we were told to expect a high of 8 percent this year).

The money from the stimulus package is being spent far slower than we were told (less than 8 percent has gone out the door) — and the money that has been spent has been badly targeted. The legislation itself is bloated and filled with pork, exactly the kind of incoherent product one expects when a chief executive defers almost completely to committee chairmen. The stimulus package, which the Obama administration itself said should have made things better by now, has made things worse.

This would be damaging enough to any president, but it is particularly damaging to Obama. The reason is that this represents the first significant crack in his image. Obama, we were told, is the man with the golden touch, a person of Socratic wisdom and piercing intellect, the next Lincoln, a “sort of God.” He is, we were assured, a man in command of both facts and theories, at once competent and curious, urbane and sophisticated, free of dogma and drawn to experts, a public official who can see things few others do and solve problems in ways few others can. Obama’s administration, in turn, has been stocked with the best and the brightest, people of Ivy League educations and dazzling intellects. They would show us how to govern in ways that would inspire admiration, and even awe. So it is quite damaging that the one piece of legislation which, at this early date, we can make a preliminary judgment on — the stimulus package — has been an utter failure.

This is not, by itself, something from which Obama cannot recover. His job approval ratings, in the mid-50s, hardly qualify as a meltdown. He remains personally popular. And if the economy turns around, his stimulus mistake will be long forgotten.

But if, as I suspect, it is the first in a series of mistakes and failures, it will be seen as something else again: the first item out of the gate that Obama got his hands on and has full ownership of. And the result is an unholy mess, an enormously expensive bill that is causing us to lose rather than gain ground. This isn’t the way the Smart Set was supposed to handle things. And it is, perhaps, a foreshadowing of things to come — the first indication that Obama is not quite what he was advertised as.

Call it the beginning of the Great Awakening.

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Coburn Again

Repeating his fine performance in Round One, Coburn zeroed in on two issues. First, he emphasized her evasiveness on the Second Amendment, picking up where Lindsay Graham left off. Indeed, he provoked, if not anger, at least visible frustration from the nominee. On this one, Coburn has the better of the argument: he is not asking for a “how will I rule” answer, he is asking for a “how would you look at the issue” answer. She is unwilling to give even that and he is right to be peeved about her evasion.

Second, he went back to her error from yesterday when she suggested she would have to know state law to opine on the legality of aborting a 38-week unborn child. This time around she said she “didn’t know” whether state law was supplanted by Casey. Really? Again — not well versed or playing hide-the-ball? Score another one for the doctor.

Repeating his fine performance in Round One, Coburn zeroed in on two issues. First, he emphasized her evasiveness on the Second Amendment, picking up where Lindsay Graham left off. Indeed, he provoked, if not anger, at least visible frustration from the nominee. On this one, Coburn has the better of the argument: he is not asking for a “how will I rule” answer, he is asking for a “how would you look at the issue” answer. She is unwilling to give even that and he is right to be peeved about her evasion.

Second, he went back to her error from yesterday when she suggested she would have to know state law to opine on the legality of aborting a 38-week unborn child. This time around she said she “didn’t know” whether state law was supplanted by Casey. Really? Again — not well versed or playing hide-the-ball? Score another one for the doctor.

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Graham and the Second Amendment

Lindsay Graham has plainly been the Republican most open to voting for Sotomayor. At the very least he has been candid that she is getting through and seems disinclined to vote against her based on her speeches. In this round he again signaled he’d be inclined to vote for her. But  . . . he spent quite a bit of time on the Second Amendment and whether she considers the right to bear arms “fundamental” and therefore applicable to the states. I would think of all the issues which have come up at the hearing there is none more dear to the hearts of his constituents than the Second Amendment.

And there is concern, perhaps growing concern, that Sotomayor has been entirely evasive on the right to bear arms. She could not even bring herself to define the “right to self-defense” when responding to Sen. Tom Coburn’s questions. And this is why the NRA, which has laid low so far, is becoming increasingly focused on the Sotomayor hearings. The Hill reported yesterday:

The National Rifle Association (NRA) has questioned Sonia Sotomayor’s fitness to serve on the Supreme Court, a troubling sign for the nominee in what has so far been a smooth confirmation hearing. . . . Wayne LaPierre, executive vice president of the NRA, blasted Sotomayor for ruling that the Second Amendment’s protection of gun rights does not apply to state and local governments and for being “evasive” when asked about whether gun ownership is a fundamental right.

