Commentary Magazine


Topic: Elena Kagan

New Complaint: The GOP ‘Sanitized’ the Constitution

So the Constitution was read aloud on the House floor this morning, despite increasingly creative objections from liberals. And other than a few members of Congress stumbling over some of the passages, the act was a touching gesture that might be a nice tradition for the House to consider establishing on an annual basis.

Of course, the reading wasn’t without some initial drama. Right before it began, there was some squabbling on the floor over whether the superseded passages with references to the three-fifths compromise would be read:

Prior to the reading, which began at 11:05 a.m., Rep. Jay Inslee (D-Wash.) used a parliamentary inquiry to ask Rep. Bob Goodlatte (R-Va.) which version of the Constitution would be read. The original Constitution with amendments tacked on the end? Or the Constitution with the amendments incorporated into the main text?

Rep. Jesse Jackson Jr. (D-Ill.) explained:

“I want to be very clear in reading this sacred document,” said Jackson, who prefers the version with amendments at the end. “Given the struggle of African Americans and the struggle of women to create a more perfect document, we want to hear those elements of the Constitution that have been didacted. They are no less serious a part of our struggle and many of us don’t want that to be lost.”

The Republicans were clear that the superseded text would not be read, prompting an outcry from liberals who claimed that they were whitewashing the original document. At Plum Line, Adam Serwer argued that the GOP was “Huck Finning the Constitution” — a reference to the new edition of the classic book that censored out racial slurs:

Republicans, intending to make a big symbolic show of their reading of the Constitution, have now taken a similarly sanitized approach to our founding document. Yesterday they announced that they will be leaving out the superceded text in their reading of the Constitution on the House floor this morning, avoiding the awkwardness of having to read aloud the “three fifths compromise,” which counted slaves as only three-fifths of a person for the purposes of taxation and apportionment.

The reason to include the superceded text is to remind us that the Constitution, while a remarkable document, was not carved out of stone tablets by a finger of light at the summit of Mount Sinai. It was written by men, and despite its promise, it possessed flaws at the moment of its creation that still reverberate today. Republicans could use the history lesson — last year they attacked Supreme Court Justice Elena Kagan during her nomination process because one of her mentors, Justice Thurgood Marshall, had the audacity to suggest that the Constitution was flawed since it didn’t consider black people to be full human beings.

Serwer is seriously reaching here. The reason Congress read the Constitution wasn’t to perform an academic historical exercise. The left may not understand this, but the Constitution is actually still used on a daily basis to uphold our nation’s laws.

Moreover, I just don’t see the comparison. Huckleberry Finn is a classic piece of literature that can’t be edited with a vote. On the other hand, the Constitution is a governing document that has and can be changed. Instead of focusing on the ugly, superseded portions of the document, lawmakers would do better to concentrate on upholding the parts that are still binding today.

So the Constitution was read aloud on the House floor this morning, despite increasingly creative objections from liberals. And other than a few members of Congress stumbling over some of the passages, the act was a touching gesture that might be a nice tradition for the House to consider establishing on an annual basis.

Of course, the reading wasn’t without some initial drama. Right before it began, there was some squabbling on the floor over whether the superseded passages with references to the three-fifths compromise would be read:

Prior to the reading, which began at 11:05 a.m., Rep. Jay Inslee (D-Wash.) used a parliamentary inquiry to ask Rep. Bob Goodlatte (R-Va.) which version of the Constitution would be read. The original Constitution with amendments tacked on the end? Or the Constitution with the amendments incorporated into the main text?

Rep. Jesse Jackson Jr. (D-Ill.) explained:

“I want to be very clear in reading this sacred document,” said Jackson, who prefers the version with amendments at the end. “Given the struggle of African Americans and the struggle of women to create a more perfect document, we want to hear those elements of the Constitution that have been didacted. They are no less serious a part of our struggle and many of us don’t want that to be lost.”

The Republicans were clear that the superseded text would not be read, prompting an outcry from liberals who claimed that they were whitewashing the original document. At Plum Line, Adam Serwer argued that the GOP was “Huck Finning the Constitution” — a reference to the new edition of the classic book that censored out racial slurs:

Republicans, intending to make a big symbolic show of their reading of the Constitution, have now taken a similarly sanitized approach to our founding document. Yesterday they announced that they will be leaving out the superceded text in their reading of the Constitution on the House floor this morning, avoiding the awkwardness of having to read aloud the “three fifths compromise,” which counted slaves as only three-fifths of a person for the purposes of taxation and apportionment.

The reason to include the superceded text is to remind us that the Constitution, while a remarkable document, was not carved out of stone tablets by a finger of light at the summit of Mount Sinai. It was written by men, and despite its promise, it possessed flaws at the moment of its creation that still reverberate today. Republicans could use the history lesson — last year they attacked Supreme Court Justice Elena Kagan during her nomination process because one of her mentors, Justice Thurgood Marshall, had the audacity to suggest that the Constitution was flawed since it didn’t consider black people to be full human beings.

Serwer is seriously reaching here. The reason Congress read the Constitution wasn’t to perform an academic historical exercise. The left may not understand this, but the Constitution is actually still used on a daily basis to uphold our nation’s laws.

Moreover, I just don’t see the comparison. Huckleberry Finn is a classic piece of literature that can’t be edited with a vote. On the other hand, the Constitution is a governing document that has and can be changed. Instead of focusing on the ugly, superseded portions of the document, lawmakers would do better to concentrate on upholding the parts that are still binding today.

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Alan Wolfe’s Silly Essay

Sometimes, well-educated people can write the silliest essays. Take Boston College professor Alan Wolfe, who has written an article — “Why Conservatives Won’t Govern” — in the Winter 2011 issue of Democracy: A Journal of Ideas.

According to Wolfe:

There is much to be learned from the way Republicans behaved during the first two years of the Obama Administration. If that history is any indication, the problem will no longer be that conservatives cannot govern. We are instead in for an era in which conservatives will not govern. [emphasis in the original]

The problem with the GOP, you see, isn’t that it is cynical, because even a cynic cares. “What we witness instead is nihilism,” Wolfe writes, “and in the most literal sense of the term.”

Nihilism, we are told,

is as dangerous a political stance as one can find. Unlike polarization, it guarantees that words become divorced from any underlying reality they are meant to describe, that those watching the spectacle turn away in disgust, that tactical maneuvering replaces all discussion of substantive policy issues, and that political opponents are to be treated as enemies to be conquered. Lacking regenerative qualities of its own, nihilism can never produce new sources of political energy.

In case the point isn’t clear enough, Wolfe goes on to write:

[C]onservative nihilism poisons the soil that allows any set of ideas, liberal or conservative, to grow … a party that will not govern does not wish to replace strong government with weak and decentralized government in order to show how often the public sector fails. It instead much prefers to make it impossible for government to carry out its functions in the first place. If its political strategy is nihilistic, its ultimate outcome is anarchistic … when it comes to government, [conservatives] are as nihilistic as Abbie Hoffman. … No 1960s radical ever went as far as so many twenty-first century conservatives are going now.

All told, Wolfe used some version of the word “nihilism” more than 30 times in describing Republicans and conservatives.

The editor who allowed this essay to be published did Professor Wolfe no favors. His arguments are not only foolish; they are delusional. Read More

Sometimes, well-educated people can write the silliest essays. Take Boston College professor Alan Wolfe, who has written an article — “Why Conservatives Won’t Govern” — in the Winter 2011 issue of Democracy: A Journal of Ideas.

According to Wolfe:

There is much to be learned from the way Republicans behaved during the first two years of the Obama Administration. If that history is any indication, the problem will no longer be that conservatives cannot govern. We are instead in for an era in which conservatives will not govern. [emphasis in the original]

The problem with the GOP, you see, isn’t that it is cynical, because even a cynic cares. “What we witness instead is nihilism,” Wolfe writes, “and in the most literal sense of the term.”

Nihilism, we are told,

is as dangerous a political stance as one can find. Unlike polarization, it guarantees that words become divorced from any underlying reality they are meant to describe, that those watching the spectacle turn away in disgust, that tactical maneuvering replaces all discussion of substantive policy issues, and that political opponents are to be treated as enemies to be conquered. Lacking regenerative qualities of its own, nihilism can never produce new sources of political energy.

In case the point isn’t clear enough, Wolfe goes on to write:

[C]onservative nihilism poisons the soil that allows any set of ideas, liberal or conservative, to grow … a party that will not govern does not wish to replace strong government with weak and decentralized government in order to show how often the public sector fails. It instead much prefers to make it impossible for government to carry out its functions in the first place. If its political strategy is nihilistic, its ultimate outcome is anarchistic … when it comes to government, [conservatives] are as nihilistic as Abbie Hoffman. … No 1960s radical ever went as far as so many twenty-first century conservatives are going now.

All told, Wolfe used some version of the word “nihilism” more than 30 times in describing Republicans and conservatives.

The editor who allowed this essay to be published did Professor Wolfe no favors. His arguments are not only foolish; they are delusional.

According to Wolfe, “the shift from polarization to nihilism is well illustrated by the pre-election fate of Wisconsin Congressman Paul Ryan’s ‘A Roadmap for America’s Future.’” During the campaign, Wolfe writes, “conservatives shunned Ryan’s plan like a virus.”

“Will Ryan become a conservative hero in the new House? Don’t bet on it,” Wolfe writes. “Once your purpose is to say no to everything the other side proposes, you do not want to put yourself in the position of saying yes to anything else, lest you actually have to spend your energy defending a position.”

In fact, many conservatives not only don’t shun Ryan’s plan; they enthusiastically embrace it. Sarah Palin did so as recently as a week ago. And while it’s true that the GOP leadership in the House hasn’t fully embraced the Roadmap, it is open to key elements of it. Any hesitancy in fully blessing Ryan’s roadmap doesn’t have to do with nihilism; it has to do with fear that reforming entitlements will be politically catastrophic.

