Commentary Magazine


Topic: law professor

Are You Now or Have You Ever Been a Zionist?

We know that the Obama administration has been far from friendly to Israel — but is this sentiment now influencing policy at the IRS?

The Jewish group Z Street, which claims that its request for tax-exempt status was delayed by the IRS because of its support Israel, has been engulfed in a legal battle with the government agency for months. The case heated up last week after the organization introduced a letter that appeared to show an IRS agent giving unusual scrutiny to another Jewish group that had also applied for 501(c)3 status. Among the questions asked by the agent: “Does your organization support the existence of the land of Israel?”

Z Street said that this is further evidence that the IRS has started targeting pro-Israel groups. Ben Smith at Politico has the details of the letter:

A Pennsylvania Jewish group that has claimed the Internal Revenue Service is targeting pro-Israel groups introduced in federal court today a letter from an IRS agent to another,  unnamed organization that tax experts said was likely outside the usual or appropriate scope of an IRS inquiry.

“Does your organization support the existence of the land of Israel?” IRS agent Tracy Dornette wrote the organization, according to this week’s court filing, as part of its consideration of the organizations application for tax exempt status. “Describe your organization’s religious belief system toward the land of Israel.”

But are these inquiries simply inappropriate, or are they evidence of an official campaign against Zionist organizations? A couple of tax attorneys consulted by Smith said they found the questions to be out of line:

“The claims go far beyond what should be the IRS’s role,” said Paul Caron a University of Cincinnati law professor and the author of TaxProf Blog.

Ellen Aprill, a law professor at Loyola University in Los Angeles said the second question was “appropriate” in the context of an application seeking a tax exemption on religious grounds.

“The first one is not the way I would want any of my agents to do it,” she said.

Some have wondered why Z Street is waging a public fight against the IRS instead of handling the tax issue privately. But Z Street founder Lori Lowenthal Marcus told me that her main worry here isn’t her own group’s tax-exempt status — it’s whether the government is holding pro-Israel groups to an unfair standard.

“My concern is that people are sort of veering off into tax world instead of Constitutional law,” said Lowenthal Marcus, a former constitutional lawyer, who added that she believes the actions of the IRS could constitute a First Amendment violation.

But apart from Z Street and the unnamed Jewish group mentioned in the letter, other organizations have yet to step up with claims that they were treated unfairly by the IRS.

Lowenthal Marcus said this doesn’t surprise her and noted that taking on the IRS can be an intimidating task. “Who’s going to challenge them?” she asked.

The current evidence is hardly enough to prove that there has been an official change in IRS policy toward pro-Israel groups, but the letter produced by Z Street shows that the case definitely deserves further inquiry. There is precedent for the IRS denying tax-exempt status to groups that clash with the government’s official policy — the Bob Jones University case is the most prominent example. But while the Obama administration has certainly taken an unfriendly stance toward Israel, this position could hardly be characterized as “official” government policy.

Ron Radosh at Pajamas Media also argues that this issue warrants a public investigation and suggests that this might be the task for a Republican-chaired House Oversight Committee: “What must now be publicly investigated — more work, perhaps, for Rep. Darrell Issa,  likely the new chairman of the House Oversight and Government Reform Committee — is, as Z Street put it, whether or not the IRS is  ‘improperly considering the political viewpoint of applicants’ and engaging in ‘clear viewpoint discrimination.’”

We know that the Obama administration has been far from friendly to Israel — but is this sentiment now influencing policy at the IRS?

The Jewish group Z Street, which claims that its request for tax-exempt status was delayed by the IRS because of its support Israel, has been engulfed in a legal battle with the government agency for months. The case heated up last week after the organization introduced a letter that appeared to show an IRS agent giving unusual scrutiny to another Jewish group that had also applied for 501(c)3 status. Among the questions asked by the agent: “Does your organization support the existence of the land of Israel?”

Z Street said that this is further evidence that the IRS has started targeting pro-Israel groups. Ben Smith at Politico has the details of the letter:

A Pennsylvania Jewish group that has claimed the Internal Revenue Service is targeting pro-Israel groups introduced in federal court today a letter from an IRS agent to another,  unnamed organization that tax experts said was likely outside the usual or appropriate scope of an IRS inquiry.

“Does your organization support the existence of the land of Israel?” IRS agent Tracy Dornette wrote the organization, according to this week’s court filing, as part of its consideration of the organizations application for tax exempt status. “Describe your organization’s religious belief system toward the land of Israel.”

But are these inquiries simply inappropriate, or are they evidence of an official campaign against Zionist organizations? A couple of tax attorneys consulted by Smith said they found the questions to be out of line:

“The claims go far beyond what should be the IRS’s role,” said Paul Caron a University of Cincinnati law professor and the author of TaxProf Blog.

Ellen Aprill, a law professor at Loyola University in Los Angeles said the second question was “appropriate” in the context of an application seeking a tax exemption on religious grounds.

“The first one is not the way I would want any of my agents to do it,” she said.

Some have wondered why Z Street is waging a public fight against the IRS instead of handling the tax issue privately. But Z Street founder Lori Lowenthal Marcus told me that her main worry here isn’t her own group’s tax-exempt status — it’s whether the government is holding pro-Israel groups to an unfair standard.

“My concern is that people are sort of veering off into tax world instead of Constitutional law,” said Lowenthal Marcus, a former constitutional lawyer, who added that she believes the actions of the IRS could constitute a First Amendment violation.

But apart from Z Street and the unnamed Jewish group mentioned in the letter, other organizations have yet to step up with claims that they were treated unfairly by the IRS.

Lowenthal Marcus said this doesn’t surprise her and noted that taking on the IRS can be an intimidating task. “Who’s going to challenge them?” she asked.

The current evidence is hardly enough to prove that there has been an official change in IRS policy toward pro-Israel groups, but the letter produced by Z Street shows that the case definitely deserves further inquiry. There is precedent for the IRS denying tax-exempt status to groups that clash with the government’s official policy — the Bob Jones University case is the most prominent example. But while the Obama administration has certainly taken an unfriendly stance toward Israel, this position could hardly be characterized as “official” government policy.

Ron Radosh at Pajamas Media also argues that this issue warrants a public investigation and suggests that this might be the task for a Republican-chaired House Oversight Committee: “What must now be publicly investigated — more work, perhaps, for Rep. Darrell Issa,  likely the new chairman of the House Oversight and Government Reform Committee — is, as Z Street put it, whether or not the IRS is  ‘improperly considering the political viewpoint of applicants’ and engaging in ‘clear viewpoint discrimination.’”

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Plan Ahead: How to Stop State Bailouts

This timely and important piece looks at whether it makes sense to set up a bankruptcy procedure for states, a process that currently exists only for cities and other municipalities. Law professor David Skeel makes a compelling case that it would be perfectly constitutional for Congress to set up a bankruptcy system for states. But should we? He argues:

The principal candidates for restructuring in states like California or Illinois are the state’s bonds and its contracts with public employees. Ideally, bondholders would vote to approve a restructuring. But if they dug in their heels and resisted proposals to restructure their debt, a bankruptcy chapter for states should allow (as municipal bankruptcy already does) for a proposal to be “crammed down” over their objections under certain circumstances. This eliminates the hold-out problem—the refusal of a minority of bondholders to agree to the terms of a restructuring—that can foil efforts to restructure outside of bankruptcy.

The bankruptcy law should give debtor states even more power to rewrite union contracts, if the court approves. Interestingly, it is easier to renegotiate a burdensome union contract in municipal bankruptcy than in a corporate bankruptcy. Vallejo has used this power in its bankruptcy case, which was filed in 2008. It is possible that a state could even renegotiate existing pension benefits in bankruptcy, although this is much less clear and less likely than the power to renegotiate an ongoing contract.

But if governors of states like California and Illinois won’t cut spending and renegotiate union contracts, would they really put their states into a bankruptcy proceeding?

The risk that politicians won’t make as much use of their bankruptcy options as they should does not mean that bankruptcy is a bad idea. For all its limitations, it would give a resolute state a new, more effective tool for paring down the state’s debts. And many a governor might find alluring the possibility of shifting blame for a new frugality onto a bankruptcy court that “made him do it” rather than take direct responsibility for tough choices.

The nub of the concern underlying Skeel’s proposal is the fear that California and other states will come to the feds looking for a bailout. Without an alternative like bankruptcy, the administration and the Congress might be tempted to give it to them. As a reader points out, we can imagine, just as happened in the 2008 financial meltdown, state officials pleading that they are on the brink of a meltdown, prisons will close, police will be fired, governments will shut down, etc.

It makes sense, therefore, for Congress to think this through now while the election is fresh in their minds. I’m not entirely sold on the idea of bankruptcy for states, but why shouldn’t Republican House leaders explore this and other alternatives, including a straightforward legislation prohibiting state bailouts? Let the Senate Democrats try to filibuster that one, or Obama promise to veto it. The incident that triggered the Tea Party movement, you will recall, was not ObamaCare or massive spending, although these became part of the agenda. It was the mortgage-bailout scheme — the idea that you’d be paying your neighbor’s mortgage. It is this sense of indignation and the call to personal — and state — responsibility that House and Senate GOP leaders should focus on. If they do it now, before the “emergency!” hollering begins, they stand a much better chance of holding the line and forcing California, Illinois, and the rest to fix their own fiscal messes.

This timely and important piece looks at whether it makes sense to set up a bankruptcy procedure for states, a process that currently exists only for cities and other municipalities. Law professor David Skeel makes a compelling case that it would be perfectly constitutional for Congress to set up a bankruptcy system for states. But should we? He argues:

The principal candidates for restructuring in states like California or Illinois are the state’s bonds and its contracts with public employees. Ideally, bondholders would vote to approve a restructuring. But if they dug in their heels and resisted proposals to restructure their debt, a bankruptcy chapter for states should allow (as municipal bankruptcy already does) for a proposal to be “crammed down” over their objections under certain circumstances. This eliminates the hold-out problem—the refusal of a minority of bondholders to agree to the terms of a restructuring—that can foil efforts to restructure outside of bankruptcy.

The bankruptcy law should give debtor states even more power to rewrite union contracts, if the court approves. Interestingly, it is easier to renegotiate a burdensome union contract in municipal bankruptcy than in a corporate bankruptcy. Vallejo has used this power in its bankruptcy case, which was filed in 2008. It is possible that a state could even renegotiate existing pension benefits in bankruptcy, although this is much less clear and less likely than the power to renegotiate an ongoing contract.

But if governors of states like California and Illinois won’t cut spending and renegotiate union contracts, would they really put their states into a bankruptcy proceeding?

The risk that politicians won’t make as much use of their bankruptcy options as they should does not mean that bankruptcy is a bad idea. For all its limitations, it would give a resolute state a new, more effective tool for paring down the state’s debts. And many a governor might find alluring the possibility of shifting blame for a new frugality onto a bankruptcy court that “made him do it” rather than take direct responsibility for tough choices.

The nub of the concern underlying Skeel’s proposal is the fear that California and other states will come to the feds looking for a bailout. Without an alternative like bankruptcy, the administration and the Congress might be tempted to give it to them. As a reader points out, we can imagine, just as happened in the 2008 financial meltdown, state officials pleading that they are on the brink of a meltdown, prisons will close, police will be fired, governments will shut down, etc.

It makes sense, therefore, for Congress to think this through now while the election is fresh in their minds. I’m not entirely sold on the idea of bankruptcy for states, but why shouldn’t Republican House leaders explore this and other alternatives, including a straightforward legislation prohibiting state bailouts? Let the Senate Democrats try to filibuster that one, or Obama promise to veto it. The incident that triggered the Tea Party movement, you will recall, was not ObamaCare or massive spending, although these became part of the agenda. It was the mortgage-bailout scheme — the idea that you’d be paying your neighbor’s mortgage. It is this sense of indignation and the call to personal — and state — responsibility that House and Senate GOP leaders should focus on. If they do it now, before the “emergency!” hollering begins, they stand a much better chance of holding the line and forcing California, Illinois, and the rest to fix their own fiscal messes.

