Trying to Stifle Dissent

April 18th, 2010

Recently, former President Bill Clinton gravely warned that the anti-government sentiment could incite people to violence. Clinton was directing his criticism against the Tea Party protesters, whose demonstrations have proven remarkably peaceful. No one wishes to encourage violence, but we suggest here that Clinton’s warning is more about discrediting legitimate dissent than a warning against violence.

If Clinton were sincere about his concern, he might have spoken out against incendiary speech against President George Bush. Not only was Bush regularly compared to Hitler, but prominent people made accusations designed to engender anti-Bush hatred. The late Senator Ted Kennedy called the Iraq war a “fraud” cooked up in Texas. Air America radio talk show host Randi Rhodes speculated about a mafia style elimination of Bush. The 2006 movie the Death of a President graphically depicted the fictional assassination of the very real President Bush. Can you imagine the righteous (and justifiable) hand-wringing if there were such a graphic depiction of a similar incident with regard to President Barack Obama? It would probably not win the same number of international film awards.

The truth is that the Tea Party protests have been largely peaceful with far fewer arrests and incidents than usually accompany the same number of protesters for other causes. Just consider the Left-wing violent protests that typically happen whenever the G8 meets. According the New York Times, Tea Party protesters come from the middle classes, slightly more affluent and more educated than the population as a whole. Perhaps the most we can learn from Clinton’s remarks is that the Tea Party movement is threatening because it is so representative of a large swath of America.

Clinton has a history of exploiting domestic terrorism for political advantage. After a the destruction of the Murrah Building in Oklahoma City killing 168 people.  Clinton and his political strategist Dick Morris, consciously used the tragedy to suggest that Conservatives, particularly those on talk radio created an environment conducive to violence. Unfortunately, we have come to expect such cynicism from politicians. It probably says more about Clinton and other Democratic leaders that they are so fretful about a group that has as the first element of its program:

“Require each bill to identify the specific provision of the Constitution that gives Congress the power to do what the bill does.”

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Only Growth Will Ease Our Economic Future

April 11th, 2010

No small amount of energy and intellectual effort is devoted to determining what impact climate change will have, or on scanning the heavens for a near-Earth object bound for collision with Earth. These are noble and important pursuits, but there is another disaster facing the country no serious person disputes.

While it is not quite as certain as the sun rising tomorrow, the next few decades will bring a demographic time bomb. Baby boomers are by Census Department definition are those born between 1946 and 1964, the fecund product of millions of young Americans during that period more than compensating for the Great Depression and World War II.

During their working lives these boomers have made it possible to fund social security and Medicare with modest levels of taxation. In part because this cohort was so large, in part because baby boomers had fewer children, and in part because the life expectancy is increasing, the number of workers required to support as single retiree has decreased from over six in 1941 to about 3.5 today. After 2020, this number will fall below three. No matter how wealth is divided and re-apportioned, workers will be burdened with the support of the elders. The problem grows worse if you factor in Medicare and if don’t believe the recently-adopted health care plan will reduce the cost of medical care.

The number of people we will have in the country (except if we accept even larger rates of immigration) available to support the elderly is fixed. There are at least a couple of ways of mitigate the potential economic and social disaster.

One is delay retirement. This will increase the worker to retiree ratio. If the retirement age were 70 now, the number of available workers would be over 5 per retiree.

Secondly, the Boskin Commission reported that the traditional CPI over states inflation by about one to 1.3 percentage points each year. If the CPI increases by 2% the real rate of inflation is closer to 1%. If the inflation adjustments to Social Security were accordingly adjusted, it would medicate the burden of Social Security over time.

These last two suggestions, however, are essentially different ways of allocating a finite set of resources. In such cases, there will be incredible political battles between generations. The only way to alleviate that problem is robust economic growth. Taxes and other economic incentives must be structured to foster growth. With higher rates of growth, it is possible to both alleviate both the reductions in benefits the elder will have to bear as well as decrease burden on workers.