More important, Ryan, the incoming chairman of the House Budget Committee, is going to present the GOP’s budget — in effect, its governing blueprint — in the spring. His plan will be far-reaching, bold, intellectually coherent — and it will have the support of the Republican caucus. Ryan will, in fact, be among the most important Republicans in America next year.

On the matter of judges, Professor Wolfe is terribly upset by the fact that fewer than half of Obama’s nominations for judgeships have been approved. “There can be little doubt that conservatives will now feel emboldened to continue and even ratchet-up their policy of judicial refusal in the next two years,” Wolfe writes. “It is, after all, a near-perfect expression of their nihilism; the best way to stop judges from interpreting the law, as conservatives like to call decisions they happen to disfavor, is to have fewer judges.” He goes on to say:

All this suggests that Elena Kagan will be the last judge Obama gets to place on the high court. This is not because openings are unlikely to occur. It is instead because Republicans, confident that Democrats will never come close to the 60 votes necessary to stop them, will use their veto power to block any Supreme Court nominee they dislike, which amounts to anyone Obama selects. On the court, if not in Congress, conservatives believe in an active government; they need judges who will say no to every piece of legislation they want to block.

It’s probably worth pointing out that it was Democrats, not Republicans, who did the most to politicize the appointment of judges and Supreme Court nominations, with their ferocious opposition to Robert Bork and Clarence Thomas. No recent liberal nominee has been treated as disgracefully as were Bork and Thomas. It’s worth asking, too: was Senator Obama a nihilist for not only opposing the confirmation of Samuel Alito but also for supporting the filibuster of his nomination?

Beyond that, assume that Obama nominates centrist-to-conservative judges. Republicans would support them in the blink of an eye. The problem Obama would face would be with his liberal base, not with conservatives. This explodes the theory that Republicans are nihilists; if they were, they would oppose for the sake of opposition, as a means to achieving anarchy. But, of course, Republicans have no interest in such a thing.

And note well: the tax bill that was just agreed to was the product of a compromise between President Obama and the GOP leadership — precisely the kind of compromise that Wolfe says Republicans and conservatives oppose in principle and in every instance.

Professor Wolfe’s essay is instructive in this respect: it shows the kind of paranoia and diseased thinking that afflicts some liberals and progressives. He acts as if no conservative policy world exists and exerts any influence on lawmakers. This is flatly untrue. Professor Wolfe might, for starters, consider visiting the website of National Affairs in order to become acquainted with arguments and ideas he is now blind to.

Moreover, progressives like Wolfe seem to genuinely believe the cartoonish image they have created of Republicans and conservatives, portraying them as if they were characters out of Turgenev’s Fathers and Sons. They cannot seem to fathom that the differences between conservatives and liberals, between the incoming GOP Congress and Barack Obama, are rooted in different governing philosophies, not nihilism vs. non-nihilism. They do not even entertain the possibility that opposition to ObamaCare is based on the belief that a more sustainable, market-based, and patient-centered version of health reform is better for our nation. Conservatives may be wrong about this; but to hold this view does not mean they are pining for anarchy.

The Alan Wolfe approach, of course, makes governing in America much more difficult. If you view your opponents not simply as wrong but as a disciple of Nietzsche, eager to burn down the village, it changes almost everything about politics. It would be all to the good, I think, if people on both sides resisted the temptation — unless the evidence is overwhelming and to the contrary — to refer to one’s political opponents as Nazis, as terrorists, as nihilists, and so forth. This is almost always a sign of the weakness, not the strength, of one’s arguments.

In Fathers and Sons, the protagonist, Bazarov, says to the woman he loves, and hated himself for loving, “Breathe on the dying flame and let it go out. Enough!”

The same can be said about Professor Wolfe’s essay.

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Toomey Support for DADT Repeal Highlights a Conservative’s Independent Streak

The announcement that Pennsylvania Senator-elect Pat Toomey will support repeal of the Don’t Ask, Don’t Tell policy about gays in the military may signal the end of this pointless rule. Those who haven’t followed Toomey’s career may be surprised that a hard-core conservative Republican and devout pro-life Catholic like Toomey would support a gay-rights measure. But Toomey’s libertarian instincts and abhorrence of big government have led him to the correct conclusion that seeking to ban a portion of the population that might usefully serve their country is a mistake. Nor is this a new position for Toomey.

During his successful Senate campaign, Toomey made it clear that he wanted to end DADT. In fact, he mentioned it in an op-ed in the Pittsburgh Post-Gazette he wrote last summer in which he detailed why he would have voted against Elena Kagan’s nomination to the Supreme Court. In the piece, he criticized Kagan for banning military recruiters from Harvard Law School because of DADT. Toomey wrote:

I share the view that the “don’t ask, don’t tell,” policy regarding gay servicemen and women has outlived its usefulness and, subject to the military’s conclusion of the feasibility of removing it, I support its repeal. However, one’s disagreement with a federal law does not give one license to circumvent it.

While Toomey won’t be able to cast a vote on the repeal attempt during the lame-duck session of Congress, his willingness to do so after January may change the mathematics of this debate. Moreover, Toomey — whose reputation as a pro-life stalwart, Tea Party favorite, and libertarian hardliner on fiscal matters renders him largely impervious to attacks from the right — could help give cover to other wavering Republicans. Previously, the only Republicans to announce support for the end of DADT were the liberal Susan Collins and Olympia Snowe of Maine.

Toomey’s stand on gays in the military might put him in conflict with conservative culture-war advocates, who will lament his willingness to put this issue to rest. Indeed, this puts him at odds with Rick Santorum, the former Pennsylvania senator who has recently been beating the bushes in New Hampshire promoting a possible 2012 presidential candidacy (though not too many people are taking Santorum’s ego-trip of a campaign seriously). But the irony here is that six years ago, Santorum, the man who now proclaims himself as the true guardian of conservative values, did his best to torpedo Toomey’s primary challenge of liberal Arlen Specter. Though Santorum and President Bush urged Toomey to step aside, he wouldn’t compromise and stayed in the race, ultimately narrowly losing the primary to Specter. Six years later, Toomey, who stuck to his guns on his conservative principles, is now about to take the place of the turncoat Specter, who was beaten out for the Democratic nomination earlier this year.

Six years is a lifetime in politics, but Pennsylvania Democrats are already looking ahead to 2016, since they believe the election of a conservative like Toomey was a fluke that cannot be repeated. They may be right, but what we will see until then is a senator who denounces big government and actually means it. That may not earn Toomey many friends in a state that has long counted upon its representatives to fight for local special interests, something that Toomey is unlikely to do. But as we are seeing with the issue of gays in the military, Toomey’s principled independence is a factor that political observers ought not to take for granted.

The announcement that Pennsylvania Senator-elect Pat Toomey will support repeal of the Don’t Ask, Don’t Tell policy about gays in the military may signal the end of this pointless rule. Those who haven’t followed Toomey’s career may be surprised that a hard-core conservative Republican and devout pro-life Catholic like Toomey would support a gay-rights measure. But Toomey’s libertarian instincts and abhorrence of big government have led him to the correct conclusion that seeking to ban a portion of the population that might usefully serve their country is a mistake. Nor is this a new position for Toomey.

During his successful Senate campaign, Toomey made it clear that he wanted to end DADT. In fact, he mentioned it in an op-ed in the Pittsburgh Post-Gazette he wrote last summer in which he detailed why he would have voted against Elena Kagan’s nomination to the Supreme Court. In the piece, he criticized Kagan for banning military recruiters from Harvard Law School because of DADT. Toomey wrote:

I share the view that the “don’t ask, don’t tell,” policy regarding gay servicemen and women has outlived its usefulness and, subject to the military’s conclusion of the feasibility of removing it, I support its repeal. However, one’s disagreement with a federal law does not give one license to circumvent it.

While Toomey won’t be able to cast a vote on the repeal attempt during the lame-duck session of Congress, his willingness to do so after January may change the mathematics of this debate. Moreover, Toomey — whose reputation as a pro-life stalwart, Tea Party favorite, and libertarian hardliner on fiscal matters renders him largely impervious to attacks from the right — could help give cover to other wavering Republicans. Previously, the only Republicans to announce support for the end of DADT were the liberal Susan Collins and Olympia Snowe of Maine.

Toomey’s stand on gays in the military might put him in conflict with conservative culture-war advocates, who will lament his willingness to put this issue to rest. Indeed, this puts him at odds with Rick Santorum, the former Pennsylvania senator who has recently been beating the bushes in New Hampshire promoting a possible 2012 presidential candidacy (though not too many people are taking Santorum’s ego-trip of a campaign seriously). But the irony here is that six years ago, Santorum, the man who now proclaims himself as the true guardian of conservative values, did his best to torpedo Toomey’s primary challenge of liberal Arlen Specter. Though Santorum and President Bush urged Toomey to step aside, he wouldn’t compromise and stayed in the race, ultimately narrowly losing the primary to Specter. Six years later, Toomey, who stuck to his guns on his conservative principles, is now about to take the place of the turncoat Specter, who was beaten out for the Democratic nomination earlier this year.

Six years is a lifetime in politics, but Pennsylvania Democrats are already looking ahead to 2016, since they believe the election of a conservative like Toomey was a fluke that cannot be repeated. They may be right, but what we will see until then is a senator who denounces big government and actually means it. That may not earn Toomey many friends in a state that has long counted upon its representatives to fight for local special interests, something that Toomey is unlikely to do. But as we are seeing with the issue of gays in the military, Toomey’s principled independence is a factor that political observers ought not to take for granted.