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Arizona Immigration Law Hearing

This account by the Washington Post of the 9th Circuit hearing on the Arizona immigration law is revealing on a number of counts.

Judge John T. Noonan (whose own exacting questioning I experienced in law school some years back) didn’t think much of the Obama administration’s advocacy skills:

“I’ve read your brief, I’ve read the District Court opinion, I’ve heard your interchange with my two colleagues, and I don’t understand your argument,” Noonan told deputy solicitor general Edwin S. Kneedler. “We are dependent as a court on counsel being responsive. … You keep saying the problem is that a state officer is told to do something. That’s not a matter of preemption. … I would think the proper thing to do is to concede that this is a point where you don’t have an argument.”

That doesn’t mean the government doesn’t have other viable arguments in its attempt to overturn the Arizona law or that this issue is going to be settled by the 9th Circuit. (Certainly it’s headed for the Supreme Court.) But it does mean that the Obama Justice Department is doing a poor job of litigating.

Even more telling is this passage from the Post‘s report:

With Noonan, an appointee of President Ronald Reagan, so bluntly stating his views, legal experts said the government’s chances of having the injunction upheld may rest with the other two judges on Monday’s panel: Carlos T. Bea and Richard A. Paez.

Bea is also a Republican appointee and tends to vote with the court’s conservative wing, which could help Arizona’s chances. Paez is a Democratic appointee.

But Bea and Paez are Hispanic, and it is Hispanics who are most upset about the Arizona law.

What?! This is the wise Latino school of thought, the suggestion that these justices would vote their ethnicity rather than their conscience. The Post digs up a supposed scholar whom I’ve never heard of to opine: “‘Perhaps this is one area where Bea might not vote as a so-called conservative because he himself is an immigrant,’ said Arthur Hellman, a University of Pittsburgh law professor and an expert on the 9th Circuit.” Perhaps Hellman’s students should disregard the chazzerai they are being taught.

This account by the Washington Post of the 9th Circuit hearing on the Arizona immigration law is revealing on a number of counts.

Judge John T. Noonan (whose own exacting questioning I experienced in law school some years back) didn’t think much of the Obama administration’s advocacy skills:

“I’ve read your brief, I’ve read the District Court opinion, I’ve heard your interchange with my two colleagues, and I don’t understand your argument,” Noonan told deputy solicitor general Edwin S. Kneedler. “We are dependent as a court on counsel being responsive. … You keep saying the problem is that a state officer is told to do something. That’s not a matter of preemption. … I would think the proper thing to do is to concede that this is a point where you don’t have an argument.”

That doesn’t mean the government doesn’t have other viable arguments in its attempt to overturn the Arizona law or that this issue is going to be settled by the 9th Circuit. (Certainly it’s headed for the Supreme Court.) But it does mean that the Obama Justice Department is doing a poor job of litigating.

Even more telling is this passage from the Post‘s report:

With Noonan, an appointee of President Ronald Reagan, so bluntly stating his views, legal experts said the government’s chances of having the injunction upheld may rest with the other two judges on Monday’s panel: Carlos T. Bea and Richard A. Paez.

Bea is also a Republican appointee and tends to vote with the court’s conservative wing, which could help Arizona’s chances. Paez is a Democratic appointee.

But Bea and Paez are Hispanic, and it is Hispanics who are most upset about the Arizona law.

What?! This is the wise Latino school of thought, the suggestion that these justices would vote their ethnicity rather than their conscience. The Post digs up a supposed scholar whom I’ve never heard of to opine: “‘Perhaps this is one area where Bea might not vote as a so-called conservative because he himself is an immigrant,’ said Arthur Hellman, a University of Pittsburgh law professor and an expert on the 9th Circuit.” Perhaps Hellman’s students should disregard the chazzerai they are being taught.

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Let’s Not Forget the Letter

Lost in the rush of polls and soon to be forgotten (as the Democrats begin the blame-a-thon, and the moving vans arrive to pack off the casualties of Obamaism) was a multi-car pile-up in the left lane of legal scholarship. The culprit, we are reminded by the scalding wit of this observer, was Harvard law professor and Supreme Court advocate Laurence Tribe, who managed in a letter to his former student and now president to embarrass two Supreme Court justices (Sonia Sotomayor, for limited intellect; and Anthony Kennedy, for being perpetually influenced and never influencing). But it is Tribe’s own toadyism that is the real cringe-inducer. (It is not often we see such “pathetic grovelling and job-begging” from Harvard’s best-known liberal prof).

But that got me thinking. Doesn’t Tribe’s warning about Sotomayor’s shortcomings apply with equal force to Obama, himself?

Bluntly put she’s he’s not nearly as smart as she he seems to think she he is, and her his reputation for being something of a bully could well make her his liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas conservative wing of the Court GOP.

You can understand why Obama and Sotomayor were sympatico.

And second, we must hold Tribe and the rest of the Harvard faculty partially responsible for the president’s distorted self-image. Those who were witnesses to Obama’s years as a law student can vouch that Tribe and his colleagues were no less slobbery when it came to student Obama some decades ago. They had their eye on him and figured he’d go far. His every word elicited praise. And as with the professors’ cooing, his placement on the Harvard Law Review was, it seems, based on factors other than legal scholarship, of which he produced none.

It is a pity that Sotomayor, Obama, and many less prominent names wind up with oversized egos and jobs for which they are underqualified. For that, as with so many other counterproductive contributions, we can blame, to some degree, the leftist intelligentsia who populate academia and the mainstream media. We often bear the brunt of their obsession with “diversity” (oh heavens, not the intellectual variety!) and their assurance that liberal conformity=brilliance and glibness=intellectualism. The good news is that the mainstream media are dying, and there is an election in 2012. The bad news: Sotomayor is there for life.

Lost in the rush of polls and soon to be forgotten (as the Democrats begin the blame-a-thon, and the moving vans arrive to pack off the casualties of Obamaism) was a multi-car pile-up in the left lane of legal scholarship. The culprit, we are reminded by the scalding wit of this observer, was Harvard law professor and Supreme Court advocate Laurence Tribe, who managed in a letter to his former student and now president to embarrass two Supreme Court justices (Sonia Sotomayor, for limited intellect; and Anthony Kennedy, for being perpetually influenced and never influencing). But it is Tribe’s own toadyism that is the real cringe-inducer. (It is not often we see such “pathetic grovelling and job-begging” from Harvard’s best-known liberal prof).

But that got me thinking. Doesn’t Tribe’s warning about Sotomayor’s shortcomings apply with equal force to Obama, himself?

Bluntly put she’s he’s not nearly as smart as she he seems to think she he is, and her his reputation for being something of a bully could well make her his liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas conservative wing of the Court GOP.

You can understand why Obama and Sotomayor were sympatico.

And second, we must hold Tribe and the rest of the Harvard faculty partially responsible for the president’s distorted self-image. Those who were witnesses to Obama’s years as a law student can vouch that Tribe and his colleagues were no less slobbery when it came to student Obama some decades ago. They had their eye on him and figured he’d go far. His every word elicited praise. And as with the professors’ cooing, his placement on the Harvard Law Review was, it seems, based on factors other than legal scholarship, of which he produced none.

It is a pity that Sotomayor, Obama, and many less prominent names wind up with oversized egos and jobs for which they are underqualified. For that, as with so many other counterproductive contributions, we can blame, to some degree, the leftist intelligentsia who populate academia and the mainstream media. We often bear the brunt of their obsession with “diversity” (oh heavens, not the intellectual variety!) and their assurance that liberal conformity=brilliance and glibness=intellectualism. The good news is that the mainstream media are dying, and there is an election in 2012. The bad news: Sotomayor is there for life.

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The Afghan Study Group Opines

Something called the Afghan Study Group has produced a report on “A New Way Forward in Afghanistan.” A quick glance at the list of signatories shows a group of individuals who are not exactly notable for their expertise in Afghanistan but who can be counted on to oppose any plan of winning a war, be it the “surge” in Iraq or the one now going on in Afghanistan. For instance: Yale law professor Bruce Ackerman, left-wing blogger and Arabist Juan Cole of the University of Michigan, economist James Galbraith of the University of Texas, telecom executive Leo Hindery, the notorious Iran apologists Flynt and Hillary Leverett, and, of course, anti-Israel propagandist Stephen Walt of Harvard. There are, to be sure, among the people who have signed on, a few who have actually spent some time in the region, such as former State Department employee Matthew Hoh and think-tanker Selig Harrison. But the report is notable for its standard anti-war bromides rather than any convincing “way forward” and certainly not for any “new way” put forth.

My article in COMMENTARY, on the “Case for Optimism,” offers a detailed rebuttal of many of the vapid arguments they make, but a few further observations are in order. First there is the wishful thinking that somehow victory isn’t important: “Protecting our interests does not require a U.S. military victory over the Taliban,” they write. “A Taliban takeover is unlikely even if the United States reduces its military commitment … and the risk of a new ‘safe haven’ there under more ‘friendly’ Taliban rule is overstated.” Talk about a triumph of hope over experience. The Taliban took over Afghanistan in the 1990s when the U.S. wasn’t involved and immediately turned their country into a safe haven for al-Qaeda. Why would they do any differently today? If anything, the ties between al-Qaeda and the Taliban are stronger today than they were in the 1990s.

Their recommendations are really grasping for straws. They loudly demand: “Emphasize power-sharing and political inclusion,” “encourage economic development,” and “engage regional and global stakeholders in a diplomatic effort designed to guarantee Afghan neutrality and foster regional stability.” As if the U.S. hasn’t been doing all of the above since 2001. Guess what? It hasn’t worked. The Taliban are a determined, well-armed insurgency group and they see no reason to reach a power-sharing deal, no matter what “regional and global stakeholders” say. Of course, there is not a hint of how key stakeholders such as Iran and Pakistan, which support the Taliban, can be convinced to cut them off. Instead, there is a blind hope that somehow “economic development” will ameliorate Afghanistan’s woes in the face of abundant evidence that the economic aid provided since 2001 has instead made the situation worse in many respects, by fueling out-of-control corruption.

The authors of this report, with their faith in negotiating with the enemy, would do well to read this recent Wall Street Journal dispatch by ace correspondent Yaroslav Trofimov, which notes what anyone with any knowledge of Afghanistan already knows. First, that “Afghanistan’s three largest ethnic minorities” oppose “outreach to the Taliban, which they said could pave the way for the fundamentalist group’s return to power and reignite civil war.” Second, “Unless it is dealt a decisive setback in coming months, the only thing the Taliban may be interested in negotiating with Mr. Karzai is how to secure control of the central government in Kabul.” Third, “Few Afghans … believe that the Taliban, who already control ethnic Pashtun pockets throughout northern and western Afghanistan, would really stop the war after gaining the south and the east.”

In other words, negotiations with the Taliban would not result in some kind of painless resolution of the long-running war. It would only make the war bigger and more deadly, with the likely result being a Taliban triumph — just as in the 1990s. The members of the Afghan Study Group seem to think that outcome would be in America’s interests. Luckily President Obama does not. He has been right to increase our commitment in Afghanistan in the face of such feckless second-guessing on the home front. I only hope he keeps his nerve as pressure builds for a premature pullout that would hand the jihadists their biggest victory ever.

