Wednesday, April 27, 2011
Obama still lacks accomplishment, but he's no longer untested; or, Why Beldar doesn't care anymore about Obama's college or law school transcripts
Ace has been musing in print on whether to continue his self-described "Release the Transcripts campaign" (regarding Obama's college and law school courses and grades). He hasn't asked me, but if he did I'd recommend that Ace invest his considerable talent on other topics.
During 2007-2008, I wrote many, many posts about Obama's objective lack of qualifications for the presidency.
Some of the topics were of pretty limited significance in the big picture. I thought, for example, and I still think that Obama and his supporters have systematically exaggerated the significance of his part-time teaching of con-law seminars at Chicago Law School. But that really went to his character more than to his objective qualifications, and it was at best a very small window through which to observe and draw inferences.
By contrast, some of the topics I blogged about were quite significant. I was (and remain) incredibly frustrated that no one anywhere, in the mainstream media or even in the blogosphere, was taking anything remotely resembling a close look at Obama's legislative accomplishments as a U.S. Senator. Other than running in and winning a presidential election, his (very short, very distracted) tenure in the Senate seemed to me to be by far the strongest and most significant item on a very short list of lifetime accomplishments. So it also seemed to me that everyone ought to be interested in the extent to which he either had, or had not, actually crafted any bills that he'd then been able get passed into law by his fellow legislators.The Obama campaign claimed undue credit for symbolic accomplishments on which Obama deserved no substantive credit. Asked for examples of his legislative prowess, the campaign pointed to a nuclear non-proliferation bill Obama "co-sponsored." Well, what actually had happened was that Dick Lugar and his staff wrote the legislation (it was a follow-up to a related bill that Lugar and Dick Nunn had co-written years earlier), but then when it was ready for passage, Lugar invited rookie Obama to sign onto as a co-sponsor as a welcoming gesture (back when the GOP controlled the Senate). Obama's total contribution to the process was to tag along with Lugar on a flight to Central Asia as part of a fact-finding inspection of former Soviet republics, and then to nod "yes" when asked if he'd like to be a co-sponsor. Similarly, Tom Coburn had let Obama co-sponsor a bill Coburn and his staff had written providing for government budget information to be made available online — same deal, just letting Obama share completely undeserved credit, just as a senatorial courtesy. Both Lugar's bill and Coburn's bill were going to be passed by voice vote without dissent or objection, so by adding Obama as a formal co-sponsor they could say it was "bi-partisan" while also giving the rookie something to put in his newsletters back to Illinois.
Being asked by senior GOP senators to be the token rookie Democrat senator on non-controversial legislation is hardly enough to make Obama into a modern-day Daniel Webster, I suggested. The world yawned.
I wrote a series of posts about the thinness of Obama's own legislative efforts — which boiled down to a Belgian Congo foreign aid bill and a bill banning the export of elemental mercury, both (again) passed without opposition or objection on a voice vote in both chambers of Congress — and I thought they were good posts. But they fell into the aether like the proverbial trees falling in an un-peopled forest.
Americans were just not interested in whether Obama had demonstrated an ability to actually get complicated and controversial legislation written and passed. No one seemed to think that might be pertinent to Obama's ability to — oh, I dunno, but say, just hypothetically — craft and pass any kind of workable health care reform?
McCain, of course, had actually gotten legislation passed — some of which bears his name, and one piece of which, in particular, I very much wish he hadn't gotten passed. But for whatever bizarre reason, McCain never focused his campaign's fire on the huge disparity in his performance and Barack Obama's on the only job credential they both had in common. And the voters became enraptured with Obama the Omnipotent Fantasy Hero, and they voted for him in November 2008. And they have been realizing in growing numbers ever since that the guy they elected ain't no Fantasy Hero, and that his only potencies are in the areas of (1) spending money we don't have and (2) federalizing/regulating/taxing the holy hell out of not just health-care but anything that moves and can be federalized, regulated, or taxed.
In 2007-2008, the whole point of examining Obama's performance as a U.S. Senator, however, was to test whether it demonstrated his preparedness to become president. My overall point back then was that based on his actual track record, in comparison with any president going back at least to Andrew Johnson, Obama was objectively unprepared for the job. And because he was unprepared for the job, I further argued, we could reasonably infer that he would most probably botch it.
Fast forward to November 2012. By then, we certainly will no longer be relying on inferences from Obama's performance as a U.S. Senator in 2004-2008 to predict how he might perform as POTUS in 2013-2017. By then we'll have almost four years of his daily performance (or non-) as POTUS to consider when we're making our predictions about how he'd be likely to do in the next four. And by November 2012, no undecided voter is going to be much interested in drawing inferences about Obama's likely performance as POTUS in 2013-2017 based on Obama's college or law school transcripts. It's not that the old evidence will become irrelevant, it's just that it's going to be massively outweighed by the much more obvious (indeed, inescapable) and much more current evidence of Obama's massive incompetence combined with fiscal and regulatory recklessness as POTUS.
He's no longer wholly untested. He's now been thoroughly tested — and on the same job for which he's seeking a four-year extension.
But the world can see that he's botched it already. We don't have to guess whether he'd botch it further in the next four years, no more than we had to guess about Jimmy Carter.
It's Obama's performance as POTUS that counts now, Ace. That's what's important and — mirabile dictu! — by a fortunate coincidence, that's also the source of our most persuasive set of arguments anyway. So let's not get distracted from that subject by chasing down rabbit trails that have already proved (in 2008) to go nowhere, because if the 2012 election is a referendum on how well Obama has done his job as POTUS, any GOP candidate will beat him like a drum.
Tuesday, April 26, 2011
King & Spalding's craven ethical collapse in withdrawing from a politically controversial representation
During a period of brief temporary insanity near the end of the 20th Century, I considered returning to the BigLaw corporate litigation practice. I was privileged to be granted a job interview with a partner from the then-new Houston office of Atlanta-based King & Spalding.
The firm enjoys an excellent reputation as one of America's top law firms, and it would be on anyone's short list of prestigious big firms headquartered in the American south. My occasional brushes with its lawyers during my dozen years of BigLaw practice — typically on big cases in which it and my then-firm represented cooperative co-defendants — gave anecdotal confirmation that reputation was justified.
The firm did not offer me a job, which I quickly realized was fortunate for them and me both. I nevertheless enjoyed the interview, and I particularly remember one particularly frank theme of it: The firm's Houston office was expected to parallel the entire firm's practice areas and client list, specifically including its long-standing and sometimes controversial representation of corporate clients considered socially toxic (and sometimes literally toxic). This included, prominently, tobacco companies, asbestos companies, pharmaceutical companies, various other chemical and industrial companies, and so forth.
I was asked — forthrightly and appropriately — whether that would give me any moral or ethical problems. I said I'd represented lots of target defendants in the past, often in hostile venues. I said that I was secure in my own ethical compass and integrity, and thus not over-concerned that I might be subverted into any impropriety by any client or colleague. I said that I believed in my own ability to stick to the rules in an adversary system which permits even the wicked to hire the best advocates available. I explained my appreciation, from past experience, that a lawyer has parallel but distinct duties: He or she must act as a zealous advocate for clients in public. But he or she must also serve as a private counselor, which includes helping troubled companies comply with their legal obligations and resolve their disputes on fair terms.
These were truthful answers, and I believe the same things today. These things are fundamental premises for anyone who aspires to be any client's champion in our adversary system.
I was reminded of that interview yesterday upon reading of the circumstances of Paul Clement's resignation as a partner in King & Spalding's Washington office. (Yes, besides litigation, that branch office exists in part to lobby for many of those same toxic companies.) My reaction to the story was surprise, then dismay and disappointment. Clement is a star who will prosper wherever he practices. And I'm sure there must be many K&S lawyers, including many partners, who'd have rather seen handled things differently in hindsight. But the firm's management speaks for the firm, and the downstream lawyers' ratification, reluctant or otherwise, is more or less implicit in their continuing to show up for work every day.
King & Spalding now owns this precedent. It has raised a white flag of surrender, rather than stick to its commitment to this particular controversial client. Therefore its commitment and resolve with respect to any and every controversial client in the future must be weighed against this betrayal.
I never thought I'd have occasion to use the word "gutless" to describe King & Spalding or any of its partners. But yeah, that's the one that fits. It's hardly an Atticus Finch moment for the old firm.
And then I came upon this blunt and provocative assessment from Glenn Reynolds:
Just remember: King & Spalding is now responsible for the views of any client it chooses to represent, now that it’s clear they’re being vetted for political correctness.
Maybe K&S' client list has changed radically since my interview back then. Casual googling and the current firm website suggest not, however. If someone's more curious and diligent than me, there's always PACER. The firm has a genuine claim to a national practice in both trial and appellate courts, state and federal — so there would be lots of courthouses to check.
"Oh," you may say, "there are differences among these noxious clients. Some are much worse than others." And that is true. But the time to consider those differences — the time to decide whether conflicts or mere "taste" issues would interfere with diligent representation — is before agreeing to take on the particular case and client.
As a lawyer, the whole concept of being a fiduciary necessarily implies that you've weighed, and resolved, any moral, ethical, or other personal subjective issues before you accepted the representation. Thereafter, you reserve and suppress your personal judgments, and you scrupulously guard against their potential interference with the objectivity and diligence you owe each client.
