Frank’s Case Book

“We have it in our power to begin the world anew. It is the opportunity to bring forward a new system of government in which the rights of all men should be preserved, that gives value to independence. O ye that love mankind! Ye that dares oppose not only the tyranny but the tyrant, stand forth! America shall make a stand, not for herself alone, but for the world.” — Thomas Paine, Common Sense.

In the fictionalized novel Exodus, Leon Uris described the emergence of the state of Israel. In the first chapter set in 1946, a too earnest (earnestness being a congenital American trait) young American journalist, Mark Parker, is hectoring a smug British Major, Fred Caldwell. Parker insisted that the British Empire was crumbling. “You are going to lose the whole shooting match,” Parker tells Caldwell. “… first it is going to be India, then Africa, then the Middle East. I’ll be there to watch you lose the Palestine mandate. They’re going to boot you out of even Suez and Transjordan. The sun is setting on the empire.”

While the British Empire was crumbling, the American Empire was in ascendance. However, this was quite a different empire. Rather than soldiers seizing lands across the world, dollar bills were the agents of American influence.

Does American ascendancy really constitute an empire?   Webster defines “empire” as a “political unit having an extensive territory or comprising a number of territories or nations and ruled by a single supreme authority.” In this conventional sense, there is no American Empire.   There are no lands acquired for permanent rule reminiscent of the British or Roman Empires. There is no central governing political authority dominating imperial vassal states. Americans are too preoccupied with personal acquisition and self-improvement to care much about the deliberate domination of others.

However, more than physical control or authority over other peoples characterize empires. A sense of destiny and importance animate them. The expansion of empires requires psychic as well as physical energy. This energy is supplied by a system of values, a mythology, or a story that explain the importance of empire and why it is inevitable.

Even if base motives like greed or brutality motivate conquest at root, they are justified by a voice of more noble aspirations. Whether it is the Romans fighting for their gods and the glory of the emperor; Napoleon Bonaparte of France justifying his empire as a way to reward “merit regardless of birth or wealth;” or the British, who in the words of Rudyard Kipling, found it necessary to “send forth the best ye breed” to “take up the White Man’s burden;” empires believe themselves to embody righteous goals.

The American Empire, if it can be said there is one, is animated by the conviction that the American Revolution and the American experience have illuminated certain principles that are universally applicable to all people. Indeed, American founding documents found these truths to be “self-evident.” Americans believe in government by the assent of the governed, in representative institutions, in individual liberty, in economic freedom, and in religious tolerance. These principles have been so largely accepted around the world, that even those places that do not live by them usually pay them lip service. A tyrant may have once run Iraq, but that regime at least felt compelled by the ethos of republican democracy to go through the charade of elections. With democratic institutions comes moral legitimacy. The American Empire is an empire of ideas that have overwhelmed the world.

There are times when the American Empire has spread through war, even if the goal of the war was not one of conquest. At the conclusion of World War II, Germany, Japan, and Italy all became constitutional democracies. However, the uniqueness of the American Empire is that afterwards these countries assumed their own sovereignty. The American Empire is not composed of vassal states, but of trading partners and friends.

Radical Islamists represent one of the few ideologies that have not yet subscribed to the principles that constitute the binding force of the American Empire. Though the governments of the West are sometimes referred to as Crusaders, the US in particular is called the “Great Satan.” Satan does not acquire by conquest, but by temptation. Radical Islamists fear the United States, because they fear if left to their own devices, people in their countries might very well reject a theocracy, embrace freedom, and demand representative government. They fear lure of American freedom and its consequent affluence more than the America’s military might, as they indeed should.

It is a common observation that people often assume the attributes of their adversaries. This is not surprising, since adversaries compete in the same environment under a similar set of constraints. Successful strategies by one side are likely to be emulated by the other. However, it is possible that the adoption of the tactics of one’s adversaries may subtly undermine one’s integrity. During the Cold War, the defeat of Communism seemed so laudable that tactics that might otherwise be eschewed are ironically embraced. Though Americans never came close to duplicating the abusive policies of the Soviet block, we may have strayed further from our ideals than necessary. In a similar way, the competition for appointment of federal judges has threatened to force Republicans, the supposed conservatives, into compromising respect for traditional legislative institutions to match the tactics of Democrats.

