2010 May 30 by Frank Monaldo.

There can sometimes be a fine difference between Constitutionally protected free speech and criminal threats. Criminal intimidation may involve speech, but such speech does not fall under the shield of the First Amendment. Cross burning provides a compelling example. While ugly speech expressing racial hatred is permitted, those same sentiments expressed by cross burning are not. The reason is that cross burning was widely practiced by groups like the Klu Klux Klan as a direct threat against black people and others who sympathized with the plight of blacks. Hence, historical practice has caused cross burning to be unequivocally associated with a clear and direct threat of physical harm.

Protests and marches can sometimes straddle the distinction between First Amendment rights and unlawful behavior. Marching around a government building, for example, to express displeasure with a government policy is protected by the First Amendment. If such marches are meant to physically prevent the free passage of others, or if members act in ways that a reasonable person would feel physically intimated, the right of “people peaceably to assemble, and to petition the Government for a redress of grievances” degenerates into unlawful behavior. In many cases, we must rely on the judgment of local police officers to recognize the distinction. Rightly, the general rule has been to grant fairly large latitude to protestors.

We submit here that the Service Employees International Union (SEIU) crossed the line in the protest at the home of Greg Baer, counsel the Bank of America. About 500 members of the  SEIU and National Political Action another Progressive group (out of Chicago) assembled on the front lawn of Greg Baer. They were there ostensibly to protest foreclosures by the banks on delinquent mortgages. The group actually occupied the home’s porch with bullhorns blasting chants. The activities were sufficiently disconcerting that Baer’s teenage son, the only one home, took refuge in a locked bathroom in the house. The fact that the young man was afraid does not alone provide proof that the SEIU and its allies were a threatening crowd. However, other facts suggest that the purpose of the group was intimidation.

1.  Usually protestors notify any major media groups that will listen in the hopes that the presence of media will amplify whatever message they are trying to send. The only media present was a sympathetic reporter for the Huffington Post.  This was clearly not a message meant for the public, but at an individual.
2. Protests are usually conducted at places of business or other public places. A protest at a private residence directed against a particular individual more closely resembles the mob scene in Frankenstein that it does arm-in-arm parades of the Civil Rights movement.
3. When the local, Montgomery County Maryland police were called in, the hapless officers who responded were intimated. Nina Easton, the next door neighbor of Baer and Bureau Chief of Fortune Magazine, reported that the officers were afraid that the attempts to clear the property of protesters would “incite” trespassing protesters. While the discretion of the officers may have been wise, it does suggest that the mood of the crowd was not congenial.

The ease with which SEIU was able to execute this threatening assembly and the fact that it has been essentially uncovered in the major press is frightening. Indeed, the ombudsman of the Washington Post was also concerned by the lack of coverage. One Washington Post reader suggested that if a group of Tea Party protestors assembled on the lawn of a Congressman and frightened his family, the story would have been above the fold on the front page.

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2010 May 23 by Frank Monaldo.

One of the powerful disciplines of science is the requirement that the validity of a theory is judged by how well it makes predictions. For example, the physical laws of motion are incredibly well validated by their ability to make very precise and accurate long-term predictions of the motion of the planets. The virtue of this discipline is that it allows theories to be both validated and refuted. This separates science from faith. Indeed, any well-constructed prediction ought to have clear measures of success or failure. Unfortunately, this discipline is difficult to apply to the social sciences. Nonetheless, difficulty in application does not render this approach useless.In January of 2009, a President Barack Obama economic team following predictions for unemployment both with and without the President’s stimulus package. The web site Innocent Bystanders has reproduced the Administration’s graph along with actual data from the Bureau of Labor Statistics. The graph is shown below:

The key prediction was if the stimulus were not passed unemployment would peek at 9% while with the stimulus package the unemployment would not exceeded 8%. In actuality, the maximum unemployment peaked over 10% and has persisted much longer than predicted. According the the Administration, at this point we should have 7.5% unemployment rather than 9.9%. Most discouraging at this point, is that newest prediction of the Administration predicts unemployment lingering above 8% through 2012, falling at a slower rate than the Administration expected for unemployment with no stimulus package. One hopes that this prognostication will not be an under prediction.The facts above are not disputed, however their interpretation certainly is. Indeed, President Obama himself has said: “If the ‘just say no’ crowd had won out..if we had done things the way they wanted to go, we’d be in a deeper world of hurt than we are right now.”Consider the three possible outcomes of the stimulus package with respect to the unemployment predictions. If the unemployment rate dropped faster than predicted, then the President and his Administration would have justifiably crowed about their success. If the unemployment rate largely followed the original Obama Administration predictions, even with fairly broad margins of error, the Administration could have persuasively argued that their policies worked as expected. Now that the unemployment rate has soared past the original predictions, the Administration is arguing that the economy would have been worst had their been no stimulus package.The key thesis here is that regardless of the actual economic situation, the Administration supporters will argue that the stimulus package was beneficial. There is no possible outcome, (positive, neutral, or negative) that could, in their eyes, have demonstrated that the stimulus package has failed. The value of the stimulus has become a matter of faith separated from the facts. If you don’t agree with this conclusion, ask an Administration supporter, what set of economic facts would have been evidence that the stimulus did not work.

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2010 May 16 by Frank Monaldo.

Until recently, a persistent problem that plagued Conservative presidents was that their Supreme Court appointees tended to drift Left, sometimes far to the Left, during their tenures. Currently retiring Justice John Paul Stevens, appointed by President Gerald Ford, represents a prime example.