Something called the Afghan Study Group has produced a report on “A New Way Forward in Afghanistan.” A quick glance at the list of signatories shows a group of individuals who are not exactly notable for their expertise in Afghanistan but who can be counted on to oppose any plan of winning a war, be it the “surge” in Iraq or the one now going on in Afghanistan. For instance: Yale law professor Bruce Ackerman, left-wing blogger and Arabist Juan Cole of the University of Michigan, economist James Galbraith of the University of Texas, telecom executive Leo Hindery, the notorious Iran apologists Flynt and Hillary Leverett, and, of course, anti-Israel propagandist Stephen Walt of Harvard. There are, to be sure, among the people who have signed on, a few who have actually spent some time in the region, such as former State Department employee Matthew Hoh and think-tanker Selig Harrison. But the report is notable for its standard anti-war bromides rather than any convincing “way forward” and certainly not for any “new way” put forth.

My article in COMMENTARY, on the “Case for Optimism,” offers a detailed rebuttal of many of the vapid arguments they make, but a few further observations are in order. First there is the wishful thinking that somehow victory isn’t important: “Protecting our interests does not require a U.S. military victory over the Taliban,” they write. “A Taliban takeover is unlikely even if the United States reduces its military commitment … and the risk of a new ‘safe haven’ there under more ‘friendly’ Taliban rule is overstated.” Talk about a triumph of hope over experience. The Taliban took over Afghanistan in the 1990s when the U.S. wasn’t involved and immediately turned their country into a safe haven for al-Qaeda. Why would they do any differently today? If anything, the ties between al-Qaeda and the Taliban are stronger today than they were in the 1990s.

Their recommendations are really grasping for straws. They loudly demand: “Emphasize power-sharing and political inclusion,” “encourage economic development,” and “engage regional and global stakeholders in a diplomatic effort designed to guarantee Afghan neutrality and foster regional stability.” As if the U.S. hasn’t been doing all of the above since 2001. Guess what? It hasn’t worked. The Taliban are a determined, well-armed insurgency group and they see no reason to reach a power-sharing deal, no matter what “regional and global stakeholders” say. Of course, there is not a hint of how key stakeholders such as Iran and Pakistan, which support the Taliban, can be convinced to cut them off. Instead, there is a blind hope that somehow “economic development” will ameliorate Afghanistan’s woes in the face of abundant evidence that the economic aid provided since 2001 has instead made the situation worse in many respects, by fueling out-of-control corruption.

The authors of this report, with their faith in negotiating with the enemy, would do well to read this recent Wall Street Journal dispatch by ace correspondent Yaroslav Trofimov, which notes what anyone with any knowledge of Afghanistan already knows. First, that “Afghanistan’s three largest ethnic minorities” oppose “outreach to the Taliban, which they said could pave the way for the fundamentalist group’s return to power and reignite civil war.” Second, “Unless it is dealt a decisive setback in coming months, the only thing the Taliban may be interested in negotiating with Mr. Karzai is how to secure control of the central government in Kabul.” Third, “Few Afghans … believe that the Taliban, who already control ethnic Pashtun pockets throughout northern and western Afghanistan, would really stop the war after gaining the south and the east.”

In other words, negotiations with the Taliban would not result in some kind of painless resolution of the long-running war. It would only make the war bigger and more deadly, with the likely result being a Taliban triumph — just as in the 1990s. The members of the Afghan Study Group seem to think that outcome would be in America’s interests. Luckily President Obama does not. He has been right to increase our commitment in Afghanistan in the face of such feckless second-guessing on the home front. I only hope he keeps his nerve as pressure builds for a premature pullout that would hand the jihadists their biggest victory ever.

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Obama’s Ground Zero Debacle

It would be hard to think how Obama could have done a worse job on the Ground Zero mosque controversy. He took a position objectionable to the vast majority of Americans, within 24 hours chickened out, and then sent his press minions forward to assure his base and the Muslim World and its American community (over which he fawns incessantly) that he really does think we must accept a mosque that will produce nothing but pain for his countrymen and a sense of vindication to those who incinerated 3,000 Americans. It’s bad policy, bad politics, and bad execution, with a side order of political cowardice.

On Fox News Sunday’s roundtable, Ceci Connolly explained the flip-flop-flip:

CONNOLLY: I do think that the president’s remarks on Friday night — we know from our reporting they were not off the cuff. Those were written in advance. They were prepared. They were disseminated. He gave thought to what he wanted to say.

And from all indications he believes what he said on Friday night that, yes, this is hallowed ground but that he has a strong feeling not only about religious freedom and tolerance but also about outreach to the Muslim community, which he has done from the very start of his presidency.

So I don’t think there’s reason to really doubt his believing what he said on Friday.

BAIER: Other than the statement on Saturday.

CONNOLLY: The statement on Saturday — I think what happened was he got a little bit spooked by the reaction, because immediately after he did that recalibration, as you put it, sort of off the cuff with that local reporter down in Florida, Deputy Press Secretary Bill Burton said, “Look, we’re not backing off of Friday night.” And I don’t think that they are.

That’s created angst for Democrats, as Nina Easton observed:

Well, you’ve got to feel the pain of some of these independent conservative Democrats like Martin Frost, who said, “Can’t this president be more like a politician than a law professor?” And we know that now that — as Ceci said, he wanted to weigh in on this. He wanted to weigh in on these broad religious principles.

And you know, we cite the 68 percent of people opposing this. Seventy percent of independent voters oppose this. So this is going to — it’s an issue that was local and, by the way, where in the bluest of states, New York, members of the congressional delegation is basically nowhere to be found. No one wants to weigh in on this.

But among independent voters they really, really oppose this. What this has done is nationalize a sensitive issue. The president — it’s interesting. This is the third time where he’s — in the interest of what he sees in his world of inclusion and fairness and open-mindedness, he’s actually been very polarizing and divisive.

We start with his lawsuit against the Arizona immigration law. His — the health care reform’s been very divisive. And now this. And I think it’s going to really hurt the Democratic brand in November. It’s nationalized this issue.

As Bill Kristol deadpanned: “It’s never a good moment … when Bill Burton, the White House deputy press secretary, at 6 o’clock Saturday night — I mean, I worked in a White House that had some problems in ’91, ’92, as the first Bush administration wound down, somewhat losing some popular support, let’s say. And when you put out a statement that says, ‘Just to be clear, the president is not backing off in any way,’ I mean, ‘just … to be clear’ is not a good thing to begin with if you’re the press secretary. And ‘the president is not backing off’ is not really what you want your news — your explanation to be on Saturday night.”

This reinforces several bad themes for Obama. From the right, his critics have argued that he’s less than competent,  a charge that certainly was supported by a textbook “don’t ever do this” episode in presidential history. Conservatives have also asserted that Obama’s instincts are poor (both when it come in positioning the U.S. against adversaries and in his assessments of the voters’ deeply held beliefs). That too was underlined by Obama’s indifference to the mosque’s symbolism for jihadists and to Americans’ sensibilities. And then on the left, his formerly fervent base has grown exasperated with his equivocation and failure to wholeheartedly embrace their extreme wish list. Given episodes like this one, you have to admit that they too have a point.

But really, this is precisely what we should expect if we elect someone whose executive skills are negligible and whose views come straight out of the Ivy League left. Next time, maybe voters should pay more attention to the experience and values of the person they are electing to lead the Free World.

It would be hard to think how Obama could have done a worse job on the Ground Zero mosque controversy. He took a position objectionable to the vast majority of Americans, within 24 hours chickened out, and then sent his press minions forward to assure his base and the Muslim World and its American community (over which he fawns incessantly) that he really does think we must accept a mosque that will produce nothing but pain for his countrymen and a sense of vindication to those who incinerated 3,000 Americans. It’s bad policy, bad politics, and bad execution, with a side order of political cowardice.

On Fox News Sunday’s roundtable, Ceci Connolly explained the flip-flop-flip:

CONNOLLY: I do think that the president’s remarks on Friday night — we know from our reporting they were not off the cuff. Those were written in advance. They were prepared. They were disseminated. He gave thought to what he wanted to say.

And from all indications he believes what he said on Friday night that, yes, this is hallowed ground but that he has a strong feeling not only about religious freedom and tolerance but also about outreach to the Muslim community, which he has done from the very start of his presidency.

So I don’t think there’s reason to really doubt his believing what he said on Friday.

BAIER: Other than the statement on Saturday.

CONNOLLY: The statement on Saturday — I think what happened was he got a little bit spooked by the reaction, because immediately after he did that recalibration, as you put it, sort of off the cuff with that local reporter down in Florida, Deputy Press Secretary Bill Burton said, “Look, we’re not backing off of Friday night.” And I don’t think that they are.

That’s created angst for Democrats, as Nina Easton observed:

Well, you’ve got to feel the pain of some of these independent conservative Democrats like Martin Frost, who said, “Can’t this president be more like a politician than a law professor?” And we know that now that — as Ceci said, he wanted to weigh in on this. He wanted to weigh in on these broad religious principles.

And you know, we cite the 68 percent of people opposing this. Seventy percent of independent voters oppose this. So this is going to — it’s an issue that was local and, by the way, where in the bluest of states, New York, members of the congressional delegation is basically nowhere to be found. No one wants to weigh in on this.

But among independent voters they really, really oppose this. What this has done is nationalize a sensitive issue. The president — it’s interesting. This is the third time where he’s — in the interest of what he sees in his world of inclusion and fairness and open-mindedness, he’s actually been very polarizing and divisive.

We start with his lawsuit against the Arizona immigration law. His — the health care reform’s been very divisive. And now this. And I think it’s going to really hurt the Democratic brand in November. It’s nationalized this issue.

As Bill Kristol deadpanned: “It’s never a good moment … when Bill Burton, the White House deputy press secretary, at 6 o’clock Saturday night — I mean, I worked in a White House that had some problems in ’91, ’92, as the first Bush administration wound down, somewhat losing some popular support, let’s say. And when you put out a statement that says, ‘Just to be clear, the president is not backing off in any way,’ I mean, ‘just … to be clear’ is not a good thing to begin with if you’re the press secretary. And ‘the president is not backing off’ is not really what you want your news — your explanation to be on Saturday night.”

This reinforces several bad themes for Obama. From the right, his critics have argued that he’s less than competent,  a charge that certainly was supported by a textbook “don’t ever do this” episode in presidential history. Conservatives have also asserted that Obama’s instincts are poor (both when it come in positioning the U.S. against adversaries and in his assessments of the voters’ deeply held beliefs). That too was underlined by Obama’s indifference to the mosque’s symbolism for jihadists and to Americans’ sensibilities. And then on the left, his formerly fervent base has grown exasperated with his equivocation and failure to wholeheartedly embrace their extreme wish list. Given episodes like this one, you have to admit that they too have a point.

But really, this is precisely what we should expect if we elect someone whose executive skills are negligible and whose views come straight out of the Ivy League left. Next time, maybe voters should pay more attention to the experience and values of the person they are electing to lead the Free World.

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Pity the Constitution

To the century-old debate about whether the Constitution is “living” or static, we may now add yet another argument, an even more woeful assault on the founding document of our country. David Strauss — who claims to be an eminent constitutional-law scholar — views the Constitution as a mere Rorschach test for the collective psyche of the polis.

Writing in an unlikely forum, Florida International University law professor Stanley Fish subjects Strauss’s new book to a much-needed vivisection. He first boils down Strauss’s thesis:

The question is not, as Strauss would have it, is this proffered meaning in the Constitution? The question is, can a chain of inference be formed that links this meaning to something the framers can be said to have intended? …

[Strauss states that the] “written Constitution is valuable because it provides a common ground among the American people.” But as it turns out, common ground is provided not by the Constitution itself but by a survey of “widely acceptable” meanings, which are then attributed to the Constitution as if it were their source. The text, Strauss advises, “should be interpreted in the way best calculated to provide a point on which people can agree.” The way to do this, he adds, is to give the words of the Constitution “their ordinary current meaning — even in preference to the meaning the framers understood.” After all, “the original meaning might be obscure and controversial.”

