Commentary Magazine

Topic: Supreme Court

A Very Fundamental Change

03.27.2012 - 4:00 PM

In oral argument today in the Supreme Court regarding the individual mandate in the Affordable Care Act, Justice Anthony Kennedy–almost certainly the swing vote here–said the following to the Solicitor General (page 30 of the transcript, which, along with the audio, can be found here):

JUSTICE KENNEDY: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.

And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

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The Courts and Jerusalem

03.27.2012 - 2:10 PM

While the country is riveted on the hearing on the constitutionality of ObamaCare, the Supreme Court handed down a ruling on Monday that was also significant. In an 8-1 decision, the high court ruled that a legal challenge to the State Department’s refusal to state on a child’s passport that he was born in Jerusalem, Israel, could proceed. The majority overturned a lower court decision that claimed Congress exceeded its authority when it passed legislation in 2002 requiring that Americans born in the city of Jerusalem be allowed to name Israel as their birthplace in official documents. While all this ruling did was to specify that the administration’s decisions on such questions are not beyond the scope of judicial review, it will allow the courts to try the case, a development that supporters of Israel’s claim to its capital cheered.

Ironically, the lawyers for those demanding the right to name Jerusalem as part of Israel argued that forcing the State Department to follow Congress’ instructions was merely a matter of clarifying a personal status issue rather than making foreign policy. That’s somewhat disingenuous, as the obvious intent of the lawsuit is to force the government’s hand. But though the administration is right to contend that the president has the power to make foreign policy decisions, the tangle over Jerusalem is a poor example of that principle. The question that must ultimately be decided is whether the executive has the power to directly override the law especially on a point where common sense is with the legislature.

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Opposition to ObamaCare High Among Women, Youth

03.26.2012 - 11:30 AM

During the past year, opinion polls have consistently shown widespread public disapproval of President Obama’s health care reform law. The Hill has a new survey out reaffirming this, as the Supreme Court prepares to hear arguments on the constitutionality of the law later today.

The most interesting takeaway from the poll is that the disapproval for ObamaCare is spread across most voting demographics, including two key groups that Democrats have argued benefit most from the law: young people and women. From The Hill:

By a 52-percent-to-39-percent margin women are more opposed to it than men, who oppose it 48 percent to 45 percent, a difference that matches the poll’s 3-point margin of error. …

While even the youngest voters oppose the law (47 percent to 42 percent among those aged 18-39), opposition grows to 53 percent among voters aged 65 and older.

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Majority Want SCOTUS to Scrap Mandate

03.19.2012 - 3:30 PM

The Supreme Court will hear arguments on President Obama’s health care law next week, and still an overwhelming majority of Americans say that the court should either scrap the mandate or the entire law:

This ABC News/Washington Post poll finds that Americans oppose the law overall by 52-41 percent. And 67 percent believe the high court should either ditch the law or at least the portion that requires nearly all Americans to have coverage.

The high court opens hearings on the law’s constitutionality a week from today.

The law has never earned majority support in ABC/Post polls – and this update, produced for ABC by Langer Research Associates, finds a strong sense its critics are dominating the debate. Seventy percent of Americans report hearing mainly negative things about the law lately; just 19 percent say the buzz has been positive. Even among its supporters, 53 percent are hearing more negatives than positives. Among opponents this soars to 88 percent.

As Chris Cillizza reports, Americans are set in their opinions on ObamaCare, which may be the big reason why Obama rarely talks about it in the context of his reelection.

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Standing Respectfully But Staying Mute

03.08.2012 - 12:20 PM

It’s worth wondering whether the non-controversy over the decision by an Israeli Supreme Court justice to not sing “Hatikvah,” Israel’s national anthem, last week is worth the space of a full article. But Ethan Bronner’s fair-minded and sober treatment of the issue recently in the New York Times does highlight something very important: the way in which Israel and Israelis usually successfully navigate the fault lines that do exist in a state both Jewish and democratic.

The justice in question, Salim Joubran, is a Christian Arab, and the first Arab appointed to a permanent seat on Israel’s highest court. In a publicly televised ceremony marking the retirement of the current chief justice and the installation of the next, Joubran stood but did not sing the words to the national anthem, which includes within it a reference to a “yearning Jewish soul” and focuses quite explicitly on the long Jewish dream to return to political independence in the Land of Israel.