Earlier in the month Chris Cox, the executive director of the NRA’s Institute for Legislative Action, wrote a letter saying the NRA wouldn’t  be announcing a formal position but warned that “should her answers regarding the Second Amendment at the upcoming hearings be hostile or evasive, we will have no choice but to oppose her nomination to the Court.”

So how did she do with Sen. Graham? She didn’t give any assurance either to her belief that the Second Amendment is “fundamental” or even suggest how she would go about deciding it. Was Graham assured on this point? Would Second Amendment advocates be? I don’t see how they possibly could. But with this issue and the meaning of Heller hanging in the balance, Sotomayor’s weaving and bobbing may give some senators pause. After all, with the Seventh and Ninth Circuits divided on incorporation (i.e. whether the Second Amendment is applicable to the states), Sotomayor’s persistent dodge that she will follow “precedent” rings awfully hollow.

UPDATE: And suggesting my sense is correct that the Second Amendment is looming larger, Sen. Coburn uses a substantial amount of his time to grill her on just that issue and why she won’t be more forthcoming on her analysis of whether the Second Amendment is fundamental.

UPDATE II: For the first time Sotomayor gets snippy, asking if he wants a judge to come there and say something is unconstitutional. Actually, he and Graham were only trying to understand how she would assess whether a right is fundamental.

Lindsay Graham has plainly been the Republican most open to voting for Sotomayor. At the very least he has been candid that she is getting through and seems disinclined to vote against her based on her speeches. In this round he again signaled he’d be inclined to vote for her. But  . . . he spent quite a bit of time on the Second Amendment and whether she considers the right to bear arms “fundamental” and therefore applicable to the states. I would think of all the issues which have come up at the hearing there is none more dear to the hearts of his constituents than the Second Amendment.

And there is concern, perhaps growing concern, that Sotomayor has been entirely evasive on the right to bear arms. She could not even bring herself to define the “right to self-defense” when responding to Sen. Tom Coburn’s questions. And this is why the NRA, which has laid low so far, is becoming increasingly focused on the Sotomayor hearings. The Hill reported yesterday:

The National Rifle Association (NRA) has questioned Sonia Sotomayor’s fitness to serve on the Supreme Court, a troubling sign for the nominee in what has so far been a smooth confirmation hearing. . . . Wayne LaPierre, executive vice president of the NRA, blasted Sotomayor for ruling that the Second Amendment’s protection of gun rights does not apply to state and local governments and for being “evasive” when asked about whether gun ownership is a fundamental right.

Earlier in the month Chris Cox, the executive director of the NRA’s Institute for Legislative Action, wrote a letter saying the NRA wouldn’t  be announcing a formal position but warned that “should her answers regarding the Second Amendment at the upcoming hearings be hostile or evasive, we will have no choice but to oppose her nomination to the Court.”

So how did she do with Sen. Graham? She didn’t give any assurance either to her belief that the Second Amendment is “fundamental” or even suggest how she would go about deciding it. Was Graham assured on this point? Would Second Amendment advocates be? I don’t see how they possibly could. But with this issue and the meaning of Heller hanging in the balance, Sotomayor’s weaving and bobbing may give some senators pause. After all, with the Seventh and Ninth Circuits divided on incorporation (i.e. whether the Second Amendment is applicable to the states), Sotomayor’s persistent dodge that she will follow “precedent” rings awfully hollow.

UPDATE: And suggesting my sense is correct that the Second Amendment is looming larger, Sen. Coburn uses a substantial amount of his time to grill her on just that issue and why she won’t be more forthcoming on her analysis of whether the Second Amendment is fundamental.

UPDATE II: For the first time Sotomayor gets snippy, asking if he wants a judge to come there and say something is unconstitutional. Actually, he and Graham were only trying to understand how she would assess whether a right is fundamental.

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F-22: Pros and Cons

The Senate is about to vote on an amendment to spend $1.75 billion to buy seven more F-22 Raptors–rather than shut down the production line and cap production at 187 aircraft, as the Obama administration proposes. This is a difficult issue that has split normal allies such as Joe Lieberman (who is for the F-22) and John McCain (against it).

As I’ve said before, I’m ambivalent. On the one hand, I am sympathetic to the case made by Secretary of Defense Bob Gates — and endorsed by the Air Force leadership — that we don’t need more F-22s given that we are planning to purchase large numbers of F-35s that will give us the next-generation fighter capability that we need. The F-22 is a more capable aircraft but the F-35 is still better than what any other air force in the world has.