Believe it or not, even the New York Times can’t stomach Strauss’s assertion:

This is an amazing statement. The Constitution becomes common ground when it becomes a vessel for meanings it does not contain. It acts as a binding agent as long as you don’t take it seriously but take care to pretend that you do. As long as an interpretation of the Constitution “can plausibly say that it honors the text, the text can continue to serve the common ground function.” … The incoherence of what Strauss is urging is spectacularly displayed in a single sentence. Given the importance of common ground, “it makes sense,” he says, “to adhere to the text even while disregarding the framers’ intentions.”

Fish concludes that “if this is what the ‘living Constitution’ is — a Constitution produced and reproduced by serial acts of infidelity — I hereby cast a vote for the real one.”

Theoretically, Strauss is one step further from what a “living Constitution” is. The concept’s original adherents, if they may be taken at their word, saw the “living Constitution” as a way to pull the text into the modern age, amplifying its meaning, not undermining it. Among angels, this may have worked. But Strauss shows what implementing a “living Constitution” looks like in the real world.

His conclusion is fiddlesticks but not for lack of logic. There’s a perfectly reasonable devolution from an established Constitution to a living Constitution to a populist legal system. The question becomes, if the Constitution is “living,” who’s breathing life into it? And with what intentions?

Strauss’s book reminds us that the debate about the Constitution is far from theoretical, and the stakes are high. In fact, Strauss has already held positions high enough to promote his thesis. He was special counsel to the Senate Judiciary Committee. He was the assistant solicitor general. He has argued many times before the Supreme Court, and he edits the Supreme Court Review.

Furthermore, one might find it disconcerting to know that Strauss has been singing former colleague Elena Kagan’s praises across the media. He has said: “Elena is a resolutely non-ideological person. She is great at asking hard questions. She does not approach issues with preconceived views; she tries to figure things out. She is practical and tough-minded.”

Much has yet to be determined about what Elena Kagan thinks. But if she, like her colleague, believes in a living Constitution, are we prepared to accept the interpretation with which she animates it on our behalf?

To the century-old debate about whether the Constitution is “living” or static, we may now add yet another argument, an even more woeful assault on the founding document of our country. David Strauss — who claims to be an eminent constitutional-law scholar — views the Constitution as a mere Rorschach test for the collective psyche of the polis.

Writing in an unlikely forum, Florida International University law professor Stanley Fish subjects Strauss’s new book to a much-needed vivisection. He first boils down Strauss’s thesis:

The question is not, as Strauss would have it, is this proffered meaning in the Constitution? The question is, can a chain of inference be formed that links this meaning to something the framers can be said to have intended? …

[Strauss states that the] “written Constitution is valuable because it provides a common ground among the American people.” But as it turns out, common ground is provided not by the Constitution itself but by a survey of “widely acceptable” meanings, which are then attributed to the Constitution as if it were their source. The text, Strauss advises, “should be interpreted in the way best calculated to provide a point on which people can agree.” The way to do this, he adds, is to give the words of the Constitution “their ordinary current meaning — even in preference to the meaning the framers understood.” After all, “the original meaning might be obscure and controversial.”

Believe it or not, even the New York Times can’t stomach Strauss’s assertion:

This is an amazing statement. The Constitution becomes common ground when it becomes a vessel for meanings it does not contain. It acts as a binding agent as long as you don’t take it seriously but take care to pretend that you do. As long as an interpretation of the Constitution “can plausibly say that it honors the text, the text can continue to serve the common ground function.” … The incoherence of what Strauss is urging is spectacularly displayed in a single sentence. Given the importance of common ground, “it makes sense,” he says, “to adhere to the text even while disregarding the framers’ intentions.”

Fish concludes that “if this is what the ‘living Constitution’ is — a Constitution produced and reproduced by serial acts of infidelity — I hereby cast a vote for the real one.”

Theoretically, Strauss is one step further from what a “living Constitution” is. The concept’s original adherents, if they may be taken at their word, saw the “living Constitution” as a way to pull the text into the modern age, amplifying its meaning, not undermining it. Among angels, this may have worked. But Strauss shows what implementing a “living Constitution” looks like in the real world.

His conclusion is fiddlesticks but not for lack of logic. There’s a perfectly reasonable devolution from an established Constitution to a living Constitution to a populist legal system. The question becomes, if the Constitution is “living,” who’s breathing life into it? And with what intentions?

Strauss’s book reminds us that the debate about the Constitution is far from theoretical, and the stakes are high. In fact, Strauss has already held positions high enough to promote his thesis. He was special counsel to the Senate Judiciary Committee. He was the assistant solicitor general. He has argued many times before the Supreme Court, and he edits the Supreme Court Review.

Furthermore, one might find it disconcerting to know that Strauss has been singing former colleague Elena Kagan’s praises across the media. He has said: “Elena is a resolutely non-ideological person. She is great at asking hard questions. She does not approach issues with preconceived views; she tries to figure things out. She is practical and tough-minded.”

Much has yet to be determined about what Elena Kagan thinks. But if she, like her colleague, believes in a living Constitution, are we prepared to accept the interpretation with which she animates it on our behalf?

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Elena Kagan — Stealth Nominee?

Elena Kagan is the prohibitive favorite for the Supreme Court. She has made it through one confirmation hearing for her current post as solicitor general and possesses academic credentials, a reputation for collegiality with conservatives, and a limited paper trail. Moreover, she is the closest we have to a stealth candidate among the front-runners. As Tom Goldstein notes, “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.”

Casual observers assume that a dean of Harvard Law School and a domestic-policy aide in the Clinton administration must have a sizable body of work reflecting her legal views. But not so. Paul Campos has read all there is to read — and it’s not much:

Yesterday, I read everything Elena Kagan has ever published. It didn’t take long: in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago’s own faculty—and a short essay in the school’s law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it’s true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard’s dean, and for never having written anything intended for a more general audience, either before or after taking that position.)

Campos goes so far as to suggest that Kagan is a Harriet Miers type — minus the cronyism. He concludes:

Indeed, the most impressive thing about Kagan is that she seems to have a remarkable ability to ingratiate herself with influential people across the ideological spectrum. … As a private lawyer, Miers, after all, had a fairly good excuse for having no public views on the great legal issues of our day. For most of the past 20 years, Kagan’s job has been to both develop and publicize such views. That she has nevertheless managed to almost completely avoid doing so is rather extraordinary.

What to make of this? Well, if a Republican president were to select a person with such a skimpy written record, conservatives would be (and were with the Miers nomination) rightfully worried. But do the same concerns — ideological infidelity, intellectual mediocrity — really apply to Kagan? Let’s be honest, it works differently for liberals. Very few are tempted to moderate their views and slide rightward, while Republican-nominated jurists (David Souter, John Paul Stevens) have a history of “disappointing” their side. And while no one has claimed that Kagan has achieved greatness in legal scholarship, the assumption — rightly or not — is that the dean of one of the top law schools in the country must have some intellectual wattage. Nevertheless, liberal legal activists might have reason to be a bit nervous — after all, would a justice who lacks judicial chops be the best choice to sway Justice Kennedy on those all-important 5-to-4 decisions? Is she really the one who is going to go toe-to-toe with Justice Scalia? There is some risk there if Obama were to choose a lesser known quantity than an appellate judge such as Diane Wood.

Nevertheless, there are clues as to Kagan’s legal mindset. Indeed, one such clue is also her primary shortcoming. Stuart Taylor explains:

The one issue that could slow down Kagan’s confirmation is her impassioned effort as dean to bar military recruiting on campus to protest the law banning openly gay people from serving in the military, which she called “a moral injustice of the first order.”

Kagan carried this opposition to the point of joining a 2005 amicus brief whose strained interpretation of a law denying federal funding to institutions that discriminate against military recruiters would — the Supreme Court held in an 8-0 decision — have rendered the statute “largely meaningless.” This helps to explain the 31 Republican votes against confirming her as solicitor general.

Well, that might be enough to lose her a batch of GOP Senate votes, but would it derail her nomination? Probably not. And it might just give enough comfort to the left that Kagan is a “safe” pick for them.

Elena Kagan is the prohibitive favorite for the Supreme Court. She has made it through one confirmation hearing for her current post as solicitor general and possesses academic credentials, a reputation for collegiality with conservatives, and a limited paper trail. Moreover, she is the closest we have to a stealth candidate among the front-runners. As Tom Goldstein notes, “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.”

Casual observers assume that a dean of Harvard Law School and a domestic-policy aide in the Clinton administration must have a sizable body of work reflecting her legal views. But not so. Paul Campos has read all there is to read — and it’s not much:

Yesterday, I read everything Elena Kagan has ever published. It didn’t take long: in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago’s own faculty—and a short essay in the school’s law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it’s true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard’s dean, and for never having written anything intended for a more general audience, either before or after taking that position.)

Campos goes so far as to suggest that Kagan is a Harriet Miers type — minus the cronyism. He concludes:

Indeed, the most impressive thing about Kagan is that she seems to have a remarkable ability to ingratiate herself with influential people across the ideological spectrum. … As a private lawyer, Miers, after all, had a fairly good excuse for having no public views on the great legal issues of our day. For most of the past 20 years, Kagan’s job has been to both develop and publicize such views. That she has nevertheless managed to almost completely avoid doing so is rather extraordinary.

What to make of this? Well, if a Republican president were to select a person with such a skimpy written record, conservatives would be (and were with the Miers nomination) rightfully worried. But do the same concerns — ideological infidelity, intellectual mediocrity — really apply to Kagan? Let’s be honest, it works differently for liberals. Very few are tempted to moderate their views and slide rightward, while Republican-nominated jurists (David Souter, John Paul Stevens) have a history of “disappointing” their side. And while no one has claimed that Kagan has achieved greatness in legal scholarship, the assumption — rightly or not — is that the dean of one of the top law schools in the country must have some intellectual wattage. Nevertheless, liberal legal activists might have reason to be a bit nervous — after all, would a justice who lacks judicial chops be the best choice to sway Justice Kennedy on those all-important 5-to-4 decisions? Is she really the one who is going to go toe-to-toe with Justice Scalia? There is some risk there if Obama were to choose a lesser known quantity than an appellate judge such as Diane Wood.

Nevertheless, there are clues as to Kagan’s legal mindset. Indeed, one such clue is also her primary shortcoming. Stuart Taylor explains:

The one issue that could slow down Kagan’s confirmation is her impassioned effort as dean to bar military recruiting on campus to protest the law banning openly gay people from serving in the military, which she called “a moral injustice of the first order.”

Kagan carried this opposition to the point of joining a 2005 amicus brief whose strained interpretation of a law denying federal funding to institutions that discriminate against military recruiters would — the Supreme Court held in an 8-0 decision — have rendered the statute “largely meaningless.” This helps to explain the 31 Republican votes against confirming her as solicitor general.

Well, that might be enough to lose her a batch of GOP Senate votes, but would it derail her nomination? Probably not. And it might just give enough comfort to the left that Kagan is a “safe” pick for them.

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The Left Tips Its Hand on Supreme Court Selections

The New York Times provides a forum for various legal gurus to expound on the Supreme Court selection. It is instructive about how liberals have come to view the courts. First up is Lani Guinier, who considers it the Supreme Court’s job “to place their imprimatur on perceptions of what is right and wrong.” That’s what we need — the high priests of right and wrong imparting wisdom on the rabble of democracy. Good to know.