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Gay Marriage Ban Unconstitutional, Rules 9th Circuit

02.07.2012 - 2:00 PM

The 9th Circuit Court of Appeal’s argument wasn’t a defense of gay marriage, per se, but it did find the gay marriage ban passed by California voters was unconstitutional. Law Professor William Jacobson explains the Court’s decision was based on the prior right to same-sex marriage in the state, and its opinion that there wasn’t a compelling state interest in outlawing it:

The Court essentially used a bootstrap argument — that since there was a prior right to same-sex marriage (based on a California Supreme Court decision which gave rise to Prop. 8 ) — the taking away of that right without justification violated the 14th Amendment. Judge N.R. Smith filed a 39-page dissent from this finding.

The Court also held that (i) the supporters of Prop. 8 did have standing to defend the law, deferring to the Certified Opinion of the California Supreme Court, and (ii) trial court Judge Walker did not have to recuse himself based on his own longterm same-sex relationship. These two findings were unanimous.

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Perry’s Ignorance is Not a Virtue

12.30.2011 - 1:15 PM

ABC News reports Texas Governor Rick Perry admitted he didn’t know about the Supreme Court case Lawrence v. Texas, a case which struck down the state’s anti-sodomy law and similar laws in 13 others. The case was decided while Perry was governor, and he even wrote about it in his book Fed Up!, calling it one of the court cases in which “Texans have a different view of the world than do the nine oligarchs in robes.”

But in Iowa yesterday, Perry said, “I wish I could tell you I knew every Supreme Court case. I don’t, I’m not even going to try to go through every Supreme Court case, that would be — I’m not a lawyer.” He added, “We can sit here and you know play I gotcha questions on what about this Supreme Court case or whatever, but let me tell you, you know and I know that the problem in this country is spending in Washington, D.C., it’s not some Supreme Court case.”
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Judge Vinson’s Madisonian Vision vs. ObamaCare

02.02.2011 - 11:57 AM

I’ve now read through the 78-page decision by Federal Judge Roger Vinson in which he ruled the individual mandate, which is at the heart of the Patient Protection and Affordable Care Act, to be unconstitutional and not severable, necessitating that the “entire Act must be declared void.”

The decision itself, as Judge Vinson points out, is not really about our health-care system at all. It is principally about our federalist system, he writes, and “it raises very important issues regarding the Constitutional role of the federal government.”

While Vinson’s decision covers a lot of ground — including Medicaid expansion, the Necessary and Proper Clause, and the evolution of Commerce Clause Jurisprudence — the core purpose of the decision is to set some outer limits on federal action. Because of the novel way the Obama administration is justifying the individual mandate, it would be virtually impossible to argue that there is anything that Congress is without power to regulate.

Judge Vinson’s opinion is laced with quotes from Madison, Hamilton, and the Federalist Papers. And because he believes that the individual mandate exceeds Congress’s commerce power, is without logical limitation, and far exceeds the existing legal boundaries established by Supreme Court precedent — because, Vinson argues, it cannot be reconciled with a limited government of enumerated powers and would remove all limits on federal power — he declared the Act unconstitutional.

Judge Vinson was certainly right to do so. And the arguments he employed to strike it down are powerful and perfect for this political moment. We are, after all, engaged in a debate about first principles and the role of the Constitution in our lives. Judge Vinson has affirmed in an elegant opinion the vision of James Madison. We can only hope that the Supreme Court eventually does as well.

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Leftists Bring Swastikas to Koch Protest

01.31.2011 - 1:08 PM

So the left’s newfound respect for “civil discourse” lasted about as long as it took to link Sarah Palin to a completely unrelated murderous rampage, as it now looks like things are back to business as usual. At a protest against Koch Industries over the weekend, activists carried signs emblazoned with swastikas and 9/11 “truth” slogans, chanted “no justice, no peace,” and shut down a busy street in Rancho Mirage, California.

The demonstration, organized by Common Cause, was meant to protest the Citizens United ruling. Why the group’s ire was directed at Koch Industries — which had no involvement whatsoever in the Supreme Court case — is an excellent question.