On the other hand, the case for shutting down a production line and throwing 25,000 workers out of a job is a hard one to make while we are still mired in a recession and spending hundreds of billions of dollars to create jobs elsewhere. Buying more F-22s is a more useful way to stimulate the economy than a lot of domestic boondoggles.

So where do I come out on this? If Congress were willing to add $1.75 billion to the defense budget for more F-22s, I would be in favor of the proposal. But as things stand now, the supporters of the F-22 aren’t planning to add enough funds to the budget to buy the planes they want. The funding will have to come out of other defense programs, many of which are of much greater relevance to the threats we face today than the futuristic F-22, which don’t have a role in Afghanistan or Iraq. Therefore, I’m siding with opponents of the F-22 at least for the time being.

But perhaps a compromise could still be negotiated: keep the production line open but don’t buy any more aircraft for the U.S. Air Force. Instead, sell them to close allies such as Japan and Australia. Currently, that’s forbidden by our export restrictions but this is a proposal that can keep Lockheed Martin’s employees on the job while also upgrading the capabilities of some of our closest allies.

The Senate is about to vote on an amendment to spend $1.75 billion to buy seven more F-22 Raptors–rather than shut down the production line and cap production at 187 aircraft, as the Obama administration proposes. This is a difficult issue that has split normal allies such as Joe Lieberman (who is for the F-22) and John McCain (against it).

As I’ve said before, I’m ambivalent. On the one hand, I am sympathetic to the case made by Secretary of Defense Bob Gates — and endorsed by the Air Force leadership — that we don’t need more F-22s given that we are planning to purchase large numbers of F-35s that will give us the next-generation fighter capability that we need. The F-22 is a more capable aircraft but the F-35 is still better than what any other air force in the world has.

On the other hand, the case for shutting down a production line and throwing 25,000 workers out of a job is a hard one to make while we are still mired in a recession and spending hundreds of billions of dollars to create jobs elsewhere. Buying more F-22s is a more useful way to stimulate the economy than a lot of domestic boondoggles.

So where do I come out on this? If Congress were willing to add $1.75 billion to the defense budget for more F-22s, I would be in favor of the proposal. But as things stand now, the supporters of the F-22 aren’t planning to add enough funds to the budget to buy the planes they want. The funding will have to come out of other defense programs, many of which are of much greater relevance to the threats we face today than the futuristic F-22, which don’t have a role in Afghanistan or Iraq. Therefore, I’m siding with opponents of the F-22 at least for the time being.

But perhaps a compromise could still be negotiated: keep the production line open but don’t buy any more aircraft for the U.S. Air Force. Instead, sell them to close allies such as Japan and Australia. Currently, that’s forbidden by our export restrictions but this is a proposal that can keep Lockheed Martin’s employees on the job while also upgrading the capabilities of some of our closest allies.

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Rosen Was Right

After two days of Sotomayor testimony I thought of Jeffrey Rosen’s piece on Sotomayor back in May (before he had to backpedal and support her so as not to embarrass the “team”). I don’t think much of his temperament criticism, but his analysis of her legal and intellectual capabilities seems exactly on the money:

The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. ”

[. . .]

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It’s customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn’t distinguish between substantive and trivial points, with petty editing suggestions–fixing typos and the like–rather than focusing on the core analytical issues.

Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel’s opinion that contained “no reference whatsoever to the constitutional issues at the core of this case.” (The extent of Sotomayor’s involvement in the opinion itself is not publicly known.)

Has she said anything to dispel these concerns? Whether examining her verbal skills, her command of the law or her intellectual acuity, I come away thinking she is one of the least impressive Supreme Court nominees to come along in recent memory. Judge Robert Bork was obviously not everyone’s ideal judge, but the man’s intellectual prowess was undeniable and he refused to lie about his views. Justice Ruth Bader Ginsburg was frankly charming and sharp-witted in her testimony and could march the senators through the evolution of a number of strains of jurisprudence.

Whether you agreed with their philosophy or not, you had the sense with the Clinton, Reagan, and  George W. Bush nominees (yes, I leave Souter off the list) that there was good reason to put them on the Court. You listened for a day or even and hour and said, “Yes, that’s a Supreme Court Justice.” It was hard to dispute, even if you disagreed with one or another on his or her judicial methodology, that the nominee was bringing some intellectual heft.