Real growth rates have averaged about 3.5%, and we will need sustained growth rates more than 4% to prevent long-term decreases in the standard of living. Unfortunately, real growth rates might be constrained by increased entitlements and higher deficits enacted by the Obama Administration. Potential constraints on energy output imposed to mitigate climate change will also slow growth.

Growth is the only socially stable way out of the upcoming fiscal crisis and it does not seem that the current Administration is willing to pay much more than lip service to the notion.

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Regime Change?

April 4th, 2010

It is sometimes difficult to distinguish between genuine and manufactured outrage. On MSNBC recently, commentary Chris Matthews was upset about the use of the word “regime” with regard to the Obama Administration by Rush Limbaugh. Matthews is correct in that the use of the word “regime” in this regard is useless partisan hyperbole. However, in Matthew’s anger could only make sense context of political amnesia.

Matthews said:  “I’ve never seen language like this in the American press…referring to an elected representative government, elected in a totally fair, democratic, American election — we will have another one in November, we’ll have another one for president in a couple years — fair, free, and wonderful democracy we have in this country…. We know that word, ‘regime.’ It was used by George Bush, ‘regime change.’ You go to war with regimes. Regimes are tyrannies. They’re juntas. They’re military coups. The use of the word ‘regime’ in American political parlance is unacceptable, and someone should tell the walrus to stop using it.”

During the 2004, elections there were many signs at political rallies calling for “regime change” with regard to the Bush Administration. While it is hard to draw too many conclusions from signs held by anger partisans at demonstrations, Democratic nominee, Senator John Kerry in a speech to a Democratic gathering in Peterborough, New Hampshire encourage supporters  by saying, “What we need now is not just a regime change in Saddam Hussein and Iraq, but we need a regime change in the United States.” Byron York reports that Maureen Dowd in the New York Times used “regime” in reference to the Bush Administration from 2001 to 2009.

Republicans were duly outraged at the time, but why is Matthews so upset now when the usage is marshaled against the politician that caused “thrills up” his leg ? There have a few signs (but by no means many) at Tea Party demonstrations conflating Obama with Hitler which have drawn the ire of the Left. However, during the Bush Administration such vitriol was a dominant theme from the Left. It was even common to hear such anger among temperamentally moderate Liberals who are now upset when harsh words are said about President Barack Obama.

It is not just a case of willful forgetfulness, rather is part of an internal narrative that Liberals, abetted by other Liberals in the press, have deluded themselves into believing that confuses Liberals like Matthews. There is no real conviction that different people can reasonably disagree and hold different political position. Conservative are Conservatives not because in the trade-off between freedom and equality of outcomes, they lean toward freedom, it is because they are mean-spirited bigots. There are Conservatives who have the same affliction with regard to their assessment of those on the Left, but the contagion is not nearly so virulent among Conservatives, because this narrative is not repeated in the mainstream media. As the media bifurcates into Left and Right, the affliction may become a more evenly distributed.

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Not Atticus Finch, Not Even John Yoo

March 14th, 2010

There is a noble tradition in the legal community to provide legal aid pro bono for ill-disposed defendants unable to secure legal representation. The archetype attorney is this regard is  the fictional Atticus Finch in  Harper Lee’s To Kill a Mocking Bird. Atticus Finch engaged in a professional and vigorous defense of Thomas “Tom” Robinson, a black man wrongly accused of raping a young white woman. Finch defended Robinson despite the fact that the defense earned him the anger and disapprobation of his community. Why Did Finch defend Robinson? Most probably from a conviction that Tom’s was innocent. Perhaps  Finch believed that, innocent or not, criminal defendants are entitled to a defense. Perhaps Finch believed that the procedures used against Robinson violated his rights. Most readers of To Kill a Mockingbird would believe that all three factors were involved.