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Hypocrisy Run Rampant

The deepwater-drilling ban caused great economic hardship to the Gulf states, which were already reeling from the BP oil spill. Now we know that the decision was based on falsified science:

The White House dropped its deep water drilling ban last month, ending months of government-imposed pain on a Gulf region hit by the BP oil spill. But only last week did the Department of Interior’s acting inspector general, Mary Kendall, issue her findings on the moratorium’s controversial beginnings. Lackluster though her investigation was, the report confirms that the moratorium never had any basis in science or safety. It was pure politics.

Between ClimateGate, the creative editing by none other than now-Justice Elena Kagan on the medical justification for partial-birth abortions, and DrillGate, the left’s respect for science leaves a lot to be desired. As with the moral preening and intellectual condescension that has characterized this administration, its rhetoric on science (“the days of science taking a backseat to ideology are over”) turns out to be rather empty.

Its not just science that’s taken a licking in the Obama administration. There is also “diplomacy” — which has proved to be decidedly un-smart in the Middle East. The Obami decried the lackluster performance of their predecessors, yet their own performance is, by the estimation of virtually all the region’s players and domestic observers on both sides of the aisle, as bad as any we have seen since the founding of the state of Israel.

Oh, and in the “restoring our values” and “moral high ground” department, how’s Eric Holder doing at the Justice Department? Turns out that the administration has not only failed to close Guantanamo (where terrorists’ lawyers would prefer to detain their clients than see them returned to Arab nations with decidedly nasty detention facilities) and bollixed up a trial of a mass-murdering terrorist, but in fact has duplicated Guantanamo in Bagram, where no habeas corpus rules apply. This is an improvement?

Then there’s the braggadocio about “transparency.” Well, we’ve had precious little of that — whether on terrorist recidivism, the New Black Panther Party scandal, or the Fort Hood terrorist attack.

So if you are keeping track, the Obama administration has politicized science, made hash out of Middle East diplomacy, allowed left-wing ideologues to run amok in the Justice Department, sullied our justice system with no appreciable benefit in the war against Islamic terrorists, and conducted itself with Nixonian-like secrecy. The liberal intelligentsia with very few exceptions has been mute about all this. Hypocrisy, they say, is the tribute vice pays to virtue. In that regard, no one can accuse the Obama team or its supporters of frugality.

The deepwater-drilling ban caused great economic hardship to the Gulf states, which were already reeling from the BP oil spill. Now we know that the decision was based on falsified science:

The White House dropped its deep water drilling ban last month, ending months of government-imposed pain on a Gulf region hit by the BP oil spill. But only last week did the Department of Interior’s acting inspector general, Mary Kendall, issue her findings on the moratorium’s controversial beginnings. Lackluster though her investigation was, the report confirms that the moratorium never had any basis in science or safety. It was pure politics.

Between ClimateGate, the creative editing by none other than now-Justice Elena Kagan on the medical justification for partial-birth abortions, and DrillGate, the left’s respect for science leaves a lot to be desired. As with the moral preening and intellectual condescension that has characterized this administration, its rhetoric on science (“the days of science taking a backseat to ideology are over”) turns out to be rather empty.

Its not just science that’s taken a licking in the Obama administration. There is also “diplomacy” — which has proved to be decidedly un-smart in the Middle East. The Obami decried the lackluster performance of their predecessors, yet their own performance is, by the estimation of virtually all the region’s players and domestic observers on both sides of the aisle, as bad as any we have seen since the founding of the state of Israel.

Oh, and in the “restoring our values” and “moral high ground” department, how’s Eric Holder doing at the Justice Department? Turns out that the administration has not only failed to close Guantanamo (where terrorists’ lawyers would prefer to detain their clients than see them returned to Arab nations with decidedly nasty detention facilities) and bollixed up a trial of a mass-murdering terrorist, but in fact has duplicated Guantanamo in Bagram, where no habeas corpus rules apply. This is an improvement?

Then there’s the braggadocio about “transparency.” Well, we’ve had precious little of that — whether on terrorist recidivism, the New Black Panther Party scandal, or the Fort Hood terrorist attack.

So if you are keeping track, the Obama administration has politicized science, made hash out of Middle East diplomacy, allowed left-wing ideologues to run amok in the Justice Department, sullied our justice system with no appreciable benefit in the war against Islamic terrorists, and conducted itself with Nixonian-like secrecy. The liberal intelligentsia with very few exceptions has been mute about all this. Hypocrisy, they say, is the tribute vice pays to virtue. In that regard, no one can accuse the Obama team or its supporters of frugality.

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Flotsam and Jetsam

Imagine if the Bush administration had pulled this. “An inspector general says the White House edited a report about the administration’s moratorium on offshore oil drilling to make it appear that scientists and experts supported the idea of a six-month ban on new drilling. The Interior Department’s inspector general says the changes resulted ‘in the implication that the moratorium recommendation had been peer reviewed.’ But it hadn’t been.” Reminds you of Elena Kagan’s stunt about the outside experts’ report on partial-birth abortion, doesn’t it?

Imagine if our president sounded like Canada’s prime minister on Israel. “We must be relentless in exposing this new anti-Semitism for what it is. Of course, like any country, Israel may be subjected to fair criticism. And like any free country, Israel subjects itself to such criticism — healthy, necessary, democratic debate. But when Israel, the only country in the world whose very existence is under attack — is consistently and conspicuously singled out for condemnation, I believe we are morally obligated to take a stand. Demonization, double standards, delegitimization, the three D’s, it is the responsibility of us all to stand up to them.” Read the whole thing.

Imagine if the media scrutinized Obama on Afghanistan the way it did his predecessor on Iraq. “A White House review of President Obama’s Afghanistan strategy next month will judge ‘how this current approach is working’ but will not suggest alternatives if aspects of the policy are found to be failing, a senior administration official said Tuesday.” Appalling.

Imagine if Chris Christie were given a chance to get the federal government’s fiscal house in order. Oh my! He keeps this up and there will be “Draft Christie!” movements in every state.

Imagine how much the debt commission could have saved if it had recommended shelving ObamaCare. “The Bowles-Simpson proposal would leave in place the entire trillion-dollar monstrosity. … The fundamental problem here is that it is not possible to build a bipartisan budget framework on a foundation that includes a partisan health-care plan with sweeping implications for future spending levels. To have a bipartisan budget requires a bipartisan health plan. And that means repealing Obamacare and starting over.”

Imagine if Obama had pulled the plug on this months ago. Eric Holder says he’s “close to a decision” on a civilian trial for KSM. With the new GOP Congress, I think there is no chance KSM is going to see the inside of an Article III courtroom, and the Obami know it. Get ready for an about-face on this one.

Imagine if Obama listened to sane advice on the Middle East. “Why does the president continue to harp on settlements in East Jerusalem, as opposed to expansion of West Bank settlements that would be dismantled under the terms of any peace agreement between the parties? Obama may feel that he has crossed a Rubicon and must push forward. Or he may feel that he must put Netanyahu in his place. … Whatever the reason, Obama’s behavior in Indonesia, and his constant harping on the construction issue, has complicated his avowed search for an agreement between Israelis and Palestinians. … The peace process is stalemated, and it is up to the president, who has, perhaps unwittingly, brought on this latest dead end on the long-standing saga of Israeli-Palestinian misery, to come up with a way that lets both sides move forward, even if it means that he personally has to take several steps back in order to do so.”

Imagine if the Bush administration had pulled this. “An inspector general says the White House edited a report about the administration’s moratorium on offshore oil drilling to make it appear that scientists and experts supported the idea of a six-month ban on new drilling. The Interior Department’s inspector general says the changes resulted ‘in the implication that the moratorium recommendation had been peer reviewed.’ But it hadn’t been.” Reminds you of Elena Kagan’s stunt about the outside experts’ report on partial-birth abortion, doesn’t it?

Imagine if our president sounded like Canada’s prime minister on Israel. “We must be relentless in exposing this new anti-Semitism for what it is. Of course, like any country, Israel may be subjected to fair criticism. And like any free country, Israel subjects itself to such criticism — healthy, necessary, democratic debate. But when Israel, the only country in the world whose very existence is under attack — is consistently and conspicuously singled out for condemnation, I believe we are morally obligated to take a stand. Demonization, double standards, delegitimization, the three D’s, it is the responsibility of us all to stand up to them.” Read the whole thing.

Imagine if the media scrutinized Obama on Afghanistan the way it did his predecessor on Iraq. “A White House review of President Obama’s Afghanistan strategy next month will judge ‘how this current approach is working’ but will not suggest alternatives if aspects of the policy are found to be failing, a senior administration official said Tuesday.” Appalling.

Imagine if Chris Christie were given a chance to get the federal government’s fiscal house in order. Oh my! He keeps this up and there will be “Draft Christie!” movements in every state.

Imagine how much the debt commission could have saved if it had recommended shelving ObamaCare. “The Bowles-Simpson proposal would leave in place the entire trillion-dollar monstrosity. … The fundamental problem here is that it is not possible to build a bipartisan budget framework on a foundation that includes a partisan health-care plan with sweeping implications for future spending levels. To have a bipartisan budget requires a bipartisan health plan. And that means repealing Obamacare and starting over.”

Imagine if Obama had pulled the plug on this months ago. Eric Holder says he’s “close to a decision” on a civilian trial for KSM. With the new GOP Congress, I think there is no chance KSM is going to see the inside of an Article III courtroom, and the Obami know it. Get ready for an about-face on this one.

Imagine if Obama listened to sane advice on the Middle East. “Why does the president continue to harp on settlements in East Jerusalem, as opposed to expansion of West Bank settlements that would be dismantled under the terms of any peace agreement between the parties? Obama may feel that he has crossed a Rubicon and must push forward. Or he may feel that he must put Netanyahu in his place. … Whatever the reason, Obama’s behavior in Indonesia, and his constant harping on the construction issue, has complicated his avowed search for an agreement between Israelis and Palestinians. … The peace process is stalemated, and it is up to the president, who has, perhaps unwittingly, brought on this latest dead end on the long-standing saga of Israeli-Palestinian misery, to come up with a way that lets both sides move forward, even if it means that he personally has to take several steps back in order to do so.”