Another job for the Court: running corporate America. This brain storm comes from Jamal Greene of Columbia Law School:

I would love to see President Obama nominate Elizabeth Warren to the Supreme Court. Ms. Warren is the whipsaw-smart Harvard Law professor and bankruptcy expert chairing the Congressional committee charged with oversight of the bank bailout, which she has strongly criticized. …

It would be difficult, moreover, for Republicans to put up much of a fight against a Supreme Court nominee who was willing to publicly dress down the president’s own Treasury secretary over financial regulation. It might be too much to ask for a confirmation hearing dominated by straight talk about the crisis facing middle- and working-class Americans rather than by baseball analogies, but Elizabeth Warren is our best hope.

Alas, this is how liberals have come to view the Court — as a racial- and gender-preference bonanza, a set of philosopher kings, and an uber-legislature. That the Court has a specific, limited task in our Constitutional system is lost on them. In voicing its views of the Court, the left also reveals its fundamental contempt for the idea of impartial judging and for our democratic system — that is, self-rule by elected leaders. For the left, it’s all about getting judges of the right gender or race who can override the “errors” of the democratic system.

The New York Times provides a forum for various legal gurus to expound on the Supreme Court selection. It is instructive about how liberals have come to view the courts. First up is Lani Guinier, who considers it the Supreme Court’s job “to place their imprimatur on perceptions of what is right and wrong.” That’s what we need — the high priests of right and wrong imparting wisdom on the rabble of democracy. Good to know.

Another job for the Court: running corporate America. This brain storm comes from Jamal Greene of Columbia Law School:

I would love to see President Obama nominate Elizabeth Warren to the Supreme Court. Ms. Warren is the whipsaw-smart Harvard Law professor and bankruptcy expert chairing the Congressional committee charged with oversight of the bank bailout, which she has strongly criticized. …

It would be difficult, moreover, for Republicans to put up much of a fight against a Supreme Court nominee who was willing to publicly dress down the president’s own Treasury secretary over financial regulation. It might be too much to ask for a confirmation hearing dominated by straight talk about the crisis facing middle- and working-class Americans rather than by baseball analogies, but Elizabeth Warren is our best hope.

Alas, this is how liberals have come to view the Court — as a racial- and gender-preference bonanza, a set of philosopher kings, and an uber-legislature. That the Court has a specific, limited task in our Constitutional system is lost on them. In voicing its views of the Court, the left also reveals its fundamental contempt for the idea of impartial judging and for our democratic system — that is, self-rule by elected leaders. For the left, it’s all about getting judges of the right gender or race who can override the “errors” of the democratic system.

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Holder on the Hill

Eric Holder went to the Senate Judiciary Committee yesterday to testify. He walked back his statement that Osama bin Laden wouldn’t be captured. Now he says we could capture and interrogate him — sans Miranda rights. He also insisted that a New York trial for KSM isn’t off the table. The administration still wants to close Guantanamo but would have to get congressional approval to open the Illinois prison for the detainees. (Translation: it’s not happening.) And he’s not telling us the names of the Justice Department lawyers who previously represented al-Qaeda members.

It was in some ways a perfect distillation of the Obama approach to Islamic terrorism: nontransparent, politically untenable, impervious to facts, and increasingly unbelievable. The positions Holder advocates — closing Guantanamo and trying KSM in New York — increasingly have a theoretical and academic feel to them, in no small part because it’s obvious that public and congressional opinion runs strongly against the administration. Somehow that’s fitting for the law professor turned president. It sounds so reasonable and so high-minded in the classroom, but in the real world, the criminal-justice model for fighting terrorism runs into national-security concerns and political and practical realities. Meanwhile, one wonders who is going to craft the real policies — the ones that will actually be implemented. It sure doesn’t seem that Holder or his crew of former al-Qaeda defense lawyers are the ones to do it.

Eric Holder went to the Senate Judiciary Committee yesterday to testify. He walked back his statement that Osama bin Laden wouldn’t be captured. Now he says we could capture and interrogate him — sans Miranda rights. He also insisted that a New York trial for KSM isn’t off the table. The administration still wants to close Guantanamo but would have to get congressional approval to open the Illinois prison for the detainees. (Translation: it’s not happening.) And he’s not telling us the names of the Justice Department lawyers who previously represented al-Qaeda members.

It was in some ways a perfect distillation of the Obama approach to Islamic terrorism: nontransparent, politically untenable, impervious to facts, and increasingly unbelievable. The positions Holder advocates — closing Guantanamo and trying KSM in New York — increasingly have a theoretical and academic feel to them, in no small part because it’s obvious that public and congressional opinion runs strongly against the administration. Somehow that’s fitting for the law professor turned president. It sounds so reasonable and so high-minded in the classroom, but in the real world, the criminal-justice model for fighting terrorism runs into national-security concerns and political and practical realities. Meanwhile, one wonders who is going to craft the real policies — the ones that will actually be implemented. It sure doesn’t seem that Holder or his crew of former al-Qaeda defense lawyers are the ones to do it.

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Dershowitz Throws Down the Gauntlet to Obama

Let’s give credit where it’s due. In the past, I’ve written about Alan Dershowitz’s defense of the Obama administration (here and here) as well as about his recent attack on J Street.

Despite Dershowitz’s outstanding pro-Israel record, I’ve taken him to task for his loyalty to Obama and refusal to call the president out for his decision to downgrade the alliance with Israel. But it looks as if the Harvard Law professor is finally starting to lose patience with the man whose candidacy for the presidency he supported so enthusiastically. In today’s Wall Street Journal (subscription required), Dershowitz stops short of condemning the administration, but he delivered as stark a challenge to the president as one could imagine regarding Iran.

Pulling no punches, Dershowitz instructs Obama that no one remembers that Neville Chamberlain was a successful reformer who not only helped restore Great Britain’s financial stability during the Depression but also passed landmark legislation on unemployment and retirement benefits. Instead, all history remembers is Chamberlain’s “failure to confront Hitler.” It is, he writes pointedly, “Chamberlain’s enduring legacy.” And if Obama does not act to prevent Iran from obtaining nuclear weapons, anything he achieves on health care or the economy will count for nothing when compared to the impact of a failure on Iran.

“History will not treat kindly any leader who allows so much power to be accumulated by the world’s first suicide nation,” Dershowitz writes. Like Chamberlain with Hitler, “Mr. Obama will come to symbolize the failure of the West if Iran acquires nuclear weapons on his watch.”

Dershowitz is right, both about the nature of the threat from Iran and about Obama’s place in history if he allows Tehran to obtain nuclear weapons. But does Obama take the threat as seriously as Dershowitz? Everything the president has done since he took office leads us to believe the answer is no. A year of feckless engagement and weak diplomacy has led the Iranians to believe Obama is a weakling who will do nothing but appease and talk. The threat of force has been taken off the table, and only recently has the administration begun to speak seriously about sanctions on Iran — but even then, the measures considered aren’t tough enough and lack the support of China and Russia. Beyond wrongly blaming Israel for his failure to rally the world to America’s position, Obama has done little to indicate he cares deeply about the threat.

Thus, while we applaud Dershowitz for throwing down the gauntlet to Obama, we have to wonder how long will he wait before he concedes that the man in the White House is more of a Chamberlain than the Winston Churchill that the West needs so badly today.

Let’s give credit where it’s due. In the past, I’ve written about Alan Dershowitz’s defense of the Obama administration (here and here) as well as about his recent attack on J Street.

Despite Dershowitz’s outstanding pro-Israel record, I’ve taken him to task for his loyalty to Obama and refusal to call the president out for his decision to downgrade the alliance with Israel. But it looks as if the Harvard Law professor is finally starting to lose patience with the man whose candidacy for the presidency he supported so enthusiastically. In today’s Wall Street Journal (subscription required), Dershowitz stops short of condemning the administration, but he delivered as stark a challenge to the president as one could imagine regarding Iran.

Pulling no punches, Dershowitz instructs Obama that no one remembers that Neville Chamberlain was a successful reformer who not only helped restore Great Britain’s financial stability during the Depression but also passed landmark legislation on unemployment and retirement benefits. Instead, all history remembers is Chamberlain’s “failure to confront Hitler.” It is, he writes pointedly, “Chamberlain’s enduring legacy.” And if Obama does not act to prevent Iran from obtaining nuclear weapons, anything he achieves on health care or the economy will count for nothing when compared to the impact of a failure on Iran.

“History will not treat kindly any leader who allows so much power to be accumulated by the world’s first suicide nation,” Dershowitz writes. Like Chamberlain with Hitler, “Mr. Obama will come to symbolize the failure of the West if Iran acquires nuclear weapons on his watch.”

Dershowitz is right, both about the nature of the threat from Iran and about Obama’s place in history if he allows Tehran to obtain nuclear weapons. But does Obama take the threat as seriously as Dershowitz? Everything the president has done since he took office leads us to believe the answer is no. A year of feckless engagement and weak diplomacy has led the Iranians to believe Obama is a weakling who will do nothing but appease and talk. The threat of force has been taken off the table, and only recently has the administration begun to speak seriously about sanctions on Iran — but even then, the measures considered aren’t tough enough and lack the support of China and Russia. Beyond wrongly blaming Israel for his failure to rally the world to America’s position, Obama has done little to indicate he cares deeply about the threat.

Thus, while we applaud Dershowitz for throwing down the gauntlet to Obama, we have to wonder how long will he wait before he concedes that the man in the White House is more of a Chamberlain than the Winston Churchill that the West needs so badly today.

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Feisty Dershowitz Attacks the Wrong Target

According to Haaretz, the schmoozing is getting a little rough at the AIPAC conference. The Israeli paper says that Harvard Law’s Alan Dershowitz barged into a conversation between one of their reporters and Hadar Susskind, a representative of J Street, and then tore into the left-wing group. The Dersh, a liberal stalwart whose credentials as a partisan Democrat and a strong supporter of Israel cannot be questioned, pulled no punches but rather charged the group with false labeling in calling itself “pro-Israel” and accused it of dividing the Jewish community.

“I reject J Street because it spends more time criticizing Israel than supporting it,” he said. “They shouldn’t call themselves pro-Israel. The combative Harvard law professor said that he too opposed settlements. “But I spend 80 per cent of my time supporting Israel,” he said. … The sort of supporters J Street was attracting to its conferences showed that the group was damaging to Israel, Dershowitz said. “If you invite Zbigniew Brzezinski you are not pro-Israel,” Dershowitz told Susskind. “You should ask yourself why Norman Finkelstein loves you,” he said.

Claus von Bulow’s former appeals attorney is, of course, right on all counts here. J Street isn’t merely an exercise in pro-Israel political diversity, as it claims. It spends more time bashing Israel than backing it because it was created specifically to create a counter-force to AIPAC that would push for pressure on the Jewish state. But the Dersh’s fury at J Street is misplaced. The question pro-Israel activists must ask is why he or they should bother wasting their time swinging away at J Street when the group is now merely a stalking horse for the real problem: the Obama administration.

J Street is, after all, nothing more than a Jewish rump of MoveOn.org and the leftist activist wing of the Democratic Party. It came into existence to give Jewish cover to members of Congress who wished to oppose the pro-Israel consensus. But now its main purpose is to give aid and comfort to an Obama administration that is determined to distance itself from Israel and to pressure it into concessions on issues — such as Jerusalem — on which an Israeli and American pro-Israel consensus is firmly behind the Netanyahu government. Dershowitz has expressed misgivings in the past about Obama’s policies but has refused to break with the president. But at this point it’s fair to ask Professor Dershowitz whether it isn’t it a bit unfair to smack J Street around when they’re only loyally carrying the water for the man whom he helped elect president and continues to support?