Once a lawyer and his firm have agreed to be hired, and have indeed been hired, and have publicly announced as much, and have thoroughly embarked upon their representation of that client in that matter, both lawyer and firm are ethically and morally committed. Neither firm nor lawyer is free to disavow their commitments to controversial clients on grounds that the firm no longer likes being involved in the particular controvery which brought the client to them in the first place. That would be like the doctor who's supervising your chemotherapy suddenly deciding, mid-infusion, that "Chemicals are icky!" and jerking the needle that could save your life out of your arm.
How much damage will this do to King & Spalding in the long run? As trial lawyers here in Texas are wont to say: "That gun kicks as hard as it shoots, pardner." King & Spalding will survive, and may thrive, but I suspect it will come to regret pulling this particular trigger.
Note to commenters: Please stay on or near the topic of K&S' reversal of its original commitment to represent the Bipartisan Legal Advisory Group of the United States House of Representatives in defense of Section III of the Defense of Marriage Act. That doesn't require long arguments about the merits of that defense, the constitionality of DOMA, federalism, or the propriety of gay marriage in general; save that for other posts, please. This post is about legal ethics, and the fact that the issue arises out of this particular context isn't especially material because, yes, it could just as easily instead be about tobacco, guns, asbestos, lead paint, et cetera — and we're not going to debate any of those in connection with this post either.
UPDATE (Tue Apr 26 @ 8:10 a.m.): I've blogged before about John Adams and his famous representation of the British soldiers who committed the "Boston Massacre." But for another example of a famous lawyer championing controversial causes or clients, ponder this historical factoid and its potential relevance:
The lead appellate lawyer who defended segregated schools before the Supreme Court in the consolidated appeals decided by Brown v. Board of Education — the lawyer who lost to Thurgood Marshall — was John W. Davis of New York City's Davis, Polk & Wardwell. William Henry Harbaugh's Lawyers Lawyer: The Life of John W. Davis is among the best portraits of a practicing trial and appellate lawyer that I've ever read. And every time I pass the old Rice Hotel in downtown Houston, I'm reminded that the Democratic Party nominated Davis as its presidential candidate during its convention there in 1924.
A legendary figure in his day, Davis argued before the U.S. Supreme Court 140 times. And either in Harbaugh's book or elsewhere, I recall reading that Marshall did not begrudge Davis his role, and indeed, that Marshall said it was appropriate that such an important case be championed by the best advocates available in order that the resulting decision have its maximum credibility.
Perhaps you believe that the DOMA is as repugnant as school segregation and Jim Crow. If so, then, you may think that Paul Clement today occupies a role comparable to Davis' in Brown. Were he alive to do so today, though, Thurgood Marshall would patiently explain to you that it is precisely their steadfast performance of their duties to even controversial clients that made Davis, and make Clement, a "lawyer's lawyer."
Monday, April 25, 2011
WaPo chronicles Obama's serial blundering over Gitmo
"The executive order promising to close Gitmo's detention facilities within a calendar year was never anything more than BHO-monogrammed bovine excrement so naïve and silly that it exploded violently on every contact with reality."
That's my 35-word précis of this 4300-word WaPo article entitled "Guantanamo Bay: Why Obama hasn’t fulfilled his promise to close the facility."
However, whoever crafted this intended spin-imparting summary paragraph near the top may not have actually read the rest of the article, or else comprehended its cumulative import not at all:
For more than two years, the White House’s plans had been undermined by political miscalculations, confusion and timidity in the face of mounting congressional opposition, according to some inside the administration as well as on Capitol Hill. Indeed, the failed effort to close Guantanamo was reflective of the aspects of Obama’s leadership style that continue to distress his liberal base — a willingness to allow room for compromise and a passivity that at times permits opponents to set the agenda.
Instead of this mushy half-hearted defense of their hero, how about some plain English that's much more consistent the rest of the facts reported? Why pretend anything needed "undermining" when it never stood on its own to begin with? Why use the words like "miscalculations, confusion and timidity" as a substitute for "consistent bold stupidity"?
I'd re-write that summary paragraph thusly:
"Despite Obama's unconditional and unequivocal promises as a candidate, it became increasingly obvious, more blindingly obvious with every day of his new presidency, that closing Gitmo anytime soon would be a Very Bad Idea for a Whole Buncha Reasons. It became obvious to most serious grown-ups in America — and even to the large majorities of senators and congressmen from Obama's own party who want to be re-elected, regardless of their seriousness and maturity — that Obama's executive order couldn't actually be implemented without monumental, unacceptable risks and a momentous public backlash that would rival, and perhaps exceed, the Tea Party backlash against Obama's fiscal profligacy. Indeed, even the administration official who was designated to fall on his sword — ex-White House Counsel Gregory B. Craig, about whose resignation Beldar wrote at his usual tedious length here back in 2009 — appears to have painfully hoisted himself off that blade and climbed back down to reality."
Overall, this is probably the most damning reporting on Obama's fundamental incompetence that the WaPo has yet published. Nothing in it makes Obama look even marginally competent or principled. Yet despite their claim to have based this report on "interviews with more than 30 current and former administration officials, as well as members of Congress and their staff, members of the George W. Bush administration, and activists," WaPo staffers Peter Finn and Anne E. Kornblut don't produce anything amounting to a scoop. The only thing about their report which surpised me is that apparently everyone in Washington who doesn't list 1600 Pennsylvania as his or her current primary work address now seems to agree that Obama spectacularly mismanaged this entire issue.
I'll continue to stick with my description of the Obama Administration back in that post from April 2009:
"Amateurs. Incompetents. Ideologues. Full-time politicians turned half-wit government officials. Brilliant leftists who, confronted with the real world, are exposed as clueless idiots and children.
If anything, that assessment may have turned out to have beeen overly generous.
Thursday, April 21, 2011
Beldar on "hate crimes"
Prof. Ann Althouse has a post up today entitled Webcam spying on college roommate charged as a hate crime. I left the following comment:
I can't think of anything as detrimental to the cause of civil liberties as the Left's passion for "hate crimes."
Those who promote this notion ought to consider the lines from [Robert Bolt's play, and the subsequent movie,] "A Man for All Seasons":
William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
In response, another commenter said, quite reasonably: "I'm really unable to decide which is the devil in all this. Is it the 'hater' or the laws themselves? Especially since many of our laws are starting to be written by haters of one kind to control haters of another."
My reply (slightly edited here for clarity, and not block-quoted because it's fairly long):
@ bagoh20: Your comment confirms that my allusion to Thomas More was unclear.
I conceive of "hate-crime" laws, in general, as an attempt to misuse the existing Rule of Law by loosening its standards, by inserting into the law a wolf in sheeps' clothing.
The secular law of More's day guaranteed individual liberty both against abuse by ecclesiastical law and against mob justice. It was deliberately structured, measured, to be resistant to momentary passions from any source, and it remains so today. (Only "resistant" because it is administered by fallible humans; the law can't be made impervious to passions.)
Consider, for instance, the murder of James Byrd, Jr., a racially motivated crime that occurred, and was prosecuted, in Texas (where I live). George W. Bush's political opponents regularly tried to beat him about the head and shoulders under the theory that because he'd been Texas' governor, it was his fault that Texas had no hate-crimes enhancement to apply to this prosecution. His response was always that the existing Texas laws had functioned absolutely appropriately in the case: All three perpetrators were convicted of capital murder, and the two of those whom the evidence proved most responsible were sentenced to death. Evidence of their racism and associations with white supremist organizations was introduced — not to prove that they are hateful people who are therefore deserving of greater punishment, but rather to establish their motive for killing Byrd. The death-row convicts' appeals are still playing out, but given the evidence and the seriousness Texas displays in carrying out death sentences, those two are likely to be executed. So how much more could Texas have punished them? What's worse than a death sentence?
That people could seriously argue that these sentences needed enhancement illustrates the core truth about hate-crime statutes: They're written to enable the process by which popular passion can affect the criminal justice system. And the cruel irony is that the passion exhibited by those who wanted to further punish the murderers of James Byrd, Jr. is functionally indistinguishable from the passion of racist mobs in past decades who've committed lynchings.
Our "regular" laws — without hate-crime enhancers — are the trees. Start cutting them down — by passing special laws consisting of short-cuts to empower sentiment and passion in sentencing, at the expense of evidence and due process — and you will soon find the kingdom laid too flat for anyone to stand upright against the winds of evil (or even mere chaos).
To change metaphors: The Rule of Law, with the legal process it prescribes as due to each defendant, is the foundation of our civilization and, especially, this America. Hate-crime laws undermine the foundations of the Rule of Law for everyone. History teaches that such foundations are rare and hard to build, and that once sufficiently undermined, they collapse and are hard to re-build.
I hope that makes my allusion more clear.
Friday, April 08, 2011
Scary thought experiment
Where would government spending be if the GOP had not won the House in 2010?
Did you work for that victory? Maybe, like I did, you sent more in contributions to good conservative candidates in tight races outside your home state. Maybe you spent an hour or three making phone calls in coordination with one of the GOP's on-line get-out-the-vote organizations.
Maybe you just showed up at the election polls and cast your vote, when maybe in some other off-year elections you hadn't bothered.