For an attorney to seek a case,  pro bono, when not directed by a court is a deliberate choice. It is a choice that involves a commitment of resources and time. Hence, the nature of the choice says something about the priorities, perspectives, and beliefs of the attorney. This issue has recently been raised with respect the attorneys selected by Attorney General Eric Holder. Apparently, seven of these attorneys defended detainees at Guantanamo Bay. Eric Holder has refused to disclose the names of these political appointees (not civil servants).

Now there are any number of reasons that these attorneys were involved in these cases. They may have been directed by the firms to do so. They could have believed in the innocence of those involved. They could have believed that the detainees ought to be tried in civilian rather than military courts. There are a host of possible reasons. Defending someone certainly does not imply any sympathy for the underlying crime or even a belief on the part of the attorney that the argument used for defense is ultimately valid.

If, however, these choices were made because the attorneys had a disagreement (perhaps a very reasonable ones) with US policy, this disposition is certainly a subject of reasonable inquiry. If these attorneys — now political appointees — are of the legal opinion that, for example,  people seized overseas by the military are criminals rather than prisoners of war that does not make them bad people sympathetic to the Taliban. But it does make their positions legitimate political issues and indicative the Administration’s policy with regard to detainees.

If Attorney General Eric Holder believed that this politically-appointed attorneys had a popular legal approach with regard to detainees, he would not be shy about their names and positions. Holder’s reluctance to publicly name his staff is a concession Holder’s conviction that the positions of his appointees might be  politically difficult to defend. Atticus Finch had the courage to publicly stand behind his choices, not hide behind anonymity.

In To Kill a Mocking Bird, Atticus Finch stood up against his life-long friends and neighbors to defend Tom Robinson. Although some of the attorneys hiding in the Department of Justice may be politically embarrassed now, among their professional peers at large firms, their was a mad scramble to get “street creds” by challenging the Bush Department of Justice.

Bill Kristol and Liz Cheney are over the top in referring to the lawyers at the “Al Qaeda Seven,” perhaps implying a sympathy with Al Qaeda. However, this criticism is far milder than the  attacks experienced by John Yoo, the attorney who wrote legal analysis for the Bush Administration, on the what what is or is not torture. John Yoo is willing to not only to be public about his opinions, but for making his best efforts he was accused in the popular press of war crimes and awarded a DOJ Office of Professional Responsibility investigation run by Obama politically appointees in the DOJ. It took a career a DOJ attorney, David Margolis, to counterman the recommendation that Yoo be referred for disbarment.

It is very legitimate to criticize Yoo on his legal opinions, just as it is legitimate to critique the policy perspectives of the current DOJ political appointees after they emerge from behind the skirts of AG Eric Holder. But Yoo, who is willing to publicly argue for his positions, must do so in an environment that requires real intellectual courage.

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Public Sentiment is Everything

March 6th, 2010

“In this and like communities, public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed. Consequently he who moulds public sentiment, goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed.” – Abraham Lincoln.

Abraham Lincoln and Stephen Douglas engaged a series of debates in pursuit of the Senate seat from Illinois in 1858. The campaign was indirect in that state legislatures appointed Senators at the time. Hence, Lincoln and Douglas were entrusted with the banners of their respective parties (Republican and Democrat) to wrestle control of the Illinois legislature.

The key Lincoln argument was that the Federal Government can and ought to control whether or not slavery was permitted in the territories as they became states. That had been the conventional wisdom since the adoption of the US Constitution. Moreover, Lincoln was concerned that the logical extension of the infamous Dred Scott decision — a radical departure from Constitutional precedent asserting that local state law against slavery was superseded by Constitutional protections of property — was that states would be prohibited from banning slavery. Douglas argued for local popular sovereignty as to the question of the extension of slavery. Douglas refused to concede that the logic of the Court in Dred Scott would be used to compel slavery to by recognized in all states.