In 2008, Dershowitz argued that not only were Obama’s pro-Israel credentials impeccable but that it would be a boon to Israel to have a liberal president who backed the Jewish state. That was because he thought that having a liberal icon like Obama who supported Israel in the White House would convince young people and others on the Left that it was okay for them to do the same. But the opposite has happened. The pointless fights that Obama has picked with Israel (while he continues to dither on the threat from Iran) have helped to further discredit Israel among liberals and Democrats while J Street disingenuously stamps his policies “pro-Israel.”

But while he is prepared to get tough with Obama’s J Street spear-carriers, the redoubtable Professor Dershowitz is still unwilling to take on their inspirational leader in the White House. Slashing away at J Street’s stands is nice but if you’re going to keep giving Obama a pass for policies that put the left-wing lobby’s misguided principles into action, you’re wasting everybody’s time. The next time Dershowitz feels the urge to belabor Susskind and the rest of the J Street crowd, he should instead focus his anger on the real offender: Barack Obama.

According to Haaretz, the schmoozing is getting a little rough at the AIPAC conference. The Israeli paper says that Harvard Law’s Alan Dershowitz barged into a conversation between one of their reporters and Hadar Susskind, a representative of J Street, and then tore into the left-wing group. The Dersh, a liberal stalwart whose credentials as a partisan Democrat and a strong supporter of Israel cannot be questioned, pulled no punches but rather charged the group with false labeling in calling itself “pro-Israel” and accused it of dividing the Jewish community.

“I reject J Street because it spends more time criticizing Israel than supporting it,” he said. “They shouldn’t call themselves pro-Israel. The combative Harvard law professor said that he too opposed settlements. “But I spend 80 per cent of my time supporting Israel,” he said. … The sort of supporters J Street was attracting to its conferences showed that the group was damaging to Israel, Dershowitz said. “If you invite Zbigniew Brzezinski you are not pro-Israel,” Dershowitz told Susskind. “You should ask yourself why Norman Finkelstein loves you,” he said.

Claus von Bulow’s former appeals attorney is, of course, right on all counts here. J Street isn’t merely an exercise in pro-Israel political diversity, as it claims. It spends more time bashing Israel than backing it because it was created specifically to create a counter-force to AIPAC that would push for pressure on the Jewish state. But the Dersh’s fury at J Street is misplaced. The question pro-Israel activists must ask is why he or they should bother wasting their time swinging away at J Street when the group is now merely a stalking horse for the real problem: the Obama administration.

J Street is, after all, nothing more than a Jewish rump of MoveOn.org and the leftist activist wing of the Democratic Party. It came into existence to give Jewish cover to members of Congress who wished to oppose the pro-Israel consensus. But now its main purpose is to give aid and comfort to an Obama administration that is determined to distance itself from Israel and to pressure it into concessions on issues — such as Jerusalem — on which an Israeli and American pro-Israel consensus is firmly behind the Netanyahu government. Dershowitz has expressed misgivings in the past about Obama’s policies but has refused to break with the president. But at this point it’s fair to ask Professor Dershowitz whether it isn’t it a bit unfair to smack J Street around when they’re only loyally carrying the water for the man whom he helped elect president and continues to support?

In 2008, Dershowitz argued that not only were Obama’s pro-Israel credentials impeccable but that it would be a boon to Israel to have a liberal president who backed the Jewish state. That was because he thought that having a liberal icon like Obama who supported Israel in the White House would convince young people and others on the Left that it was okay for them to do the same. But the opposite has happened. The pointless fights that Obama has picked with Israel (while he continues to dither on the threat from Iran) have helped to further discredit Israel among liberals and Democrats while J Street disingenuously stamps his policies “pro-Israel.”

But while he is prepared to get tough with Obama’s J Street spear-carriers, the redoubtable Professor Dershowitz is still unwilling to take on their inspirational leader in the White House. Slashing away at J Street’s stands is nice but if you’re going to keep giving Obama a pass for policies that put the left-wing lobby’s misguided principles into action, you’re wasting everybody’s time. The next time Dershowitz feels the urge to belabor Susskind and the rest of the J Street crowd, he should instead focus his anger on the real offender: Barack Obama.

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Too Deep a Hole for Tom Campbell?

The California media have certainly latched on to the controversy over Tom Campbell’s Sami Al-Arian connection. The question they’re now raising is whether the self-inflicted wound is fatal. First, it was the Los Angeles Times. Now the San Jose Mercury News focuses on Campbell’s letter written on behalf of the terrorist, as well as Campbell’s inability to get his story straight:

Republican U.S. Senate candidate Tom Campbell is facing a potentially crippling controversy over his past defense of a fired Florida professor with ties to terrorists and his inconsistent statements regarding what he knew and when about the man’s actions.

Dogged for weeks by criticism over his defense of Sami Al-Arian, who later pleaded guilty to aiding terrorists, Campbell has denied knowing about the man’s incendiary past, which included nods to Islamic jihad and calls for “death to Israel.” He also said that his dealings with Al-Arian occurred before the Sept. 11 terror attacks.

But Campbell, who was then a Stanford law professor, wrote a letter on Al-Arian’s behalf months after the Sept. 11 attacks that casts doubt on his claims of ignorance about Al-Arian’s radicalism.

“His inconsistent statements are particularly damaging because it creates a credibility problem,” said John Pitney, a political science professor at Claremont McKenna College.

It’s hard to square his recent campaign defense, offered up in last Friday’s debate, and the written evidence:

Campbell has deflected campaign attacks by saying he did not know about the O’Reilly interview at the time and that he wrote the letter before the Sept. 11 attacks. But it turns out neither is true.

Campbell stated in his letter that he “read a transcript of the O’Reilly Factor interview last autumn” but said in a separate passage that he never heard Al-Arian “say anything anti-Semitic, or racist, or religionist, against any group.”

As he did with the Los Angeles Times, Campbell tries some damage control:

Asked to clarify the discrepancy, Campbell said in an interview Tuesday that he could not recall whether all or part of the O’Reilly interview had been read to him or whether he had seen a copy before penning the letter. Whatever the case, though, he insisted that he did not see or hear the “death to Israel” passage.

“I did not hear, I did not read, I was not aware of statements Sami Al-Arian had made relative to Israel,” Campbell said in the interview. “And I would not have written the letter had I known about those. … To say ‘Death to Israel’ is abhorrent, it’s horrible.” He repeated that he erred in not researching Al-Arian more thoroughly before coming to his defense. … “I hope that the fact I did not remember precisely because of the passage of years is understood.”

Well, suffice it to say, it’s not understood. Was he lying about the letter or inexcusably careless? Either way, he now has a burgeoning controversy that is not likely to abate. His opponents are certainly going in for the kill. Chuck DeVore’s communications director, Joshua Trevino, says to me of the latest: “Tom Campbell’s credibility is eroded when his statements about his past with Islamic radicals are proven false. But what really erodes his credibility is the plain existence of a past with Islamic radicals. Campbell’s inconsistencies are a handy news hook — but the underlying problem is his lack of judgment in ever having affiliated with anti-American, pro-terror Islamists.”

There are moments in a campaign when a tipping point is reached — can the candidate extract himself from the crisis or has he, by his own words, dug himself a hole too deep? Right now, it seems, Campbell’s explanations aren’t helping his cause, and the media smell blood in the water. We’ll see how voters react.

The California media have certainly latched on to the controversy over Tom Campbell’s Sami Al-Arian connection. The question they’re now raising is whether the self-inflicted wound is fatal. First, it was the Los Angeles Times. Now the San Jose Mercury News focuses on Campbell’s letter written on behalf of the terrorist, as well as Campbell’s inability to get his story straight:

Republican U.S. Senate candidate Tom Campbell is facing a potentially crippling controversy over his past defense of a fired Florida professor with ties to terrorists and his inconsistent statements regarding what he knew and when about the man’s actions.

Dogged for weeks by criticism over his defense of Sami Al-Arian, who later pleaded guilty to aiding terrorists, Campbell has denied knowing about the man’s incendiary past, which included nods to Islamic jihad and calls for “death to Israel.” He also said that his dealings with Al-Arian occurred before the Sept. 11 terror attacks.

But Campbell, who was then a Stanford law professor, wrote a letter on Al-Arian’s behalf months after the Sept. 11 attacks that casts doubt on his claims of ignorance about Al-Arian’s radicalism.

“His inconsistent statements are particularly damaging because it creates a credibility problem,” said John Pitney, a political science professor at Claremont McKenna College.

It’s hard to square his recent campaign defense, offered up in last Friday’s debate, and the written evidence:

Campbell has deflected campaign attacks by saying he did not know about the O’Reilly interview at the time and that he wrote the letter before the Sept. 11 attacks. But it turns out neither is true.

Campbell stated in his letter that he “read a transcript of the O’Reilly Factor interview last autumn” but said in a separate passage that he never heard Al-Arian “say anything anti-Semitic, or racist, or religionist, against any group.”

As he did with the Los Angeles Times, Campbell tries some damage control:

Asked to clarify the discrepancy, Campbell said in an interview Tuesday that he could not recall whether all or part of the O’Reilly interview had been read to him or whether he had seen a copy before penning the letter. Whatever the case, though, he insisted that he did not see or hear the “death to Israel” passage.

“I did not hear, I did not read, I was not aware of statements Sami Al-Arian had made relative to Israel,” Campbell said in the interview. “And I would not have written the letter had I known about those. … To say ‘Death to Israel’ is abhorrent, it’s horrible.” He repeated that he erred in not researching Al-Arian more thoroughly before coming to his defense. … “I hope that the fact I did not remember precisely because of the passage of years is understood.”

Well, suffice it to say, it’s not understood. Was he lying about the letter or inexcusably careless? Either way, he now has a burgeoning controversy that is not likely to abate. His opponents are certainly going in for the kill. Chuck DeVore’s communications director, Joshua Trevino, says to me of the latest: “Tom Campbell’s credibility is eroded when his statements about his past with Islamic radicals are proven false. But what really erodes his credibility is the plain existence of a past with Islamic radicals. Campbell’s inconsistencies are a handy news hook — but the underlying problem is his lack of judgment in ever having affiliated with anti-American, pro-terror Islamists.”

There are moments in a campaign when a tipping point is reached — can the candidate extract himself from the crisis or has he, by his own words, dug himself a hole too deep? Right now, it seems, Campbell’s explanations aren’t helping his cause, and the media smell blood in the water. We’ll see how voters react.

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Palin at the Tea Party

Sarah Palin went to address the Tea Party Convention last night, laying out the populist-conservative case against Obama. We “need a commander in chief and not a law professor” in the war against “radical Islamic extremists” she declared.  (In purposefully using a phrase that the president eschews, she, of course, reinforces her point.) She fingered the closed-door deals and non-transparency in Washington, asking mockingly, “How’s that hopey, changey stuff working out for you?” And she hit the themes that have galvanized the populist activists and around which establishment conservatives have rallied. She criticized the president’s apologetic foreign policy and his failure to support human rights and democracy advocates, called the massive debt “generational theft,” advocated domestic energy development, and urged a return to more limited government and low taxes (noting Ronald Reagan’s birthday). And she also skewered Obama for incessantly blaming George W. Bush and for striking out in three big elections (“When you’re 0-3, you’d better stop lecturing and start listening”).

She demurred when asked about a presidential run and urged the Tea Party movement not to be about a single personality. But her purpose here seems quite clear. She is making the case that there is a powerful political movement, test run in Massachusetts, for independent-minded populists and conservatives. While she isn’t yet offering herself as a candidate, it doesn’t take much imagination to hear that same speech a year or two from now, phrased as an announcement of her presidential candidacy.