If the Constitution and laws were interpreted properly to begin with, the stakes over judicial confirmations would be much smaller and the consequent animosity attenuated. Judges would sort out legal ambiguities in a way that arises organically from legal precedent. However, since the beginning of the last century, Liberals have used the courts to win victories by judicial fiat that could not be won in the court of public opinion. From the 1960s on, Democrats largely controlled the legislature and the courts. Without much judicial restraint, the country lurched to the Left. Since the Reagan Revolution, Democratic electoral power has ebbed. Both the legislative and executive branches of government are now under Republican control. Liberals are now the reactionaries, hoping the courts can maintain political victories that have been electorally defeated. The stakes have thus been raised.

After Ronald Reagan appointed Sandra Day O’Connor and Antonin Scalia to the high court, the Left panicked when Reagan had yet another opportunity for a judicial appointment to the US Supreme Court. Hence, when Judge Robert Bork was nominated, he was viciously opposed by the Left who even went so far as to check on his video rentals hoping to find compromising information. In the 1980s, we still indulged the illusion that judges were not overtly political appointees. Presidential nominations for the federal courts were generally accepted lest they lacked the appropriate legal credentials or were soiled by ethical problems. Bork’s academic and legal background was impeccable and no particular ethical problems surfaced. Therefore, Democrats tried to paint Bork as an “extremist” that was too far outside the legal mainstream to be accepted, a charged most knew was, at best, an exaggeration. They succeeded in keeping Bork off the Supreme Court, but ignited a couple of decades of fireworks over judicial nominees.

Not too many years later, Charles Schumer, Democratic Senator from New York, argued that Democrats should drop the charade of hiding their political opposition to candidates. Schumer believes that presidents deserve little deference with respect to judicial nominees. Potential judges can be opposed based solely on political differences. Under the Schumer doctrine, legal competence and ethical fitness were no longer sufficient qualifications.

Since then, Democrats and Republicans have battled in the Senate refusing to confirm some of each other’s court nominees. Most recently, Senate Democrats have conjured up a new tactic. No longer a majority party in the Senate, Democrats are not able to bottle up nominees in the Judiciary Committee, preventing even a vote on a nominee. Such a tactic was a way to impede presidential judicial nominations without the political costs of open opposition in the Senate. Indeed, there were times when nominations were stopped in committee that would have succeeded if brought to a floor vote.

Now that the Democrats do not control the Senate, they cannot bottle up judicial nominees in committee. Instead, they are filibustering to keep nominees from coming to a vote. Stopping a filibuster requires 60 votes, so Democrats can prevent nominees from coming to a vote even if a majority favors a nominee. In effect, they have exploited the rules of the Senate to require a super majority to approve judicial nominees. This technique is now being used against Miguel Estrada’s nomination to the US Court of Appeals for the DC Circuit. Democrats oppose the nomination primarily because Estrada is a conservative Hispanic. If advanced to the Circuit Court, Estrada’s Hispanic background would make it difficult for Democrats to oppose him publicly were he to be nominated for the US Supreme Court.

Republicans indignantly argue that such an exploitation of the rules is a circumvention of the Constitutional requirement of only a simple majority for judicial nominations. While the Republicans are correct that the Democrats are violating the spirit of the Constitution, they really do not have a legal case. No court would rule in favor of the Republicans given the fact that the Constitution also gives each chamber of Congress the right to make its own rules.

There is a Republican idea to use a parliamentary trick to circumvent the Democratic filibuster. However, the use of such a device is not only disingenuous but would weaken the filibuster, an important legislative institution. In the future, Republicans may well need the filibuster to stop Democrats from plunging the country head on into a socialist state. Weakening the filibuster rule would be myopic. Republicans would compromise the moral authority to criticize Democrats for their abuse of Senate rules once they embark on the same practice.