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A Shot Across Their Bow

On Friday, Democrats (other than Dick Durbin or Chuck Schumer, who are vying to lead their party in the Senate) got some bad news that, for a change, was not economic: “The National Rifle Association declines to endorse Senator Harry Reid, citing his votes for Elena Kagan and Sonia Sotomayor, which is a blow, since the group backed him in the past.”

This is significant for several reasons. First, the NRA’s endorsement is critical in a large number of states. No less a political guru than Bill Clinton acknowledged that the NRA “made Gingrich the House speaker” in 1994 and  toppled Al Gore in  2000. Granted, ardor on the Second Amendment may have cooled as Democrats have sought to downplay the issue and since the Supreme Court affirmed it is both a personal right and binding on the states. However, the NRA continues to be a powerful interest group that can provide troops on the ground and critical advertising for its preferred candidates.

The announcement is also important because it signals that the group thinks Reid is a dead duck. Otherwise, why risk annoying the Senate Majority Leader? Its political calculation may influence donors and other special-interest groups to dump Reid and place their bets and money elsewhere.

And finally, this is a fitting and unmistakable warning about Supreme Court nominees. For years, Democrats and some Republicans felt their votes were “free” — they could, with impunity and without regard to their constituents’ views, vote to confirm nominees whose records reflected outright hostility to the Second Amendment. The NRA is making it clear that lawmakers are going to be held responsible for their votes. So Lindsey Graham, who voted yes on both the Kagan and Sotomayor nominations, is on notice: don’t expect the NRA’s support.

On Friday, Democrats (other than Dick Durbin or Chuck Schumer, who are vying to lead their party in the Senate) got some bad news that, for a change, was not economic: “The National Rifle Association declines to endorse Senator Harry Reid, citing his votes for Elena Kagan and Sonia Sotomayor, which is a blow, since the group backed him in the past.”

This is significant for several reasons. First, the NRA’s endorsement is critical in a large number of states. No less a political guru than Bill Clinton acknowledged that the NRA “made Gingrich the House speaker” in 1994 and  toppled Al Gore in  2000. Granted, ardor on the Second Amendment may have cooled as Democrats have sought to downplay the issue and since the Supreme Court affirmed it is both a personal right and binding on the states. However, the NRA continues to be a powerful interest group that can provide troops on the ground and critical advertising for its preferred candidates.

The announcement is also important because it signals that the group thinks Reid is a dead duck. Otherwise, why risk annoying the Senate Majority Leader? Its political calculation may influence donors and other special-interest groups to dump Reid and place their bets and money elsewhere.

And finally, this is a fitting and unmistakable warning about Supreme Court nominees. For years, Democrats and some Republicans felt their votes were “free” — they could, with impunity and without regard to their constituents’ views, vote to confirm nominees whose records reflected outright hostility to the Second Amendment. The NRA is making it clear that lawmakers are going to be held responsible for their votes. So Lindsey Graham, who voted yes on both the Kagan and Sotomayor nominations, is on notice: don’t expect the NRA’s support.

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Flotsam and Jetsam

It’s not like the Constitution says “informed advice and consent.” The Senate Judiciary Committee voted to confirm Elena Kagan, even though many (Lindsey Graham for one) complained they didn’t know much about her.

It’s not like Ohio is an important bellwether state, or anything. “The latest Rasmussen Reports telephone survey of Likely Voters in Ohio finds Republican candidate Rob Portman with 45% of the vote while Democrat Lee Fisher earns 39% support this month. Five percent (5%) prefer some other candidate in the race, and 11% more are undecided.”

It’s not like the administration listens to Israelis about Israel or businessmen about business, but still, even they should find this (from Jackson Diehl) compelling: “Those who argue that Western democracies should lift sanctions on Cuba often claim that even the island’s dissidents favor the move. So it was interesting to see the statement issued Monday by ten of the 11 political prisoners who were deported to Spain by the Castro dictatorship last week. Noting the ‘manifest willingness of some European countries’ to liberalize E.U. strictures on relations with Cuba, the dissidents said they opposed ‘an approval of this measure,’ because ‘the Cuban government has not taken steps that evidence a clear decision to advance toward the democratization of the country.'”

It’s not like a Democratic polling outfit wants to pour gasoline on the fire: Public Policy Polling’s Tom Jensen writes: “With Barack Obama’s polling numbers hitting the worst levels of his Presidency recently there have been a lot of calls, mostly from conservatives, for us to poll Hillary against Obama for the 2012 nomination. We’re not going to do that but even if we did I wouldn’t expect it to be very interesting.”

It’s not like we’re really going to talk to North Korea. State Department spokesman P.J. Crowley explained (well, not explained, but said): “We’re always prepared to talk. But there are some definite steps that we have to see from North Korea before that becomes possible. So I think we agree fully with the South Korean foreign minister that, you know, there are conditions and obligations that North Korea has to demonstrate a willingness to tackle before we’ll consider having a follow-on conversation.”

It’s not like Obama has been great for Democrats in Virginia: “A new survey of Virginia’s 5th district race paints a tough reelection picture for freshman Rep. Tom Perriello (D). Sen. Robert Hurt (R) is leading the incumbent, 58 percent to 35 percent, according to the survey, conducted by SurveyUSA for WDBJ News in Roanoke.”

It’s not like this is a bad thing for Democrats — or for the country: “Senate climate legislation appeared to be on life support Tuesday after two key advocates said they were skeptical of reaching a quick deal on a controversial bill that includes a cap on greenhouse gases from power plants.”

It’s not like the Constitution says “informed advice and consent.” The Senate Judiciary Committee voted to confirm Elena Kagan, even though many (Lindsey Graham for one) complained they didn’t know much about her.

It’s not like Ohio is an important bellwether state, or anything. “The latest Rasmussen Reports telephone survey of Likely Voters in Ohio finds Republican candidate Rob Portman with 45% of the vote while Democrat Lee Fisher earns 39% support this month. Five percent (5%) prefer some other candidate in the race, and 11% more are undecided.”

It’s not like the administration listens to Israelis about Israel or businessmen about business, but still, even they should find this (from Jackson Diehl) compelling: “Those who argue that Western democracies should lift sanctions on Cuba often claim that even the island’s dissidents favor the move. So it was interesting to see the statement issued Monday by ten of the 11 political prisoners who were deported to Spain by the Castro dictatorship last week. Noting the ‘manifest willingness of some European countries’ to liberalize E.U. strictures on relations with Cuba, the dissidents said they opposed ‘an approval of this measure,’ because ‘the Cuban government has not taken steps that evidence a clear decision to advance toward the democratization of the country.'”

It’s not like a Democratic polling outfit wants to pour gasoline on the fire: Public Policy Polling’s Tom Jensen writes: “With Barack Obama’s polling numbers hitting the worst levels of his Presidency recently there have been a lot of calls, mostly from conservatives, for us to poll Hillary against Obama for the 2012 nomination. We’re not going to do that but even if we did I wouldn’t expect it to be very interesting.”

It’s not like we’re really going to talk to North Korea. State Department spokesman P.J. Crowley explained (well, not explained, but said): “We’re always prepared to talk. But there are some definite steps that we have to see from North Korea before that becomes possible. So I think we agree fully with the South Korean foreign minister that, you know, there are conditions and obligations that North Korea has to demonstrate a willingness to tackle before we’ll consider having a follow-on conversation.”

It’s not like Obama has been great for Democrats in Virginia: “A new survey of Virginia’s 5th district race paints a tough reelection picture for freshman Rep. Tom Perriello (D). Sen. Robert Hurt (R) is leading the incumbent, 58 percent to 35 percent, according to the survey, conducted by SurveyUSA for WDBJ News in Roanoke.”

It’s not like this is a bad thing for Democrats — or for the country: “Senate climate legislation appeared to be on life support Tuesday after two key advocates said they were skeptical of reaching a quick deal on a controversial bill that includes a cap on greenhouse gases from power plants.”

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Flotsam and Jetsam

Did Obama mention this in Cairo? “A group of young Saudi men have launched a campaign to convince Saudi men of the unappreciated virtues of polygamy.  It is a response to young Saudi women uninterested in joining a polygamous marriage, older Saudi women divorcees and Saudi men unable or unwilling to support more than one woman. The campaign seeks to counter what Saudi traditionalists see as an increasingly negative stigma attached to polygamy.”

Did Democratic lawmakers actually buy the notion that the American people would learn to love ObamaCare? “Almost four months after the passage of major health care legislation, the law remains unpopular with the public. Nearly half of Americans (47%) disapprove of the health care law while just 35% approve of the measure. An overwhelming proportion of opponents of health care legislation — 37% of the public overall — favor repealing the legislation as soon as possible. Just 7% say they want to let the law stand and see how it works. Public opinion toward health care legislation remained very stable in the months leading up to the bill’s passage, and that has continued to be the case.” That miscalculation will likely end more than a few political careers.

Did you expect anything else? “South Carolina Sen. Lindsey Graham is sending strong signals that he may again buck his party and become the lone GOP senator on the Judiciary Committee to vote for Elena Kagan to be confirmed to the Supreme Court.”

Did Gen. Stanley McChrystal do us all a big favor? Gallup reports: “[Gen. David Petraeus] takes his new job as commander of U.S. and allied forces in Afghanistan with a remarkably positive image among Americans who know who he is. At the same time, Petraeus now faces the additional challenge of commanding a mission that the majority of Americans say is going badly. Americans’ views of the situation in Iraq improved during and after Petraeus’ tenure as commander in that country. The degree to which Petraeus will be able to shift Americans’ perceptions of the war in Afghanistan in similar fashion will have important consequences in many arenas, including the politics of the war in the U.S.”

