Commentary Magazine


Posts For: June 29, 2010

RE: What Is Israel to Do?

As Jennifer points out, Admiral Mullen’s remarks about Iran are disconcerting.

I am no military expert and, like most of us in the blogosphere and the policy community, lack the actionable intelligence to make the kind of judgment that Admiral Mullen makes on whether a military strike against Iran would yield the kind of benefits desired without the kind of consequences one may reasonably fear.

Maybe Admiral Mullen is in a position to know better and his public assessment is correct. But why announce it? To make the Mullahs sleep better?

What is remarkable, and remarkably shocking, about this procession of military and intelligence personnel coming to say what politicians have now said for a while, is that they do not seem to appreciate how these comments have damaging consequences.

Perhaps a military strike is not in the cards anymore — who knows? Perhaps the risks involved are considerable. Maybe the hour is late. Understandably, there is little appetite for war. And, frankly, one should underestimate neither the operational difficulties nor the political fallout.

But there is a world of difference between entertaining skepticism about the military option in private and ruling it out in public. Whether it is politicians or uniformed personnel, their public dismissal of the military option — perhaps the only thing Iran’s regime truly fears — undermines the effectiveness of all non-military alternatives.

Besides, it is not the job of military personnel to dismiss or even fret publicly about the consequences of a military operation. Their job is to find the best way to accomplish a mission they are tasked with by their civilian leadership — and, if that mission entails negative consequences, they can certainly let it be known and factor them into their plans. It should not be their business to comment on these matters on the record. McChrystal, anyone?

Incidentally, government officials in Europe have been adopting this characteristically thoughtless approach for a while now, failing to understand that a threat is more powerful than its actual manifestation when it carries credibility. Now America has joined the bandwagon. To see U.S. leaders publicly depriving themselves of a fundamental policy tool and tell Iran that, no matter what they do, nobody will attack them, is a truly myopic act — and it will achieve precisely the opposite of what its perpetrators wish it to accomplish. By reassuring Iran that no attack will come their way, the West has removed the last pressure tool from its arsenal. The reiteration of such a message will embolden the Iranians to become more defiant and more aggressive and convince the Israelis that they stand alone and have little time left.

So, paradoxically, the more Admiral Mullen and his military peers say that an attack against Iran would be a bad thing, the more likely it is there is going to be an attack on Iran.

As Jennifer points out, Admiral Mullen’s remarks about Iran are disconcerting.

I am no military expert and, like most of us in the blogosphere and the policy community, lack the actionable intelligence to make the kind of judgment that Admiral Mullen makes on whether a military strike against Iran would yield the kind of benefits desired without the kind of consequences one may reasonably fear.

Maybe Admiral Mullen is in a position to know better and his public assessment is correct. But why announce it? To make the Mullahs sleep better?

What is remarkable, and remarkably shocking, about this procession of military and intelligence personnel coming to say what politicians have now said for a while, is that they do not seem to appreciate how these comments have damaging consequences.

Perhaps a military strike is not in the cards anymore — who knows? Perhaps the risks involved are considerable. Maybe the hour is late. Understandably, there is little appetite for war. And, frankly, one should underestimate neither the operational difficulties nor the political fallout.

But there is a world of difference between entertaining skepticism about the military option in private and ruling it out in public. Whether it is politicians or uniformed personnel, their public dismissal of the military option — perhaps the only thing Iran’s regime truly fears — undermines the effectiveness of all non-military alternatives.

Besides, it is not the job of military personnel to dismiss or even fret publicly about the consequences of a military operation. Their job is to find the best way to accomplish a mission they are tasked with by their civilian leadership — and, if that mission entails negative consequences, they can certainly let it be known and factor them into their plans. It should not be their business to comment on these matters on the record. McChrystal, anyone?

Incidentally, government officials in Europe have been adopting this characteristically thoughtless approach for a while now, failing to understand that a threat is more powerful than its actual manifestation when it carries credibility. Now America has joined the bandwagon. To see U.S. leaders publicly depriving themselves of a fundamental policy tool and tell Iran that, no matter what they do, nobody will attack them, is a truly myopic act — and it will achieve precisely the opposite of what its perpetrators wish it to accomplish. By reassuring Iran that no attack will come their way, the West has removed the last pressure tool from its arsenal. The reiteration of such a message will embolden the Iranians to become more defiant and more aggressive and convince the Israelis that they stand alone and have little time left.

So, paradoxically, the more Admiral Mullen and his military peers say that an attack against Iran would be a bad thing, the more likely it is there is going to be an attack on Iran.

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Still Spying After All These Years

One thing the emerging Russian spy scandal demonstrates is that America really is one heck of a melting pot. Where else would you find neighbors referring to a couple whose names are Michael Zottoli and Patricia Mills as “the Russian parents” because of their Russian accents? Hey, it could happen. If a Russian ends up going by the name Patricia Mills for a legal or logical reason, America is where she’ll do it.

This is all to the good for social harmony, but it does make it easier for Russian agents to hide in plain sight. That’s one lesson from the spy incident. Another is the very basic lesson that the espionage is ongoing. It hasn’t stopped; it isn’t going to. Russia has never ceased being one of the two most espionage-invested nations in the world (the other is China). Significant infiltration by Russian spies has been reported over the past two years by Britain, France, Germany, the Czech Republic, Ukraine, and the Netherlands. The NATO headquarters in Belgium had to remove Russian spies in 2008 and 2009. Japan and Australia have dealt with influxes of Russian spies in the last several years. Smaller-scale incidents have occurred in Canada and India.

But there are two other things we should pay attention to in the break-up of this spy ring. One is that the Russians considered it worthwhile to cultivate agents in interactive occupations that facilitate logistics, and from which access might be gained to individuals with primary knowledge of political and defense topics. People in real estate, travel planning, and opinion journalism fit this role. I see a lot of bloggers today poking fun at this method — and at the conduct of the ring in general — but this is classic, professional intelligence craft. Several of the 11 who have been arrested would more correctly be called agents than spies, but that is really the point: what we are seeing the outlines of is not a single, targeted campaign but a routine modus operandi.

The other aspect of interest is the alleged participation in the Russian ring of El Diario writer Vicky Pelaez and her husband Juan Lazaro. Latin American media are reporting that Pelaez is Peruvian and Lazaro is from Uruguay; Pelaez was reportedly a well-known TV reporter in Peru in the 1980s. She, at least, seems to be a person with a valid history, using the name she was born with. That makes her unusual in this group. It suggests her choice to act as an agent for Russia was prompted by political motivations.

Others have noted the very left-leaning tendency of her positions. She was quoted at length in a recent press release by Fidel Castro; in 2003, she penned an explanation of the putative  “Trotskyist roots of neoconservatism” that sparked furious debate among serious socialists over her invocation of Trotsky’s concept of “permanent revolution.” This is an ideological leftist who knows the theory and lingo.

And when she accepted a spying assignment, she accepted it from Russia. Her arrest certainly doesn’t implicate other left-wing journalists in espionage. But this echo from the Cold War ought to give us pause. Russia is no longer the global standard-bearer of Marxism, but it appears Marxists from elsewhere are still spying for Russia.

One thing the emerging Russian spy scandal demonstrates is that America really is one heck of a melting pot. Where else would you find neighbors referring to a couple whose names are Michael Zottoli and Patricia Mills as “the Russian parents” because of their Russian accents? Hey, it could happen. If a Russian ends up going by the name Patricia Mills for a legal or logical reason, America is where she’ll do it.

This is all to the good for social harmony, but it does make it easier for Russian agents to hide in plain sight. That’s one lesson from the spy incident. Another is the very basic lesson that the espionage is ongoing. It hasn’t stopped; it isn’t going to. Russia has never ceased being one of the two most espionage-invested nations in the world (the other is China). Significant infiltration by Russian spies has been reported over the past two years by Britain, France, Germany, the Czech Republic, Ukraine, and the Netherlands. The NATO headquarters in Belgium had to remove Russian spies in 2008 and 2009. Japan and Australia have dealt with influxes of Russian spies in the last several years. Smaller-scale incidents have occurred in Canada and India.

But there are two other things we should pay attention to in the break-up of this spy ring. One is that the Russians considered it worthwhile to cultivate agents in interactive occupations that facilitate logistics, and from which access might be gained to individuals with primary knowledge of political and defense topics. People in real estate, travel planning, and opinion journalism fit this role. I see a lot of bloggers today poking fun at this method — and at the conduct of the ring in general — but this is classic, professional intelligence craft. Several of the 11 who have been arrested would more correctly be called agents than spies, but that is really the point: what we are seeing the outlines of is not a single, targeted campaign but a routine modus operandi.

The other aspect of interest is the alleged participation in the Russian ring of El Diario writer Vicky Pelaez and her husband Juan Lazaro. Latin American media are reporting that Pelaez is Peruvian and Lazaro is from Uruguay; Pelaez was reportedly a well-known TV reporter in Peru in the 1980s. She, at least, seems to be a person with a valid history, using the name she was born with. That makes her unusual in this group. It suggests her choice to act as an agent for Russia was prompted by political motivations.

Others have noted the very left-leaning tendency of her positions. She was quoted at length in a recent press release by Fidel Castro; in 2003, she penned an explanation of the putative  “Trotskyist roots of neoconservatism” that sparked furious debate among serious socialists over her invocation of Trotsky’s concept of “permanent revolution.” This is an ideological leftist who knows the theory and lingo.

And when she accepted a spying assignment, she accepted it from Russia. Her arrest certainly doesn’t implicate other left-wing journalists in espionage. But this echo from the Cold War ought to give us pause. Russia is no longer the global standard-bearer of Marxism, but it appears Marxists from elsewhere are still spying for Russia.

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Lieberman’s Truthful Indiscretion

Avigdor Lieberman is in trouble again. The Israeli foreign minister was quoted at a joint news conference with his Russian counterpart, Sergey Lavrov, as saying that he thought there was “absolutely no chance of reaching a Palestinian state by 2012.” Those words were enough to inspire the New York Times to predict that Lieberman’s remarks could “further strain peace efforts.” As the Times helpfully pointed out, Palestinian Authority Prime Minister Salam Fayyad has said his goal is to be ready to set up a functioning state by the start of 2012. PA President Mahmoud Abbas tried to win Brownie points with Washington (which has been trying to convene peace talks) by countering that, unlike Lieberman, he still believed in the peace process.