Lincoln was subject to the criticism of hypocrisy. He personally objected to slavery, but it was not his position to abolish slavery in those states in which it had already been established. The key [1] he used to free himself cage of hypocrisy was the observation that “Public sentiment is everything.” In the South, public sentiment would make the abolition of slavery impossible. Perhaps with time, public sentiment would change, but it was imprudent to impose a policy against which there was strong public antipathy. Lincoln was right. Ultimately, it would take a bloody Civil War to eliminate slavery.

We do not argue here that opposition to the particular health care reform offered by the Democrats is morally equivalent to the abolition of slavery  in 1858, or opposition to the current bill is as blind to the real moral issues as Stephen Douglas was. Indeed, there is a strong argument that individual freedom and liberty, at the very core of the anti-slavery position, animates opposition to the current health care bill. However, independent of the correctness of one policy or another, it is clear that a majority of Americans oppose the health care reform as the Democrats have cobbled it together. Most people want to start over with a clean slate to construct a more reasonable, less radical, and more transparent approach to change. Public sentiment is strongly against the President and Congress.

President Barack Obama fancies himself in the mold of Abraham Lincoln, a tall well-spoken person from Illinois, elected President despite modest beginnings. If the comparison is to be more than superficial, Obama ought to adopt the profound wisdom of his erstwhile political model. Leadership in this case requires making a successful public case for Obama’s brand of health care reform before compelling its implementation against the clear public sentiment. Obama has the opportunity to be one who is “deeper than he who enacts statutes or pronounces decisions.”

[1] David Zarefsky, “‘Public Sentiment Is Everything’: Lincoln’s View of Political Persuasion,” Journal of the Abraham Lincoln Association, Summer 1994.

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From Photo Albums to Digital Asset Management

February 28th, 2010

If you asked someone ten years ago if their house was on fire or about to be washed away in a flood what objects they would try to save, old photographs would have been high on most people’s lists. Clothing, furniture, televisions, or kitchen items can all generally be replaced. Photographs of children, vacations, or deceased relatives represent memories that cannot be recaptured. Nonetheless, most people were not particularly careful about these precious artifacts. The more organized among us would put together albums. Many simply dump photographs into shoeboxes comforted by the vague promise that those pictures would be organized at some indefinite point in the future. Photos were not usually lost to disasters, but many times photographs would pass on to children who could no longer identify the people in the photographs or even vaguely when the photographs were taken.

I purchased my first digital camera in 2000. Several consequences of the new technology were clear. It was much easier to organize digital photos. They were inherently time-tagged, if you remembered to set the clock on your camera. Digital photos can now also be tagged with metadata including geographical location and the name of the persons included. The embedded information also allows digital photos to be rapidly searched and sorted into different albums.

However, in an key sense digital photos are more fragile. The disks they occupy can of course suffer, like traditional physical photographs, from fire, flood or other disasters, but are additionally vulnerable to mechanical disk failures or the inability to read outmoded media. This vulnerability is partially offset by the ease with which digital data can be duplicated.

It is not clear that most people recognize the vulnerability of digital information and are taking appropriate back up precautions. I am fearful that there will be many families who will loose irreplaceable photos until a culture of digital data backup is fully adopted.

In 2000, there were many fewer options for backing up data. My first strategy was to copy my data, mostly photos, to CDs or DVDs. I made two full backups every six months. One, I kept home for easy access, and another at work in case there were some disaster at home. There are clearly a few problems with this approach. First,  it requires more discipline than most busy people are willing to commit to. In addition, even a 4 GByte DvD is quickly filled, and backups begin to require many multiple disks. It is also possible to loose data saved between backups.

The second version of my backup strategy was a hybrid. I purchased an account on fotki.com ($35/year) which would allows me to upload an unlimited quantity of picture files. After each photo session, I uploaded the files there. Note only could I retrieve the files in bulk using ftp, but I could allow friends and relatives to view the images on line. Other files, tax records and the like I continued to backup on DvDs.