Compared to the norm, compared to most reasonable expectations, compared to anything but completely unrealistic fantasies: What a return on your investment you've seen tonight!
Bonus thought problem: Of all the political memes of the last few years, has any been more dramatically proven wrong than the one which went like this:
"Ahh, this Scott Brown election is Massachusetts is being over-read by the GOP. This is just a fluke, a combination of a hunky Republican running against a weak and self-contradictory Democrat in a special election for an open seat. It's certainly not the beginning of some political tsunami."
(Cue the intro theme music from "Hawaii Five-O," cut to dramatic shots of crashing waves!)
Obama takes ownership of every penny of federal overspending
From Obama's televised speech tonight on the short-term budget agreement (my transcription from DVR, italics mine):
Like any worthwhile compromise, both sides had to make tough decisions and give ground on issues that were important to them. And I certainly did that. Some of the cuts we agreed to will be painful. Programs people rely on will be cut back. Needed infrastructure projects will be delayed. And I would not have made these cuts in better circumstances.
Obama's handlers obviously didn't have time to polish the narcissism from this short speech, but now we know exactly what Barack Obama thinks of Harry Reid and the Senate Democrats: They're an extension of his will, puppets dancing at the end of the strings he alone holds.
I think Obama's assessment is actually pretty accurate — he's the proverbial 800-pound gorilla among a troop of preening baboons, and whenever he stirs himself to smack them around or goads them into a shrieking frenzy of poop-slinging, they do what he bids.
But the side effect of this is that Barack Obama can no longer hide behind the fig leaf of separation of powers. Obama can no longer plausibly claim to be representing the interests of the entire American people — just the interests of his party and its motley collection of special interest groups. When, for example, Rep. Debbie Wasserman-Shultz (D-FL) asserts of the GOP House's "Path to Prosperity" that "This plan would literally be a death trap for seniors," that is — not literally (which doesn't mean what she thinks it means) but politically — Barack Obama himself engaging in the most egregious and obvious fear-mongering and demagoguery. And if you're not among those he's already invited to the graft-and-handout trough, then you're on the other side.
Politically, if there was any doubt remaining among the naïve, that doubt has been conclusively erased:
Barack Obama is personally responsible for every penny of federal overspending. Period.
Barack Obama is personally responsible for every penny of federal overspending. Period.
Beldar on the budget deal to keep the government open
In response to the just-announced compromise reached by Congress to keep the federal government open, I have three immediate observations:
This is only a start. But there must be a start, and as starts go, given that the GOP only controls the House of Representatives, this is a good one.
As I write this, I'm watching Barack Obama on TV with the Washington Monument in the background. Obama's practically claiming that he's going to be meeting tourists there tomorrow morning to punch their entry tickets. It is absolutely delicious to watch this politician brazenly pretend that he — Barack Obama — just done a great and brave thing by agreeing to these tens of billions in budget cuts, when every person in the entire world who's watching this knows he and his party are responsible for the spending orgy this deal begins to reverse. Sometimes, as a lawyer, I'm perfectly happy for a hostile witness to tell a huge, huge whopper while he's in the spotlight — a lie so obvious and dramatic that it settles over the courtroom like the smell from a crate of rotten eggs that's just been hurled to the floor. "Stinky" Obama just did that. You watch, he'll end up eventually trying to take credit for Rep. Paul Ryan's "Path to Prosperity" — Obama intends to run for reelection as a fiscal moderate (again)! But no lie could be more obvious.
Politics is sometimes very subtle, but this hasn't been. The causal connection between last November's election and today's budget cuts is as clear as anything in American history — on the same order of obviousness as Lincoln's election and the bombardment of Fort Sumter to start the Civil War.
Good job, Speaker Boehner & Co. I am proud of my party's Congressional leadership, and it's been a while since I've felt that way.
Thursday, April 07, 2011
"How many you have? Ten kids, you say? [Stand-up comic's smirking head-shake & double-take] Well, you definitely need a hybrid van then!"
I have no fault to find, and indeed find much that's praiseworthy, in Barack Obama as a good husband and family man. In the former respect, he's a blessed contrast to the last Democratic president, and in both respects Obama's completely in sync with his immediate predecessor. I stipulate, again, that the Obama children are absolutely adorable, so much so that they're each worth at least a million votes to his ticket again in 2012.
However, regarding Obama's comments this week in response to a voter with 10 children who was pressing him on skyrocketing gas prices and their effects on the voter's family budget — good coverage here, here, and here:
It's not so obvious from the transcript, but it's very obvious from the video (at 2:16) that President Obama thinks a family with 10 children must be part of some deviant subspecies of humanity, and certainly can't be as enlightened and cool as he and Michelle are with their politically and demographically correct 2.0 children.
My first thought on watching his smirking superiority: "I wonder how that's gonna play in the various Kennedy households?"
I have four kids. That's considered a "jumbo" family these days, but if things had worked out a little differently, I can easily imagine having had several more. There are few joys of parenthood — or of life — greater than watching your older children interact with, and help rear, your younger ones.
And my four — although each vibrantly different from one another, and each of them absolutely terrific — are as tight with one another, as supportive and loving of one another, as I can possibly imagine. What they do for each other is helping them grow into adults who are capable of raising strong families of their own. And it gives me not only great pleasure to observe, but great comfort: I know they will be there for each other long after my ex and I are gone. Regardless of one's spiritual views and faith, they are our earthly immortality.
There are trade-offs, of course, and I'm not criticizing anyone who chooses a smaller family, or to have no children at all. By why mock someone who has 10 children? Why not instead lead a round of applause for someone with the love and courage to embrace the challenges and joys of a large family?
I have a hard time relating to this man as a human being. Completely apart from politics, I just like him less and less the more I see of him.
Beldar assesses risk to the GOP from a government shutdown to be lower now than in 1995
I've previously argued here, and in comments I've left on other blogs, that the House GOP ought not force a government shutdown over whether an interim funding bill includes controversial de-funding of particular programs like the Corporation for Public Broadcasting (PBS/NPR) or Planned Parenthood. Rather, my advice has been to defer those measures to the fight over the FY2012 budget. Some have misunderstood me to be suggesting we delay those fights until some time in calendar year 2012, but that's not at all what I've said or meant.
Rather, since the premiere this week of House Budget Committee Chairman Paul Ryan's (R-WI) amazingly ambitious budget for FY2012 (which starts on October 1, 2011), we're already embarked on that fight — and that fight is vastly more consequential in the big picture than anything that is going to be done through interim spending bills. Insisting on cutting those controversial programs now gives the Dems undeserved and repeated opportunities to demagogue, and that may permit them to repeat their political triumph from the government shutdown in 1995 (which effectively guaranteed Bill Clinton's reelection).
Instead, the time to fight those fights — and they'll always be controversial, I don't dispute that — is as part of the fight on the FY2012 budget that, if handled right, will produce hundreds of billions of cuts in current spending, and trillions over the next decade. There are a lot of voters who will swallow hard at GOP cuts to programs those voters personally favor, but who will nevertheless choke them down if and only if they're part of a big dose of essential medicine that will genuinely restore financial sanity to our government. And you can't win over those voters through a hostage-taking strategy that shuts down the government over only a few billion dollars.
What Speaker Boehner and the House GOP are doing now, however, isn't necessarily inconsistent with my proposed strategy. Indeed, he's right not to back off on those hot-button issues until he's used them to extract every penny of spending cuts he can through these stopgap funding bills. The one-week extension passed through the House today is consistent with that strategy. And ultimately, if a few tens or even hundreds of millions in continuing expenditures on noxious programs is the cost of another $8-$10 billion in cuts above the $33B the Dems are already on board with, that's a very good trade in the short term.
However, you can't push to the limits at the negotiating table unless you're genuinely serious about facing the possibility of a shutdown. There's reason to hope that we're better prepared for that now than we were in 1995 (when it seemed we were completely, and recklessly, unprepared). But neither side knows, nor can know, how the public will react, and what political risks for November 2012 that presents. To extend my poker metaphor from last week, we've seen the flop, but we're still waiting for the turn and the river.
I'm no pollster, and in fact I'm intensely skeptical of public opinion polling as a proxy for the only polls that count — electoral polls on election day. But I think there are two fundamental differences between now and 1995 that both reduce the political risk to the GOP now, as compared to then:
First, notwithstanding what the public opinion polls may say about the number of "independents" or "swing voters," America is more polarized now than it was in 1995. That's the result of the Clinton impeachment, the 2000 election contest, the anti-war protests during the eight years of strong leadership on the Global War on Terrorism that George W. Bush gave us, and — more than all of the above put together — the systematic, unrestrained, and rapacious looting of the public fisc in which Barack Obama and the Democrats have been continuously engaged since January 2009. I just don't think there will be as many voters swayed by a shutdown as there were in 1995 — and of those who may be, quite a large percentage of them are Obama voters from 2008 who've since already realized that his halo is made of tin foil.
Second, although one can correctly point to a long list of contributing causes, any third-grader should be able to understand that the most obvious and direct cause — what lawyers would call the "proximate cause" — of a shutdown now would be the Democrats' explicable and inexcusable inability just to do their damn jobs last year.