Lieberman is well known for what critics have always considered a thuggish personality and the fact that his boss, Prime Minister Benjamin Netanyahu, has insulated the Yisrael Beiteinu Party head from all important foreign-policy decisions, especially anything having to do with the United States. There is little doubt that Lieberman is as undiplomatic a foreign-policy spokesman as any country could have. But he was speaking the unvarnished truth when he scoffed at the notion that peace and a Palestinian state would arrive by 2012.

But contrary to the assumptions of Israel’s critics, the reason for this has nothing to do with the “hard-line” nature of the government in which Netanyahu and Lieberman serve. Both have expressed their willingness to accept a two-state solution. The problem is that Abbas and Fayyad, those alleged peace optimists, have no intention of signing a peace deal with Israel no matter how many concessions on land or any other issue Netanyahu and Lieberman are prepared to make.

The extent of the disingenuousness of this discussion, in which Israel is blamed for the dim prospects for peace, cannot be overestimated. Had the PA’s goal been simply to have a state alongside Israel, there would have been no need to wait for 2012. Unmentioned in the account of Lieberman’s gaffe is the fact that in 2008, Abbas and Fayyad rejected Israel’s offer of a Palestinian state that would have included virtually all the West Bank and parts of Jerusalem. Their predecessor Yasir Arafat rejected similar offers in 2000 and 2001. These refusals made it clear that the dynamic of Palestinian political culture made any peace agreement, no matter where the borders were drawn, impossible as long as it required the Palestinians to accept the legitimacy of a Jewish state.

The current situation finds Abbas and Fayyad afraid to anger the Palestinian street by making such a pledge and unwilling even to negotiate directly with Israel. At the same time, the Islamists of Hamas are not only still firmly in control of Gaza but the international isolation of their terror regime is also breaking down in the wake of the aid flotilla incident, a development that weakens Abbas. Under these circumstances, it is hard to see how any serious person could possibly believe that peace efforts have any sort of chance no matter what concessions might be dragged out of the Israelis by the Obama administration. But rather than face these unpleasant facts, it’s much easier to blame it all on Lieberman and Israel.

Avigdor Lieberman is in trouble again. The Israeli foreign minister was quoted at a joint news conference with his Russian counterpart, Sergey Lavrov, as saying that he thought there was “absolutely no chance of reaching a Palestinian state by 2012.” Those words were enough to inspire the New York Times to predict that Lieberman’s remarks could “further strain peace efforts.” As the Times helpfully pointed out, Palestinian Authority Prime Minister Salam Fayyad has said his goal is to be ready to set up a functioning state by the start of 2012. PA President Mahmoud Abbas tried to win Brownie points with Washington (which has been trying to convene peace talks) by countering that, unlike Lieberman, he still believed in the peace process.

Lieberman is well known for what critics have always considered a thuggish personality and the fact that his boss, Prime Minister Benjamin Netanyahu, has insulated the Yisrael Beiteinu Party head from all important foreign-policy decisions, especially anything having to do with the United States. There is little doubt that Lieberman is as undiplomatic a foreign-policy spokesman as any country could have. But he was speaking the unvarnished truth when he scoffed at the notion that peace and a Palestinian state would arrive by 2012.

But contrary to the assumptions of Israel’s critics, the reason for this has nothing to do with the “hard-line” nature of the government in which Netanyahu and Lieberman serve. Both have expressed their willingness to accept a two-state solution. The problem is that Abbas and Fayyad, those alleged peace optimists, have no intention of signing a peace deal with Israel no matter how many concessions on land or any other issue Netanyahu and Lieberman are prepared to make.

The extent of the disingenuousness of this discussion, in which Israel is blamed for the dim prospects for peace, cannot be overestimated. Had the PA’s goal been simply to have a state alongside Israel, there would have been no need to wait for 2012. Unmentioned in the account of Lieberman’s gaffe is the fact that in 2008, Abbas and Fayyad rejected Israel’s offer of a Palestinian state that would have included virtually all the West Bank and parts of Jerusalem. Their predecessor Yasir Arafat rejected similar offers in 2000 and 2001. These refusals made it clear that the dynamic of Palestinian political culture made any peace agreement, no matter where the borders were drawn, impossible as long as it required the Palestinians to accept the legitimacy of a Jewish state.

The current situation finds Abbas and Fayyad afraid to anger the Palestinian street by making such a pledge and unwilling even to negotiate directly with Israel. At the same time, the Islamists of Hamas are not only still firmly in control of Gaza but the international isolation of their terror regime is also breaking down in the wake of the aid flotilla incident, a development that weakens Abbas. Under these circumstances, it is hard to see how any serious person could possibly believe that peace efforts have any sort of chance no matter what concessions might be dragged out of the Israelis by the Obama administration. But rather than face these unpleasant facts, it’s much easier to blame it all on Lieberman and Israel.

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Why Liberals Should Be Worried About Kagan

As I noted yesterday, Justice Samuel Alito’s dissent in Christian Legal Society v. Martinez is a brilliant take-down of the majority’s reasoning. His concurring opinion in McDonald v. Chicago is equally noteworthy.

As Justice Scalia did in Heller (which held that the Second Amendment’s right to bear arms is a personal right), Alito takes us on a journey through constitutional history and court precedent, leaving little doubt that the ruling is correct — and that the dissenters’ view is not only wrong but also radical. At the conclusion of his analysis, he dispenses with the arguments of the city of Chicago (Municipal respondents), which the dissenters would accept. I have omitted the numerous citations for ease of reading: 

Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era. Municipal respondents submit that the Due Process Clause protects only those rights “‘recognized by all temperate and civilized governments, from a deep and universal sense of [their] justice.’” According to municipal respondents, if it is possible to imagine any civilized legal system that does not recognize a particular right, then the Due Process Clause Opinion of the Court does not make that right binding on the States. Brief for Municipal Respondents 9. Therefore, the municipal respondents continue, because such countries as England,Canada, Australia, Japan, Denmark, Finland, Luxembourg, and New Zealand either ban or severely limit handgun ownership, it must follow that no right to possess such weapons is protected by the Fourteenth Amendment.

Alito then dismantles Justice Stevens’s dissent:

Justice Stevens would “‘ground the prohibitions against state action squarely on due process, without intermediate reliance on any of the first eight Amendments.’” The question presented in this case, in his view, “is whether the particular right asserted by petitioners applies to the States because of the Fourteenth Amendment itself, standing on its own bottom.” He would hold that “[t]he rights protected against state infringement by the Fourteenth Amendment’s Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights.”

As we have explained, the Court, for the past half century, has moved away from the two-track approach. If we were now to accept Justice Stevens’ theory across the board, decades of decisions would be undermined. We assume that this is not what is proposed. What is urged instead, it appears, is that this theory be revived solely for the individual right that Heller recognized, over vigorous dissents. The relationship between the Bill of Rights’ guarantees and the States must be governed by a single, neutral principle. It is far too late to exhume what Justice Brennan, writing for the Court 46 years ago, derided as “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights.”

Justice Scalia dissents separately, purely to make mincemeat of Stevens’s dissent. He picks up where Alito leaves off and makes it clear that Justice Stevens is doing no more than making up rules as he goes along. Scalia takes issue with the notion that Stevens and other justices can decide which fundamental rights are binding on the states and which are not. A sample (the dissent is brief and should be read entirely to enjoy the full flavor), again with citations omitted:

Exactly what is covered is not clear. But whatever else is in, he knows that the right to keep and bear arms is out, despite its being as “deeply rooted in this Nation’s history and tradition,” I can find no other explanation for such certitude except that Justice Stevens, despite his forswearing of “personal and private notions,” deeply believes it should be out. The subjective nature of Justice Stevens’ standard is also apparent from his claim that it is the courts’ prerogative—indeed their duty — to update the Due Process Clause so that it encompasses new freedoms the Framers were too narrow-minded to imagine. …

Justice Stevens resists this description, insisting that his approach provides plenty of “guideposts” and “constraints” to keep courts from “injecting excessive subjectivity” into the process.Plenty indeed — and that alone is a problem. The ability of omni directional guideposts to constrain is inversely proportional to their number. But even individually, each lodestar or limitation he lists either is incapable of restraining judicial whimsy or cannot be squared with the precedents he seeks to preserve. …

Justice Stevens also argues that requiring courts to show “respect for the democratic process” should serve as a constraint. That is true, but Justice Stevens would have them show respect in an extraordinary manner. In his view, if a right “is already being given careful consideration in, and subjected to ongoing calibration by, the States, judicial enforcement may not be appropriate.” In other words, a right, such as the right to keep and bear arms, that has long been recognized but on which the States are considering restrictions, apparently deserves less protection, while a privilege the political branches (instruments of the democratic process) have withheld entirely and continue to withhold, deserves more. That topsy-turvy approach conveniently accomplishes the objective of ensuring that the rights this Court held protected in [ abortion and gay rights cases], and other such cases fit the theory — but at the cost of insulting rather than respecting the democratic process.

You see the intellectual fire power — and the dilemma for liberals. Who really thinks that Elena Kagan can go toe to toe with these jurists? What solace can opponents of original jurisprudence take from her “life” — which, she says, provides the basis for confirmation? It’s hardly evident that she has the skill to compile a historical narrative and deconstruct her ideological opponents as effectively as these two, or as well as Chief Justice Roberts and Justice Thomas.

Now great logic does not always persuade Justice Kennedy, but if the aim here was to come up with a counterweight to the “conservative” justices, then perhaps Obama should have gone with someone with demonstrated legal prowess, who can opine on, not merely repeat, the Court’s past holdings. It is for this very reason that conservatives might prefer Kagan to potential alternatives — and save the filibuster for a truly dangerous liberal zealot.

As I noted yesterday, Justice Samuel Alito’s dissent in Christian Legal Society v. Martinez is a brilliant take-down of the majority’s reasoning. His concurring opinion in McDonald v. Chicago is equally noteworthy.

As Justice Scalia did in Heller (which held that the Second Amendment’s right to bear arms is a personal right), Alito takes us on a journey through constitutional history and court precedent, leaving little doubt that the ruling is correct — and that the dissenters’ view is not only wrong but also radical. At the conclusion of his analysis, he dispenses with the arguments of the city of Chicago (Municipal respondents), which the dissenters would accept. I have omitted the numerous citations for ease of reading: 

Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era. Municipal respondents submit that the Due Process Clause protects only those rights “‘recognized by all temperate and civilized governments, from a deep and universal sense of [their] justice.’” According to municipal respondents, if it is possible to imagine any civilized legal system that does not recognize a particular right, then the Due Process Clause Opinion of the Court does not make that right binding on the States. Brief for Municipal Respondents 9. Therefore, the municipal respondents continue, because such countries as England,Canada, Australia, Japan, Denmark, Finland, Luxembourg, and New Zealand either ban or severely limit handgun ownership, it must follow that no right to possess such weapons is protected by the Fourteenth Amendment.