Last summer I implemented a more modern backup system. The new system was coincident with my switch from a Windows PC to a Mac. The Mac comes with a backup utility called “Time Machine.” I connected an external USB drive to my iMac, and Time Machine provided a complete backup continuously. The term “Time Machine” refers to the fact that, depending on the size of the disk, different, older versions of the same file could be retrieved. This would come in handy if one modifies a file and later thinks better of it.

Even with the convenience of this local backup, it was still important to maintain an off-site backup. If one has an upload bandwidth of better than 1 Mbit/s, there are several choices to do this automatically in the “cloud.” The three I examined were Carbonite, Mozy, and Backblaze. All provide roughly the same functionality: unlimited backup for a monthly fee of about $5 for each computer. All allowed encryption for privacy.  I ended up choosing Backblaze primarily because it allowed backup of cross mounted (not network attached) disks.

Unfortunately, this fall I had an opportunity to test the efficacy of this backup strategy. My wife and I returned home one evening to discover that our house had been broken into. Among other items, my iMac was stolen. I was relieved that I was backed up on line so that no data were lost.  However, closer examination showed that the thieves had left (through more  oversight than kindness) the external hard disk I had used for back.

After we were certain that we would be reimbursed from the insurance company, we purchased a new iMac. The question was how to perform the recovery. The old iMac was running OS-X 10.5 (Leopard), while the newly purchased one came with OS-X 10.6 (Snow Leopard). How would Time Machine deal with the recovery?

The people at the Apple Store told me that the retrieval process would not write over newer files, so by inference the newer operating system would not be overwritten in the recovery process. It was worth a try. After all I could always rebuild the new system.

I attached the USB backup drive to the new iMac. At the initial bootup, I responded to a few questions and the system asked if I wanted to recover data from a Time Machine backup. I clicked “yes” after a few moments the computer informed me that the recovery would take 48 minutes. I went to eat dinner.

When I returned and logged in, I had my old system: the same applications and the same settings, even the same wallpaper. Indeed it was so identical that I suspected that the old 10.5 version of the operating system had been over installed. However, the “About the Mac” menu item confirmed that the newer 10.6 operating system was installed. This was further confirmed by the fact that I had to upgrade a few minor applications to run on the new OS. In sum, I could not have had a better recovery experience from “Time Machine.”

I mention here an interesting side note. I checked with Backblaze and the last auto update had occurred at 5:30 pm on the day the computer was stolen. Hence, the robbery had occurred between that time and the time we arrived home a 9:00 pm.

Since the incident I have looked more carefully at the whole concept of  Digital Asset Management (DAM). The general strategy for long-term backups is referred to as the 3-2-1 rule:

“To be fully protected, you should have three copies of any file (that’s three different devices, not three copies on the same device), two different media types (like hard drive and DVD, for instance), and one should be stored off-site. If you can adhere to this rule, your images will be extremely well-protected.”

I guess my strategy does not quite meet this high standard. There are three copies: my hard disc, my external hard disk, and my off-site storage. However, I am not really using two different types of media. All the data are stored on hard disks – though I do print out some small subset of images. Except for that asteroid or electromagnetic pulse from nuclear blast, it is hard to imagine what situation could wipe out all these disks at the same time. In that event, recovery my photos might fall to a lower priority.

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Government Annuities?

February 21st, 2010

For many people, 401(k) or 403(b) savings form a key component of their retirement plans. When these plans were first instituted in the early 1980s, few people anticipated how important these programs would become in many people’s portfolios. Perhaps most importantly, such savings free individuals from dependence on their companies for retirement benefits. These accounts, in most cases, allow individuals to choose investments that would provide growth and income irrespective of the long-term prospects of their companies. The holdings in reasonably diversified 401(k) plans would not be significantly affected by the fortunes of any few companies.