According to Common Cause, Koch benefited from the ruling and supported groups that filed amicus briefs on behalf of Citizens United during the case. Fair enough. But that doesn’t explain why Common Cause invited labor unions to the rally, which have profited from the Supreme Court’s ruling as well.

Not to mention the ACLU, which also filed an amicus brief in support of Citizens United, arguing that it was a free-speech issue. Will Common Cause bus in protesters to scream eliminationist rhetoric outside the ACLU’s offices next?

Probably not — getting arrested while protesting the ACLU just doesn’t have the same charm to it as getting arrested while protesting an “evil” corporate titan. Though a bit more consistency would at least help make Common Cause look a tad less clownish.

Grasping irony, however, is clearly not the group’s strong point. This was apparent from the list of speakers at the “progressive” political conference that was held in conjunction with the anti-Koch demonstration. When protesters grew tired of yelling about the political influence of corporate fat cats, they could take a break and listen to panel discussions featuring an array of representatives from George Soros–funded organizations.

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State Dept: Turkey’s Report on Flotilla ‘Independent and Credible’

01.30.2011 - 8:45 AM

You’ve got to be kidding:

QUESTION: I just — on Monday you had some fairly kind words for the Israeli investigation into [the flotilla incident]. I believe you described it as transparent, open, and balanced. If it weren’t — wasn’t those exact words, it was close to it.

MR. CROWLEY: Transparent and independent…

QUESTION: Independent. Would you use the same adjectives to describe the Turkish report?

MR. CROWLEY: I think that Turkey has put forward its own good-faith effort. I have no reason to question that it also has –

QUESTION: But it’s directly at odds with the Israeli report.

MR. CROWLEY: Well, and given the incident and the circumstances, I don’t think that we’re surprised that there are differing views of what transpired. That is expressly why we support the UN panel, so that we can take the Turkish perspective, and it has a valid perspective; we can take the Israeli perspective, it has a valid perspective; and together, try to fully understand what happened. So — but just to reinforce that through the UN panel there’s still work to be done and there’s still, obviously, an effort that will be important to understand fully what happened last year.

QUESTION: So you would not use the same words to describe the Turkish report as the Israelis’?

MR. CROWLEY: I’m saying that Turkey – it is an independent, credible report. I’m not challenging either one … [crosstalk] Both countries are doing what they can to help contribute to a fuller understanding of what happened during this incident last year. [emphasis added]

Actually, the Turkish report, which accused Israel of mowing down civilians from a helicopter before any commandos landed, was neither credible nor independent. There’s a helpful chart up at Daled Amos that compares it with the Israeli investigation that exonerated the commandos, the emphasis being placed on Turkey’s near-total lack of credibility. We don’t know how the Turkish commission was empowered to compel testimony or what testimony it heard, and we can’t reverse-engineer the issue because the public hasn’t been given the report. We don’t even who was on the Turkish commission. Read More

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LIVE BLOG: I Guess He’s for Eminent-Domain Reform

01.25.2011 - 10:10 PM

In the course of praising America, Obama says that, in some countries, “If the central government wants a railroad, they get a railroad — no matter how many homes are bulldozed.” I guess he never read the Supreme Court’s Kelo decision allowing just such outrages if a state or city wants to do a favor to a large corporation or entity.

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On Anniversary of Roe v. Wade, Obama Corrupts Political Language

01.25.2011 - 11:43 AM

On the 38th anniversary of the Supreme Court’s pro-choice decision in Roe v. Wade, President Obama said in a statement that Roe “affirms a fundamental principle: that government should not intrude on private family matters.”

To which one might ask: since when is lethal violence used on the defenseless and the most vulnerable members of our society considered an intrusion on “private family matters”?

This line of argument is absurd. Would the president argue that our laws should be silent on matters of spousal and child abuse? After all, based on the Obama Criterion, those, too, might qualify as “private family matters.”

The president’s statement that abortion on demand affirms a “fundamental principle” is evidence of a man who is willing to corrupt the English language in order to advance an ideological agenda — and in this instance, a particularly vicious and brutal agenda.