Alito then dismantles Justice Stevens’s dissent:

Justice Stevens would “‘ground the prohibitions against state action squarely on due process, without intermediate reliance on any of the first eight Amendments.’” The question presented in this case, in his view, “is whether the particular right asserted by petitioners applies to the States because of the Fourteenth Amendment itself, standing on its own bottom.” He would hold that “[t]he rights protected against state infringement by the Fourteenth Amendment’s Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights.”

As we have explained, the Court, for the past half century, has moved away from the two-track approach. If we were now to accept Justice Stevens’ theory across the board, decades of decisions would be undermined. We assume that this is not what is proposed. What is urged instead, it appears, is that this theory be revived solely for the individual right that Heller recognized, over vigorous dissents. The relationship between the Bill of Rights’ guarantees and the States must be governed by a single, neutral principle. It is far too late to exhume what Justice Brennan, writing for the Court 46 years ago, derided as “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights.”

Justice Scalia dissents separately, purely to make mincemeat of Stevens’s dissent. He picks up where Alito leaves off and makes it clear that Justice Stevens is doing no more than making up rules as he goes along. Scalia takes issue with the notion that Stevens and other justices can decide which fundamental rights are binding on the states and which are not. A sample (the dissent is brief and should be read entirely to enjoy the full flavor), again with citations omitted:

Exactly what is covered is not clear. But whatever else is in, he knows that the right to keep and bear arms is out, despite its being as “deeply rooted in this Nation’s history and tradition,” I can find no other explanation for such certitude except that Justice Stevens, despite his forswearing of “personal and private notions,” deeply believes it should be out. The subjective nature of Justice Stevens’ standard is also apparent from his claim that it is the courts’ prerogative—indeed their duty — to update the Due Process Clause so that it encompasses new freedoms the Framers were too narrow-minded to imagine. …

Justice Stevens resists this description, insisting that his approach provides plenty of “guideposts” and “constraints” to keep courts from “injecting excessive subjectivity” into the process.Plenty indeed — and that alone is a problem. The ability of omni directional guideposts to constrain is inversely proportional to their number. But even individually, each lodestar or limitation he lists either is incapable of restraining judicial whimsy or cannot be squared with the precedents he seeks to preserve. …

Justice Stevens also argues that requiring courts to show “respect for the democratic process” should serve as a constraint. That is true, but Justice Stevens would have them show respect in an extraordinary manner. In his view, if a right “is already being given careful consideration in, and subjected to ongoing calibration by, the States, judicial enforcement may not be appropriate.” In other words, a right, such as the right to keep and bear arms, that has long been recognized but on which the States are considering restrictions, apparently deserves less protection, while a privilege the political branches (instruments of the democratic process) have withheld entirely and continue to withhold, deserves more. That topsy-turvy approach conveniently accomplishes the objective of ensuring that the rights this Court held protected in [ abortion and gay rights cases], and other such cases fit the theory — but at the cost of insulting rather than respecting the democratic process.

You see the intellectual fire power — and the dilemma for liberals. Who really thinks that Elena Kagan can go toe to toe with these jurists? What solace can opponents of original jurisprudence take from her “life” — which, she says, provides the basis for confirmation? It’s hardly evident that she has the skill to compile a historical narrative and deconstruct her ideological opponents as effectively as these two, or as well as Chief Justice Roberts and Justice Thomas.

Now great logic does not always persuade Justice Kennedy, but if the aim here was to come up with a counterweight to the “conservative” justices, then perhaps Obama should have gone with someone with demonstrated legal prowess, who can opine on, not merely repeat, the Court’s past holdings. It is for this very reason that conservatives might prefer Kagan to potential alternatives — and save the filibuster for a truly dangerous liberal zealot.

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Blinking Barack

The Wall Street Journal’s Bret Stephens is one of the finest foreign-policy writers in America. This column, on President Obama’s ambivalence on the Afghanistan war, demonstrates why. Read it.

The Wall Street Journal’s Bret Stephens is one of the finest foreign-policy writers in America. This column, on President Obama’s ambivalence on the Afghanistan war, demonstrates why. Read it.

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The Magic Words

Politico reports that during his testimony before the Senate Armed Services Committee, General David Petraeus, named by President Obama to succeed Gen. Stanley McChrystal as the commander of U.S. forces in Afghanistan, was pressed by Senator Lindsey Graham on a recent letter sent by anti-war congresswoman Rep. Barbara Lee (D-Calif.) tying support for war funding to a plan for withdrawal.

Under continued questioning from Graham, Petraeus said that putting such conditions on war funding “would be contrary to the whole policy, which is conditions based.”

Those words — “conditions based” — are vital. They demonstrate to both our friends and our enemies that we’re not foolishly committed to withdrawal on an arbitrary date (in this case, July 2011). That Petraeus used these words isn’t surprising; he knows how to run and win a war. But it would help a great deal if his command in chief would as well.

Politico reports that during his testimony before the Senate Armed Services Committee, General David Petraeus, named by President Obama to succeed Gen. Stanley McChrystal as the commander of U.S. forces in Afghanistan, was pressed by Senator Lindsey Graham on a recent letter sent by anti-war congresswoman Rep. Barbara Lee (D-Calif.) tying support for war funding to a plan for withdrawal.

Under continued questioning from Graham, Petraeus said that putting such conditions on war funding “would be contrary to the whole policy, which is conditions based.”

Those words — “conditions based” — are vital. They demonstrate to both our friends and our enemies that we’re not foolishly committed to withdrawal on an arbitrary date (in this case, July 2011). That Petraeus used these words isn’t surprising; he knows how to run and win a war. But it would help a great deal if his command in chief would as well.

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Did SCOTUS Ruling on Guns Help the Dems?

Yesterday’s Supreme Court ruling in McDonald v. City of Chicago was another major victory for supporters of the individual right to bear arms guaranteed by the Second Amendment to the Constitution. Building on the court’s 2008 ruling in District of Columbia v. Heller, which held that the individual right to own guns could not be abrogated by the federal government, this new decision applies to state and local gun laws that similarly attempt to ignore the Second Amendment.

The 5-4 decision in McDonald has cheered conservatives and further depressed liberals, whose attempts to re-interpret the Constitution to allow for complete bans on gun possession have now been stopped in their tracks. But according to Politico, there’s a silver lining in all this for the Democratic Party, which has long been the driving force behind pieces of anti-gun legislation that treated the Second Amendment as an 18th-century typo. Kasie Hunt writes that the McDonald decision has effectively ended all discussion about gun rights in the country, and that means “Democratic candidates across the map figure they have one less issue to worry about on the campaign trail. And they won’t have to defend against Republican attacks over gun rights and an, angry energized base of gun owners.”

If she’s right, that would be a big break for conservative Democrats in districts outside of liberal urban strongholds, who are burdened with defending their party’s stand on guns even if they claim to be pro-gun rights themselves. Indeed, Hunt goes so far as to claim that the “neutralization” of the gun issue and the influence of the National Rifle Association may make the difference in enabling the Democrats to hold onto their majorities in Congress.

But Democrats who think the court has silenced debate on the issue forever are kidding themselves. After all, the two decisive rulings reaffirming the meaning of the Second Amendment were 5-4 votes. That means the swing of even one vote on the court from the conservative majority to the liberal minority could change everything. That makes control of the Senate and the White House no less crucial in the future than it has been in the past for those who care about this issue. It’s true that conservative Democrats in the House can claim that this has nothing to do with them. But being a member of the political party that is currently replacing one of the four anti-Second Amendment votes (Justice John Paul Stevens) with another liberal, in the form of Elena Kagan, and which would, if they got the chance, happily replace any of the five members of the majority on this issue with a liberal who will tip the balance, is still a liability in those parts of the country where support for the Second Amendment is considered a matter of life and death.

Liberals may hope that the ruling dampens the ardor of conservatives who care about gun rights. But though Democrats like Senate Majority Leader Harry Reid, who is currently fighting an uphill battle to hold his seat in Nevada, may applaud the ruling in McDonald, voters know that he would vote to confirm a liberal, nominated by a Democratic president, who would overturn it, but that his Republican opponent would not do such a thing.

But even looking beyond the election, the idea that any Supreme Court ruling on the issue will end the political maelstrom on gun rights is almost certainly wrong. The court’s decision in Row v. Wade only rekindled the debate about abortion and the fact that most members of Congress and even the president have no direct power to either reaffirm or overturn Roe — except through the potential for change in the Supreme Court’s membership — hasn’t prevented abortion from remaining a hot-button political issue for decades. So long as there is a potential for either new legislation that will try to get around the Constitution or a switch in the composition of the court, there is little likelihood that the NRA will lower its guard or that its adherents will, even in a figurative sense, lay down their arms.

Yesterday’s Supreme Court ruling in McDonald v. City of Chicago was another major victory for supporters of the individual right to bear arms guaranteed by the Second Amendment to the Constitution. Building on the court’s 2008 ruling in District of Columbia v. Heller, which held that the individual right to own guns could not be abrogated by the federal government, this new decision applies to state and local gun laws that similarly attempt to ignore the Second Amendment.

The 5-4 decision in McDonald has cheered conservatives and further depressed liberals, whose attempts to re-interpret the Constitution to allow for complete bans on gun possession have now been stopped in their tracks. But according to Politico, there’s a silver lining in all this for the Democratic Party, which has long been the driving force behind pieces of anti-gun legislation that treated the Second Amendment as an 18th-century typo. Kasie Hunt writes that the McDonald decision has effectively ended all discussion about gun rights in the country, and that means “Democratic candidates across the map figure they have one less issue to worry about on the campaign trail. And they won’t have to defend against Republican attacks over gun rights and an, angry energized base of gun owners.”

If she’s right, that would be a big break for conservative Democrats in districts outside of liberal urban strongholds, who are burdened with defending their party’s stand on guns even if they claim to be pro-gun rights themselves. Indeed, Hunt goes so far as to claim that the “neutralization” of the gun issue and the influence of the National Rifle Association may make the difference in enabling the Democrats to hold onto their majorities in Congress.