Does anyone really have that sense from Sotomayor? And all of this is made worse, much worse, by her ham-handed efforts to distance herself from her own speeches and deny her own involvement with PRLDEF.

Rosen was trying to warn his liberal compatriots that they could do “better” than Sotomayor. He was right and should get some credit for his effort. Imagine if Diane Wood or Kathleen Sullivan, both liberal in philosophy but undeniably impressive, had been up there over the last couple of days. I suspect that conservatives would have been staring at their shoes, struggling for reasons to say “no” and grudgingly acknowledging that the nominee was going to add something to the Court beyond her gender.

The question is not whether Sotomayor will get through, but why the president felt so compelled to select her. If he was desperate to find a Latina, he should have found a wise one.

After two days of Sotomayor testimony I thought of Jeffrey Rosen’s piece on Sotomayor back in May (before he had to backpedal and support her so as not to embarrass the “team”). I don’t think much of his temperament criticism, but his analysis of her legal and intellectual capabilities seems exactly on the money:

The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. ”

[. . .]

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It’s customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn’t distinguish between substantive and trivial points, with petty editing suggestions–fixing typos and the like–rather than focusing on the core analytical issues.

Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel’s opinion that contained “no reference whatsoever to the constitutional issues at the core of this case.” (The extent of Sotomayor’s involvement in the opinion itself is not publicly known.)

Has she said anything to dispel these concerns? Whether examining her verbal skills, her command of the law or her intellectual acuity, I come away thinking she is one of the least impressive Supreme Court nominees to come along in recent memory. Judge Robert Bork was obviously not everyone’s ideal judge, but the man’s intellectual prowess was undeniable and he refused to lie about his views. Justice Ruth Bader Ginsburg was frankly charming and sharp-witted in her testimony and could march the senators through the evolution of a number of strains of jurisprudence.

Whether you agreed with their philosophy or not, you had the sense with the Clinton, Reagan, and  George W. Bush nominees (yes, I leave Souter off the list) that there was good reason to put them on the Court. You listened for a day or even and hour and said, “Yes, that’s a Supreme Court Justice.” It was hard to dispute, even if you disagreed with one or another on his or her judicial methodology, that the nominee was bringing some intellectual heft.

Does anyone really have that sense from Sotomayor? And all of this is made worse, much worse, by her ham-handed efforts to distance herself from her own speeches and deny her own involvement with PRLDEF.

Rosen was trying to warn his liberal compatriots that they could do “better” than Sotomayor. He was right and should get some credit for his effort. Imagine if Diane Wood or Kathleen Sullivan, both liberal in philosophy but undeniably impressive, had been up there over the last couple of days. I suspect that conservatives would have been staring at their shoes, struggling for reasons to say “no” and grudgingly acknowledging that the nominee was going to add something to the Court beyond her gender.

The question is not whether Sotomayor will get through, but why the president felt so compelled to select her. If he was desperate to find a Latina, he should have found a wise one.

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Day #4- Kyl Scores

Sen. Jon Kyl in some of the most effective questioning has tied up Sotomayor in knots. Where is the so-called precedent she relied on in Ricci? A muddled response. Why not vote for an en banc review? More muddle. And if you think I am being too tough on her Tom Goldstein over at SCOTUSblog writes: “JK just wants her to admit that she could have voted to en banc Ricci and wouldn’t have been bound by precedent.   He’s clearly right.   SS either doesn’t understand, or just won’t acknowledge it. ” And Goldstein is right: it is times like this when you wonder whether she is a bit dense or totally disingenuous. And she makes it worse denying that the dissenters at the Supreme Court also disagreed with her. This is flat out wrong. Not a one of them would have affirmed.  If any of the Senators are still open-minded they should carefully review this entire interchange. It was simply stunning that a nominee could so misunderstand or so misrepresent the record in a widely discussed case. Imagine what she will do on the Court.

Sen. Jon Kyl in some of the most effective questioning has tied up Sotomayor in knots. Where is the so-called precedent she relied on in Ricci? A muddled response. Why not vote for an en banc review? More muddle. And if you think I am being too tough on her Tom Goldstein over at SCOTUSblog writes: “JK just wants her to admit that she could have voted to en banc Ricci and wouldn’t have been bound by precedent.   He’s clearly right.   SS either doesn’t understand, or just won’t acknowledge it. ” And Goldstein is right: it is times like this when you wonder whether she is a bit dense or totally disingenuous. And she makes it worse denying that the dissenters at the Supreme Court also disagreed with her. This is flat out wrong. Not a one of them would have affirmed.  If any of the Senators are still open-minded they should carefully review this entire interchange. It was simply stunning that a nominee could so misunderstand or so misrepresent the record in a widely discussed case. Imagine what she will do on the Court.