Not a single voter sent Obama and his partisans to Washington with a mandate not to pass a budget for FY2011. The Dems controlled the White House and both chambers of Congress until January 2011 and yet couldn't pass a budget; indeed, they didn't even make a serious attempt. And that's just dirt-simple, and as obvious — and as obviously embarrassing — as a loud fart in church.
I will grant you that there are millions, and probably tens of millions, of voters who don't meet my hypothetical "any third-grader" standard in their political sophistication.
But they're already part of the Democratic base anyway.
Tuesday, April 05, 2011
Lithwick's latest, on KSM, is not just silly but pernicious
Dahlia Lithwick is the least reliable legal pundit I've ever run across. Consider this:
Today, by ordering a military trial at Guantanamo for 9/11 plotter Khalid Sheikh Mohammed and his co-defendants, Attorney General Eric Holder finally put the Obama administration's stamp on the proposition that some criminals are "too dangerous to have fair trials."
Stop and ponder this bold assertion.
Then consider that the military commission statutes which will control KSM's trial were passed twice — the second time to add additional procedures favorable to defendants in response to an intervening SCOTUS ruling — by overwhelming majorities in both chambers of two different Congresses (in 2006 and 2009) under two different presidents.
Among those voting for the Military Commissions Act of 2009, under which KSM will be tried, were Democratic Senators Daniel Akaka, Max Baucus, Evan Baye, Barbara Boxer, Sherrod Brown, Roland Burris, Maria Cantwell, Christopher Dodd, Richard Durbin, Diane Feinstein, Al Franken ... well, you get the picture (and I haven't gotten past the letter F in the Senate even after skipping several). In the House, 237 Democrats, including Nancy Pelosi, voted for it. The additional protections it added were so generous to defendants, in fact, that 132 House Republicans and 28 Senate Republicans voted "nay" — even though it was part of a defense appropriations bill. And of course it was signed into law by President Barack Obama.
For Lithwick's assertion to be true, all those Congress-critters had to be very devoted to unfair trials. They can't pass a damn budget, but if we believe Dahlia, they can band together hand-in-hand, in overwhelming numbers — twice — to create and revise a fundamentally unfair judicial system.
Similar devotion to unfair trials, it would seem, must be attributed to Barack Obama and Eric Holder. Of the former, she bitterly claims to have learned that "there is no principle he can't be bullied into abandoning." So perhaps Obama isn't devoted to unfair trials, but is just cravenly enslaved to those who are. Does that make Obama better, or worse, than those to whom he's "capitulated"?
Of course, the more fundamental stupidity of Dahlia's assertion is its assumption — an emphatically, unarguably false one — that KSM and his co-defendants are mere "criminals." They aren't, of course, and it's not just silly but pernicious to pretend otherwise.
"Fairness," with respect to trials, is not a binary status, either on or off. It's a continuum.
Compared to the rest of the world and all of history, U.S. civilian criminal courts provide more procedural and substantive protections for defendants than any other court system — and by a wide margin. If we presume that nothing less can be "fair," then all of the civilian judicial systems in the rest of the world are "unfair," and have been for all of history.
And in fact, as Lithwick damn well knows — she's not stupid, she's calculating — the military commission trials in fact afford the defendants with legal safeguards substantially more favorable to them than if they were being tried in the regular civilian criminal courts of any other country in the world (save only, perhaps, and then in only certain respects, the U.K. and some of its former colonies, including Lithwick's native Canada). Yet she writes:
Every argument advanced to scuttle the Manhattan trial for KSM was false or feeble: Open trials are too dangerous; major trials are too expensive; too many secrets will be spilled; public trials will radicalize the enemy; the public doesn't want it.
Easy to say, impossible to support, and dead wrong on every count. Any one of these reasons could properly have justified Congress in turning the "fairness dial" back down from 11 — where it's set in the U.S. civilian courts because we so value the civil liberties of our own people that we'd rather see many criminals go free to prevent one wrongful conviction — to a mere 10.
In particular, the "secrets that would be spilled" aren't whisperings between teenaged girls at a slumber party. They include the identity of sources who would be caught and beheaded. They include methods of fighting terrorism that have prevented another 9/11. Lithwick dismisses them in six words: so blithe, yet so very dangerous.
For comparison, KSM will in almost all respects be getting the same protections and rights we give to our very own servicemen and -women in military courts martial. Ponder the irony of that. I shall await Lithwick's next article, which I presume will excoriate the Uniform Code of Military Justice — which Congress adapted to create the military commissions system — and I expect to see her picketing outside Fort Leavenworth later this week.
KSM famously declared when he was captured: "I'll talk to you guys after I get to New York and see my lawyer." Another irony, of course, is that he will in fact have fabulous lawyers, paid by the very government of the very country he still wishes to destroy, and yet ethically bound to do their best to get him acquitted or, failing that, to mitigate his punishment.
The truth is that nothing would ever satisfy Dahlia Lithwick and her ilk. Nevertheless, KSM will get his trial, whether she's satisfied, and whether she lies about it, or not.
But it won't be in New York.
House GOP's budget cuts $6.2 trillion over 10 years
So we now know exactly how good a poker face Rep. Paul Ryan (R-WI) has: The eye-twinkle and the very, very slight hint of a smile when Chris Wallace was quizzing him on Sunday morning about the size of the House GOP's proposed budget cut gave away nothing. But Rep. Ryan must have been mightily amused when Wallace managed to pry out of him that the cuts might be somewhere north of $4 trillion.
In fact, as revealed in Rep. Ryan op-ed in today's Wall Street Journal (no subscription required), the House GOP's budget for FY2012 promises to cut $6.2 trillion over 10 years as compared to the federal budget proposed by President Obama. That such enormous cuts can be contemplated is, of course, a function of the gigantic increases in federal spending already made since January 2009 and expanding over the future in the budget proposed by President Obama.
The details will be the basis for intense — and emotional — debate over the coming months. Absent another 9/11-scale surprise, I expect it will become the single most important issue in deciding the 2012 election.
I've reprinted above the chart from Rep. Ryan's op-ed. It focuses on how this budget will compare to Obama's when measured by federal debt as a percentage of gross domestic product. Don't be disappointed by the fact that there isn't a sharper drop-off to a negative slope in the green-colored portion: Current spending in absolute dollar terms will indeed show a much greater drop.
The op-ed is pretty good, albeit necessarily wonky. Read the whole thing, because I couldn't possibly summarize it here.
I'm reminded of the line variously attributed to Frederick the Great or French revolutionary leader Georges Jacques Danton, but in either event much beloved by U.S. Gen. George S. Patton: "L'audace, encore de l'audace, et toujours de l'audace!" This is indeed audacious. This is a fight worth having, and vitally worth winning.
To my Democrat friends who find themselves to Obama's left as he's broken his promises to you
You know I'm no fan of President Obama. I'm even less of a fan of Attorney General Eric Holder.
But when you find yourself clearly to the left of Obama and Holder — because, for example, they've repeatedly broken their promises to you about such things as closing Gitmo or trying KSM in civilian federal court in Manhattan — isn't that a really auspicious time to reconsider, with as much diligence and sincerity as you can, the validity of your own positions?
No one thinks Obama wants to move to the center. No one — and certainly no one at the brand-new Obama 2012 campaign HQ — has any illusions about whether those moves will depress both current support on the left and, eventually and more critically, voter turn-out by the left in November 2012. No one except Obama himself could have forced Obama to do these things that are upsetting you. Aren't you at least willing to reconsider that which the president you so admired finds so compelling that it has forced him to make changes he absolutely hates making?
Couldn't it be you who's wrong?
I say this not so I can say "I told you so," but to help you find a means to process the many further disappointments you're certain to see between now and next election day.
Monday, April 04, 2011
Beldar compares H.R. 1255 to an egg that will never hatch
Whether you've read my two previous posts on H.R. 1255 or not, or my friend Patterico's original post about it, I whole-heartedly commend to you Patterico's post today entitled Whoops: That Horribly Unconstitutional Bill Passed by House Republicans Is Probably Constitutional After All. (See also Prof. Jonathan Adler's updated post at the Volokh Conspriracy.)
Patterico's praise for our mutual long-time commenter Milhouse is amply warranted. Speaker Boehner should track down and hire Milhouse immediately to be the House GOP's lead spokesperson on this issue. He's done a lot of superb critical thinking and argument here and at Patterico's, and a lot of legal and historical research entirely on his own, and I'm grateful to have been part of the collaborative process as he's sharpened his arguments. His work is an example of the blogosphere at its very, very best — not as consequential as Rathergate in 2004, but in the same spirit and with similar ingenuity and panache.
I agree entirely with Patterico, moreover, that nothing said by either side on the House floor can affect the constitutionality of H.R. 1255 either way. It can give clues what may have been intended, and that can be an interesting and legitimate question. What was said on the House floor, and what may be inferred from that, however, doesn't affect constitutionality; instead, constitutionality depends on the literal language of a statute once it's been duly enacted.
I still believe the key sentence we've been arguing about was horribly — and needlessly — misleading and unclear. Bad drafting by the House GOP gave the Democrats a huge club to beat the GOP over the head with, and for absolutely no good reason. That's politically stupid, and inexcusably so: When you regain control of the House, you don't want to create circumstances that can very easily, and quite persuasively, be spun to look like you're incompetent. Better draftsmanship could easily have done what the House GOP intended, and without subjecting them to ridicule or misunderstanding.