But Democrats who think the court has silenced debate on the issue forever are kidding themselves. After all, the two decisive rulings reaffirming the meaning of the Second Amendment were 5-4 votes. That means the swing of even one vote on the court from the conservative majority to the liberal minority could change everything. That makes control of the Senate and the White House no less crucial in the future than it has been in the past for those who care about this issue. It’s true that conservative Democrats in the House can claim that this has nothing to do with them. But being a member of the political party that is currently replacing one of the four anti-Second Amendment votes (Justice John Paul Stevens) with another liberal, in the form of Elena Kagan, and which would, if they got the chance, happily replace any of the five members of the majority on this issue with a liberal who will tip the balance, is still a liability in those parts of the country where support for the Second Amendment is considered a matter of life and death.

Liberals may hope that the ruling dampens the ardor of conservatives who care about gun rights. But though Democrats like Senate Majority Leader Harry Reid, who is currently fighting an uphill battle to hold his seat in Nevada, may applaud the ruling in McDonald, voters know that he would vote to confirm a liberal, nominated by a Democratic president, who would overturn it, but that his Republican opponent would not do such a thing.

But even looking beyond the election, the idea that any Supreme Court ruling on the issue will end the political maelstrom on gun rights is almost certainly wrong. The court’s decision in Row v. Wade only rekindled the debate about abortion and the fact that most members of Congress and even the president have no direct power to either reaffirm or overturn Roe — except through the potential for change in the Supreme Court’s membership — hasn’t prevented abortion from remaining a hot-button political issue for decades. So long as there is a potential for either new legislation that will try to get around the Constitution or a switch in the composition of the court, there is little likelihood that the NRA will lower its guard or that its adherents will, even in a figurative sense, lay down their arms.

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Kagan Clams Up

Shocking, I know, but Elena Kagan tells the Senate she’s not going to talk about any cases “that might come before the court in the future.” And she’s not going to talk about past cases. What then, will she talk about? The weather? So far she’s been asked about cases, and she’s explained the rulings, like a competent law student. (Professors actually critique cases in class.) So the hearings are largely a waste of time and, frankly, any senator who votes to confirm her at this point is throwing in the towel on a reasonable standard for vetting nominees. She says we should “look at her whole life” — but I don’t think a Clinton political operative’s record gives one confidence about her ability to judge cases. And if judges are to put aside personal and political feelings, not much of her life is relevant.

There was some noteworthy back-and-forth with Sen. Jeff Sessions. Kagan bizarrely denied that Harvard’s treatment of military recruiters was harmful to their efforts or that the law schools’ that denied access (but certainly didn’t relinquish federal funding) were in violation of the Solomon Act. This is simply wrong — on the facts and on the law.

Kagan expects to get by on her ability to recite Supreme Court precedent. But a justice makes precedent, and with no guide to how she would decide cases, I don’t see on what basis she can be confirmed.

Shocking, I know, but Elena Kagan tells the Senate she’s not going to talk about any cases “that might come before the court in the future.” And she’s not going to talk about past cases. What then, will she talk about? The weather? So far she’s been asked about cases, and she’s explained the rulings, like a competent law student. (Professors actually critique cases in class.) So the hearings are largely a waste of time and, frankly, any senator who votes to confirm her at this point is throwing in the towel on a reasonable standard for vetting nominees. She says we should “look at her whole life” — but I don’t think a Clinton political operative’s record gives one confidence about her ability to judge cases. And if judges are to put aside personal and political feelings, not much of her life is relevant.

There was some noteworthy back-and-forth with Sen. Jeff Sessions. Kagan bizarrely denied that Harvard’s treatment of military recruiters was harmful to their efforts or that the law schools’ that denied access (but certainly didn’t relinquish federal funding) were in violation of the Solomon Act. This is simply wrong — on the facts and on the law.

Kagan expects to get by on her ability to recite Supreme Court precedent. But a justice makes precedent, and with no guide to how she would decide cases, I don’t see on what basis she can be confirmed.

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Senator Brown Objects

Scott Brown, who was a critical vote in passing the financial-regulation bill in the Senate, proves he’s as smart as CONTENTIONS readers. He writes a letter to Rep. Barney Frank and Sen. Chris Dodd:

I am writing you to express my strong opposition to the $19 billion bank tax that was included in the financial reform bill during the conference committee. This tax was not in the Senate version of the bill, which I supported. If the final version of this bill contains these higher taxes, I will not support it.

It is especially troubling that this provision was inserted in the conference report in the dead of night without hearings or economic analysis.  While some will try to argue this isn’t a tax, this new provision takes real money away from the economy, making it unavailable for lending on Main Street, and gives it to Washington. That sounds like a tax to me. …

Imposing this new tax is the wrong option. Our economy is still struggling. It is wrong to impose higher taxes and ignore the impact it will have on our economy without considering other ways we might offset the costs of the measure.  I am asking that the conference committee find a way to offset the cost of the bill by cutting unnecessary federal spending. There are hundreds of billions in unspent federal funds sitting around, some authorized years ago for long-dead initiatives. Congress needs to start to looking there first, and I stand ready to help.

Well, maybe this isn’t a done deal yet. And maybe — in tribute to the legendary Robert Byrd — there should be some extended, very extended debate on the whole bill. Really, how many senators know what’s in this thing?

Scott Brown, who was a critical vote in passing the financial-regulation bill in the Senate, proves he’s as smart as CONTENTIONS readers. He writes a letter to Rep. Barney Frank and Sen. Chris Dodd:

I am writing you to express my strong opposition to the $19 billion bank tax that was included in the financial reform bill during the conference committee. This tax was not in the Senate version of the bill, which I supported. If the final version of this bill contains these higher taxes, I will not support it.

It is especially troubling that this provision was inserted in the conference report in the dead of night without hearings or economic analysis.  While some will try to argue this isn’t a tax, this new provision takes real money away from the economy, making it unavailable for lending on Main Street, and gives it to Washington. That sounds like a tax to me. …

Imposing this new tax is the wrong option. Our economy is still struggling. It is wrong to impose higher taxes and ignore the impact it will have on our economy without considering other ways we might offset the costs of the measure.  I am asking that the conference committee find a way to offset the cost of the bill by cutting unnecessary federal spending. There are hundreds of billions in unspent federal funds sitting around, some authorized years ago for long-dead initiatives. Congress needs to start to looking there first, and I stand ready to help.

Well, maybe this isn’t a done deal yet. And maybe — in tribute to the legendary Robert Byrd — there should be some extended, very extended debate on the whole bill. Really, how many senators know what’s in this thing?

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The Law of Unintended Consequences

In addition to the insightful comments by John’s friend who works in finances, I wanted to call attention to an editorial in the Wall Street Journal on the Dodd-Frank financial “reform” bill.

According to the Journal,

The bill represents the triumph of the very regulators and Congressmen who did so much to foment the financial panic, giving them vast new discretion over every corner of American financial markets. … In the name of responding to a crisis, the bill greatly increases the power of politicians and regulators without addressing the real causes of that crisis. It makes credit more expensive and punishes business without reducing the chances of a future panic or bailouts.

Politico is reporting that several factors have converged, from the death of Senator Robert Byrd to the early negative reactions to the conference report by at least one key Republican, Senator Scott Brown of Massachusetts. This means that the Democrats face the real possibility of falling several votes shy as they try to finish the bill.

What ruffled several Senate feathers is the late addition of a 10-year, $19 billion tax on banks — something added without proper scrutiny, discussion, or debate. None of the Republican senators from Maine, Olympia Snowe and Susan Collins, were pleased. Neither was Senator Brown, who said he was “surprised and extremely disappointed” with a $19 billion bank tax added to the conference report and who signaled he might switch his vote from yes to no. “While I’m still reviewing the bill’s details, these provisions were not in the Senate version of the bill, which I previously supported,” Brown said. “My fear is that these costs would be passed on to consumers in the form of higher bank, ATM and credit card fees and put a strain on lending at the worst possible time for our economy. I’ve said repeatedly that I cannot support any bill that raises taxes.”

The Dodd-Frank legislation has generated attention in the world of finance. But if it passes, its ramifications will be felt far beyond Wall Street. It is an example of the law of unintended consequences, a concept understood by most social scientists but very few politicians. In this case, legislation that was crafted to respond to a very real problem would make things many times worse. The temptation for lawmakers to do something, anything, is often injurious.

What has emerged from Congress is a bill that is deeply flawed. If that legislation becomes law, it will do enormous harm to our financial sector and our country. It would, indeed, be fitting, if the addition of the dead-in-the-night tax on financial institutions helped bring this monstrosity down. We saw these kinds of shady dealings and legislative tricks during the health-care debate. It is becoming standard operating procedure for the 112th Congress, and something that will eventually cost them. The same may be true, alas, for the rest of us.

In addition to the insightful comments by John’s friend who works in finances, I wanted to call attention to an editorial in the Wall Street Journal on the Dodd-Frank financial “reform” bill.

According to the Journal,

The bill represents the triumph of the very regulators and Congressmen who did so much to foment the financial panic, giving them vast new discretion over every corner of American financial markets. … In the name of responding to a crisis, the bill greatly increases the power of politicians and regulators without addressing the real causes of that crisis. It makes credit more expensive and punishes business without reducing the chances of a future panic or bailouts.

Politico is reporting that several factors have converged, from the death of Senator Robert Byrd to the early negative reactions to the conference report by at least one key Republican, Senator Scott Brown of Massachusetts. This means that the Democrats face the real possibility of falling several votes shy as they try to finish the bill.

What ruffled several Senate feathers is the late addition of a 10-year, $19 billion tax on banks — something added without proper scrutiny, discussion, or debate. None of the Republican senators from Maine, Olympia Snowe and Susan Collins, were pleased. Neither was Senator Brown, who said he was “surprised and extremely disappointed” with a $19 billion bank tax added to the conference report and who signaled he might switch his vote from yes to no. “While I’m still reviewing the bill’s details, these provisions were not in the Senate version of the bill, which I previously supported,” Brown said. “My fear is that these costs would be passed on to consumers in the form of higher bank, ATM and credit card fees and put a strain on lending at the worst possible time for our economy. I’ve said repeatedly that I cannot support any bill that raises taxes.”

The Dodd-Frank legislation has generated attention in the world of finance. But if it passes, its ramifications will be felt far beyond Wall Street. It is an example of the law of unintended consequences, a concept understood by most social scientists but very few politicians. In this case, legislation that was crafted to respond to a very real problem would make things many times worse. The temptation for lawmakers to do something, anything, is often injurious.