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Re: There Is Winning, And There Is Winning

Jonathan Adler echoes the view that in undergoing a confirmation conversion, Sonia Sotomayor has undermined the philosophy and interests of her most fervent supporters:

It is almost as if she and her White House handlers believe that a more forthright explication of a liberal judicial philosophy — a philosophy like that articulated in her speeches and defended by the president — would pose an obstacle to her confirmation.

If so, this would be a remarkable concession to the way conservatives have sought to frame judicial confirmations. If a Senate with sixty Democrats would be wary of confirming an overt and unapologetic liberal — as this Senate has thus far been regarding the confirmation of Dawn Johnsen to the Justice Department’s Office of Legal Counsel — does this mean there is little political support for a progressive constitutional vision? It seems conservatives are winning the larger war over the judiciary, even if losing the battle over this nomination. President Obama’s nominee will be confirmed, but not because she embraced his philosophy of judging. Indeed, it seems she will be confirmed, in part, because she rejected it.

Even the New York Times has figured it out:

By forcing Judge Sotomayor to retreat from Mr. Obama’s desire for justices with “empathy,” Republicans have effectively set a new standard that future nominees will be pressed to meet. The Republicans hope their aggressive questioning of Judge Sotomayor on race discrimination, gun control and the death penalty will make it harder for Mr. Obama to choose a more outspoken liberal in the future.

[. . .]

Several legal experts said Judge Sotomayor’s testimony might make it harder for Mr. Obama to name a more liberal justice next time.

She repudiated the president’s assertion that “what is in a judge’s heart” should influence rulings and rejected the liberal idea that the Constitution is a “living” document whose meaning evolves with society. Instead, she said the Constitution was “immutable” and did not change except by amendment. And she dismissed any role for foreign law in deciding cases, an influence some liberal legal experts argue should be considered.

Louis Michael Seidman, a Georgetown University constitutional law professor, said Judge Sotomayor adopted a “fairy tale” definition of judging that ignores the discretion they have to decide hard cases where the legal materials do not dictate outcomes.

“She reinforced the official ideology, and it makes it that much harder for other judges later on to talk to the American people as if they were adults about what courts actually do and what constitutional law consists of,” Mr. Seidman said.

Seidman is not alone:

Doug Kendall, who is president of the liberal Constitutional Accountability Center and close to some Obama administration officials, expressed his own mild disappointment.

“From my perspective, from the perspective of a progressive legal organization, she could have been more forceful in arguing or pointing out where the Constitution itself points in a progressive direction,” he said.

[. . .]

Mr. Kendall said he was disappointed by what he considered Judge Sotomayor’s tepid defense of the idea that American judges can cite the opinions of foreign judges. “She could have been more aggressive,” he said.

One wonders who came up with this gambit and what they were thinking. It was almost as if the Obama prep team pulled out the playbook from another Supreme Court nomination and said, “Hey, this worked!” But what “works” for one judge, because it accurately reflects his true judicial philosophy, sounds preposterous coming from another if it is belied by a career of speeches and advocacy. We must still return to the “why” — the puzzle as to why a liberal president, selecting a liberal justice with 60 Democrats in the Senate, has sent up a nominee to spout judicial conservatism.

Well, when in doubt about some aspect of the Obama administration, think politics. Conservatives have long argued that judicial activism sells poorly with the public. Poll after poll tells us voters reject the notion that judges can make up law as they go along. Conservatives going into the confirmation hearings were quite open about their intent to paint the nominee — and thereby the president — as outside the mainstream. And that, of course, fit well into their struggle to hold back the tide of radical leftward policy flowing from the White House and begin to recapture the center of the political spectrum.

So maybe the Obama team strategy here was simple: don’t give conservatives any more ammunition, make Sotomayor as inoffensive as possible, bank on the liberal base understanding the “game” and forget for now the decades-long battle over judicial philosophy. The Obama administration, like the Obama campaign, must convince Americans that Obama is no radical. With health care and the rest of his agenda in the balance, better not to flaunt their liberalism. Now is no time to have a nominee, especially one short on intellectual firepower, making the case for an expansive view of the Constitution and for judges to unshackle themselves from the words and meaning of the texts before them.