During retirement, individuals have many choices with respect to what to do with their retirement account accumulations. They could maintain their own investments and withdrawal a portion every year to live upon. The advantages of such an approach are that individuals have control over their investments and that when they pass on they can leave some money to their heirs. The disadvantage is that people can make unwise investment decisions or they can simply outlive their resources. To mitigate this possibility, some people purchase annuities. For a fixed investment, an insurance company agrees to pay a person pension for a fixed period of for life (and sometimes the life of the spouse). The insurance company assumes the risk of longevity. If an individual retiree dies earlier than expected, the insurance company makes money. A long-lived retiree may cost the insurance company money. In essence, the risk of longevity is shared.

Apparently, the Federal government is looking at encouraging people to move more to the annuity option. The government may be reasonably concerned about encouraging rational evaluations of risk and the informing the choices about retirement options. The government could deal with this by making investment tools and advice available to aid in retirement decisions.

However, some people are concerned that the government is looking enviously on all the assets accumulated in retirement accounts. It is possible for the government to offer annuities at actuarially unsound rates to obtain current funds in exchange for government-backed promises of future income. The House Education and Labor Committee is focusing on ways of directing 401(k) funds into Treasury bonds. Indeed, the goal seems to be melding 401(k) resources into a Social Security like system – first as a voluntary choice, and perhaps later as a requirement. In the open market, Treasury bonds are priced at their market value. A government promise for future incomes in a government social program, need not be priced appropriately. The underfunding of Social Security demonstrates this.

Whether bailing out banks, car companies, or individuals,  the government exercises much of its power by transferring funds from people who make responsible decisions to those who make unwise ones. Those frugal enough to have forgone current income to save in 401(k) plans now are conspicuous targets. I suspect that people have such a proprietary view of the money they have saved, that any attempt by government to unfairly seize these funds (regardless of any promised benefits) will doom any politician that suggested it. People feel strongly about what they consider the Social Security they “earned.” How much more protective of will they be of funds they more directly earned?

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Iraq Victory Has a Thousand Fathers

February 14th, 2010

On January 10, 2007, then Senator Barack Obama expressed his opposition about a US troop surge in Iraq to create a security window within which the Iraqis could begin secure their own country, `’I am not persuaded that 20,000 additional troops in Iraq is going to solve the sectarian violence there. In fact, I think it will do the reverse.”  This was not an off-the-cuff analysis offered without serious consideration.. Four days later, Obama he explained:

“We cannot impose a military solution on what has effectively become a civil war. And until we acknowledge that reality — we can send 15,000 more troops, 20,000 more troops, 30,000 more troops, I don’t know any expert on the region or any military officer that I’ve spoken to privately that believes that that is going to make a substantial difference on the situation on the ground.”

That same month, 86 Americans and 1800 Iraqis were being killed in Iraq. The surge was not in place until the summer of a 2007, and by that time nearly 2,000 Iraqis and 100 Americans were loosing their lives each month. But Obama was certain “…that the surge has not worked and we will not see a different report eight weeks from now.”

By the time President George Bush left office, American service deaths were down to 16 per month, many of these were non-combat related. Perhaps more impressively, Iraqi civilian casualties were reduced by more than an order-of-magnitude. The situation had turned so dramatically, that the Bush Administration and the Iraqi government signed the Status of Forces Agreement, whereby American forces would leave Iraqi cities by June 30, 2009, and US forces would be completely out of Iraq by December 31, 2011.

Reluctant to give the Bush Administration credit for its judgment but required by events to concede the improvement in Iraq in late 2008, Barack grudgingly offered that, “I think that the surge has succeeded in ways that nobody anticipated — by the way, including President Bush and the other supporters. It has gone very well.” May all presidents be praised with the assessment that their policies were more successful than even they expected.

However, this last week came the final turn around when Vice-President Joe Biden claimed credit for the success in Iraq when he said,

“I’m very optimistic about — about Iraq, and this can be one of the great achievements of this administration. You’re going to see 90,000 American troops come marching home by the, uh, end of the summer. You’re going to see a stable government in Iraq that is actually moving toward a representative government.”