What has emerged from Congress is a bill that is deeply flawed. If that legislation becomes law, it will do enormous harm to our financial sector and our country. It would, indeed, be fitting, if the addition of the dead-in-the-night tax on financial institutions helped bring this monstrosity down. We saw these kinds of shady dealings and legislative tricks during the health-care debate. It is becoming standard operating procedure for the 112th Congress, and something that will eventually cost them. The same may be true, alas, for the rest of us.

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Cohen on Hamas: OK, They’re Islamic Fascists

Richard Cohen discovers Hamas really is a gang of Islamic fascists:

Gaza is a mean and brutal place with a totalitarian government steeped in a cult of violence and death. This hardly means that the government does not have a measure of popular support and did not, as some of the activists naively point out, come to power by democratic means. So did the Nazis.

Cohen reads up on the subject only to discover — why, yes! — these are Jew-haters:

The term “Islamic fascism” gets thrown around a lot. I initially recoiled from it because I prefer to reserve fascism for fascists. The term is too loosely employed — New York City cops were called fascists by Vietnam-era peace demonstrators — but Paul Berman, in his new book “The Flight of the Intellectuals,” makes a solid case that it can, with justice, be applied to Hamas. … Berman traces Hamas’s intellectual pedigree to Egypt’s Muslim Brotherhood, whose founder, Hassan al-Banna, greatly admired Hitler, and to Haj Amin al-Husseini, the Grand Mufti of Jerusalem who spent much of World War II in Germany cozying up to Hitler, organizing a Muslim SS unit and, on occasion, remonstrating with the Nazis for not killing enough Jews. … The successor to both Banna and Husseini was Sayyid Qutb (1906-66), an Egyptian intellectual of uncontested importance whose influence can be found in the writing of the Hamas charter. Qutb was an indefatigable author (more than 20 books, some written while in an Egyptian prison where he was tortured), but the article that should interest the pro-Hamas activists the most is called “Our Struggle with the Jews.” It is a shocking and repellent work of anti-Semitism that, among other things, says the “Jews will be satisfied only with the destruction” of Islam. Qutb cites that hoary anti-Semitic forgery “The Protocols of the Elders of Zion” for substantiation — suggesting that his status as an intellectual is somewhat due to heroic grade inflation.

Cohen adds that the flotilla’s “so-called” activists are “useful idiots” (actually, a significant share of them were with the Islamic fascists, but at least he is getting the gist). He sums up:

Now is the time, I suppose, to say that Israel is not exactly perfect either. It continues to overreact, uses too much force and has often trampled on the rights of Palestinians. Still, Israel is Thomas Jefferson’s idea of heaven compared with Gaza, which could serve as a seaside Club Med for Jew-haters. One country is consonant with the Enlightenment; the other is a dark place of religious intolerance where the firmest principles of anti-Semitism — not anti-Zionism or pro-Palestinianism — are embedded in the Hamas charter.

It’s mind-boggling that all this is apparently news to him, and to many on the left. But it does raise the question: other than by vanquishing Hamas and like-minded Islamic fascists (as the Allies defeated Hitler), how is there to be “peace”?

Richard Cohen discovers Hamas really is a gang of Islamic fascists:

Gaza is a mean and brutal place with a totalitarian government steeped in a cult of violence and death. This hardly means that the government does not have a measure of popular support and did not, as some of the activists naively point out, come to power by democratic means. So did the Nazis.

Cohen reads up on the subject only to discover — why, yes! — these are Jew-haters:

The term “Islamic fascism” gets thrown around a lot. I initially recoiled from it because I prefer to reserve fascism for fascists. The term is too loosely employed — New York City cops were called fascists by Vietnam-era peace demonstrators — but Paul Berman, in his new book “The Flight of the Intellectuals,” makes a solid case that it can, with justice, be applied to Hamas. … Berman traces Hamas’s intellectual pedigree to Egypt’s Muslim Brotherhood, whose founder, Hassan al-Banna, greatly admired Hitler, and to Haj Amin al-Husseini, the Grand Mufti of Jerusalem who spent much of World War II in Germany cozying up to Hitler, organizing a Muslim SS unit and, on occasion, remonstrating with the Nazis for not killing enough Jews. … The successor to both Banna and Husseini was Sayyid Qutb (1906-66), an Egyptian intellectual of uncontested importance whose influence can be found in the writing of the Hamas charter. Qutb was an indefatigable author (more than 20 books, some written while in an Egyptian prison where he was tortured), but the article that should interest the pro-Hamas activists the most is called “Our Struggle with the Jews.” It is a shocking and repellent work of anti-Semitism that, among other things, says the “Jews will be satisfied only with the destruction” of Islam. Qutb cites that hoary anti-Semitic forgery “The Protocols of the Elders of Zion” for substantiation — suggesting that his status as an intellectual is somewhat due to heroic grade inflation.

Cohen adds that the flotilla’s “so-called” activists are “useful idiots” (actually, a significant share of them were with the Islamic fascists, but at least he is getting the gist). He sums up:

Now is the time, I suppose, to say that Israel is not exactly perfect either. It continues to overreact, uses too much force and has often trampled on the rights of Palestinians. Still, Israel is Thomas Jefferson’s idea of heaven compared with Gaza, which could serve as a seaside Club Med for Jew-haters. One country is consonant with the Enlightenment; the other is a dark place of religious intolerance where the firmest principles of anti-Semitism — not anti-Zionism or pro-Palestinianism — are embedded in the Hamas charter.

It’s mind-boggling that all this is apparently news to him, and to many on the left. But it does raise the question: other than by vanquishing Hamas and like-minded Islamic fascists (as the Allies defeated Hitler), how is there to be “peace”?

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RE: A Pernicious New Tax, a Disastrous Bill

John, at the risk of damning them with faint praise, our readers are a lot smarter than our lawmakers. Another reader comments on the $20 billion “fund”:

The money will not sit in an unproductive fund. It will be “invested” in U.S. government debentures (just like the the social-security “trust fund”). The “lock box” will contain nothing but worthless paper. You can’t pay down the debt with a bunch of IOUs from the same debtor who owes the debt in the first place. They play the shell game with glass shells, and assume we still can’t find the pea.

Whether the problem is animus toward private business or ignorance (only a handful of Congressmen have actually run a business and the White House is shockingly devoid of people with private-sector experience) — the result is the same. On taxes, regulation, and spending, the administration and Congress are doing everything imaginable to impede the recovery. The voters may not appreciate all the details, but they can see the results. And they will vote accordingly in November.

John, at the risk of damning them with faint praise, our readers are a lot smarter than our lawmakers. Another reader comments on the $20 billion “fund”:

The money will not sit in an unproductive fund. It will be “invested” in U.S. government debentures (just like the the social-security “trust fund”). The “lock box” will contain nothing but worthless paper. You can’t pay down the debt with a bunch of IOUs from the same debtor who owes the debt in the first place. They play the shell game with glass shells, and assume we still can’t find the pea.

Whether the problem is animus toward private business or ignorance (only a handful of Congressmen have actually run a business and the White House is shockingly devoid of people with private-sector experience) — the result is the same. On taxes, regulation, and spending, the administration and Congress are doing everything imaginable to impede the recovery. The voters may not appreciate all the details, but they can see the results. And they will vote accordingly in November.

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Fundamental Rights and the Supreme Court

In a revealing op-ed, the Washington Post editors demonstrate that consistency is not a requirement for liberals’ constitutional jurisprudence. The editors correctly get this part right, regarding the ruling in McDonald v. Chicago:

It is correct because the general tendency of the court has been to find that the amendments in the Bill of Rights — guarantees of free speech and freedom of religion, protections against unreasonable search and seizure, prohibitions on cruel and unusual punishment — apply to state and local governments through the 14th Amendment’s due process clause. Some scattered and relatively minor provisions in the Bill of Rights — such as requiring a jury trial in civil cases or prohibiting excessive fines — are not deemed to have been “incorporated” by the 14th Amendment, but most are. Having decided that the Second Amendment protects an individual right to bear arms, it would have been odd for the court to determine that state governments can infringe on that right.

It’s even odder that the four liberal justices, over whom the editors often fawn, argued the opposite. But then there is this: “Monday’s ruling opens the door wide to an inevitable series of legal challenges that will tempt judges to substitute their judgments about gun control for that of legislators. They should act with proper restraint and respect for the limits of the judicial role.” OK, so the right to bear arms is a specifically enumerated right in the Constitution but the Court should not substitute its judgment for legislators’ policy decisions. Nevertheless, the right to an abortion, which is nowhere in the Constitution (it’s hiding under a penumbra, we were told), is so sacrosanct that virtually all legislative judgments are superseded by those of the Supreme Court.

Conservatives argue that the “right to an abortion” was made up out of whole cloth and that legislators’ judgments should be paramount, provided they don’t violate some other provision of the Constitution (e.g., an abortion ban which, if applied to women of one race, would violate the Equal Protection Clause). Once you acknowledge that something is a fundamental right, the highest level of judicial scrutiny applies — whether it is abortion, free speech, or gun ownership. And yes, that often displaces the judgment of elected leaders. This is precisely why the Court should refrain from expanding fundamental rights beyond those rights that are spelled out in the Constitution. The Post editors implicitly concede that it’s a big deal when we override the policy judgments of elected leaders. The lesson to be learned: don’t make up a bunch of new rights, or we will have much less democracy.

In a revealing op-ed, the Washington Post editors demonstrate that consistency is not a requirement for liberals’ constitutional jurisprudence. The editors correctly get this part right, regarding the ruling in McDonald v. Chicago:

It is correct because the general tendency of the court has been to find that the amendments in the Bill of Rights — guarantees of free speech and freedom of religion, protections against unreasonable search and seizure, prohibitions on cruel and unusual punishment — apply to state and local governments through the 14th Amendment’s due process clause. Some scattered and relatively minor provisions in the Bill of Rights — such as requiring a jury trial in civil cases or prohibiting excessive fines — are not deemed to have been “incorporated” by the 14th Amendment, but most are. Having decided that the Second Amendment protects an individual right to bear arms, it would have been odd for the court to determine that state governments can infringe on that right.

It’s even odder that the four liberal justices, over whom the editors often fawn, argued the opposite. But then there is this: “Monday’s ruling opens the door wide to an inevitable series of legal challenges that will tempt judges to substitute their judgments about gun control for that of legislators. They should act with proper restraint and respect for the limits of the judicial role.” OK, so the right to bear arms is a specifically enumerated right in the Constitution but the Court should not substitute its judgment for legislators’ policy decisions. Nevertheless, the right to an abortion, which is nowhere in the Constitution (it’s hiding under a penumbra, we were told), is so sacrosanct that virtually all legislative judgments are superseded by those of the Supreme Court.