I would have voted against H.R. 1255 as it was written were I a member of the House. I could have been persuaded to vote for it with an amendment substituting one word for three, to make H.R. 1255 to say H.R. 1's provisions "are hereby passed" instead of "are hereby enacted into law."
As for whether I think H.R. 1255 is or isn't "constitutional": Normally when we ask that, we're talking about something that's been enacted into law through the full process, including passage by both chambers of Congress and a presidential signature (or rarely, re-passage after a presidential veto). Sometimes we speculate as to whether a mere bill would be constitutional when and if so passed. So the context here is a bit different, and doesn't quite fit either of those common scenarios.
The budget provisions of H.R. 1 that were incorporated by reference into H.R. 1255 would certainly be constitutional if either H.R. 1 or H.R. 1255 were duly passed by the Senate and signed by the POTUS (or, if he vetoed either, if re-passed by both chambers with the required two-thirds majority).
The additional features of H.R. 1255 relating to Congressional and POTUS pay are more problematic, and not just because of the Twenty-Seventh Amendment. I haven't looked at that question closely, nor has that been what we've been debating yesterday or today.
So given that H.R. 1255 was passed by the House despite the Dems' mockery and without the votes of some GOP members, what happens if we get to 12:01 a.m. on April 6 without the U.S. Senate having "passed a measure providing for the appropriations for the departments and agencies of the Government for the remainder of fiscal year 2011"?
That depends on what else happens, or doesn't, in the meantime.
There's a high probability — I'd guess exceeding 99% — that the Senate won't have considered H.R. 1255 by then. There's no way Reid would expedite it, nor that the GOP senators could force that.
In the extremely unlikely event that the Senate passed H.R. 1255 in the 25 hours or so that remain before April 6, though, it would go to the POTUS for consideration. Again, there's a 99%+ chance that it would be promptly — delightedly — vetoed. That would be the end of it unless both chambers re-passed it by a two-thirds majority, which I think is emphatically less likely than, say, the sun going super-nova in the meantime.
If the Senate doesn't pass H.R. 1255 before April 6, however, then knowing what we've now figured out about what the House GOP sponsors and leadership intended, we know there is literally no one on the planet who will be contending that H.R. 1255 has automatically become law. That's despite its confused language suggesting someone thought it might. This is the most likely outcome by far.
But even if it has no constituency who would argue that it's become a validly enacted statute and part of America's binding law, is H.R. 1255 constitutional in the abstract?
I genuinely don't think that question can be answered by itself. It's like asking if an egg is a chicken or an aligator. Even if the egg insists that it's a chicken just because it (the egg) says so, or even if the egg insists that it needs no further incubation, the egg's insistence doesn't complete the process of hatching out, nor establish whether it would have become a chicken or an aligator.
And in the real world, this egg ain't ever gonna hatch.
I can answer the question in absolute confidence were it re-phrased: If the Senate has not "passed a measure providing for the appropriations for the departments and agencies of the Government for the remainder of fiscal year 2011" by April 6, and if the Senate takes no action on H.R. 1255 in the meantime either, will H.R. 1255 automatically become a duly enacted statute that can then be subjected to analysis for constitutionality?
The answer to that question is "No." Period. And no member of the House GOP, including H.R. 1255's sponsors or the leadership, would disagree.
What was never more, at best, than a politcal gesture has mostly backfired. It's not a big deal in the great scheme of things, and is likely to be forgotten by the small segment of the public who's paid attention to it so far. (Not by me or Patterico or Milhouse, though! Or probably by you, if you're still reading this, gentle reader.) But I still hope Speaker Boehner and the House leadership will take to heart this lesson, and that they'll tread on their own toes less forcefully in the future.
Sunday, April 03, 2011
Beldar finds surprises in the Congressional Record about H.R. 1255, but no clear rebuttal of Dems' (and others') constitutional critique of it
The Congressional Record of April 1st's floor proceedings in the U.S. House of Representatives includes a very long floor discussion of H.R. 1255, about which I posted earlier today. Much of it is typical partisan sniping along the lines of "You mean old Republicans haven't passed any bills creating jobs and now you won't compromise" or "You spendthrift Dems created this problem because you couldn't pass any budget at all for FY2011, so we're having to force the Senate to act."
But some portion of the Democratic members' discussion must be read as fairly — and fairly persuasively — raising the question of H.R. 1255's failure to gain, and perhaps even to seek, Senate approval or a presidential signature. If the GOP had a persuasive answer to that complaint, I sure couldn't find it in the floor debate. There are hints of an argument, hints maybe of precedent. There's a repeated and clear profession of intention on the part of many House Republicans that H.R. 1255 not be self-enacting, and that it instead would require Senate approval, and then either a presidential signature or a veto override, to become law. So maybe there's a procedural or parliamentary argument I just haven't read, heard, thought of, or (possibly) understood.
But then, too, there was also a short and very unequivocal statement by one House Republican — Rep. Louie Gohmert (R-TX) — that he believes H.R. 1255 to be unconstitutional.
The only excuse I can make for the length of what follows is that what I've left out would make it five or six times longer if included. I've tried to be fair and judicious in my selection of what to include, but I can't guarantee against an inadvertant shortfall in that regard. If I misunderstood or didn't know what something was, it's entirely possible that I wouldn't have recognized it as relevant and might not have included it.
I'll quote at length the best of the Dems' objections and complaints that are relevant to the "skipping the Senate and the POTUS" argument — from Rep. Louise Slaughter (D-NY) — below, but I want to proceed in roughly chronological order corresponding to how the various arguments were made on the floor. So first, here's the best I can find by way of a GOP response before the first vote:
Mr. [Rob] WOODALL [R-GA, H.R. 1255's principal sponsor] ... This bill does two things, the underlying legislation does two things: It both gives the Senate an opportunity to come out from under its paralyzing inaction and pass H.R. 1 [i.e., the House GOP's "Full-Year Continuing Appropriations Act, 2011," which it passed in February]; and, it says that if the Senate does not, if the Senate fails to act — we are not asking the Senate to do exactly what we want them to do. We are asking them to act. If they fail to act, that Congress will not get paid. Congress will not get paid. My colleagues on the left won't get paid, my colleagues on the right won't get paid, and my colleagues in the Senate won't get paid....
Still fairly early in the morning, the first vote was held — "The vote was taken by electronic device, and there were — yeas 219, nays 172, not voting 41." But a "motion to reconsider was laid on the table." Rep. Woodall sought and received unanimous consent that all members would have five days to revise and extend their remarks. And then, after another statement about how the budgetary delay and uncertainty is hurting the economy and costing jobs, came this:
Mr. WOMACK [R-AR]: ... Madam Speaker, this has to stop. The political gamesmanship going on in the upper Chamber might make for good headlines in the capital press, but it is hurting our Nation. That's why I've offered this bill to self-impose a deadline on Congress, and I'm asking my colleagues to join me in supporting H.R. 1255 to start the clock on the Senate to pass something we can agree to in funding government for the remainder of this year by April 6, or assuming a government shutdown, expect to have our pay withheld until we can reach agreement.
Here's a YouTube clip which includes that:
You can see that the House was almost empty, as is typical. I think this was for the TV cameras back home. Throughout the day, the Congressional Record references the voting being done electronically, and I'm mildly ashamed not to be up-to-date on whether that means members had to return to the floor to vote, or whether they could do it remotely (e.g., from their offices).
Next, one of the rather more articulate attacks, from which I'm going to quote at length because it also effectively summarizes all of the arguments made by other Dems on the subject we're exploring:
Ms. [Louise] SLAUGHTER [D-NY]: ... Madam Speaker, over 200 years, the House of Representatives has seen almost everything. From the days as a young nation, to modern day America, the exchange of ideas and the debate of legislation is a rich and proud tradition that moves our country forward. Unfortunately, today's legislation abandons this proud history and marks a new low in the United States House of Representatives. As you know, the new majority started off the session with reading every section and every piece of the Constitution of the United States to show our reverence for it, but this morning that Constitution has been kicked under the couch out of sight, lest its presence in the room restrict what is attempting to be done here today. Indeed, this legislation proposes that we throw away 200 years of legislative history and upend the fundamental process of how a bill becomes law.
Despite the urgent and dire issues facing our constituents, here we are, the U.S. House of Representatives, considering legislation that has no chance of becoming law. Today's legislation would "deem" a bill that the Senate has already voted down as passed by that very Senate. It would take a remarkable mind to even come up with such an idea. This notion, while clever, will never pass through the U.S. Senate. And let me remind you that what we're doing this morning, saying that we're going to bypass the Senate, would not do anything at all unless the Senate passed it of themselves saying, forget about us. It's simply not going to happen.
I'm intrigued by the "while clever" comment. It makes me think there's some at least arguable procedural cleverness to what the GOP was doing. I just don't know what, yet, that might have been. But Rep. Slaughter was just getting going, and continued with this:
The Republican majority claims this bill is a solution to a government shutdown. I hope that discussions regarding the solution to a government shutdown are taking place in offices between Senate and House Members and representatives of the administration as we speak. They are the people who can avoid that. The majority claims this bill is a solution, as I said. If this is their only solution, America is in big trouble. The solution to a government shutdown is to meet the Democratic Party at the negotiating table, not to propose scrapping the entire legislative process simply because the majority party refuses to tell the right wing of their party "no."