President George Bush needs to make a political not a parliamentary defense of his nominees. He needs to speak forcefully on behalf of his nominees. He needs to campaign directly against the more moderate Senators who might be persuaded to abandon a filibuster. The Republican Party needs to push hard in the next Senate elections to extend their numerical lead in the Senate, making it more difficult to sustain a filibuster. Democratic reactionaries will be forced to resort to parliamentary stalling techniques, while Republicans are making the political case to the public. Republicans should embrace the Democratic filibuster as an opportunity to explain their own philosophy of jurisprudence and Constitutional law. The cynical exploitation of Senate rules to undermine presidential prerogatives could serve as a metaphor for the Democratic lack of respect for the rule of law and Constitutional restraints. It will become progressively more difficult for Democrats to argue that they oppose Republican judicial nominees as extremists when they themselves engage in extreme tactics to satisfy a lust for political power.

Applying mathematics to study trends in politics bears a resemblance to predicting weather and climate. There are so many unknown and unspecified variables, that at best it is only possible to make statistical guesses about the future.

There have been a number of models to predict presidential election outcomes, models that are generally driven by economic data. These models predicted a sweeping victory by Vice-President Al Gore in the 2000 presidential election. Many in 2000 thought that such models represented political destiny and did not appreciate that the models predict a statistical result. All other things being equal, one would have expected a Gore landslide victory, but all other things are never quite equal.

Nonetheless, political models and mathematical descriptors of political situations, as long as they are swallowed with a suitably large block of salt, can illuminate important and interesting trends.

Jordan Ellenberg in Slate magazine [1] recently called attention to work done by Keith Poole of the University of Houston and Howard Rosenthal of Princeton University who have tried to track the political polarization between the parties using roll call votes from 1879 to the present [2].

If we presume political affiliations are like grapes, people with similar views bunch together, we should be able to find a set of orthogonal axes in an ideological space revealing where Democrats and Republicans cluster. If the parties become more polarized, the distance between clusters of Democrats and Republicans in this space should increase. When polarization decreases, the clusters should begin to overlap. For example, one could find a few Republicans that are closer in their votes to the center of the Democratic cluster of votes than a few Democrats and visa versa.

Poole and Rosenthal found that the most explanatory geometric description of roll call votes rested on two dominant ideological axes. The first axis separating Democrats from Republicans was the traditional split based on belief on the appropriate extent of government involvement in the economy. On the left extreme of the axis would be economic Socialists and on the right extreme would be economic Libertarians. The second axis rested on differences in voting patterns on racial issues. While Republicans were generally on the side of more racial neutrality in government policies, Democrats through much of the twentieth century, were split along a North-South division. Northern Democrats and Republicans resembled each other in voting patterns racial matters, while Southern Democrats generally voted to maintain the social structures separating the races. As a consequence, the net polarization between the parties was smaller.

In recent years, racial issues have tended to show a less obvious divide, at least as represented on roll call votes. Some disputes on racial issues may have been subsumed into economic ones. The split between the parties has come to rest more squarely on issues of how involved the government is in the economy and along these issues, the parties have drifted further apart.

One explanation of this drift a part could be growing economic inequality. Economic inequality in the US was at is lowest point in 1968. Since then it has increased, though in recent years it has leveled off. There are a number of proposed explanations for the change in income distribution including greater rates of immigration increasing the number of low-paid workers, changes in the American social structure producing both more single-parent families and two income families, and the increased premium the economy puts on education. Whatever the cause, a recent paper by McCarty, Poole, and Rosenthal correlate political polarization and income inequality [3]. Although the correlation is not surprising, it is surprising that effect of income inequality on polarization is not has high as one might have expected. Perhaps those who are not as well off economically aspire to be so in the future. Social mobility decreases potential animosity between economic classes.