Conservatives argue that the “right to an abortion” was made up out of whole cloth and that legislators’ judgments should be paramount, provided they don’t violate some other provision of the Constitution (e.g., an abortion ban which, if applied to women of one race, would violate the Equal Protection Clause). Once you acknowledge that something is a fundamental right, the highest level of judicial scrutiny applies — whether it is abortion, free speech, or gun ownership. And yes, that often displaces the judgment of elected leaders. This is precisely why the Court should refrain from expanding fundamental rights beyond those rights that are spelled out in the Constitution. The Post editors implicitly concede that it’s a big deal when we override the policy judgments of elected leaders. The lesson to be learned: don’t make up a bunch of new rights, or we will have much less democracy.

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What Is Israel to Do?

Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, is at it again. In the past he’s spoken about his aversion to military action against Iran. At a swank Aspen gathering, he made clear just how averse he is — and the dearth of other options for preventing a nuclear-armed Iran:

A military strike against Iran would be “incredibly destabilizing” to the region said the US chairman of the Joint Chiefs of Staff Admiral Mike Mullen. He believes Iran will continue to pursue nuclear weapons, even if sanctions against the country are increased.
Speaking Monday at the Aspen Security Forum, Mullen said it would be “incredibly dangerous” for Iran to achieve nuclear weapons, and that there’s “no reason to trust” Iran’s assurances that it is only pursuing a peaceful nuclear program, especially after the discovery of a secret nuclear facility near the holy city of Qom. …

Mullen said there was no reason to expect Iran to conform to international norms, given its past behavior, but he declined to describe what measures the US was considering. He has often said that all options remain on the table.

He explained that the hardest part about trying to decide what to do about Iran is how much the US does not know about the country’s nuclear progress.

When asked whether he thought Israel would give the United States time to see whether tougher sanctions or talks would produce more cooperation from Iran, he would only say that he believes the US and Israel are “in sync” with their current policies.

Following on Leon Panetta’s troubling interview, this should certainly unnerve you — on multiple counts. First, we again see that the Obami consider the prospect of a strike on Iran to be “destabilizing” — apparently more so than a nuclear-armed Iran. Second, Mullen confesses he really doesn’t know how far Iran’s nuclear program has progressed. Is this strategic ambiguity to keep Israel at bay? Or is it evidence that our intelligence is deficient and Israel will need to gauge for itself when time has run out on the feckless attempts to engage and sanction Iran? Third, like Panetta, he thinks economic sanctions will be ineffective. Finally, and worst of all, even if Mullen believes these things, why in the world would he say them? Giving comfort and encouragement to our adversaries isn’t part of his job description.

So what is Israel to do? If you put it all together, the conclusion must be: learn to live with a nuclear-armed Iran. As many of us have argued for over a year, that has been and remains, if not the intent, at least the inevitable result of Obama’s Iran policy. That the vast majority of mainstream American Jewish leaders have not woken up to this reality – nor in any meaningful way challenged the administration – is a tragic failure of immense proportions.

As for Israel, Obama’s game plan is — to borrow a term — unacceptable. In this case, the Israelis mean it and will at some point be forced to take military action, unless the Obami undergo an epiphany and reverse course. War is a horrid prospect, as is the potential for massive loss of life – but not as horrid as that of a nuclear-armed Iran. Obama’s willingness to leave Israel to fend for itself or, worse, interfere with its ability to do so is not merely a betrayal of our democratic ally; it is an abdication of American responsibility that will resonate for years to come, signaling that the U.S. is no longer the guarantor of the West’s security.

Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, is at it again. In the past he’s spoken about his aversion to military action against Iran. At a swank Aspen gathering, he made clear just how averse he is — and the dearth of other options for preventing a nuclear-armed Iran:

A military strike against Iran would be “incredibly destabilizing” to the region said the US chairman of the Joint Chiefs of Staff Admiral Mike Mullen. He believes Iran will continue to pursue nuclear weapons, even if sanctions against the country are increased.
Speaking Monday at the Aspen Security Forum, Mullen said it would be “incredibly dangerous” for Iran to achieve nuclear weapons, and that there’s “no reason to trust” Iran’s assurances that it is only pursuing a peaceful nuclear program, especially after the discovery of a secret nuclear facility near the holy city of Qom. …

Mullen said there was no reason to expect Iran to conform to international norms, given its past behavior, but he declined to describe what measures the US was considering. He has often said that all options remain on the table.

He explained that the hardest part about trying to decide what to do about Iran is how much the US does not know about the country’s nuclear progress.

When asked whether he thought Israel would give the United States time to see whether tougher sanctions or talks would produce more cooperation from Iran, he would only say that he believes the US and Israel are “in sync” with their current policies.

Following on Leon Panetta’s troubling interview, this should certainly unnerve you — on multiple counts. First, we again see that the Obami consider the prospect of a strike on Iran to be “destabilizing” — apparently more so than a nuclear-armed Iran. Second, Mullen confesses he really doesn’t know how far Iran’s nuclear program has progressed. Is this strategic ambiguity to keep Israel at bay? Or is it evidence that our intelligence is deficient and Israel will need to gauge for itself when time has run out on the feckless attempts to engage and sanction Iran? Third, like Panetta, he thinks economic sanctions will be ineffective. Finally, and worst of all, even if Mullen believes these things, why in the world would he say them? Giving comfort and encouragement to our adversaries isn’t part of his job description.

So what is Israel to do? If you put it all together, the conclusion must be: learn to live with a nuclear-armed Iran. As many of us have argued for over a year, that has been and remains, if not the intent, at least the inevitable result of Obama’s Iran policy. That the vast majority of mainstream American Jewish leaders have not woken up to this reality – nor in any meaningful way challenged the administration – is a tragic failure of immense proportions.

As for Israel, Obama’s game plan is — to borrow a term — unacceptable. In this case, the Israelis mean it and will at some point be forced to take military action, unless the Obami undergo an epiphany and reverse course. War is a horrid prospect, as is the potential for massive loss of life – but not as horrid as that of a nuclear-armed Iran. Obama’s willingness to leave Israel to fend for itself or, worse, interfere with its ability to do so is not merely a betrayal of our democratic ally; it is an abdication of American responsibility that will resonate for years to come, signaling that the U.S. is no longer the guarantor of the West’s security.

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Obama’s Human Rights Problem

Human rights activists here and abroad had high expectations for President Barack Obama. They took his “hope and change” as more than a campaign slogan, imagining that he might use his celebrity status to promote democracy, religious freedom, and human rights. They envisioned him shining a bright light on oppressors and utilizing the array of tools at his disposal to aid, encourage, and protect the oppressed. It has not come to pass; instead, it is the oppressors who have much to celebrate — for they operate with impunity. They have learned that they can not only escape condemnation but also receive new respect from a president who seems indifferent if not hostile to the dissidents and human rights advocates.

Obama has responded to Hosni Mubarak’s crackdown on political dissidents and extension of the “emergency” laws not with condemnation but with billions in new aid. The president responded to the stolen Iranian election and brutal repression with silence, and subsequently cut aid to groups documenting human rights abuse. He has offered to engage Burma despite its atrocious human rights record but failed to take any significant step after another phony election. Aung San Suu Kyi remains imprisoned, and Burma is now pursuing its own nuclear program. His envoy to Sudan is widely ridiculed by Darfur activists, who are dismayed that he has not carried forth on campaign promises to crack down on the genocidal regime. And so it has been since Obama took office.

There is no more eloquent description of Obama’s sorry record than this:

It’s been a rough seventeen months for Americans whose calling is to fight for the rights of people who’ve been stripped of them by force—young men and women beaten to death in full view of the world by the agents of their oppressors for daring to demand that their votes be counted; others hacked to death with the complicity of the autocrats in power over them for having been born the wrong color or to the wrong tribe; girls subjected to the lash, or, worse, murdered by their own mothers, fathers, or brothers for appearing in public in the wrong company; believers imprisoned for professing faith in the wrong god or the wrong political system; non-believers sentenced to death for “wronging” a wrathful, vengeful religion.

And it is also worth considering why Obama and his secretary of state, when they do muster some concern for human rights, focus not on the world’s worst offenders but on their own countrymen, whose shortcomings on race, inequality, and the like never escape their exacting eyes.

It is not simply a case of misplaced priorities or even moral obtuseness. Hillary Clinton at times can wax poetic on human rights, proving once again that hypocrisy is the compliment vice pays to virtue. The problem stems from Obama’s conviction that the U.S. and the West more generally are the world’s problem children and that it is our arrogance, ignorance, and track record of interference in other countries’ affairs that are the source of the world’s ills. The apology tour (which covered everything from dropping the atomic bomb to our supposed lack of simpatico with the “Muslim World”) was perhaps the most heartfelt expression of Obama’s worldview and explains his cockeyed human rights record.

Because the U.S. is so flawed, so guilty of serial misdeeds, we are in Obama’s eyes (and the left-wing academic mindset from which he derives his views) disqualified from pronouncing on others’ behavior and obligated to let them pronounce on ours and our allies. Hence, we bear witness to (and do not challenge) the Human Right Council thugocracies as they condemn countries with infinitely better human rights records (especially Israel). But we temper our words and offer our hand in conciliation (and in some cases open our wallets) to the human rights oppressors. We allow Iran to join the UN Commission on the Status of Women to opine on others’ gender discrimination but avert our eyes from the brutality endured by Muslim women and girls.

There is, of course, a practical, albeit misguided, reason for Obama’s human rights record. He imagines he will incur the goodwill of the world’s despots by soft-peddling criticism of their treatment of their own people. But it is no longer possible to ignore the more fundamental problem: Obama believes his mission is to atone for America’s sins, not set the example for the world as the leader of that “shining city on the hill.” If one doubts the essential goodness of America and is unwilling to hold others to a standard of conduct that reflects our own values, you will wind up with a human rights policy that looks like Obama’s.

Human rights activists here and abroad had high expectations for President Barack Obama. They took his “hope and change” as more than a campaign slogan, imagining that he might use his celebrity status to promote democracy, religious freedom, and human rights. They envisioned him shining a bright light on oppressors and utilizing the array of tools at his disposal to aid, encourage, and protect the oppressed. It has not come to pass; instead, it is the oppressors who have much to celebrate — for they operate with impunity. They have learned that they can not only escape condemnation but also receive new respect from a president who seems indifferent if not hostile to the dissidents and human rights advocates.