In his 1946 essay “Politics and the English Language,” George Orwell wrote, “In our time, political speech and writing are largely the defence of the indefensible.” He spoke about “the decadence of our language” and how “language can also corrupt thought.” And he alerted his readers to the fact that “Political language … is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.”

Pure wind is not solid — and taking the life of the innocent unborn is neither a “fundamental principle” nor a “private family matter.”

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Citizens United Protected Free Speech, Not the GOP

01.21.2011 - 6:32 PM

The one-year anniversary of the Citizens United Supreme Court decision is being treated in some quarters as a Republican triumph. According to this reading, the ruling that invalidated legislation that unconstitutionally attempted to restrict the political speech of groups was strictly a partisan affair. In this version of reality, the upshot of the 2010 election was that Republican and conservative organizations were freed up by the High Court’s spiking of provisions of the McCain-Feingold campaign-finance bill and therefore coasted to victory last November. Thus the spin today is that since the Democrats have no chance of undoing the Court’s decision via legislation, they must now retool their fundraising operations to adjust to the post–Citizens United world.

But this interpretation is entirely fallacious. Conservatives have historically opposed restrictive campaign-finance laws because they believed that attempts to silence political speech, such as the documentary film about Hilary Clinton that was at the heart of Citizens United, was inherently illegitimate. Campaign-finance “reform” laws have never, as their authors claim, eliminated the role of money in politics. But they did play favorites as to which kind of money was legal. Such good laws are good for incumbent politicians because they stifle challengers, and great for media companies, which are free to spout their views about candidates on their editorial pages and, alas, in their news columns as well, while restricting the right of others to purchase the same freedom.

But the main point here is that the focus on Citizens United allows liberals to engage in conspiracy theories about why they lost the last election rather than face up to the fact that the grassroots uprising against the policies of the Obama administration is what accounted for the GOP landslide victory in the congressional elections, not the money that some conservative groups were allowed to spend last year.

While Citizens United overturned regulations that were more likely to handicap conservative pro-business groups rather than liberal ones such as unions, the free flow of money in campaigns doesn’t necessarily mean either side will have an advantage in the future. Just as the Obama campaign broke records in 2008 by harnessing the enthusiasm of liberals, the lack of draconian regulations intended to silence free speech in the future will be no hindrance to the Democrats if they can manage to appear as the party with the answers again. That’s the thing about free speech: it allows the sentiments of the people, whether the pendulum has swung to the left or to the right, to be heard.

The Court’s verdict one year ago will continue to be felt not in terms of who wins the election in 2012 or any other year but in the ability of ordinary Americans to band together to speak out on the issues and the candidates. While at the moment that does not appear to appeal to many Democrats, it is the essence of democracy.

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The Unraveling of the New York Times‘s ‘Citizens United Scandal’ Story

01.20.2011 - 4:44 PM

Liberal advocacy group Common Cause has filed a DOJ petition against Justice Antonin Scalia and Justice Clarence Thomas, claiming that the justices’ attendance at a Koch Industry event represented a conflict of interest in last year’s Citizens United v. Federal Election Commission Supreme Court case. The organization wants the justices to retroactively recuse themselves from the case and for the Court to vacate its decision.

But while the New York Times tried to portray Common Cause’s petition as a serious legal challenge this morning, the holes in the group’s allegations have continued to grow as the day has progressed.

Common Cause argues that the Koch brothers “were among the main beneficiaries of the Supreme Court’s decision in the Citizens United case,” and by attending Koch-sponsored events, Scalia and Thomas could have had their votes influenced:

Common Cause said in its petition to the Justice Department that if either of the justices appeared before Mr. Koch’s group between 2008 and 2010, when the court was considering aspects of the Citizens United case, “it would certainly raise serious issues of the appearance of impropriety and bias.”

But according to Politico’s Ben Smith, Scalia and Thomas appear to have attended only one Koch event each — and both events took place long before the Supreme Court even knew about the Citizens United case:

But Eugene Meyer, the president of the conservative legal group the Federalist Society, told me today that Scalia spoke to the Palm Springs conference in January of 2007. Citizens United was only filed on December 17 of that year. Thomas spoke to the conference in January 2008, after the case had been filed in federal district court, but months before the Supreme Court took the case in August.