I am sad to say that today's legislation is more befitting an entry to Grimm's Fairy Tales than to this august body. I think it demeans the House to pretend to do the impossible, to pretend to do what we can't. Does the majority believe that majority confers supernatural powers upon them to bypass the United States Senate?
In the House of Representatives, there are written rules for how the legislative process proceeds, rules that were crafted by Thomas Jefferson, rules that have been tried and true since the founding of this legislative body. These rules have helped lead our country through debates much more fractured than this. From civil war to civil rights, the rules of the House have seen us through struggle and strife and kept our country strong. Today's bill would throw away these rules and very much upset Thomas Jefferson.
Every one of us knows as schoolchildren that there is no way for a bill to become law without both chambers acting on it, a conference committee to meet if necessary, and the signature of the President of the United States. I wish that I were not standing here having to explain to my colleagues how a bill becomes law. I said yesterday, and I must say it again, that I hope we have warped no children's minds. Anyone who may be watching the perversion of the process today and any teachers who are guiding children through this process, take courage, because you can see the video that will explain once again, "I am a bill." Never before has anyone seriously considered the idea that one House can pass a bill and decide it will be the law of the land. Hopefully no party will ever try such a far-fetched tactic again.
Rep. Slaughter — who chaired the House Rules committee in the last Congress — next remains polite, but also gets sorta-kinda personal about how ObamaCare got passed:
Just last year, the procedure to "deem and pass" legislation through the House was derided by Republicans as the "Slaughter Solution," a procedure we ultimately chose not to use. At the time, Speaker Boehner called the deem and pass process "an affront to every American." Now he brings his own "dream and pass" legislation to the floor.
There was considerably more back and forth from various members, apparently including at least some reading aloud of the Constitution, but then Rep. Woodall weighed back in on the topic that this post is about (boldface mine):
Mr. WOODALL: ... There is no deeming in this bill. And I give my colleagues on the other side of the aisle the benefit of the doubt that they know that and that is just the spin for today.
There is no deeming in this bill. This bill says one thing and one thing only about H.R. 1, and that is, that if the Senate cannot act, we are going to give the Senate some cover. If the Senate doesn't want to commit to H.R. 1 for the remainder of the year, we give them the opportunity to incorporate the language of H.R. 1 into this bill, send it to the President's desk for his signature, make it the law of the land, while we continue to work to sort out our budget differences.
Now, that is critically important; one thing and one thing only this bill does: gives the Senate the opportunity to say, you know, for whatever reasons — and the reasons are still a mystery to me — we can't pass legislation in the Senate. We can defeat things all day long, but we can't pass anything. I'm not sure why that is. This bill says: but none of us want a shutdown.
Now, I have got to be honest, Madam Speaker. I am beginning to wonder if "none of us want a shutdown" is actually a true statement, because there are some folks who seem to be driving us right down that road.
This is a bill that just gives us another option, another arrow in our quiver to say, if you cannot act, Senate, if you are paralyzed by inaction, pass this bill, and we will continue those negotiations while H.R. 1 is the law of the land.
I would like to understand this. I don't; it seems to contradict itself, and potentially also to contradict what Rep. Woodall said specifically about "deeming" at the end of the day (see below). But then there's this (boldface mine):
Mr. WOODALL: Madam Speaker, I yield myself 15 seconds to say what I fear will fall on deaf ears, and that is that H.R. 1255 will not become the law of the land until the Senate passes it and the President signs it. The Senate passes it and the President signs it. That is the only thing we're talking about doing here today.
Alrightee! "Ding-ding-ding," my friend Milhouse will surely say, "This validates my theory that even the House GOP expects H.R. 1255 to be only a House-passed bill — and not an enacted law — unless and until it goes through the regular process!" What it doesn't do, unfortunately, is explain how that intent was embodied in the language of H.R. 1255.
Thereupon Rep. Sheila Jackson Lee (D-TX) accused Republicans of "killing off seniors and those in classrooms" with the spending cuts they're demanding. Seriously, she said that on the floor of the U.S. House of Representatives — and it's just so very Sheila! that nobody really bothered to notice. I'm surprised she didn't take the opportunity to allege that George W. Bush steals Girl Scout cookies.
It appears that after a bit more back and forth, there were two more votes on motions to reconsider, with the GOP holding its majority each time.
In the afternoon, Majority Leader Eric Cantor spoke about the need for action on a budget bill, but if he directly defended or explained the constitutionality of H.R. 1255 as against the Democrats' arguments that it purports to skip Senate or presidential approval, I couldn't find that passage. But of course, many others spoke too when the time allotments began to get really tight, typically only two minutes (boldface mine):
Mr. [Tim] GRIFFIN [R] of Arkansas: ... I would like to say real quickly that what we have seen here in the last few minutes is a colossal waste of time. You had a bunch of folks saying, Madam Speaker, that this is unconstitutional. I just want to clarify so we can move past that and my colleagues can focus their arguments where it matters.
We intend for this bill, like all other bills, to pass the House, to pass the Senate, and be signed by the President. I too am a JAG officer from the Army, and I think that the JAG officer, Madam Speaker, from the Air Force would understand that this is a constitutional bill, like the other bills that we introduce here.
Again, a strong statement of intent that H.R. 1255 not be read to be self-enacting without passage in the Senate, but no real explanation of how that's so.
But then, after a typically nasty but otherwise unoriginal set of remarks by Minority Leader Pelosi, we eventually come to a GOP up-and-comer in the House who has a surprise (again, boldface mine):
Mr. [Louie] GOHMERT [R-TX]: We're here because the Democratic majority last year did not do their job, did not give us a budget, did not due proper appropriations, and now the Senate has had the same problem. So I applaud anybody's efforts in trying to move the ball down the road so that we can appropriate. I just wish the Senate would do their job now and take care of it. But for a bill to say provisions that pass the House are hereby enacted into law violates my conscience and the Constitution. I cannot vote for it.
So if there's a GOP rationale, Rep. Gohmert didn't get the memo, or else found it unpersuasive. Rep. Gohmert was a state-court trial and appellate judge before he upset long-term Dem Congressman Max Sandlin in 2004, and he's been reelected three times, most recently (in 2010) as a Tea Party favorite. He's one of my favorites from what I think is a pretty strong Texas GOP delegation in the U.S. House of Representatives. But he certainly didn't equivocate over this vote, nor clam up about his reasons for it. And you can bet that a series of Democratic Reps then proceeded to throw Rep. Gohmert's statement back in the GOP members' faces with gusto and glee (as I'm sure he knew they would).
But wait! There's more!
Mr. [David] SCHWEIKERT [R-AZ]: ... It has been fascinating. I accept that I'm a freshman, and I know it's April Fool's Day, but it's been funny hearing the discussion about how this isn't constitutional.
Now, let me see. I'll walk through this.
It's a piece of legislation with a trigger mechanism in it. Okay. I know the other side does not like that trigger, but it still would require the Senate to pass it and the President to sign it....
And then Rep. Woodall makes the same argument (I think) that Milhouse has been making from the text of H.R. 1255:
Mr. WOODALL: ... [S]o I'll just read one more time:
Having passed the House, having passed the Senate, and be signed by the President.
That's the regular order.
Next follows a cameo by a book sold in the Congressional Gift Shop, "House Mouse, Senate Mouse." Man, I thought bloggers were snarky until I read this debate.
And finally, a lengthier summing up by Rep. Woodall, from which I'll omit the further "Schoolhouse Rock: I'm a Bill" references:
I just want to read from the bill. It saddens me. I'm so thrilled that so many Americans watch what we do here on the House floor to hold us accountable, and I'm so saddened by all the misinformation that's circulated. I read here directly from the bill:
If the House has not received a message from the Senate before April 6, 2011, stating that it has passed a measure providing for the appropriations for the Departments and agencies of the Government for the remainder of fiscal year 2011, the provisions of H.R. 1, as passed by the House, are hereby enacted into law."
This bill that we send to the Senate, for the Senate to pass, and the President to sign, those provisions are hereby enacted into law. Now, I just want to study that a little bit closer. If the House has not received a message from the Senate stating that the Senate has passed a measure providing for the appropriations of the United States Government.
Folks may be wondering, Madam Speaker, why is it that we're doing that now? Wasn't that supposed to be done last September? Yes, it was....
He moved on to other topics, but was interrupted (boldface mine):
Mr. [Alcee] HASTINGS [D] of Florida: I just have a question. Do you really believe that what you're doing is constitutional?
Mr. WOODALL. Absolutely. I appreciate your asking. I appreciate your asking because having had my motives impugned throughout the day, and I know with the collegial relationship that you and I have in the Rules Committee, you know for a fact I wouldn't be here otherwise. I wouldn't be here otherwise.
Now, I'm no scholar of House activities. I know we have passed bills in this House that have incorporated things by reference before, and I'm sure we will do it again, not outside the process. To suggest — and you appreciate this, I say to my friend from Florida — to receive constitutional instruction from the team that brought us ObamaCare is troubling at the most basic levels.