Did you think in November 2008 that Barbara Boxer would now be in a toss-up race?

Did he check with Robert Gibbs? “House Majority Steny Hoyer (D-Md.) became the latest Democratic leader to voice confidence that the party will hold its majority in the House this fall.”

Did Robert Reich ever sound so smart? “Democrats have been almost as reluctant to attack inequality or even to recognize it as the central economic and social problem of our age. … As money has risen to the top, so has political power. Politicians are more dependent than ever on big money for their campaigns. … Today’s cash comes in the form of ever increasing campaign donations from corporate executives and Wall Street, their ever larger platoons of lobbyists and their hordes of PR flacks.” Hence, the “major fault line in American politics is no longer between Democrats and Republicans, liberals and conservatives, but between the ‘establishment’ and an increasingly mad-as-hell populace determined to ‘take back America’ from it.”

Did Obama mention this in Cairo? “A group of young Saudi men have launched a campaign to convince Saudi men of the unappreciated virtues of polygamy.  It is a response to young Saudi women uninterested in joining a polygamous marriage, older Saudi women divorcees and Saudi men unable or unwilling to support more than one woman. The campaign seeks to counter what Saudi traditionalists see as an increasingly negative stigma attached to polygamy.”

Did Democratic lawmakers actually buy the notion that the American people would learn to love ObamaCare? “Almost four months after the passage of major health care legislation, the law remains unpopular with the public. Nearly half of Americans (47%) disapprove of the health care law while just 35% approve of the measure. An overwhelming proportion of opponents of health care legislation — 37% of the public overall — favor repealing the legislation as soon as possible. Just 7% say they want to let the law stand and see how it works. Public opinion toward health care legislation remained very stable in the months leading up to the bill’s passage, and that has continued to be the case.” That miscalculation will likely end more than a few political careers.

Did you expect anything else? “South Carolina Sen. Lindsey Graham is sending strong signals that he may again buck his party and become the lone GOP senator on the Judiciary Committee to vote for Elena Kagan to be confirmed to the Supreme Court.”

Did Gen. Stanley McChrystal do us all a big favor? Gallup reports: “[Gen. David Petraeus] takes his new job as commander of U.S. and allied forces in Afghanistan with a remarkably positive image among Americans who know who he is. At the same time, Petraeus now faces the additional challenge of commanding a mission that the majority of Americans say is going badly. Americans’ views of the situation in Iraq improved during and after Petraeus’ tenure as commander in that country. The degree to which Petraeus will be able to shift Americans’ perceptions of the war in Afghanistan in similar fashion will have important consequences in many arenas, including the politics of the war in the U.S.”

Did you think in November 2008 that Barbara Boxer would now be in a toss-up race?

Did he check with Robert Gibbs? “House Majority Steny Hoyer (D-Md.) became the latest Democratic leader to voice confidence that the party will hold its majority in the House this fall.”

Did Robert Reich ever sound so smart? “Democrats have been almost as reluctant to attack inequality or even to recognize it as the central economic and social problem of our age. … As money has risen to the top, so has political power. Politicians are more dependent than ever on big money for their campaigns. … Today’s cash comes in the form of ever increasing campaign donations from corporate executives and Wall Street, their ever larger platoons of lobbyists and their hordes of PR flacks.” Hence, the “major fault line in American politics is no longer between Democrats and Republicans, liberals and conservatives, but between the ‘establishment’ and an increasingly mad-as-hell populace determined to ‘take back America’ from it.”

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Flotsam and Jetsam

Indiana tilts Red: “Indiana still has the look of a likely Republican Senate pickup, with former Senator Dan Coats remaining comfortably ahead of his Democratic opponent Brad Ellsworth. The latest Rasmussen Reports telephone survey of Likely Voters in the state finds Coats with 51% support, while Ellsworth earns 30% of the vote, his poorest showing to date.”

Media moguls are blue about the economy: “Lingering anxiety over the state of the economy colored the proceedings at the annual Sun Valley media and tech mogul gathering, which wrapped during the weekend. On the sidelines of the Allen & Co. camp, execs predicted a long and slow U.S. recovery, which could also affect the advertising market. A few expressed fears of a double-dip recession.” All that money donated to the Obama campaign was the worst investment they ever made.

Orin Hatch explains why Elena Kagan shouldn’t don the black robes: “Over the Supreme Court’s long history, justices who were nominated without past judicial experience have had an average of 21 years of legal practice. Ms. Kagan has two. Her experience is instead academic and political. … I asked for her own views, but she instead told me what Congress said, what she argued before the Court, and what the Court held. … She would not even admit that she had in fact written the 1996 memo about partial-birth abortion that not only bore her name but included her handwritten notes. After three attempts, all she would say is that it was in her handwriting; I suppose that left open the possibility that it had been forged.” And then there’s her judicial philosophy, such as it is.

Sen. Brown caves: “U.S. Sen. Scott Brown (R., Mass.) said in a written statement Monday he plans to support the financial-overhaul bill, taking the White House and Democrats to the verge of the support needed to pass the bill.”

Marco Rubio hauls in the greenbacks: “Marco Rubio raised more than $4.5 million in the second quarter, his campaign said, beating rival Charlie Crist’s previous record. Crist raised $4.3 million in his first fundraising quarter of the race, back when he was a Republican, a national record for the cycle.”

A golden opportunity for the GOP: “Republicans are set up to gain a large number of governorships nationwide. At a minimum, the GOP could gain eight, giving the party 32, but larger gains are very possible.”

A silver lining for Obama, says Larry Sabato: “A GOP House would be a godsend in one way: it would give Obama someone to blame for everything, and presidents almost always look better by comparison to Congress. In that sense, it would help his reelection bid.” And a bonanza for the American people: “[I]t would also signal the end of an ambitious Obama legislative program. With Democrats now guaranteed to lose lots of Senate and House seats — even if they maintain narrow control — Obama’s salad days are over for this term.”

Greg Sargent of the Plum Line (yeah, plum is a color) argues that the Tea Party movement is “being widely doted upon as a genuine political movement even though it’s built largely on pure fantasy.” Well, this is a dreamy year for conservatives.

Indiana tilts Red: “Indiana still has the look of a likely Republican Senate pickup, with former Senator Dan Coats remaining comfortably ahead of his Democratic opponent Brad Ellsworth. The latest Rasmussen Reports telephone survey of Likely Voters in the state finds Coats with 51% support, while Ellsworth earns 30% of the vote, his poorest showing to date.”

Media moguls are blue about the economy: “Lingering anxiety over the state of the economy colored the proceedings at the annual Sun Valley media and tech mogul gathering, which wrapped during the weekend. On the sidelines of the Allen & Co. camp, execs predicted a long and slow U.S. recovery, which could also affect the advertising market. A few expressed fears of a double-dip recession.” All that money donated to the Obama campaign was the worst investment they ever made.

Orin Hatch explains why Elena Kagan shouldn’t don the black robes: “Over the Supreme Court’s long history, justices who were nominated without past judicial experience have had an average of 21 years of legal practice. Ms. Kagan has two. Her experience is instead academic and political. … I asked for her own views, but she instead told me what Congress said, what she argued before the Court, and what the Court held. … She would not even admit that she had in fact written the 1996 memo about partial-birth abortion that not only bore her name but included her handwritten notes. After three attempts, all she would say is that it was in her handwriting; I suppose that left open the possibility that it had been forged.” And then there’s her judicial philosophy, such as it is.

Sen. Brown caves: “U.S. Sen. Scott Brown (R., Mass.) said in a written statement Monday he plans to support the financial-overhaul bill, taking the White House and Democrats to the verge of the support needed to pass the bill.”

Marco Rubio hauls in the greenbacks: “Marco Rubio raised more than $4.5 million in the second quarter, his campaign said, beating rival Charlie Crist’s previous record. Crist raised $4.3 million in his first fundraising quarter of the race, back when he was a Republican, a national record for the cycle.”

A golden opportunity for the GOP: “Republicans are set up to gain a large number of governorships nationwide. At a minimum, the GOP could gain eight, giving the party 32, but larger gains are very possible.”

A silver lining for Obama, says Larry Sabato: “A GOP House would be a godsend in one way: it would give Obama someone to blame for everything, and presidents almost always look better by comparison to Congress. In that sense, it would help his reelection bid.” And a bonanza for the American people: “[I]t would also signal the end of an ambitious Obama legislative program. With Democrats now guaranteed to lose lots of Senate and House seats — even if they maintain narrow control — Obama’s salad days are over for this term.”

Greg Sargent of the Plum Line (yeah, plum is a color) argues that the Tea Party movement is “being widely doted upon as a genuine political movement even though it’s built largely on pure fantasy.” Well, this is a dreamy year for conservatives.

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Flotsam and Jetsam

The best argument against Elena Kagan: “Ms. Kagan took it upon herself to draft language for ACOG [American College of Obstetricians and Gynecologists] to insert into its findings, and then she had the gall to present the amended statement to the president without acknowledging that it had been altered, for political reasons, at her direction. Ms. Kagan drafted language stating that partial-birth abortion ‘may be the best or most appropriate procedure in a particular circumstance.’ This later became the linchpin of lower court fact-finding and the Supreme Court’s decision (largely reversed a decade later) that a ban on partial-birth abortions was unconstitutional. Without the language, those particularly inhumane abortions would have been banned a decade earlier.”

The best indication Obama has taken his party too far left: “By an average 10 percentage-point margin since March, 45% to 35%, independent registered voters have consistently preferred the Republican to the Democrat when asked which congressional candidate they would vote for in their district. Independents’ preference for Republicans has been generally consistent over this time, with the gap in favor of Republicans increasing slightly since March, from 8 to 12 points.”