And legal experts I’ve spoken to have also dismissed the basis of Common Cause’s petition.

“I’ve never heard of somebody filing a motion saying we’d like you to disqualify yourself from a case you decided last year because three years before that you gave a speech on a different subject [at an event],” said Ronald Rotunda, the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence at Chapman University School of Law. “If it was an oral argument, it would be hard to say without snickering.”

Rotunda said that it’s common, and even encouraged, for judges to attend and speak at events, as long as they don’t discuss pending cases. “If the judges have to be disqualified because somebody within earshot talks about legal issues, it would mean judges couldn’t read the newspaper.”

Common Cause’s case seems so flimsy, in fact, that some have guessed it must be a publicity stunt. Which makes sense — the organization is currently gearing up for its anti-Koch rally with Van Jones, which the Times somehow neglected to add to its report.

Multiple attorneys I’ve spoken to have said that this case just isn’t going anywhere. Or, as Rotunda put it, “There’ll be some people laughing about it, and then it’ll disappear.”

I think that’s a safe bet. Maybe someone should let the New York Times in on the joke.

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Forget Mixed Seating. How About the President Just Mailing It In?

01.14.2011 - 2:32 PM

In the wake of President Obama’s call for more civility in the wake of the tragedy in Arizona, some in his party are seeking a symbolic effort to play down partisanship during one of the Capitol’s annual displays of partisanship: the State of the Union speech. Democratic Senator Mark Udall of Colorado has called for mixed seating during the event. The Democratic leaders like it, and Republicans, who are leery of being portrayed as insufficiently sensitive or overly partisan, are not opposing the plan.

Is there anything wrong with the idea? Not really. The tradition of having Democrats sit on one side of the Chamber and Republicans on the other is based on the way Congress operates when it is in a normal session. Congressional seating patterns, not to mention the existence of organized political parties, are nowhere to be found in the Constitution.

However, it is not clear that mixed seating will achieve the avowed purpose of those advocating this measure, which is to avoid the sophomoric displays of partisanship that have become a regular feature of State of the Union speeches. While representatives and senators from both parties stand and applaud, as they should, during the president’s entrance, once the speech starts, the two sides morph into a congressional version of a college football game, where the supporters of the two teams divide the stadium and engage in organized cheers. It doesn’t matter which party holds the White House or Congress. Every year, the president can count on raucous cheers and standing ovations from his fellow party members in the chamber while members of the other party ostentatiously stay seated and silent.

Will mixed seating prevent a recurrence of this nonsense? The answer here is probably not. When the president speaks a line that is designed to appeal to the sensibilities of his own party — for example, one urging Congress not to repeal his health-care program — most Democrats are likely to stand and cheer while Republicans will remain seated (and need to restrain themselves from muttering their disapproval, which would lead to accusations of bad manners, such as those aimed at Justice Samuel Alito, who silently voiced his disapproval at a presidential barb aimed at the Supreme Court last year). The odds are, Democrats will get up and applaud and Republicans will not at certain points in the speech. And they will do so even if they have not clumped together by party. Read More

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New Complaint: The GOP ‘Sanitized’ the Constitution

01.06.2011 - 2:05 PM

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

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

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

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

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

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

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

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

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

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

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Obama Takes Moral Step Backward in Treatment of Suspected Terrorists

12.29.2010 - 10:26 AM

“No part of President Obama’s agenda has been as thoroughly repudiated as the one regarding terrorist detainees,” the Wall Street Journal has editorialized. That verdict seems reasonable given Mr. Obama’s unfulfilled pledge to close Guantanamo Bay, the administration’s reversal of the decision to try Khalid Sheikh Mohammed in Manhattan, and the near acquittal of Ahmed Ghailani in a civilian trial earlier this year.

But the editorial also reports this: White House aides say they are working up an executive order to allow the U.S. to hold enemy combatants indefinitely. “One reason Mr. Obama has been forced to allow indefinite detention is because he seems unwilling to allow more military commission trials at Guantanamo,” according to the Journal.