Stevens likes to argue that he has been rock of consistency while the stream of the country has moved to the Right. Stevens self-portrayal would be more persuasive if he had not shifted positions on so many important issues. As Stuart Taylor of the National Journal has pointed out: Stevens was originally against racial preferences and now regularly decides in favor of them. Stevens originally believed that the death penalty was Constitutional, now he does not. From defendants’ rights to Medicaid Abortions, Stevens has slid inexorably to the Left.

Perhaps the most obvious indication of Stevens’s change in perspective is that he waited until Barack Obama became president to retire. He could have left the Court at age 88 under President George W. Bush just as easily as retiring now at 90. By any political calculus, President George W. Bush is closer to President Gerald Ford than President Barack Obama. By his deliberate selection of retirement date, Stevens, in effect, decided he wanted a Liberal judge to succeed him.There is nothing ignoble about changing one’s mind, especially if one can articulate cogent reasons for the changes. but it is disingenuous for Stevens pretend that he really has not.

There are many reasons for the traditional shift to the Left. The Washington establishment, national press, and law schools are quick to lavish praise on Conservative justices that“grow” or “evolve” in office — so long as the growth is to the Left. Everyone enjoys being held in esteem and it hard to underestimate the effect of rave or negative reviews over the long run. Perhaps the largest factor in shifts to the Left is the inherent temptation of the law for judges: the temptation to morph the law to achieve what a judge believes is a positive social outcome.

This temptation is so great, that for a Constitutionalist judge to maintain fidelity to the Constitution, he or she must bring to the Court at least two qualities. First such a judge needs the intellectual conviction, that the job of the judge is interpret and apply the law, not make wise policy and the humility to believe it. Specifically, he or she must have a “judicial temperament.” Second, a Conservative judge that maintains his or her position over time must have the intellectual power and familiarity with the law to withstand years and decades of debate with equally intelligent justices.

Justices John Roberts and Sam Alito were chosen for these qualities. The choice of Harriett Meyers by President Bush was met with consternation by Conservatives, which largely undermined her nomination, precisely becaue she possessed none of these qualities.

How then should we consider the nomination of Elena Kagan? She qualified by her legal background, but has little judicial experience. She is, to a large extent, a “stealth” candidate. Her positions, save on a few issues, are not conspicuous. Liberals do not have worry t she will be pulled to the Right. There is few in Washington tugging in that direction. More likely she will begin with mainstream Liberal positions and slide further to the Left. She will be lauded by the press as for her intellectual stature and her concern for the least fortunate. She has not been a judge and therefore has little time to develop a judicial temperament required for Constitutional fidelity. Judging from her picture on the cover of the Wall Street Journal, her only inclination to the Right is her rather good batting stance.

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2010 May 9 by Frank Monaldo.

Every president should probably be excused one inept White House Press Secretary. President George W. Bush endured the dear-in-the-headlights Scott McClellan, who embarrassed the Bush Administration both before and after his tenure. McClellan was followed by one of the most articulate and press-savvy press secretaries ever, Tony Snow. Poor President Barack Obama presently endures Robert Gibbs.

Recently, Gibbs radically mischaracterized a criticism by the former FEMA Director Michael Brown on the Obama Administration response to the massive oil spill in the Gulf of Mexico caused by the explosion of a BP oil platform. This issue should have been a softball for Gibbs. Brown had been roundly criticized for his handling of Katrina in the Bush Administration. Brown has not earned much credibility on how to handle a catastrophe. Gibbs squandered the rhetorical opportunity by wrongly asserting that Brown had charged that the oil spill was deliberately planned by the Obama Administration. Brown had really charged that the Obama Administration had not been as quick in response as they should have been to reduce public support for offshore oil drilling. Brown’s charge was extraordinary and without proof, but Gibbs made Brown a sympathetic figure by his gross exaggeration.

Gibbs’s most egregious recent blunder also had to deal with BP. Gibbs was trying to say that the Obama Administration would hold BP accountable for the cost of the oil spill cleanup. What he actually said was that, “We will keep our … boot on the throat of BP to ensure that they’re doing all that is necessary while we do all that is humanly possible to deal with this incident.” Such a statement from a high Administration official is more than little creepy and unfortunately suggestive of the tactics of totalitarian thugs. One could imagine the hand-wringing and rightful angry reaction if a Bush press secretary had suggested that `We will keep our boot on the throat of Islamic states to ensure that they’re doing all that is necessary to help  capture terrorists.” The foot-on-the-throat metaphor is inappropriate as a general matter.

What is amazing is that Gibbs felt free to suggest such action as long as it was against an oil company. Will there be similar promises against other companies that err or cross the Administration?  Perhaps less unexpected is that the Left seemed less phased by this unfortunate metaphor in  a serious context than by a joke by President Obama.

At a White House Correspondents Dinner, a occasion where humor is the theme, President Obama joked:

“Jonas Brothers are here, they’re out there somewhere. Sasha and Malia are huge fans, but boys, don’t get any ideas. Two words for you: predator drones. You will never see it coming. You think I’m joking?’

Adam Serwer, of the Left-wing American Prospect,  worried that the joke displayed a lack of sympathy for those innocents accidentally killed by weapons launched by predator drones.

The Left has no sense of humor and does not seem to be able to recognize a humorous remark delivered in a light context (President Obama’s joke) and a inappropriate metaphor (Gibb’s use of boot-on-the-throat threat) delivered seriously in a formal context. The reaction by the Left to these incidents reveals more about the Left than it does about Gibbs or Obama.

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