But for a moment, let’s put Palin aside. The issues she hit certainly comprise the core criticisms of Obama and will form the platform for conservatives in 2010 and 2012. Many of the issues she enumerated were positions that lifted Chris Christie, Bob McDonnell, and Scott Brown to victory, proving that there is not, in fact, much daylight between Tea Party activists, mainstream Republicans, and disaffected independent voters. And in one form or another, we are hearing similar themes from virtually all Republicans — whether it’s Rep. Paul Ryan or Marco Rubio or Meg Whitman or the other 2012 likely contenders.

So the question, I think, for Republicans is not what but who — who will emerge as the most effective standard bearer of that agenda. That — despite the continual chatter from the punditocracy to find the answer right now — can wait for the 2012 presidential campaign. The “what” will suffice for a nationalized, 2010 midterm election. And then the race will be on to see if Palin or some other figure emerges as the most effective champion for that core agenda.

Palin has followed no rule book and no pundit’s advice in the last year. She quit the governorship, sold millions of books, got a million and a half Facebook fans, broke through the health-care reform debate with her “death panel” critique, and now has endeared herself to a grassroots movement. Pundits will ask, “But is that enough?” Well, it’s a lot for a year’s work. After all, we are two years away from the start of the primary season. But this much is clear: her potential opponents for 2012 will have to figure out how to match the enthusiasm and affection she generates. (The mainstream media and liberals [but I repeat myself] loathe her, but they don’t vote in the GOP presidential primary.) And, without adopting the criticisms favored by the mainstream media — e.g., she lacks an Ivy League degree – that are likely to alienate the conservative base, they must figure out how to make the case that she’s not the right person to go toe to toe with Obama. That’s not, by any means, an impossible task. But judging from last night’s outing, the flock of 2012 contenders may have their work cut out for them.

Sarah Palin went to address the Tea Party Convention last night, laying out the populist-conservative case against Obama. We “need a commander in chief and not a law professor” in the war against “radical Islamic extremists” she declared.  (In purposefully using a phrase that the president eschews, she, of course, reinforces her point.) She fingered the closed-door deals and non-transparency in Washington, asking mockingly, “How’s that hopey, changey stuff working out for you?” And she hit the themes that have galvanized the populist activists and around which establishment conservatives have rallied. She criticized the president’s apologetic foreign policy and his failure to support human rights and democracy advocates, called the massive debt “generational theft,” advocated domestic energy development, and urged a return to more limited government and low taxes (noting Ronald Reagan’s birthday). And she also skewered Obama for incessantly blaming George W. Bush and for striking out in three big elections (“When you’re 0-3, you’d better stop lecturing and start listening”).

She demurred when asked about a presidential run and urged the Tea Party movement not to be about a single personality. But her purpose here seems quite clear. She is making the case that there is a powerful political movement, test run in Massachusetts, for independent-minded populists and conservatives. While she isn’t yet offering herself as a candidate, it doesn’t take much imagination to hear that same speech a year or two from now, phrased as an announcement of her presidential candidacy.

But for a moment, let’s put Palin aside. The issues she hit certainly comprise the core criticisms of Obama and will form the platform for conservatives in 2010 and 2012. Many of the issues she enumerated were positions that lifted Chris Christie, Bob McDonnell, and Scott Brown to victory, proving that there is not, in fact, much daylight between Tea Party activists, mainstream Republicans, and disaffected independent voters. And in one form or another, we are hearing similar themes from virtually all Republicans — whether it’s Rep. Paul Ryan or Marco Rubio or Meg Whitman or the other 2012 likely contenders.

So the question, I think, for Republicans is not what but who — who will emerge as the most effective standard bearer of that agenda. That — despite the continual chatter from the punditocracy to find the answer right now — can wait for the 2012 presidential campaign. The “what” will suffice for a nationalized, 2010 midterm election. And then the race will be on to see if Palin or some other figure emerges as the most effective champion for that core agenda.

Palin has followed no rule book and no pundit’s advice in the last year. She quit the governorship, sold millions of books, got a million and a half Facebook fans, broke through the health-care reform debate with her “death panel” critique, and now has endeared herself to a grassroots movement. Pundits will ask, “But is that enough?” Well, it’s a lot for a year’s work. After all, we are two years away from the start of the primary season. But this much is clear: her potential opponents for 2012 will have to figure out how to match the enthusiasm and affection she generates. (The mainstream media and liberals [but I repeat myself] loathe her, but they don’t vote in the GOP presidential primary.) And, without adopting the criticisms favored by the mainstream media — e.g., she lacks an Ivy League degree – that are likely to alienate the conservative base, they must figure out how to make the case that she’s not the right person to go toe to toe with Obama. That’s not, by any means, an impossible task. But judging from last night’s outing, the flock of 2012 contenders may have their work cut out for them.

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Another About-Face?

In a remarkable and entirely welcome reversal, the Eric Holder Justice Department has retreated in its effort to pursue ethics charges against Bush administration lawyers who authored memos on enhanced interrogation. Newsweek reports on the internal probe by the Justice Department’s Office of Professional Responsibility (OPR):

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources.

A draft report prepared in the waning days of the Bush administration by OPR was roundly criticized by departing Attorney General Michael Mukasey and his deputy Mark Filip. As I reported previously:

One former Justice official with knowledge of the matter says, “It is safe to say they had a number of concerns about the draft report both as to the timing and the substance” of the work by OPR. There is, this official reports, “institutional unease by senior career people” at Justice that good faith legal work may place attorneys in peril. “The department won’t be able to attract the best and the brightest. You really want lawyers who will give candid legal advice.”

But the question remains why, and why now, the department has come to its senses. Newsweek pointedly observes: “A Justice official declined to explain why David Margolis softened the original finding, but noted that he is a highly respected career lawyer who acted without input from Holder.” One can speculate that some group of career attorneys, with no love lost for the Bush administration, nevertheless found the prospect of disbarring two of their own for good-faith legal work to be a bridge too far in the partisan wars. And it may be that as the wheels come off the ideology-driven Holder-Obama approach to terrorism (e.g., widespread criticism of the handling of the Christmas Day bombing, reversal of the decision to try KSM in New York), this was one more ill-conceived crusade that the Obami did not need.

Finally, for those who like a bit of Washington intrigue, consider that the White House counsel was until recently Greg Craig, who in his pre-Obama days as an adviser to Sen. Kennedy found the Nicaraguan Sandinistas to be deserving of our support, later helped return Elian Gonzales to the clutches of Fidel Castro, and advised in some capacity Pedro Miguel González, the Panamanian terrorist the U.S. government believed to have murdered two American soldiers. (Yes, that’s a story in and of itself, one that the mainstream media found no interest in reporting.) Craig, often cited as an enthusiastic backer of the “Not Bush” anti-terror policies, is now gone, a victim of the failed attempt to close Guantanamo. Perhaps his departure has removed a powerful advocate for this sort of unseemly mischief. If so, good riddance.

Regardless of the reason, the news that Yoo and Bybee will not be hounded from their profession is positive and long overdue. (The potential loss of their professional licenses has been hanging over them for well over a year.) The notion that lawyers providing detailed legal analysis and a comprehensive review of existing law could later be strung up by state bar associations is nothing short of chilling. As I previously wrote, Ronald Rotunda, a professor of law at Chapman Law School and a specialist in ethics who was consulted by the Justice Department on the OPR’s investigation, found the entire effort to prosecute lawyers for their opinions baffling:

“I can’t imagine you would discipline someone who goes through everything methodically.” He explains, “If you don’t like the particular policies, then change the policies.” He draws an analogy with the attacks on free speech during the Vietnam war and McCarthy eras in which lawyers with particular views were demonized and threatened with loss of their professional licenses.

Well, perhaps some sanity has been restored to the Justice Department. If so, we can finally turn our attention from waging war against the prior administration to determining how to uproot the failed policies of this one. Then on to steering an approach to combating terrorism that is both effective and enjoys the support of the public.

In a remarkable and entirely welcome reversal, the Eric Holder Justice Department has retreated in its effort to pursue ethics charges against Bush administration lawyers who authored memos on enhanced interrogation. Newsweek reports on the internal probe by the Justice Department’s Office of Professional Responsibility (OPR):

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources.

A draft report prepared in the waning days of the Bush administration by OPR was roundly criticized by departing Attorney General Michael Mukasey and his deputy Mark Filip. As I reported previously:

One former Justice official with knowledge of the matter says, “It is safe to say they had a number of concerns about the draft report both as to the timing and the substance” of the work by OPR. There is, this official reports, “institutional unease by senior career people” at Justice that good faith legal work may place attorneys in peril. “The department won’t be able to attract the best and the brightest. You really want lawyers who will give candid legal advice.”

But the question remains why, and why now, the department has come to its senses. Newsweek pointedly observes: “A Justice official declined to explain why David Margolis softened the original finding, but noted that he is a highly respected career lawyer who acted without input from Holder.” One can speculate that some group of career attorneys, with no love lost for the Bush administration, nevertheless found the prospect of disbarring two of their own for good-faith legal work to be a bridge too far in the partisan wars. And it may be that as the wheels come off the ideology-driven Holder-Obama approach to terrorism (e.g., widespread criticism of the handling of the Christmas Day bombing, reversal of the decision to try KSM in New York), this was one more ill-conceived crusade that the Obami did not need.

Finally, for those who like a bit of Washington intrigue, consider that the White House counsel was until recently Greg Craig, who in his pre-Obama days as an adviser to Sen. Kennedy found the Nicaraguan Sandinistas to be deserving of our support, later helped return Elian Gonzales to the clutches of Fidel Castro, and advised in some capacity Pedro Miguel González, the Panamanian terrorist the U.S. government believed to have murdered two American soldiers. (Yes, that’s a story in and of itself, one that the mainstream media found no interest in reporting.) Craig, often cited as an enthusiastic backer of the “Not Bush” anti-terror policies, is now gone, a victim of the failed attempt to close Guantanamo. Perhaps his departure has removed a powerful advocate for this sort of unseemly mischief. If so, good riddance.

Regardless of the reason, the news that Yoo and Bybee will not be hounded from their profession is positive and long overdue. (The potential loss of their professional licenses has been hanging over them for well over a year.) The notion that lawyers providing detailed legal analysis and a comprehensive review of existing law could later be strung up by state bar associations is nothing short of chilling. As I previously wrote, Ronald Rotunda, a professor of law at Chapman Law School and a specialist in ethics who was consulted by the Justice Department on the OPR’s investigation, found the entire effort to prosecute lawyers for their opinions baffling:

“I can’t imagine you would discipline someone who goes through everything methodically.” He explains, “If you don’t like the particular policies, then change the policies.” He draws an analogy with the attacks on free speech during the Vietnam war and McCarthy eras in which lawyers with particular views were demonized and threatened with loss of their professional licenses.

Well, perhaps some sanity has been restored to the Justice Department. If so, we can finally turn our attention from waging war against the prior administration to determining how to uproot the failed policies of this one. Then on to steering an approach to combating terrorism that is both effective and enjoys the support of the public.

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The Harvard Law Review Must Be Aghast

In the ongoing debate over Obama’s attack on the Supreme Court, the president seems not to be faring all that well. Politico’s forum on the subject contains a range of criticisms. They fall into several categories.

First, it was arrogant and careless of Obama to call out the Supreme Court — and not get his facts right. Dan Perino observes: “Misrepresenting a complicated legal opinion is dicey — but doing so in a prime-time address to a nation where the authors of that opinion are in the front row leaves you rightly exposed to criticism.” The president and his minions have gotten used to their sheltered existence and being immune to criticism. You can almost hear them reassuring themselves, “It’s not like one of the justices is going to object!” Well, he did, and that’s what comes from assuming the president can be cavalier with the truth.