That, I think is the most logical explanation for a confirmation conversion so sweeping and so unbelievable that liberals and conservatives alike are left dumbfounded.

Jonathan Adler echoes the view that in undergoing a confirmation conversion, Sonia Sotomayor has undermined the philosophy and interests of her most fervent supporters:

It is almost as if she and her White House handlers believe that a more forthright explication of a liberal judicial philosophy — a philosophy like that articulated in her speeches and defended by the president — would pose an obstacle to her confirmation.

If so, this would be a remarkable concession to the way conservatives have sought to frame judicial confirmations. If a Senate with sixty Democrats would be wary of confirming an overt and unapologetic liberal — as this Senate has thus far been regarding the confirmation of Dawn Johnsen to the Justice Department’s Office of Legal Counsel — does this mean there is little political support for a progressive constitutional vision? It seems conservatives are winning the larger war over the judiciary, even if losing the battle over this nomination. President Obama’s nominee will be confirmed, but not because she embraced his philosophy of judging. Indeed, it seems she will be confirmed, in part, because she rejected it.

Even the New York Times has figured it out:

By forcing Judge Sotomayor to retreat from Mr. Obama’s desire for justices with “empathy,” Republicans have effectively set a new standard that future nominees will be pressed to meet. The Republicans hope their aggressive questioning of Judge Sotomayor on race discrimination, gun control and the death penalty will make it harder for Mr. Obama to choose a more outspoken liberal in the future.

[. . .]

Several legal experts said Judge Sotomayor’s testimony might make it harder for Mr. Obama to name a more liberal justice next time.

She repudiated the president’s assertion that “what is in a judge’s heart” should influence rulings and rejected the liberal idea that the Constitution is a “living” document whose meaning evolves with society. Instead, she said the Constitution was “immutable” and did not change except by amendment. And she dismissed any role for foreign law in deciding cases, an influence some liberal legal experts argue should be considered.

Louis Michael Seidman, a Georgetown University constitutional law professor, said Judge Sotomayor adopted a “fairy tale” definition of judging that ignores the discretion they have to decide hard cases where the legal materials do not dictate outcomes.

“She reinforced the official ideology, and it makes it that much harder for other judges later on to talk to the American people as if they were adults about what courts actually do and what constitutional law consists of,” Mr. Seidman said.

Seidman is not alone:

Doug Kendall, who is president of the liberal Constitutional Accountability Center and close to some Obama administration officials, expressed his own mild disappointment.

“From my perspective, from the perspective of a progressive legal organization, she could have been more forceful in arguing or pointing out where the Constitution itself points in a progressive direction,” he said.

[. . .]

Mr. Kendall said he was disappointed by what he considered Judge Sotomayor’s tepid defense of the idea that American judges can cite the opinions of foreign judges. “She could have been more aggressive,” he said.

One wonders who came up with this gambit and what they were thinking. It was almost as if the Obama prep team pulled out the playbook from another Supreme Court nomination and said, “Hey, this worked!” But what “works” for one judge, because it accurately reflects his true judicial philosophy, sounds preposterous coming from another if it is belied by a career of speeches and advocacy. We must still return to the “why” — the puzzle as to why a liberal president, selecting a liberal justice with 60 Democrats in the Senate, has sent up a nominee to spout judicial conservatism.

Well, when in doubt about some aspect of the Obama administration, think politics. Conservatives have long argued that judicial activism sells poorly with the public. Poll after poll tells us voters reject the notion that judges can make up law as they go along. Conservatives going into the confirmation hearings were quite open about their intent to paint the nominee — and thereby the president — as outside the mainstream. And that, of course, fit well into their struggle to hold back the tide of radical leftward policy flowing from the White House and begin to recapture the center of the political spectrum.

So maybe the Obama team strategy here was simple: don’t give conservatives any more ammunition, make Sotomayor as inoffensive as possible, bank on the liberal base understanding the “game” and forget for now the decades-long battle over judicial philosophy. The Obama administration, like the Obama campaign, must convince Americans that Obama is no radical. With health care and the rest of his agenda in the balance, better not to flaunt their liberalism. Now is no time to have a nominee, especially one short on intellectual firepower, making the case for an expansive view of the Constitution and for judges to unshackle themselves from the words and meaning of the texts before them.

That, I think is the most logical explanation for a confirmation conversion so sweeping and so unbelievable that liberals and conservatives alike are left dumbfounded.

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