This was particularly amusing coming from Joe Biden’s mouth (an orifice through which many odd words have passed). Biden’s solution had been to divide Iraq into three. As President John Kennedy famously quipped,“Victory has a thousand fathers, but defeat is an orphan.” Biden’s proud assertion of achievment put Iraq in the category of victory, when everyone claims credit for it. When things go badly like the economy, it was Bush’s fault. When things go well its the Obama Administration that succeeded.

Even after the Berlin Wall fell and the Soviet Union collapsed, the Left refused to acknowledge that President Ronald Reagan’s policies were part of the cause of that victory. Despite, what the Left was saying in the 1980s, we are now told that the Soviet Union was ready to collapse of its own weight and Reagan was just fortunate to be president at the time. Whatever Reagan’s  policies their effect was imposed over a decade so any  cause and effect are more difficult to link. In the case of Iraq, violence was growing so rapidly in 2007 and was quelled so quickly after the surge that therelationship between the surge and the improvement in Iraq is impossible to deny. While the surge may not have been a sufficient condition for the improvement in Iraq, it was certainly a necessary one.

Posted in Iraq, Politics, Social Commentary | 1 Comment »

The Culture of the Constitution

January 31st, 2010

The US Constitution is the longest living constitution that has provided an effective framework for self government for over two hundred years. It has served a country that began as thirteen relatively independent states that grew into a continental nation. Although there have been twenty-seven amendments, the document has remained largely intact. The longevity of the US Constitution is not just a consequence of its clever design. Indeed, is product of both considerable political genius as well as the compromises necessary to weld together the original disparate states.

Despite the genius of the US Constitution, it can not be simply adopted by any country with the same success. The functioning of the US Constitution also relies upon a deference to the disciplines of the US Constitution by government officials and the people. A president must rely on the Congress to pass legislation, Congress must grant latitude to the chief executive to manage the government, particularly in foreign relations. Both must respect the Constitutional limits adjudicated by the US Supreme Court. Because the Supreme Court is the least democratic branch of government, it must be reticent overrule the decisions of the other two branches.

Of course, the Civil War was the ultimate challenge to the Constitution and the Union, but there have been cases where the three branches of government have chafed up against one another. President Andrew Jackson largely ignored the US Supreme Court when it ruled in favor of Cherokee Indians over the depredations of the state of Georgia (Worcester v. Georgia). President Franklin Roosevelt tried to pack the Supreme Court with additional justices, when it ruled against hist initiatives. Congress has tried to constrain the discretion of the President with War Powers Act. And many have suggested that sometimes the Supreme Court has exceeded its authority, particularly the Warren Court.  Despite these and other important lapses, it is important to maintain the forms of respect, especially between the different branches of government.

In Citizens United v. Federal Election Commission, the Supreme Court ruled earlier this week that the speech of corporations were protected by the First Amendment. Specifically, corporations and other associations of people could spend money on independent — uncoordinated with the candidates’ campaigns — efforts to persuade people to vote one way or another. There is some disagreement with the ruing both those who believe, as George Will explains, “Americans need to be swaddled in regulations of political speech.”

Despite the attendant controversy, it remains remains disconcerting for President Barack Obama to use his the latest State of the Union address to lecture Supreme Court to the applause of Congress for a decision he disagreed with.  Obama said:

“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. (Applause.) I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. [Applause.] They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.”

Leave aside for the moment that the President’s remonstrance was based on false premises. The Court in its decision explicitly allowed restrictions of foreign expenditures in US campaigns. It was disrespectful and rude to argue with and criticize the justices, when they are in no position to respond. The remarks smacked of presidential imperialism and was beneath Obama who is supposed to be a Constitutional scholar. Obama knows better. He may come to regret undermining the Court when some time in the future  the Court must suffer under diminished authority and respect when issuing a ruling with which Obama is sympathetic.