It remains to be seen, but it appears that attitudes on national security issues may come to split Democrats as much as racial issues did earlier in the century. Since World War II, Republicans have grown to be as hawkish on national security issues as Democrats used to be. Since Vietnam, Republicans have been more consistently hawkish on national security issues, especially since Patrick Buchanan has left the Republicans. However, the Democrats seem split between the Senator Joseph Lieberman-wing of the party who supported the Iraq War and the Vermont Governor Howard Dean-wing [4] wing of the party. Either the parties will become more polarized as Democrats trim away the Lieberman wing, or less polarized as the consensus on national security issues grow.

It will take a few election cycles to determine the direction the Democrats take. Poole and Rosenthal found that ideological distributions in the Congress and Senate did not change as a consequence of current elected officials changing the positions so much as by replacement of those elected representatives by elections.

1. Ellenberg, J., “Growing apart,” Slate, December 26, 2001.
2. Poole, K. and H. Rosenthal, Congress: A Political-Economic History of Roll Call Voting, New York, Oxford University Press, September 2000.
3. McCarty, N., K. Poole, and H. Rosenthal, “Political Polarization and Income Inequality,” 27 January 2003.
4. Alternatively called the “Democratic wing of the Democratic Party” or more derisively the “French wing of the Democratic Party.”

The United Nations Security Council was not always so fractured as it was in the weeks leading up to the Coalition liberation of Iraq. The council was united in 1994 when the Security Council failed to act in Rwanda. According to Alison Des Forges of the Humans Rights Watch, “The Americans were interested in saving money, the Belgians were interested in saving face, and the French were interested in saving their ally, the genocidal government.” The result was comity in the council and 800,000 dead Rwandans.

Since then, at least this American administration has concluded that sometimes it is necessary to act when the UN Security Council cannot summon the will or courage to do so. The French have remained stubbornly consistent supporting genocidal regimes when convenient. The Belgians decided to do what impotent, self-important little governments do, they passed a law.

Belgium withdrew in Rwanda after 10 Belgium peacekeepers were killed. Retreating bravely the Belgians enacted a law bring crimes against humanity under explicit Belgium jurisdiction. The US, that is often caricatured as arrogant, has not yet been so bold to assert the power to enact laws with “universal jurisdiction.”

Of course, to bring war criminals into custody usually requires decisive military action. Passing universally applicable and unenforceable legislation only requires arrogance.

War crimes can generally be tried on an ad hoc basis with tribunals convened after victories much as was done with the Nuremberg trials after WWII. War criminals were prosecuted at Nuremberg without the assistance of the Belgian legislature. Standing forums are not necessary and provide a podium for political posturing.

Though the Belgian law has been used to prosecute a handful of Rwandans, it has not managed to illicit much trepidation on the part of tyrants. Until charges were recently dropped by a Belgian Court, the most conspicuous application of the law was against Israeli Prime Minister Ariel Sharon. Sharon was charged with neglecting to intervene when he should have known that a massacre was likely to take place. This criticism seems uncannily similar to actions by the UN Security Council with regard to Rwanda, but no one on that council will be charged.

You will never see Saddam Hussein, Osama Bin Laden or Yasser Arafat charged with war crimes. You will never see French, German, or Russian officials charged for complicity in supplying military equipment to Iraq. Those actions were a direct violation of UN sanctions that served to support Hussein’s Islamofacist regime — a regime documented as having deliberately murdered as many as two million Iraqis. In short, the Belgian law is purely hortatory and political.

A Belgian lawyer is now seeking to have US General Tommy Franks charged with war crimes in the liberation of Iraq. The US military has just redefined the concept of warfare by devising a scheme to topple a brutal regime with an unprecedentedly small number of civilian casualties (less than 2000). Trying to bring charges against Franks for what by any objective and dispassionate consideration was the most morally prosecuted war in human history is willful and aggressive hypocrisy. It also a deliberate insult to those American soldiers who died because of tactics designed to minimize civilian casualties.

Attempts to charge General Franks illustrates the wisdom of the US refusal to join and endorse the International Criminal Court (ICC). In all likelihood, the ICC would be even less constrained and more irresponsible than the Belgian courts. At least the Belgian courts are ultimately answerable to an elected government.