Obama has responded to Hosni Mubarak’s crackdown on political dissidents and extension of the “emergency” laws not with condemnation but with billions in new aid. The president responded to the stolen Iranian election and brutal repression with silence, and subsequently cut aid to groups documenting human rights abuse. He has offered to engage Burma despite its atrocious human rights record but failed to take any significant step after another phony election. Aung San Suu Kyi remains imprisoned, and Burma is now pursuing its own nuclear program. His envoy to Sudan is widely ridiculed by Darfur activists, who are dismayed that he has not carried forth on campaign promises to crack down on the genocidal regime. And so it has been since Obama took office.

There is no more eloquent description of Obama’s sorry record than this:

It’s been a rough seventeen months for Americans whose calling is to fight for the rights of people who’ve been stripped of them by force—young men and women beaten to death in full view of the world by the agents of their oppressors for daring to demand that their votes be counted; others hacked to death with the complicity of the autocrats in power over them for having been born the wrong color or to the wrong tribe; girls subjected to the lash, or, worse, murdered by their own mothers, fathers, or brothers for appearing in public in the wrong company; believers imprisoned for professing faith in the wrong god or the wrong political system; non-believers sentenced to death for “wronging” a wrathful, vengeful religion.

And it is also worth considering why Obama and his secretary of state, when they do muster some concern for human rights, focus not on the world’s worst offenders but on their own countrymen, whose shortcomings on race, inequality, and the like never escape their exacting eyes.

It is not simply a case of misplaced priorities or even moral obtuseness. Hillary Clinton at times can wax poetic on human rights, proving once again that hypocrisy is the compliment vice pays to virtue. The problem stems from Obama’s conviction that the U.S. and the West more generally are the world’s problem children and that it is our arrogance, ignorance, and track record of interference in other countries’ affairs that are the source of the world’s ills. The apology tour (which covered everything from dropping the atomic bomb to our supposed lack of simpatico with the “Muslim World”) was perhaps the most heartfelt expression of Obama’s worldview and explains his cockeyed human rights record.

Because the U.S. is so flawed, so guilty of serial misdeeds, we are in Obama’s eyes (and the left-wing academic mindset from which he derives his views) disqualified from pronouncing on others’ behavior and obligated to let them pronounce on ours and our allies. Hence, we bear witness to (and do not challenge) the Human Right Council thugocracies as they condemn countries with infinitely better human rights records (especially Israel). But we temper our words and offer our hand in conciliation (and in some cases open our wallets) to the human rights oppressors. We allow Iran to join the UN Commission on the Status of Women to opine on others’ gender discrimination but avert our eyes from the brutality endured by Muslim women and girls.

There is, of course, a practical, albeit misguided, reason for Obama’s human rights record. He imagines he will incur the goodwill of the world’s despots by soft-peddling criticism of their treatment of their own people. But it is no longer possible to ignore the more fundamental problem: Obama believes his mission is to atone for America’s sins, not set the example for the world as the leader of that “shining city on the hill.” If one doubts the essential goodness of America and is unwilling to hold others to a standard of conduct that reflects our own values, you will wind up with a human rights policy that looks like Obama’s.

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Galston Talks Sense About Israel

A sensible and intellectually honest  thinker (whose posts appear on a website replete with those who are neither), William Galston has developed a habit of talking political sense to Democrats determined to screen out bad news. He now gives us a report from his trip to Israel. It is more candid and useful than what we’ve been getting from Jewish groups, the administration, and Michael Oren (except when he thinks he’s talking privately).

Galston dispenses with the sugar-coating when explaining the current U.S.-Israeli relationship:

Never before have I sensed such a mood of foreboding, which has been triggered by two issues above all—the looming impasse in relations with the United States and a possible military confrontation with Iran. … There are persistent rumors here that the Obama administration hopes to bring down the current Israeli government and replace it with a more tractable coalition. Don’t hold your breath. … To bring about a new coalition without the hardliners, the Obama administration would have to threaten Israel with measures at least as tough as the ones George H. W. Bush and James Baker implemented two decades ago against the Shamir government, risking a huge domestic political backlash.

On Iran, Galston describes the vast divide between Obama and the Israelis:

Looking farther east, most Israelis—including many who are very dovish vis-a-vis the Palestinians—believe that only military force can prevent Iran from becoming a nuclear power in the near future, and they cannot understand why the United States resists this conclusion.

A few months ago I participated in a day-long exercise, organized by the Brookings Institution, simulating the aftermath of a surprise Israeli attack on Iranian nuclear facilities. The outcome wasn’t pretty—a forceful Iranian attack on American allies throughout the region and a serious rift in relations between Israel and the United States. The Israeli team hoped that the United States would back them with military measures against Iran that the American team refused to initiate.

As Galston observes, “the sand in the hourglass is running down quickly. Some time this fall, an administration headed toward a midterm election with a faltering economy and negative developments in two war zones may confront a genuine Middle East crisis. We can only hope that its contingency plans are in place and that they’re better than BP’s.” Unfortunately, we know — thanks to Secretary of Defense Robert Gates — that there really isn’t much contingency planning going on.

Whether it is a “shift” or a “rift,” the U.S.-Israel relationship is not what it used to be. There is foreboding in Israel because the realization is sinking in that the Obama administration in all likelihood will not be there to defend the Jewish state — either diplomatically or militarily — when Israel needs America most. You would think American Jewry would be gripped by the same sense of foreboding as their brothers and sisters in Israel – and motivated to do something about it. But like Obama, they are, in Galston’s words, “playing for time.” I hope that they at least have a contingency plan better than BP’s and a sense of urgency to put it into action.

A sensible and intellectually honest  thinker (whose posts appear on a website replete with those who are neither), William Galston has developed a habit of talking political sense to Democrats determined to screen out bad news. He now gives us a report from his trip to Israel. It is more candid and useful than what we’ve been getting from Jewish groups, the administration, and Michael Oren (except when he thinks he’s talking privately).

Galston dispenses with the sugar-coating when explaining the current U.S.-Israeli relationship:

Never before have I sensed such a mood of foreboding, which has been triggered by two issues above all—the looming impasse in relations with the United States and a possible military confrontation with Iran. … There are persistent rumors here that the Obama administration hopes to bring down the current Israeli government and replace it with a more tractable coalition. Don’t hold your breath. … To bring about a new coalition without the hardliners, the Obama administration would have to threaten Israel with measures at least as tough as the ones George H. W. Bush and James Baker implemented two decades ago against the Shamir government, risking a huge domestic political backlash.

On Iran, Galston describes the vast divide between Obama and the Israelis:

Looking farther east, most Israelis—including many who are very dovish vis-a-vis the Palestinians—believe that only military force can prevent Iran from becoming a nuclear power in the near future, and they cannot understand why the United States resists this conclusion.

A few months ago I participated in a day-long exercise, organized by the Brookings Institution, simulating the aftermath of a surprise Israeli attack on Iranian nuclear facilities. The outcome wasn’t pretty—a forceful Iranian attack on American allies throughout the region and a serious rift in relations between Israel and the United States. The Israeli team hoped that the United States would back them with military measures against Iran that the American team refused to initiate.

As Galston observes, “the sand in the hourglass is running down quickly. Some time this fall, an administration headed toward a midterm election with a faltering economy and negative developments in two war zones may confront a genuine Middle East crisis. We can only hope that its contingency plans are in place and that they’re better than BP’s.” Unfortunately, we know — thanks to Secretary of Defense Robert Gates — that there really isn’t much contingency planning going on.

Whether it is a “shift” or a “rift,” the U.S.-Israel relationship is not what it used to be. There is foreboding in Israel because the realization is sinking in that the Obama administration in all likelihood will not be there to defend the Jewish state — either diplomatically or militarily — when Israel needs America most. You would think American Jewry would be gripped by the same sense of foreboding as their brothers and sisters in Israel – and motivated to do something about it. But like Obama, they are, in Galston’s words, “playing for time.” I hope that they at least have a contingency plan better than BP’s and a sense of urgency to put it into action.

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Can We Find Out Who Kagan Is Before She Takes the Bench?

Election-law professor Rick Hansen (h/t Taegan Goddard) writes:

If you were trying to schedule Senate hearings on a Supreme Court nominee to garner the least attention possible, you could not have picked a day better than today. The sad death of Senator Byrd; the Supreme Court decides four major cases, including the gun case; Congress poised to pass a major financial reform bill, with now some uncertainty as to timing given the death of Sen. Byrd; the Afghanistan McChrystal fallout; continued concern over BP’s cleanup operations. It is no wonder that many Americans don’t know who Elena Kagan is.

Actually, they don’t know who she is because there is not much that is knowable. Most senators don’t have much more than her biography, her slender body of writings, and a pleasant office visit by which to assess her. Sen. Jeff Sesssions set forth the problem in his opening remarks:

Ms. Kagan certainly has numerous talents and many good qualities, but there are serious concerns about this nomination. Ms. Kagan has less real legal experience of any nominee in at least 50 years. And it’s not just that the nominee has not been a judge. She has barely practiced law and not with the intensity and duration from which I think real legal understanding occurs. Ms. Kagan has never tried a case before a jury. She argued her first appellate case just nine months ago. While academia certainly has value, there is no substitute, I think, for being in the harness of the law, handling real cases over a period of years.

We know less about this nominee than we did about every other justice at this stage in the confirmation process. Part of this problem may be solved by a spasm of candor from the nominee. That’s not likely, and even if she is more forthcoming than expected, we have no basis by which to assess whether she will be a competent jurist. Democrats who rubber-stamp her on the theory that the White House must know something they don’t are taking a risk — and neglecting their constitutional obligation. I suppose it’s old-fashioned to expect that senators read groundbreaking legislation before they vote and to demand answers from an underqualified, stealth nominee. (These are the same folks who wax lyrical about Sen. Robert Byrd’s defense of the world’s “greatest deliberative body.”)

Unfortunately, senators insist on blathering on, asking unintelligible questions that give nominees the chance to run out the clock and flatter their questioner by commending the blather. Here’s a suggestion for the senators: ask a questions that are fewer than 20 words, ask them again if she doesn’t answer, keep track of the list of unanswered questions, and demand that she provide real answers before a vote is taken. Obama got through a campaign without being adequately vetted; it’s not a standard we should emulate for a lifetime Supreme Court appointment.