One the other hand, Obama is to be congratulated when he met with the Republican caucus this week. The exchange was civil and benefited both the Republicans and the President. Obama should consider institutionalizing the meeting on perhaps a quarterly basis.

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Edward Kennedy’s Gifts

January 24th, 2010

All politicians make political calculations, weighing different options in the messy process of legislation and forming political arrangements. Political compromise and adjustment is a necessary and important skill for free societies governed by a combination of chief executives and legislatures, often of different political parties. However, is it wrong to admit a guilty pleasure – schadenfreude – when Machiavellian manipulations, outside the scope of political good faith and respect for free institutions, backfire?  For at least a couple of these pleasures, we can turn to the late Senator Edward Kennedy.

Perhaps Edward Kennedy’s greatest unintentional gift to Conservatives came during the 1980 presidential campaign. High inflation, high unemployment, and high interest rates had severely eroded the political popularity of President Jimmy Carter. The political positions of  Kennedy and Carter did not differ much substantively, but a weak incumbent gave Kennedy an opportunity for a primary challenge and ti serve personal ambition. Although Kennedy won only ten primaries to Carter’s twenty-four, Kennedy ate away at Carter’s support by continuing his challenge to the convention, hoping for rules changes there that might give Kennedy the nomination. The number of Carter delegates was too overwhelming and they defeated Kennedy’s procedural challenges at the convention. Out of respect, Kennedy was given the opportunity to address the convention. In a rousing conclusion, Kennedy acknowledged defeat but despite his loss “the work goes on, the cause continues, the hope still lives, and the dream shall never die.”   The speech made Carter’s later performance seem mediocre. Although Carter survived the Kennedy challenge, he emerged from the Democratic National Convention weaker, leading a demoralized and divided Democratic Party, helping in part to usher the Reagan era. Thank you.

In 2004, the other Senator from Massachusetts, John Kerry, was running against President George W. Bush. If Kerry managed to defeat the incumbent president, under state law, Republican Governor Mitt Romney would appoint a Senator to fill out the term. A Republican Senator from Massachusetts was too much for Democrats to stomach. With the encouragement of Kennedy, the Democratically-dominated state legislature gamed the system. They changed the law to establish a special election to fill vacancies.  Reasonable and well-intentioned people can disagree about  the appropriate procedure  for filling a senatorial vacancy. However, this change was not based on principle, but was intentionally designed to gane the system for immediate political advantage. This decision would ultimately come back to haunt Kennedy and Democrats in Massachusetts.

Kennedy’s signature issue was health care. He has always advocated a government managed and financed health care system. When he unfortunately took ill in 2009 with what proved to be terminal cancer he knew that he might not survive to usher through health care reform. His last votes in the Senate were in early April 2009. If Kennedy had resigned under these circumstances, he could have provided ample opportunity for a hand-picked successor to win election as Senator with his direct endorsement. However, political vanity was more important and Kennedy hung on to his office until his death in August, 2009. The cause of health care reform would have been better served if he resigned, but a personal desire to keep his office-for-life overwhelmed this calculation. Kennedy did not know with certainty that  clinging to office would undermine the cause of his life, but he did know that he was no longer capable of leading or even participating in the fight in the Senate. Kennedy clutched to his office until the end. Is it too mean-spirited to exploit the metaphor that while health care legislation was drowning, Kennedy was swimming to the shore of personal political indulgence?

If the Massachusetts senatorial succession procedure had not been altered in unashamedly political manipulation in 2004,  Democratic Governor Deval Patrick would have appointed a Democrat to fill out Edward Kennedy’s term. There would have been no opportunity for Republican Scott Brown to ride a wave a political dissatisfaction with conspicuous manipulations and payoffs to arrive at medicare legislation, and  to  upset the Democratic candidate Martha Coakley. Scott’s election killed health care legislation in its current form and wounded the Democratic Party. For this we, we can in no small measure thank Edward Kennedy and recognize the justice that self-aggrandizement and political corruption was not in this case rewarded.

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