Not the best timing for Charlie Crist: “The arrest of former Florida GOP Chairman Jim Greer, and the lurid allegations of theft and sexual harassment, have riveted Florida’s political class. Now the trial has been set for October 18, date that seems to guarantee that they’ll be central to the election, bad news for Establishment Republicans in general and most of all for Charlie Crist, Greer’s patron”

The best the Democrats can do: “Democratic leaders are likely to punt the task of renewing Bush-era tax cuts until after the election.Voters in November’s midterms will thus be left without a clear idea of their future tax rates when they go to the polls.” It seems that majority status is too vexing a burden for them.

It is best to assume that Obama is not serious about immigration reform. The ABC News headline: “President Obama Pushes Immigration Reform — But Offers No Deadlines, No Specifics.”

Not the best year for Democrats if a Republican is leading in the Oregon gubernatorial race.

The best strategy for the Palestinians is to let Obama beat up on Israel: “Palestinian President Mahmoud Abbas said Thursday he would not start direct peace talks with Prime Minister Benjamin Netanyahu, unless progress was made in U.S.-mediated contacts on the issues of borders and security.” That, in a nutshell, is what is wrong with “proximity” talks.

The best argument against Elena Kagan: “Ms. Kagan took it upon herself to draft language for ACOG [American College of Obstetricians and Gynecologists] to insert into its findings, and then she had the gall to present the amended statement to the president without acknowledging that it had been altered, for political reasons, at her direction. Ms. Kagan drafted language stating that partial-birth abortion ‘may be the best or most appropriate procedure in a particular circumstance.’ This later became the linchpin of lower court fact-finding and the Supreme Court’s decision (largely reversed a decade later) that a ban on partial-birth abortions was unconstitutional. Without the language, those particularly inhumane abortions would have been banned a decade earlier.”

The best indication Obama has taken his party too far left: “By an average 10 percentage-point margin since March, 45% to 35%, independent registered voters have consistently preferred the Republican to the Democrat when asked which congressional candidate they would vote for in their district. Independents’ preference for Republicans has been generally consistent over this time, with the gap in favor of Republicans increasing slightly since March, from 8 to 12 points.”

Not the best timing for Charlie Crist: “The arrest of former Florida GOP Chairman Jim Greer, and the lurid allegations of theft and sexual harassment, have riveted Florida’s political class. Now the trial has been set for October 18, date that seems to guarantee that they’ll be central to the election, bad news for Establishment Republicans in general and most of all for Charlie Crist, Greer’s patron”

The best the Democrats can do: “Democratic leaders are likely to punt the task of renewing Bush-era tax cuts until after the election.Voters in November’s midterms will thus be left without a clear idea of their future tax rates when they go to the polls.” It seems that majority status is too vexing a burden for them.

It is best to assume that Obama is not serious about immigration reform. The ABC News headline: “President Obama Pushes Immigration Reform — But Offers No Deadlines, No Specifics.”

Not the best year for Democrats if a Republican is leading in the Oregon gubernatorial race.

The best strategy for the Palestinians is to let Obama beat up on Israel: “Palestinian President Mahmoud Abbas said Thursday he would not start direct peace talks with Prime Minister Benjamin Netanyahu, unless progress was made in U.S.-mediated contacts on the issues of borders and security.” That, in a nutshell, is what is wrong with “proximity” talks.

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Brilliant No More

How many times has a pundit or Democrat gushed over Obama’s “brilliant” mind? As conservatives pointed out to the swooners on the left, there was very little evidence of it — no inventive Third Wave philosophy of governance in his pre-presidential career, no significant legislative or intellectual achievement — other than writing a self-promoting and somewhat fictional account of himself — and actually very poor people skills (Maureen Dowd has only now figured out that he is thin-skinned and emotionally robotic). But it was heresy to suggest that he was a conventional liberal thinker, less interesting than Bill Clinton and less rigorous than Ronald Reagan.

Now that his presidency is in dire straits, perhaps the mainstream media are more receptive to that perspective. As Noemie Emery writes, to the extent that he was/is “brilliant,” it’s in the mundane task of running meetings:

He does seem a genius at chairing a forum, as at the “nuclear summit” in April, where the Washington Post claimed that he shone as a teacher, “calling on leaders to speak, embellish, oppose, and offer alternatives,” coaxing consensus and forging agreements among 45 countries at hand. The problem was that the value of these things was limited, as the attending countries weren’t menacing anyone, while Iran and Korea, who were not in attendance, went on happily building their bombs. He isn’t a sphinx, he’s a seminar leader who’s out of his element. And more and more out of his depth.

And honestly, he’s not that great at running meetings. His Afghanistan-war seminars dragged on. His health-care summit bombed when Rep. Paul Ryan and others stymied him with facts and figures.

Now that Obama’s policies and political standing are faltering, the media mavens are puzzled, as Emery notes. How can it be that he’s failing when he’s so smart? It never dawns on them that they confused slickness with smarts and urbanity with insight.

Whether it is Obama or Elena Kagan, it’s rather easy to impress the chattering class — an Ivy League degree, poise before the cameras, verbal acuity, and disdain for conservative ideas usually do it. It matters not what these figures have produced (legal opinions, legislation, etc.) but with whom they circulate and where they’ve studied. To a great degree, social elitism has replaced meritocracy as the left’s yardstick.

Unfortunately for Obama, he will be judged by what he does, not how he looks doing it. And frankly, his polish and charisma (conservatives never saw the latter, but others did) are crumbling under the pressure to finally produce something (jobs, a responsible budget, a plan for disarming Iran). There is a reason, as Emery points out, that no president has been “a blogger, a pundit, an editor of the New Yorker, or a writer for Vanity Fair.” It turns out that the rationale for the media’s lovefest — he’s just like me, but better! — was not relevant to the presidency.

How many times has a pundit or Democrat gushed over Obama’s “brilliant” mind? As conservatives pointed out to the swooners on the left, there was very little evidence of it — no inventive Third Wave philosophy of governance in his pre-presidential career, no significant legislative or intellectual achievement — other than writing a self-promoting and somewhat fictional account of himself — and actually very poor people skills (Maureen Dowd has only now figured out that he is thin-skinned and emotionally robotic). But it was heresy to suggest that he was a conventional liberal thinker, less interesting than Bill Clinton and less rigorous than Ronald Reagan.

Now that his presidency is in dire straits, perhaps the mainstream media are more receptive to that perspective. As Noemie Emery writes, to the extent that he was/is “brilliant,” it’s in the mundane task of running meetings:

He does seem a genius at chairing a forum, as at the “nuclear summit” in April, where the Washington Post claimed that he shone as a teacher, “calling on leaders to speak, embellish, oppose, and offer alternatives,” coaxing consensus and forging agreements among 45 countries at hand. The problem was that the value of these things was limited, as the attending countries weren’t menacing anyone, while Iran and Korea, who were not in attendance, went on happily building their bombs. He isn’t a sphinx, he’s a seminar leader who’s out of his element. And more and more out of his depth.

And honestly, he’s not that great at running meetings. His Afghanistan-war seminars dragged on. His health-care summit bombed when Rep. Paul Ryan and others stymied him with facts and figures.

Now that Obama’s policies and political standing are faltering, the media mavens are puzzled, as Emery notes. How can it be that he’s failing when he’s so smart? It never dawns on them that they confused slickness with smarts and urbanity with insight.

Whether it is Obama or Elena Kagan, it’s rather easy to impress the chattering class — an Ivy League degree, poise before the cameras, verbal acuity, and disdain for conservative ideas usually do it. It matters not what these figures have produced (legal opinions, legislation, etc.) but with whom they circulate and where they’ve studied. To a great degree, social elitism has replaced meritocracy as the left’s yardstick.

Unfortunately for Obama, he will be judged by what he does, not how he looks doing it. And frankly, his polish and charisma (conservatives never saw the latter, but others did) are crumbling under the pressure to finally produce something (jobs, a responsible budget, a plan for disarming Iran). There is a reason, as Emery points out, that no president has been “a blogger, a pundit, an editor of the New Yorker, or a writer for Vanity Fair.” It turns out that the rationale for the media’s lovefest — he’s just like me, but better! — was not relevant to the presidency.

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RE: Does Obama Know that Elena Kagan Is Pro-Israel?

Noah, she’s not remotely qualified to be a Supreme Court justice.  She played fast and loose with the partial-birth-abortion memo, and she hasn’t come clean on barring military recruiters from Harvard. I do, however, give her points for this:

Sen. Graham: Where were you on Christmas?

Elena Kagan: Like most Jews, I was probably in a Chinese restaurant.

That in a nutshell is how Kagan got to where she is — she’s a nice, funny lady with great people skills. But that isn’t — well, it shouldn’t be — the standard for a lifetime appointment.

Noah, she’s not remotely qualified to be a Supreme Court justice.  She played fast and loose with the partial-birth-abortion memo, and she hasn’t come clean on barring military recruiters from Harvard. I do, however, give her points for this:

Sen. Graham: Where were you on Christmas?

Elena Kagan: Like most Jews, I was probably in a Chinese restaurant.

That in a nutshell is how Kagan got to where she is — she’s a nice, funny lady with great people skills. But that isn’t — well, it shouldn’t be — the standard for a lifetime appointment.

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Flotsam and Jetsam

No joke: Mother Jones has an excellent expose on the al-Qaeda lawyers’ antics in showing terrorists photos of CIA officials.

No news network except Fox has picked up on the New Black Panther Party scandal.

No meltdown (yet): “The U.S. Senate race in Kentucky is little changed from earlier this month, with Republican Rand Paul continuing to hold a modest lead over Democrat Jack Conway. The latest Rasmussen Reports statewide telephone survey of Likely Voters shows Paul picking up 49% support to Conway’s 42%.”