Election-law professor Rick Hansen (h/t Taegan Goddard) writes:

If you were trying to schedule Senate hearings on a Supreme Court nominee to garner the least attention possible, you could not have picked a day better than today. The sad death of Senator Byrd; the Supreme Court decides four major cases, including the gun case; Congress poised to pass a major financial reform bill, with now some uncertainty as to timing given the death of Sen. Byrd; the Afghanistan McChrystal fallout; continued concern over BP’s cleanup operations. It is no wonder that many Americans don’t know who Elena Kagan is.

Actually, they don’t know who she is because there is not much that is knowable. Most senators don’t have much more than her biography, her slender body of writings, and a pleasant office visit by which to assess her. Sen. Jeff Sesssions set forth the problem in his opening remarks:

Ms. Kagan certainly has numerous talents and many good qualities, but there are serious concerns about this nomination. Ms. Kagan has less real legal experience of any nominee in at least 50 years. And it’s not just that the nominee has not been a judge. She has barely practiced law and not with the intensity and duration from which I think real legal understanding occurs. Ms. Kagan has never tried a case before a jury. She argued her first appellate case just nine months ago. While academia certainly has value, there is no substitute, I think, for being in the harness of the law, handling real cases over a period of years.

We know less about this nominee than we did about every other justice at this stage in the confirmation process. Part of this problem may be solved by a spasm of candor from the nominee. That’s not likely, and even if she is more forthcoming than expected, we have no basis by which to assess whether she will be a competent jurist. Democrats who rubber-stamp her on the theory that the White House must know something they don’t are taking a risk — and neglecting their constitutional obligation. I suppose it’s old-fashioned to expect that senators read groundbreaking legislation before they vote and to demand answers from an underqualified, stealth nominee. (These are the same folks who wax lyrical about Sen. Robert Byrd’s defense of the world’s “greatest deliberative body.”)

Unfortunately, senators insist on blathering on, asking unintelligible questions that give nominees the chance to run out the clock and flatter their questioner by commending the blather. Here’s a suggestion for the senators: ask a questions that are fewer than 20 words, ask them again if she doesn’t answer, keep track of the list of unanswered questions, and demand that she provide real answers before a vote is taken. Obama got through a campaign without being adequately vetted; it’s not a standard we should emulate for a lifetime Supreme Court appointment.

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Eons Away from Peace in the Middle East

This report, from the BBC no less (the giveaway is that “terrorist” isn’t used), gives you an idea of how divorced from reality is the “peace process”:

Masked gunmen in the Gaza Strip have set fire to a United Nations-run summer camp for children. This follows a similar attack in May on another UN-run summer camp. Some militants view the UN as a symbol of the West and claim that the summer camps allow boys and girls to mix freely – something that the UN denies. The attackers tied up the guard at the camp in central Gaza before setting fire to chairs, tables, easels and other equipment. The UN says about 25 armed men attacked the beach camp in the middle of Sunday night. … Nobody was hurt, and nobody has claimed responsibility for the attack. But in a similar incident last month a previously unknown Islamist group said its had attacked a UN summer camp in Gaza city. The head in Gaza of the UN Relief and Works Agency (UNRWA) for Palestinian refugees condemned the attack as “cowardly and despicable.”

But Israel is the subject of the ire of the “international community” and is chastised for being too exacting in its list of blockaded goods. Well, when everything is a weapon — rope, matches, etc. — it gets hard to decide what should be excluded.

The most chilling part of the report is this: “Hamas also runs rival summer camps.” One can only imagine what their activities must be like and how many young minds are being corralled into the cult of death. Imagine, too, the mothers who choose to send their children to such places, and who pine for their flesh and blood to be martyred.

Meanwhile, there is this report:

The continued power struggle between Hamas and Fatah has left tens of thousands of Palestinians in the Gaza Strip in the dark following the closure of the area’s main power plant. The power plant, which supplies 25% of electricity to the Gaza Strip, was shut down on Friday night because of a dispute between the rival Palestinian parties over payment for fuel that is needed to keep it running. Hamas and Fatah traded allegations over the power outage, with each party blaming the other for the crisis.

Only by turning a blind eye to these and the hundreds of other indications that Israel’s foes remain dedicated to the Jewish state’s destruction does the Obama team imagine that George Mitchell is going to bring “peace” to Israel and the Palestinians. It is hard to make the case that “peace” in our time will come about by his shuffling between the two sides, one of which has not the authority or the will to make a deal and no means of ensuring that summer camps, schools, and hospitals do not remain targets of those who don’t share the vision of a two-state solution.

This report, from the BBC no less (the giveaway is that “terrorist” isn’t used), gives you an idea of how divorced from reality is the “peace process”:

Masked gunmen in the Gaza Strip have set fire to a United Nations-run summer camp for children. This follows a similar attack in May on another UN-run summer camp. Some militants view the UN as a symbol of the West and claim that the summer camps allow boys and girls to mix freely – something that the UN denies. The attackers tied up the guard at the camp in central Gaza before setting fire to chairs, tables, easels and other equipment. The UN says about 25 armed men attacked the beach camp in the middle of Sunday night. … Nobody was hurt, and nobody has claimed responsibility for the attack. But in a similar incident last month a previously unknown Islamist group said its had attacked a UN summer camp in Gaza city. The head in Gaza of the UN Relief and Works Agency (UNRWA) for Palestinian refugees condemned the attack as “cowardly and despicable.”

But Israel is the subject of the ire of the “international community” and is chastised for being too exacting in its list of blockaded goods. Well, when everything is a weapon — rope, matches, etc. — it gets hard to decide what should be excluded.

The most chilling part of the report is this: “Hamas also runs rival summer camps.” One can only imagine what their activities must be like and how many young minds are being corralled into the cult of death. Imagine, too, the mothers who choose to send their children to such places, and who pine for their flesh and blood to be martyred.

Meanwhile, there is this report:

The continued power struggle between Hamas and Fatah has left tens of thousands of Palestinians in the Gaza Strip in the dark following the closure of the area’s main power plant. The power plant, which supplies 25% of electricity to the Gaza Strip, was shut down on Friday night because of a dispute between the rival Palestinian parties over payment for fuel that is needed to keep it running. Hamas and Fatah traded allegations over the power outage, with each party blaming the other for the crisis.

Only by turning a blind eye to these and the hundreds of other indications that Israel’s foes remain dedicated to the Jewish state’s destruction does the Obama team imagine that George Mitchell is going to bring “peace” to Israel and the Palestinians. It is hard to make the case that “peace” in our time will come about by his shuffling between the two sides, one of which has not the authority or the will to make a deal and no means of ensuring that summer camps, schools, and hospitals do not remain targets of those who don’t share the vision of a two-state solution.

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Flotsam and Jetsam

Every Supreme Court nominee is an advocate of judicial restraint, but not all justices are. Elena Kagan: “[T]he Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one – properly deferential to the decisions of the American people and their elected representatives. … That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.” Like the choice to insist that military recruiters be given access to campuses?

Every Supreme Court confirmation hearing now seems like a charade. As Tom Goldstein noted: “There is nothing in her opening statement that would distinguish her from John Roberts or Sam Alito.” Except the fact that they really believed what they were saying.

By virtually every standard, Kagan is underqualified for the job: “Solicitor-General Elena Kagan practiced law at the Williams & Connolly firm here in the nation’s capitol for only two years, a much briefer stint than the 20.5 year average of other Supreme Court Justices who had no prior judicial tenure before joining the nation’s highest court.”

Not every case is as important as McDonald v. Chicago. Steven Calabresi: “The McDonald holding will lead to a slew of additional challenges against state and municipal laws around the country regulating or restricting the firearms rights of law-abiding citizens. Justice Alito’s opinion is also of tremendous importance because it is based on the premise that substantive due process rights must be deeply rooted in American history and tradition before the Supreme Court can protect them.”

Every new utterance by Peter Beinart is wackier than the last. “Even as Republicans claim political momentum, the country is in the midst of a major shift leftward when it comes to the role of government.” Yeah, right. Well, if every poll on the subject is wrong, I suppose this could be true.

Obama’s “reset” means giving in to every Russian demand without extracting anything in return. David Christy thinks we shouldn’t “feed the Russian bear” when it comes to entry into the WTO: “Everyone is focused on timing, but the issue is not whether or when Russia should join, but the terms. The fact of the matter is that Russia has yet to accept a set of commitments that justifies entry into the WTO. Terms that are too soft might have a negative impact on the WTO, Russia’s trading partners, and, in the long term, Russia itself.”

Every time someone calls Robert Byrd legendary, remember: “He participated in a filibuster of the 1964 Civil Rights Act and was the only member of the Senate to vote against the confirmation of both Thurgood Marshall and Clarence Thomas to the Supreme Court.”

Every Supreme Court nominee is an advocate of judicial restraint, but not all justices are. Elena Kagan: “[T]he Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one – properly deferential to the decisions of the American people and their elected representatives. … That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.” Like the choice to insist that military recruiters be given access to campuses?

Every Supreme Court confirmation hearing now seems like a charade. As Tom Goldstein noted: “There is nothing in her opening statement that would distinguish her from John Roberts or Sam Alito.” Except the fact that they really believed what they were saying.

By virtually every standard, Kagan is underqualified for the job: “Solicitor-General Elena Kagan practiced law at the Williams & Connolly firm here in the nation’s capitol for only two years, a much briefer stint than the 20.5 year average of other Supreme Court Justices who had no prior judicial tenure before joining the nation’s highest court.”

Not every case is as important as McDonald v. Chicago. Steven Calabresi: “The McDonald holding will lead to a slew of additional challenges against state and municipal laws around the country regulating or restricting the firearms rights of law-abiding citizens. Justice Alito’s opinion is also of tremendous importance because it is based on the premise that substantive due process rights must be deeply rooted in American history and tradition before the Supreme Court can protect them.”

Every new utterance by Peter Beinart is wackier than the last. “Even as Republicans claim political momentum, the country is in the midst of a major shift leftward when it comes to the role of government.” Yeah, right. Well, if every poll on the subject is wrong, I suppose this could be true.

Obama’s “reset” means giving in to every Russian demand without extracting anything in return. David Christy thinks we shouldn’t “feed the Russian bear” when it comes to entry into the WTO: “Everyone is focused on timing, but the issue is not whether or when Russia should join, but the terms. The fact of the matter is that Russia has yet to accept a set of commitments that justifies entry into the WTO. Terms that are too soft might have a negative impact on the WTO, Russia’s trading partners, and, in the long term, Russia itself.”

Every time someone calls Robert Byrd legendary, remember: “He participated in a filibuster of the 1964 Civil Rights Act and was the only member of the Senate to vote against the confirmation of both Thurgood Marshall and Clarence Thomas to the Supreme Court.”

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