That is an extraordinary turn of events. Mr. Obama ran for president by lacerating his predecessor for acting in ways that were, he said, lawless and unconstitutional, in violation of basic human rights, and an affront to international law, and in ways that discredited and disgraced America’s name around the globe. And now we learn that Mr. Upholder of International Law himself, Barack Obama, is going to continue his policy of holding enemy combatants indefinitely.

At least the Bush policy of military tribunals, which was based on wartime precedent and previous Supreme Court rulings, allowed suspects a lawyer and a trial by jury. When in 2006 the Supreme Court struck down military tribunals (in Hamdan v. Rumsfeld), the Bush administration and Congress effectively rewrote the law, passing the Military Commissions Act of 2006. The administration was trying to find the right balance between indefinite detention on the one hand and not providing suspected terrorists with the full array of constitutional rights an American citizen possesses on the other. (The Supreme Court’s 2008 terribly misguided ruling in Boumediene v. Bush, which for the first time in our history conferred a constitutional right to habeas corpus to alien enemies detained abroad by our military force in an ongoing war, made striking this balance far more complicated.)

President Obama, because he appears unwilling to allow military commission trials at Guantanamo, seems to have settled on indefinite detention. This is a significant moral step backward.

Under the Obama regime, suspected terrorists have no rights and no recourse. It also means that terrorists who deserve to be convicted and punished for their malevolent acts will avoid that judgment. In the withering words of the Journal editorial, “Nazis Hermann Goering and Adolf Eichmann were sentenced to hang for their crimes, but KSM and Ramzi bin al Shibh get three squares a day and the hope that someday they might be released.”

Even allowing for the fact that governing is a good deal more difficult than issuing campaign promises, the Obama administration’s incompetence is striking, its course of action indefensible. The president has once again made a hash of things.

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Honduras, Obama, and Occam’s Razor

12.21.2010 - 8:14 AM

In the Wall Street Journal yesterday, Mary Anastasia O’Grady wrote that cables released by WikiLeaks show that the administration knew Honduran President Manuel Zelaya had threatened Honduran democracy — but supported him in order to offer President Obama a “bonding opportunity” with Venezuelan President Hugo Chavez and a chance to ingratiate himself with Latin America’s hard left.

O’Grady believes this helps explain why the administration went to such extremes to try to force Zelaya’s reinstatement despite the obvious remedy once the Honduran Congress and Supreme Court had upheld his removal for attempting to thwart the election of his successor — hold the already scheduled election between the already duly-chosen candidates, on the date already set, which was only a few months away.

I have a simpler explanation — not inconsistent with O’Grady’s analysis but closer to the common theme in Obama’s foreign policy in other areas. The day after Zelaya was removed, Obama pronounced it a “coup.” That snap judgment remained American policy even as more and more facts contradicting Obama’s description emerged. After months pushing a reinstatement that virtually every element of Honduran political and civil society opposed, and even though the proper and practical solution was apparent, Obama still engaged in mystifying diplomacy, cutting off aid to a poverty-stricken ally. Three months into the “crisis,” State Department spokesman P.J. Crowley made this statement about the Honduran government’s intent to hold its election:

There’s a sense that the de facto regime was thinking, if we can just get to an election, that this would absolve them of all their sins. And we’re saying, clearly, that is not the case.

Crowley asserted the election the Honduran legislature and judiciary sought to preserve would not “absolve” them of “all their sins.” Honduras had apparently offended some sort of god.

Obama brought to the Oval Office a self-regard probably unmatched in American history. He apologized for his country while praising it for electing him. He thought that Iran could be handled with his outstretched hand; that a foreign head of state should receive an iPod with his speeches on it; that a video of him was sufficient for the Berlin Wall anniversary; that a prime minister should be summoned to the White House after-hours without press or pictures; that a Palestinian state would be created because this time they had Him. Russia and China were treated with respect, as was Iran, even as it held a fraudulent election and blew through his successive “deadlines.” But allies such as Poland, the Czech Republic, Georgia, Israel, and Britain were treated differently.

What was visited upon Honduras last year was of a piece.

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Alan Wolfe’s Silly Essay

12.17.2010 - 12:45 PM

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

According to Wolfe:

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

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

Nihilism, we are told,

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

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

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

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

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

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

12.16.2010 - 3:34 PM

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

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

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

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

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

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

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