No good news for the Democrats. Stuart Rothenberg: “The news on joblessness and the U.S. economy, combined with growing concerns over the federal deficit, Europe’s financial health (particularly growing debt), the lack of progress of the war in Afghanistan and the damage resulting from the BP oil gusher in the Gulf of Mexico, are burying the president and his party in an avalanche of public dissatisfaction.”

No answers (from Elena Kagan): “Republicans and Democrats alike expressed frustration that she wasn’t willing to answer more questions despite having once written a book review saying Supreme Court nominees needed to do just that.”

No “shift” or “rift” between Israel and the U.S., says Yoram Ettinger. It’s worse: “Obama is an ideologue, determined to change the US and the world, irrespective of his declining fortunes internally and externally.” The result is an “unbridgeable gap” between the two countries.

No better distillation of Obama’s flawed Middle East policy than this from Elliott Abrams: “The Obama Administration appears to have three basic premises about the Middle East. The first is that the key issue in the entire Middle East is the Israeli-Palestinian conflict. The second is that it is a territorial conflict that can be resolved in essence by Israeli concessions. The third is that the central function of the United States is to serve as the PLO’s lawyer to broker those concessions so that an agreement can be signed.”

No cloture vote. With senators’ newfound concern for fiscal responsibility (it’s an election year), Harry Reid can’t round up enough votes to pass unemployment benefits. “Reid intends to call a vote Thursday evening on the smaller benefits bill — now paired with a homebuyer’s credit provision that may help garner more support. But the majority leader conceded he might not be able to clear the bill before the July recess. A more comprehensive tax extenders and unemployment benefits bill failed to pass the procedural block on three consecutive tries.”

No timeline on immigration reform: “President Barack Obama will talk about the urgency of the need for immigration reform in a major speech on Thursday, but will not give a timeline for action.” (It would be nice if he felt the same about a troop pullout from Afghanistan.) Makes you almost think he’s not serious about doing something, only making a campaign issue out of it.

No joke: Mother Jones has an excellent expose on the al-Qaeda lawyers’ antics in showing terrorists photos of CIA officials.

No news network except Fox has picked up on the New Black Panther Party scandal.

No meltdown (yet): “The U.S. Senate race in Kentucky is little changed from earlier this month, with Republican Rand Paul continuing to hold a modest lead over Democrat Jack Conway. The latest Rasmussen Reports statewide telephone survey of Likely Voters shows Paul picking up 49% support to Conway’s 42%.”

No good news for the Democrats. Stuart Rothenberg: “The news on joblessness and the U.S. economy, combined with growing concerns over the federal deficit, Europe’s financial health (particularly growing debt), the lack of progress of the war in Afghanistan and the damage resulting from the BP oil gusher in the Gulf of Mexico, are burying the president and his party in an avalanche of public dissatisfaction.”

No answers (from Elena Kagan): “Republicans and Democrats alike expressed frustration that she wasn’t willing to answer more questions despite having once written a book review saying Supreme Court nominees needed to do just that.”

No “shift” or “rift” between Israel and the U.S., says Yoram Ettinger. It’s worse: “Obama is an ideologue, determined to change the US and the world, irrespective of his declining fortunes internally and externally.” The result is an “unbridgeable gap” between the two countries.

No better distillation of Obama’s flawed Middle East policy than this from Elliott Abrams: “The Obama Administration appears to have three basic premises about the Middle East. The first is that the key issue in the entire Middle East is the Israeli-Palestinian conflict. The second is that it is a territorial conflict that can be resolved in essence by Israeli concessions. The third is that the central function of the United States is to serve as the PLO’s lawyer to broker those concessions so that an agreement can be signed.”

No cloture vote. With senators’ newfound concern for fiscal responsibility (it’s an election year), Harry Reid can’t round up enough votes to pass unemployment benefits. “Reid intends to call a vote Thursday evening on the smaller benefits bill — now paired with a homebuyer’s credit provision that may help garner more support. But the majority leader conceded he might not be able to clear the bill before the July recess. A more comprehensive tax extenders and unemployment benefits bill failed to pass the procedural block on three consecutive tries.”

No timeline on immigration reform: “President Barack Obama will talk about the urgency of the need for immigration reform in a major speech on Thursday, but will not give a timeline for action.” (It would be nice if he felt the same about a troop pullout from Afghanistan.) Makes you almost think he’s not serious about doing something, only making a campaign issue out of it.

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Kagan Hearing: Just Say No

That’s what Sen. Arlen Specter – unbound and without any re-election prospects — suggested the Senate do when confronted with a nominee like Elena Kagan who gives no real substantive answers. It took a defeat in a primary, but Specter has articulated a principled and highly defensible position.

As for the partial-birth-abortion controversy, Kagan fenced over whether the memo was even in her handwriting. (Is this supposed to increase our confidence in her credibility and forthrightness?) And then she gave an answer that is simply not believable: namely, that she was simply reflecting or summarizing the work of the medical experts. Shannen Coffin, who brought forth the issue, explains:

[A]ny suggestion that her work was merely the synthesis of the task force’s deliberations doesn’t account for that time line — she had no interaction with the task force itself, only the executive board of ACOG.

Second and more significant, the White House had already met with ACOG’s former president and current chief lobbyist (to whom Kagan’s revisions were addressed) in June 1996, before the special task force was even formed. At that meeting (which apparently Kagan did not attend but recounted in a memo to her bosses, dated June 22, 1996), Kagan wrote that the White House staffers were basically told that ACOG couldn’t identify any particular circumstances where the procedure was medically necessary.

Coffin is right to focus on Kagan’s own words. She admits that the factual basis for objecting to a partial-birth-abortion ban is bogus:

First, there are an exceedingly small number of partial birth abortions that could meet the standard the President has articulated. In the vast majority of cases, selection of the partial birth procedure is not necessary to avert serious adverse consequences to a woman’s health; another option — whether another abortion procedure or, in the post-viability context, birth through a caesarean section, induced labor, or carrying the pregnancy to term — is equally safe. … I will spare you all the medical details here. Suffice it to say that we went through every circumstance imaginable — post- and pre-viability, assuming malformed fetuses, assuming other medical conditions, etc., etc. — and there just aren’t many where use of the partial-birth abortion is the least risky, let alone the “necessary,” approach. … Second and relatedly, of the five women who came to the White House, only two can truly say (though they all apparently believe) that the partial birth procedure was the least risky of their alternatives.

Then she says that, nevertheless, facts shouldn’t stand in the way:

Those present at the meeting all agreed, on the basis of the thoroughness and care of the ACOG presentation, that these two points are probably just true, rather than a matter of medical opinion. (Betsy Myers and Jeremy Ben-Ami, neither of whom attended the meeting, have expressed the view that some other doctor might say something different.) At the same time, none of us think that this information should cause us to change the standard the President has articulated or the rhetoric he has used.

So a report was crafted that did NOT reflect the ACOG’s views but instead supported the president’s political agenda. That Kagan participated in this is bad enough. That she allowed her work to be presented to a court as that of neutral experts was essentially a fraud. The ABA Model rules don’t specifically address this type of issue, but several — 3.3, 3.4, and 4.1 (an attorney shall not “fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client”) — make clear that a lawyer’s obligation is to prevent false information and specious arguments from corrupting the administration of justice. This Kagan did not do.

I don’t see how senators can conclude that this was ethical behavior or that she is entitled to sit on the highest court in the land.

That’s what Sen. Arlen Specter – unbound and without any re-election prospects — suggested the Senate do when confronted with a nominee like Elena Kagan who gives no real substantive answers. It took a defeat in a primary, but Specter has articulated a principled and highly defensible position.

As for the partial-birth-abortion controversy, Kagan fenced over whether the memo was even in her handwriting. (Is this supposed to increase our confidence in her credibility and forthrightness?) And then she gave an answer that is simply not believable: namely, that she was simply reflecting or summarizing the work of the medical experts. Shannen Coffin, who brought forth the issue, explains:

[A]ny suggestion that her work was merely the synthesis of the task force’s deliberations doesn’t account for that time line — she had no interaction with the task force itself, only the executive board of ACOG.

Second and more significant, the White House had already met with ACOG’s former president and current chief lobbyist (to whom Kagan’s revisions were addressed) in June 1996, before the special task force was even formed. At that meeting (which apparently Kagan did not attend but recounted in a memo to her bosses, dated June 22, 1996), Kagan wrote that the White House staffers were basically told that ACOG couldn’t identify any particular circumstances where the procedure was medically necessary.

Coffin is right to focus on Kagan’s own words. She admits that the factual basis for objecting to a partial-birth-abortion ban is bogus:

First, there are an exceedingly small number of partial birth abortions that could meet the standard the President has articulated. In the vast majority of cases, selection of the partial birth procedure is not necessary to avert serious adverse consequences to a woman’s health; another option — whether another abortion procedure or, in the post-viability context, birth through a caesarean section, induced labor, or carrying the pregnancy to term — is equally safe. … I will spare you all the medical details here. Suffice it to say that we went through every circumstance imaginable — post- and pre-viability, assuming malformed fetuses, assuming other medical conditions, etc., etc. — and there just aren’t many where use of the partial-birth abortion is the least risky, let alone the “necessary,” approach. … Second and relatedly, of the five women who came to the White House, only two can truly say (though they all apparently believe) that the partial birth procedure was the least risky of their alternatives.

Then she says that, nevertheless, facts shouldn’t stand in the way:

Those present at the meeting all agreed, on the basis of the thoroughness and care of the ACOG presentation, that these two points are probably just true, rather than a matter of medical opinion. (Betsy Myers and Jeremy Ben-Ami, neither of whom attended the meeting, have expressed the view that some other doctor might say something different.) At the same time, none of us think that this information should cause us to change the standard the President has articulated or the rhetoric he has used.