Mr. HASTINGS of Florida. Will the gentleman yield again for yet another question?
Mr. WOODALL. I would be happy to yield to the gentleman.
Mr. HASTINGS of Florida. Do you have any precedent for the constitutionality of this particular measure? And I urge you based on what you just said, there have been measures that were deemed, but that was when they were agreed upon, but there is no authority anywhere for us to pass a law requiring of the United States Senate to undertake to do something, and I appreciate my colleague yielding.
Mr. WOODALL. Reclaiming my time, I will say that this is a unique procedure and these are unique times.
Mr. HASTINGS of Florida. Unique and unconstitutional.
Mr. WOODALL. But I will just say to you that in 1999, a Republican Congress, a Democratic President, enacted the foreign relations authorization bill, by reference, in an appropriations bill. That's what we're doing today.
There's the hint of a precedent, but I don't know its details, nor whether it's genuinely apt and on point. Someone's obviously explained it to Rep. Woodall, but it's just as obvious that he couldn't repeat any of the details of that explanation.
Rep. Woodall earlier insisted that H.R. 1255 does no "deeming," and that's confusing, because the whole point of "incorporation by reference" is that you "deem" something to be written into one document that actually is only written out in full in some other document. Particularly from Rep. Slaughter's defensiveness, I'm guessing that by insisting that there's "no deeming," Rep. Woodall meant to distinguish this situation from the way ObamaCare ultimately was passed.
I think this is the YouTube clip of Rep. Woodall's closing:
And after another half hour or more of entirely repetitive argument by the Dems that wasn't nearly as polite, eloquent, or persuasive as Rep. Slaughter's had been, there were more votes, and votes about votes, all resulting in H.R. 1255 being re-passed and re-re-passed by the House.
Perhaps my friend Milhouse will find nuggets I've missed in what I've quoted, or in the full text I've linked but not quoted, to support his take on this. I hope so; as I wrote at Patterico's, "I’m not much of a parliamentarian, so I’m going to hold out hope for an explanation that relies on some very technical provisions of the House Rules or some prior full-fledged statute which would put a whole ‘nuther complexion on this." There are hints of prior precedent that the GOP may be relying on, and having read only a little bit between the lines now, I'm quite sure that someone on the GOP side did indeed study this issue before the bill was filed, and there is some kind of procedural argument why it's valid. But I haven't read that memo.
Rep. Woodall did a nice job for a rookie of arguing the policies and political intentions behind the bill (and an excellent job of keeping his temper and remaining courteous even when mocked), but he did a damn poor job of trying to knock down the Dems' arguments. If there is a way to knock them down, Speaker Boehner needs to designate someone else to do that, and soon. (I nominate Fred Thompson, who of course is no longer in Congress, but has a better screen presence, and better communication skills, than anyone who still is.)
About that apparently self-enacting GOP House bill that would cut off Obama's salary while skipping both his signature and Senate passage
If you're a constitutional or parliamentary wonk, or if you're normal but you really need something to induce a severe coma, you'll positively relish the back and forth between me, my blogospheric friend Patterico, and our mutual long-time commenter and blogospheric friend Milhouse in comments to Patterico's post today entitled 221 House Republicans Thumb Their Nose at the Constitution.
The original post is very good — drawing on work from some other superb bloggers, but adding legal detail of the sort that Patterico consistantly burrows down into and explains with such excellent clarity, passion, and wit.
But the comments — at least up to #58, when I had to pry myself away lest insanity creep in — show what I think is a thoughtful debate and evolution of arguments, with absolute civility and good faith. If but only if you like rustling around in some fairly tall weeds. Or if you were, perhaps, one of the three people in my freshlaw property course who really understood conditional springing executory interests and their relationship to the Rule Against Perpetuities.
In short, along with some other very unconventional provisions (like the potential suspension of Obama's salary), H.R. 1255 contains language specifying that if the Senate hasn't "passed a measure providing for the appropriations for the departments and agencies of the Government for the remainder of fiscal year 2011" by April 6, then "the provisions of H.R. 1 [the House GOP's "Full-Year Continuing Appropriations Act, 2011"], as passed by the House on February 19, 2011, are hereby enacted into law." That looks a lot like H.R. 1255 is purporting to enact a bill into law while skipping both the Senate and the President. The House and Senate each pass bills all the time which begin with the traditional magic words: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled ...." But neither generally purports to accomplish the enactment of such bills into law without the other chamber also passing it before presentation to the POTUS.
If there's an explanation for that language in H.R. 1255 which squares with Article I, Section 7 of the Constitution, that explanation is not to be found in the press releases I've seen from some of the GOP members who voted in favor of it (e.g., here, here, here, and here). If it was an April Fool's joke, no one's admitted that yet — and my calendar says "April 3" now.
Parliamentarian of the House John V. Sullivan, will you accept an emergency phone call or email from confused members of the political blogophere? ("Dear Mr. Sullivan, re H.R. 1255: WTF? Sincerely yours ....")
Or Speaker Boehner or Majority Leader Cantor, can you enlighten us if there's some arcane procedural explanation that doesn't involve the House trying to make law by itself? Or if there's no excuse, will you at least remove the egg from your faces as graciously and expeditiously as you can?
UPDATE (Sun Apr 3 @ 7:30pm): I'm studying the Congressional Record, augmented by YouTube videos from the House floor debate, and will put my conclusions in a new post in a while.
Beldar on Ryan and Rubio on Fox News Sunday today
Having now watched the promised appearance of Rep. Ryan and Sen. Rubio this morning on Fox News Sunday, I have this to say:
I've seen Sen. Rubio do a much better job responding to probing questions in the past than he did in responding to Chris Wallace's questions this morning. Rubio frankly looked over-coached and nervous today. So I'm going to reserve judgment about his prospects for being on the 2012 GOP ticket (which, of course, he continued to insist are zero, while expressing respect for the voters' choices in such matters).
But I thought Rep. Ryan was amazingly good. "We don't need a good politician, we need a strong leader." That one-liner left a mark, and Ryan wasn't making it by way of a personal comparison between himself and Obama. But the rest of his presentation which screamed — in subtext — "I am indeed just such a strong leader!" I literally found myself holding my breath (since guys, even very handsome guys with really sparkling eyes, don't make thrills run up my leg).
I haven't seen anyone I like as well yet for the top of the ticket in 2012, but I'm concerned that it may not be possible for Ryan to both lead the budget fight in the House and lay what is, sadly, essential groundwork in early primary states. If that prevents him from considering a run, I could respect and concur in that decision. But I'm here to tell you, and you can bookmark this post: If Paul Ryan is the GOP Veep nominee, Obama will either dump Slow Joe Biden (probably through some contrived health or "more time with his family" excuse) or at least find another excuse for there to be no vice presidential debate. Because Paul Ryan would eat Joe Biden's lunch and then drink his milkshake.
I haven't watched the panel discussion yet, so I don't know whether Kristol renewed his pitch for the Ryan-Rubio ticket. But I'm definitely warming to at least half of that idea, and still intrigued by all of it.
UPDATE (Sun Apr 3 @ 11:00am): I realize this is very superficial, but am I wrong to think that Rep. Ryan and television actor Patrick Dempsey (a/k/a Dr. Derek "McDreamy" Shepherd on "Grey's Anatomy," below left) could be brothers whose dad only convinced one of them of the importance of daily shaving?
As I was looking for a photo of Dempsey to make this comparison, I came by chance upon another one which also reminded me of both Ryan and Rubio:
Rubio turns 40 this May, but he's almost as young-looking as actor Taylor Lautner of "Twilight" fame (above left). And I don't know that Ryan can sing or dance as well as Matthew Morrison (above right) of "Glee," but then again, I don't know that he can't. In any event, I have to commend both politicians on overcoming their tragic good looks to make a career in politics.
Kevin Drum begins to doubt his cult leader
I used to read, and frequently argue here with, longtime liberal blogger Kevin Drum, but I haven't done much of either lately. This morning, however, Instapundit sent me to Brian Doherty at Reason.com, who quoted this passage from Drum's recent post at Mother Jones:
So what should I think about this [i.e., the first six paragraphs of his post, in which Drum had listed Obama decisions that have surprised or disappointed Drum and his fellow lefties]? If it had been my call, I wouldn't have gone into Libya. But the reason I voted for Obama in 2008 is because I trust his judgment. And not in any merely abstract way, either: I mean that if he and I were in a room and disagreed about some issue on which I had any doubt at all, I'd literally trust his judgment over my own. I think he's smarter than me, better informed, better able to understand the consequences of his actions, and more farsighted. I voted for him because I trust his judgment, and I still do.
Doherty titled his mocking post "The Loyalty of the Clerks,"* but I think that's a bit harsh to Drum. He's not a clerk. He's just a charter member of, and deeply invested in, the Cult of Obama.
I'm not even going to bother looking through Drum's past oeuvre (to use a 50¢ word I'd just as soon no one ever apply to my collected blogging) for snarky references to the book and movie called "Enron: The Smartest Guys in the Room" to throw back at him. I'll just say this:
The problem isn't that Drum isn't as smart as Obama. I'm sure Obama, for one, shares that view of Drum. Indeed, Obama shares that view about just about everyone else too. And that's a real problem, but it's not the biggest problem.