Second, it was rude to berate the Court in public, treating the justices as errant political functionaries rather than interpreters of the Constitution. Larry J. Sabato, hardly a fire-breathing conservative, makes some unfavorable comparisons:

Mr. Obama’s blunt attack on the Court’s ruling, with the members sitting in front of him, was no doubt stunning and unsettling to some, and it contradicted his frequent calls for bipartisanship and civility. It also reminded me of President Andrew Jackson’s remark that, “Chief Justice Marshall has made his decision. Now let him enforce it.” Others may have remembered Massive Resistance and the disrespect shown to earlier Courts when they made unpopular rulings about race.

And third, Obama is playing with fire — and talking nonsense when he dares Congress to “respond” to a First Amendment ruling with legislation. This was not a statutory interpretation — as was the Equal Pay Act, which begat the Lilly Ledbetter legislation — that is amenable to a legislative fix. In such a case, the Court says, “We think the statute says X.” The Congress is then free to say, “No, we really meant Y, and here’s the amended law to make that explicit.” What sort of legislative response would there be to “The First Amendment does not permit limits on corporations and unions exercising core political speech”? Boston College law professor Richard Albert explains:

By emphatically urging Congress to pass a bill reversing what he views as the Supreme Court’s misguided judgment–“a bill that helps to right this wrong,” in the President’s own words–the President undermined two sacred institutions in American constitutional government: the separation of powers and judicial independence.

A University of Virginia Law School professor asks whether Obama is seriously entertaining the view that Congress should “challenge the Supreme Court’s ruling and its constitutional interpretive supremacy.” We don’t know, because Obama, one suspects, doesn’t take what he’s saying seriously. He’s simply inciting the mob.

In all this, one thing is rather clear: Obama has harmed himself. In playing fast and loose with the facts and the law, he has diminished not the Court but himself. He seems to prefer Huey Long to Lawrence Tribe as his role model. His elite university pals and media sycophants who marveled at his Harvard-honed intellect and supposed temperamental superiority must be shuddering.

In the ongoing debate over Obama’s attack on the Supreme Court, the president seems not to be faring all that well. Politico’s forum on the subject contains a range of criticisms. They fall into several categories.

First, it was arrogant and careless of Obama to call out the Supreme Court — and not get his facts right. Dan Perino observes: “Misrepresenting a complicated legal opinion is dicey — but doing so in a prime-time address to a nation where the authors of that opinion are in the front row leaves you rightly exposed to criticism.” The president and his minions have gotten used to their sheltered existence and being immune to criticism. You can almost hear them reassuring themselves, “It’s not like one of the justices is going to object!” Well, he did, and that’s what comes from assuming the president can be cavalier with the truth.

Second, it was rude to berate the Court in public, treating the justices as errant political functionaries rather than interpreters of the Constitution. Larry J. Sabato, hardly a fire-breathing conservative, makes some unfavorable comparisons:

Mr. Obama’s blunt attack on the Court’s ruling, with the members sitting in front of him, was no doubt stunning and unsettling to some, and it contradicted his frequent calls for bipartisanship and civility. It also reminded me of President Andrew Jackson’s remark that, “Chief Justice Marshall has made his decision. Now let him enforce it.” Others may have remembered Massive Resistance and the disrespect shown to earlier Courts when they made unpopular rulings about race.

And third, Obama is playing with fire — and talking nonsense when he dares Congress to “respond” to a First Amendment ruling with legislation. This was not a statutory interpretation — as was the Equal Pay Act, which begat the Lilly Ledbetter legislation — that is amenable to a legislative fix. In such a case, the Court says, “We think the statute says X.” The Congress is then free to say, “No, we really meant Y, and here’s the amended law to make that explicit.” What sort of legislative response would there be to “The First Amendment does not permit limits on corporations and unions exercising core political speech”? Boston College law professor Richard Albert explains:

By emphatically urging Congress to pass a bill reversing what he views as the Supreme Court’s misguided judgment–“a bill that helps to right this wrong,” in the President’s own words–the President undermined two sacred institutions in American constitutional government: the separation of powers and judicial independence.

A University of Virginia Law School professor asks whether Obama is seriously entertaining the view that Congress should “challenge the Supreme Court’s ruling and its constitutional interpretive supremacy.” We don’t know, because Obama, one suspects, doesn’t take what he’s saying seriously. He’s simply inciting the mob.

In all this, one thing is rather clear: Obama has harmed himself. In playing fast and loose with the facts and the law, he has diminished not the Court but himself. He seems to prefer Huey Long to Lawrence Tribe as his role model. His elite university pals and media sycophants who marveled at his Harvard-honed intellect and supposed temperamental superiority must be shuddering.

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Obama Demagogues the Court’s Ruling

The president issued a written statement yesterday on the Supreme Court’s ruling striking down most of the McCain-Feingold campaign statute. It read:

With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington–while undermining the influence of average Americans who make small contributions to support their preferred candidates. That’s why I am instructing my Administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision. The public interest requires nothing less.

This is as noxious a statement concerning the Supreme Court that has, in my memory, ever been issued by the White House. Let’s count the ways. First, the president — who tells us he is a serious constitutional scholar — offers not a single word of substantive criticism about the Court’s analysis. He treats the Court — as most liberals do, frankly — as a policymaking body. In this case, he doesn’t like the outcome and blasts away at the result, transparently using the Court to regain his populist footing with the public.

Second, what in the world is a bipartisan response to a First Amendment ruling? He’s going to amend the Constitution? He’s going to pack the Court? The lack of acknowledgment that this is a principle of constitutional law, one at the foundation of our democracy, is jaw-dropping. You’ll notice what is not in the president’s statement — “First Amendment’ or “Constitution.” There isn’t a legislative “fix” to the First Amendment.

And finally, let’s just remember that liberals for years inveighed against any public figure who dared criticize a court ruling. They were doing damage to the political system, lessening respect for the rule of law and even encouraging violence against judges, they finger-wagged. Well, it seems the rules have changed. And from a law professor yet.

The president has many problems — a failing agenda, a public that has tuned him out, and a staff that serves him poorly. But at the root of much of what ails him is arrogance. He seems not to appreciate or frankly care what the public thinks. He deems criticism illegitimate and attributes bad motives to critics. His lawyers have invented new legal privileges and excuses to avoid scrutiny. He has populated his administration with unaccountable czars. And now he seems not to fully appreciate or respect a binding ruling of the Court. His politicization of a Court ruling for his own PR purposes and his utter lack of respect for the Court in its capacity as a check against, among other things, him is startling. And for those who hold dear notions of limited government and the protection of core political rights, this should be disturbing.

The president issued a written statement yesterday on the Supreme Court’s ruling striking down most of the McCain-Feingold campaign statute. It read:

With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington–while undermining the influence of average Americans who make small contributions to support their preferred candidates. That’s why I am instructing my Administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision. The public interest requires nothing less.

This is as noxious a statement concerning the Supreme Court that has, in my memory, ever been issued by the White House. Let’s count the ways. First, the president — who tells us he is a serious constitutional scholar — offers not a single word of substantive criticism about the Court’s analysis. He treats the Court — as most liberals do, frankly — as a policymaking body. In this case, he doesn’t like the outcome and blasts away at the result, transparently using the Court to regain his populist footing with the public.

Second, what in the world is a bipartisan response to a First Amendment ruling? He’s going to amend the Constitution? He’s going to pack the Court? The lack of acknowledgment that this is a principle of constitutional law, one at the foundation of our democracy, is jaw-dropping. You’ll notice what is not in the president’s statement — “First Amendment’ or “Constitution.” There isn’t a legislative “fix” to the First Amendment.

And finally, let’s just remember that liberals for years inveighed against any public figure who dared criticize a court ruling. They were doing damage to the political system, lessening respect for the rule of law and even encouraging violence against judges, they finger-wagged. Well, it seems the rules have changed. And from a law professor yet.

The president has many problems — a failing agenda, a public that has tuned him out, and a staff that serves him poorly. But at the root of much of what ails him is arrogance. He seems not to appreciate or frankly care what the public thinks. He deems criticism illegitimate and attributes bad motives to critics. His lawyers have invented new legal privileges and excuses to avoid scrutiny. He has populated his administration with unaccountable czars. And now he seems not to fully appreciate or respect a binding ruling of the Court. His politicization of a Court ruling for his own PR purposes and his utter lack of respect for the Court in its capacity as a check against, among other things, him is startling. And for those who hold dear notions of limited government and the protection of core political rights, this should be disturbing.

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Hebrew University law professor Ruth Gavison, one of Israel’s most respected legal intellectuals, is said to owe her failure to be appointed to Israel’s supreme court to two main things: her opposition to the judicial activism of the 1995-2006 Barak court and her strong affirmation of Zionist values in an increasingly post-Zionist age.

And so when someone like Gavison, in a newly published position paper entitled “The Necessity of Strategic Thinking: A Constitutive Vision for Israel and Its Implications,” suggests fundamental changes in Israel’s Law of Return, which guarantees Israeli citizenship to any Jew wishing to live in the Jewish state, you have to sit up and take note.

Until now, amending this law has been the agenda of post- and anti-Zionists, who claim—quite correctly—that it discriminates in favor of Jews. Now along comes Gavison and says in effect that it doesn’t discriminate enough, because it has been taken advantage of by too many people who—although they are Jews according to Jewish religious or Israeli secular law, such as Russians with a single Jewish grandparent or Ethiopians whose ancestors converted to Christianity—have “no interest in Jewish life.” Such immigrants, says Gavison, have often ended up being a cultural and/or economic burden on Israel, which has had great difficulty integrating them successfully.

One can’t deny that this difficulty has been real. And yet Gavison’s proposal could only result in a legal, political, and bureaucratic nightmare. Who, exactly, would decide what an “interest in Jewish life” is? Who would decide who does or doesn’t have it? Would screening committees be set up for tens of thousands of potential immigrants with the power to decide in each case whether such an “interest” exists?

Although the Law of Return has indeed become more and more problematic with time, sweeping changes in it are only likely to cause greater problems. One would think that a conservative jurist like Ruth Gavison would be the first to understand this.

Hebrew University law professor Ruth Gavison, one of Israel’s most respected legal intellectuals, is said to owe her failure to be appointed to Israel’s supreme court to two main things: her opposition to the judicial activism of the 1995-2006 Barak court and her strong affirmation of Zionist values in an increasingly post-Zionist age.

And so when someone like Gavison, in a newly published position paper entitled “The Necessity of Strategic Thinking: A Constitutive Vision for Israel and Its Implications,” suggests fundamental changes in Israel’s Law of Return, which guarantees Israeli citizenship to any Jew wishing to live in the Jewish state, you have to sit up and take note.

Until now, amending this law has been the agenda of post- and anti-Zionists, who claim—quite correctly—that it discriminates in favor of Jews. Now along comes Gavison and says in effect that it doesn’t discriminate enough, because it has been taken advantage of by too many people who—although they are Jews according to Jewish religious or Israeli secular law, such as Russians with a single Jewish grandparent or Ethiopians whose ancestors converted to Christianity—have “no interest in Jewish life.” Such immigrants, says Gavison, have often ended up being a cultural and/or economic burden on Israel, which has had great difficulty integrating them successfully.

One can’t deny that this difficulty has been real. And yet Gavison’s proposal could only result in a legal, political, and bureaucratic nightmare. Who, exactly, would decide what an “interest in Jewish life” is? Who would decide who does or doesn’t have it? Would screening committees be set up for tens of thousands of potential immigrants with the power to decide in each case whether such an “interest” exists?

Although the Law of Return has indeed become more and more problematic with time, sweeping changes in it are only likely to cause greater problems. One would think that a conservative jurist like Ruth Gavison would be the first to understand this.

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