So a report was crafted that did NOT reflect the ACOG’s views but instead supported the president’s political agenda. That Kagan participated in this is bad enough. That she allowed her work to be presented to a court as that of neutral experts was essentially a fraud. The ABA Model rules don’t specifically address this type of issue, but several — 3.3, 3.4, and 4.1 (an attorney shall not “fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client”) — make clear that a lawyer’s obligation is to prevent false information and specious arguments from corrupting the administration of justice. This Kagan did not do.

I don’t see how senators can conclude that this was ethical behavior or that she is entitled to sit on the highest court in the land.

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Kagan’s Political “Scrawling” Catches Up with Her

Yuval Levin provides a useful summary of perhaps the only revelation — and potential deal-breaker — in the Elena Kagan confirmation hearings. Yuval explains:

It seems that the most important statement in the famous position paper of the American College of Obstetricians and Gynecologists—a 1996 document that was central to the case of partial-birth-abortion defenders for the subsequent decade and played a major role in a number of court cases and political battles—was drafted not by an impartial committee of physicians, as both ACOG and the pro-abortion lobby claimed for years, but by Elena Kagan, who was then the deputy assistant to the president for domestic policy.

Kagan saw ACOG’s original paper, which did not include the claim that partial-birth abortion “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman,” but, on the contrary, said that ACOG “could identify no circumstances under which this procedure … would be the only option to save the life or preserve the health of the woman.” … In notes released by the White House it now looks as though Kagan herself—a senior Clinton White House staffer with no medical background—proposed the “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman” language, and sent it to ACOG, which then included that language in its final statement.

This, as Yuval points out, is not only a shocking “violation of the boundary between scientific expertise and politics”; it is also an outright deception that was subsequently used in litigation by partial-birth-abortion defenders. The former deputy attorney general who defended the partial-birth-abortion ban during the Bush administration, Shannen Coffin, brought the story to light. He reminds us: “U.S. District Court Judge Richard Kopf, one of the three federal judges that issued orders enjoining the federal ban (later overturned by the Supreme Court), devoted more than 15 pages of his lengthy opinion to ACOG’s policy statement and the integrity of the process that led to it.” Had the judge known it was not the work of scientific gurus but that of a Clinton staffer (“nothing more than the political scrawling of a White House appointee”), one can imagine he wouldn’t have spent a sentence, let alone 15 pages, on it.

Some senator should have the wherewithal to take this on and require that Kagan explain herself. Not only is it, if accurate, a disqualifying episode for a Supreme Court justice; it is grounds for a solicitor general to step down. And her failure to advise the courts — which believed they were relying on neutral, expert testimony — constitutes a significant ethical breach.

Yuval Levin provides a useful summary of perhaps the only revelation — and potential deal-breaker — in the Elena Kagan confirmation hearings. Yuval explains:

It seems that the most important statement in the famous position paper of the American College of Obstetricians and Gynecologists—a 1996 document that was central to the case of partial-birth-abortion defenders for the subsequent decade and played a major role in a number of court cases and political battles—was drafted not by an impartial committee of physicians, as both ACOG and the pro-abortion lobby claimed for years, but by Elena Kagan, who was then the deputy assistant to the president for domestic policy.

Kagan saw ACOG’s original paper, which did not include the claim that partial-birth abortion “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman,” but, on the contrary, said that ACOG “could identify no circumstances under which this procedure … would be the only option to save the life or preserve the health of the woman.” … In notes released by the White House it now looks as though Kagan herself—a senior Clinton White House staffer with no medical background—proposed the “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman” language, and sent it to ACOG, which then included that language in its final statement.

This, as Yuval points out, is not only a shocking “violation of the boundary between scientific expertise and politics”; it is also an outright deception that was subsequently used in litigation by partial-birth-abortion defenders. The former deputy attorney general who defended the partial-birth-abortion ban during the Bush administration, Shannen Coffin, brought the story to light. He reminds us: “U.S. District Court Judge Richard Kopf, one of the three federal judges that issued orders enjoining the federal ban (later overturned by the Supreme Court), devoted more than 15 pages of his lengthy opinion to ACOG’s policy statement and the integrity of the process that led to it.” Had the judge known it was not the work of scientific gurus but that of a Clinton staffer (“nothing more than the political scrawling of a White House appointee”), one can imagine he wouldn’t have spent a sentence, let alone 15 pages, on it.

Some senator should have the wherewithal to take this on and require that Kagan explain herself. Not only is it, if accurate, a disqualifying episode for a Supreme Court justice; it is grounds for a solicitor general to step down. And her failure to advise the courts — which believed they were relying on neutral, expert testimony — constitutes a significant ethical breach.

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Does Obama Know that Elena Kagan Is Pro-Israel?

A little embarrassing for The One, wouldn’t you say?

U.S. Supreme Court nominee Elena Kagan said her admiration for a former Israeli chief justice was rooted in her Jewishness and admiration for Israel. …

“[Aharon Barak] is very often called the John Marshall of the State of Israel because he was central in creating an independent judiciary for Israel and in ensuring that Israel — a young nation, a nation threatened from its very beginning in existential ways and a nation without a written constitution — he was central in ensuring that Israel, with all those kinds of liabilities would become a very strong rule of law nation,” she said.

She also admired Barak for personal reasons.

“As you know, I don’t think it’s a secret I am Jewish,” she said. “The State of Israel has meant a lot to me and my family.”

This actually puts Zionist conservatives in a tough spot. On the one hand, we have a rare defense of Israel from someone in the Obama camp that is genuine, well-informed, and morally sensible. On the other, we have an endorsement of an Israeli jurist whose exegetical views would elevate judges into a position not indistinguishable from the philosopher-kings of Plato’s Republic. Obviously, she should be voted down. But still.

A little embarrassing for The One, wouldn’t you say?

U.S. Supreme Court nominee Elena Kagan said her admiration for a former Israeli chief justice was rooted in her Jewishness and admiration for Israel. …

“[Aharon Barak] is very often called the John Marshall of the State of Israel because he was central in creating an independent judiciary for Israel and in ensuring that Israel — a young nation, a nation threatened from its very beginning in existential ways and a nation without a written constitution — he was central in ensuring that Israel, with all those kinds of liabilities would become a very strong rule of law nation,” she said.

She also admired Barak for personal reasons.

“As you know, I don’t think it’s a secret I am Jewish,” she said. “The State of Israel has meant a lot to me and my family.”

This actually puts Zionist conservatives in a tough spot. On the one hand, we have a rare defense of Israel from someone in the Obama camp that is genuine, well-informed, and morally sensible. On the other, we have an endorsement of an Israeli jurist whose exegetical views would elevate judges into a position not indistinguishable from the philosopher-kings of Plato’s Republic. Obviously, she should be voted down. But still.

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You Won’t See This on MSNBC

You get the idea that Al Franken isn’t, well, serious about his job. Fox News reports:

He’s good enough, he’s smart enough, but doggone it — he just can’t keep his eyes open for Senate confirmation hearings. Al Franken, the onetime comedian and current Democratic senator from Minnesota, used his position on the vaunted Judiciary Committee on Tuesday to doodle a lifelike bust of Sen. Jeff Sessions, the committee’s ranking Republican, as Sessions raked Supreme Court nominee Elena Kagan over the coals. But it wasn’t all fun and games for the former “Saturday Night Live” star — Franken also found time to get in a good nap during the first day of hearings Monday.

Yes, Franken is neglecting his duties and not fulfilling his constitutional obligations to provide advice and consent (at least not advice and consent based on reasoned consideration). But, when you think about it, neither are his Democratic colleagues. They may not be doodling (well, not after this report), but neither are they doing anything productive in the hearings — like attempting to discern Kagan’s views on Supreme Court precedent. At least the Republican senators were trying. As Robert Alt of Heritage put it:

From the outset, Kagan ran away from every attempt to characterize her political and philosophical views. Senators Sessions (R-AL), Hatch (R-UT), Kyl (R-AZ), Grassley (R-IA), and Graham (R-SC) pressed Kagan on the nature of her political ideology and approach to legal analysis. She generally refused to admit any specific views and even went so far as to claim that she did not know what the term “progressive” meant.

If she’s not going to answer any important questions, then doodling or taking a nap might be forgiven.

You get the idea that Al Franken isn’t, well, serious about his job. Fox News reports:

He’s good enough, he’s smart enough, but doggone it — he just can’t keep his eyes open for Senate confirmation hearings. Al Franken, the onetime comedian and current Democratic senator from Minnesota, used his position on the vaunted Judiciary Committee on Tuesday to doodle a lifelike bust of Sen. Jeff Sessions, the committee’s ranking Republican, as Sessions raked Supreme Court nominee Elena Kagan over the coals. But it wasn’t all fun and games for the former “Saturday Night Live” star — Franken also found time to get in a good nap during the first day of hearings Monday.

Yes, Franken is neglecting his duties and not fulfilling his constitutional obligations to provide advice and consent (at least not advice and consent based on reasoned consideration). But, when you think about it, neither are his Democratic colleagues. They may not be doodling (well, not after this report), but neither are they doing anything productive in the hearings — like attempting to discern Kagan’s views on Supreme Court precedent. At least the Republican senators were trying. As Robert Alt of Heritage put it:

From the outset, Kagan ran away from every attempt to characterize her political and philosophical views. Senators Sessions (R-AL), Hatch (R-UT), Kyl (R-AZ), Grassley (R-IA), and Graham (R-SC) pressed Kagan on the nature of her political ideology and approach to legal analysis. She generally refused to admit any specific views and even went so far as to claim that she did not know what the term “progressive” meant.

If she’s not going to answer any important questions, then doodling or taking a nap might be forgiven.

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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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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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