No, the biggest problem is that Obama thinks he and, perhaps, a very small cadre of like-minded elites (an astonishing number of them either law professors or political hacks) are smart enough to know everything important. But as Ronald Reagan said: "[T]he trouble with our liberal friends is not that they're ignorant; it's just that they know so much that isn't so." And a lot of what Obama and the lefties think they've got all figured out, and hence that they can competently manipulate at will, is actually stuff that no one is yet even capable of knowing.
So when, for example, Obama thinks he knows better than the free market how to allocate or price scarce resources, he's deluding himself and anyone who believes him. When Obama thinks he's going to use his intellect and his wit and his charisma to persuade China or Russia or Iran into doing something which their autocratic leaders don't think in their own best interests, he might as well have fallen off the turnip truck at dawn this morning.
Thus we have the free market bringing us increasingly fuel efficient cars, including hybrids and electric cars from Toyota and Nissan and Honda and even Ford that look quite promising — while Barack Obama and Government Motors are bringing us the Chevy
Dolt Volt at half again (or more) the price but only half the performance. (Reliable sources inform me that the next big General Motors idea will be the introduction of two new product lines, the Lada and its upscale cousin, the Zil.)
Saturday, April 02, 2011
What to call what's going on in Libya
I've been arguing since March 2 that no one would ever believe the U.S. wasn't in charge of any coalition military activities in Libya, since "in the Marines' Hymn, there's already this line about the 'shores of Tripoli,' which goes back to this whole 1805 thing when Jefferson was President and he established the first Navy SEALS or something."
Today, a liberal friend of mine argued in the comments to another post that "[h]istorical reference isn't helpful" in the present context. I disagree, of course; history is almost always relevant and usually essential to understand what's happening now.
Calling the 1991-1992 conflict with Saddam for the liberation of Kuwait the "First Gulf War," and the liberation of Iraq itself in 2003 the "Second Gulf War," would be very orderly, but that nomenclature still doesn't seem to have caught on. Quite a bit of both wars were fought in Iraq, and both were fought against Iraq, but I think Bush-41 discouraged calling the earlier one "the Iraq War" because he wanted to keep the focus on liberating Kuwait. But we couldn't call that one "the Kuwait War" because that would have suggested we were making war on Kuwait, which we weren't. It doesn't make much sense to call the liberation of Iraq "the Second Gulf War" because Iraq (in contrast to Kuwait) only has a small (albeit very important) coastline along the Persian Gulf. And then there's the confusion caused by some people already calling the war between Iraq and Iran from 1980-1988 "the Gulf War"; I think that usage has dimished lately.
Nevertheless, I'm much amused by Jonah Goldberg's suggestion that "we should call this [Libyan affair] the Third Barbary War." (Jonah, I would link you, but I don't know how to link your emailed "Goldberg File" work.) Yes, it's (once again) on the Barbary Coast; and yes, it's (once again) to restrain the actions of one or more barbarians!
Ryan and Rubio on Fox News Sunday tomorrow
Rep. Paul Ryan (R-WI) and Sen. Marco Rubio (R-FL) — otherwise known as Bill Kristol's proposed 2012 GOP presidential and vice-presidential ticket — are going to be on Fox News Sunday. I usually record it, but I'm sufficiently intrigued that I may just get up in time to watch it live.
Friday, April 01, 2011
The budget battle as a no-limits poker tournament
I may draw, with this post, the sort of vehement disagreement and even scorn that Mitch Daniels triggered with his talk of a truce on so-called "social issues."
My temptation is to anticipate that by at least re-capping my conservative credentials and service as a blogger in the cause of sanity since 2003. I'm going to mostly resist that, but I'm going to hold any comments pretty tightly to the actual topic here, which is this:
I'd like to see NPR and PBS stripped of federal funds. Planned Parenthood, too. In fact, I have a shockingly long list of federal programs that I'd like to see de-funded — many of them primarily because they ought to be designed, supervised, and funded, if at all, at a state or local level. And after reading my list you'd be tempted to nominate me as the biggest Grinch of the 21st Century. But:
Right now the Dems are desperate to change the subject before the 2012 elections, away from total spending, and onto specific programs that offer the best emotional hooks for use in their next campaign. The Dems are committed to — and as Sen. Schumer's timely accidental admission against interest shows, expressly hoping for — a federal government shut-down that they can demagogue Republicans with. And they will use these issues to systematically shore back up, and re-invigorate, every single special interest group in the entire Democratic coalition, and they will use the government shut-down to go after independents.
To my constitutional conservative friends and neighbors, I have to point you to the Constitution, to the very structure of our government. From that fundamental structure flow what I believe to be inescapable political facts right now:
We can't effectively undo what Obama/Reid/Pelosi hath wrought without effective voting control of both chambers of Congress and the White House, much less begin to effect the sort of repairs that are needed.
This therefore is a four-year project, not a two-year project. It started on election day in November 2008, when we lost. It will not — can not — conclude on anything other than its constitutionally determined date: The second Tuesday of November in 2012.
Obama can and will veto any package containing those controversial targeted programs. He badly, badly wants to do that, and he will do it, but of course he'd rather do it at the least political price.
So even if a GOP-written bill axing of these programs were to get through the Senate and the House, it won't become law. The only way that legislation shutting down these programs will become law is in January 2013, if we win in November 2012. Otherwise not.
And therefore absolutely no one's pet Democratic program that they're eager to see axed — not even all of them together — can be permitted put seriously at risk the result of that election by insisting upon them now. Instead, we need to fight over those programs only as part of the overall 2012 budget fight, so that at the same time he vetoes the Congressional enactment which includes (at least some of) those cuts, Obama also has to veto the entire budget.
- And when he does that, even if the result then is some kind of government shutdown, then it's been for the best — and broadest possible combination — of reasons. That fight, and that veto, makes the budget the #1 issue in November 2012, sweeping the GOP to control of both chambers and the White House.
We are still early in what will become a winner-take-all game of high-stakes poker with only two players. From January 2009 until the Scott Brown special election, we had a very small stack, but we got back in the game, and regained at least a respectable stack of chips in the 2010 election. In a two-player match, though, you can't win until you've got the bigger stack: Until then, if you go all in and win, your opponent will still have chips left. What's important is to wrest away the chip lead over time. And bide your time waiting for a strong hand on which you've gotten good action, when pushing all the chips in and winning means you've won not just that hand, but the tournament.
Barack Obama's and the Dems' explosion of the federal budget is, in poker terms, potentially a monster hand for our team. If that is the main issue in November 2012, we win back the White House, we win 60+ in the Senate, and we deepen our lead in the House. And then starting in January 2013 we sweep the table.
Now, I'm not saying we ought never fight those fights on those wasteful Dem programs that should get the axe. There are indeed constituencies in the GOP or among independents who will swing our way on those same issues, and if we can get them to do that at the same time, that energizes our base. But the time to fight those fights is not now, but as part of serious debate on the overall 2012 budget — we've got the big enchilada on the table.
(I know, it's disgusting to mix food metaphors with poker, and I'm sorry for that.)
Then it's not "those nasty Republicans killed my ____ program that I love, and they didn't even really solve the budget problems, my favorite program got killed as part of the 'token' cuts so I will go to the polls and hate you evil Republicans forever," yada yada.
Budget misery, like other kinds of misery, absolutely loves company. We present all our cuts as part of the 2012 budget in a comprehensive package in which everyone — yes, including those noxious programs, too — has to share in a really big haircut (in some cases to the scalp).
(Now I've got hair on the poker table along with the big enchilada — as thoroughly disgusting a mixing of metaphors as has ever appeared on this blog.)
I'm not saying roll over, I'm saying hold as firm as we can on the House bill now in the Senate. But let's don't push in our whole stack prematurely on a "development hand." We cannot win if we do not stay focused on the big picture, meaning winning in November 2012. And before we push in all our chips on a bet that would do that for us, we need to have gained the bigger stack.
And by November 2012, we will have taken every cut we can possibly wring out of them now and — and vastly more importantly — we will have the benefit of a further steady drumbeat on the much bigger drum of the 2012 budget.
We're still going to lose that fight on the 2012 budget, folks. We cannot win that fight while Barack Obama is in the White House. This is a four-year project.
Once again — because of Constitutional impediments — we cannot win the whole tournament unless and until we win that election. That election becomes the last hand. That's where we go all in. Everything we do now must be with a view toward positioning for that hand.
We must not be foolish by being short-sighted, not even with the best of intentions. We must maintain discipline — and as with any discipline, this will be unpleasant to tolerate in the short term.
If you don't grok poker, then we can talk about sprints and marathons, or keep going until we find a metaphor that makes it vivid to you.
If you think I'm wrong, don't waste your breath reciting how bad the problems are, or even how dissatisfied you are with the lack of big progress so far. Nothing you say is going to change the structural features of this problem, because they tie directly into constitutional anchor principles. Saying I'm not being a "true conservative" will get you put in commenter time-out. Tell me why instead a symbolic, vetoed interim bill now cutting off funding to any single Dem pet program, or even any combination of them, is worth the risks of dividing our focus and firepower and wasting it prematurely. Convince me it's worth the risk of four more years of Mr. Obama and his Magic Unicorn.