Alito, SOTU, DeLay and Race -- 1/30/06

A couple of quick things you should read this morning that supply background to events that are coming up this week: the Alito vote, the president's State of the Union Address, and the House vote to replace Tom DeLay.

The NYT has a good piece on the conservative strategy, begun in 1982, that has ended with Alito's nomination (and expected confirmation) to the Supreme Court. In Chapter 10 we make the argument that the Supreme Court, despite its robes and marble columns and velvet drapes, is a political institution. This article should drive that point home. (David D. Kirkpatrick, In Alito, G.O.P. Reaps Harvest Planted in 1982.)

The Times also has a piece, a little fluffy, but interesting, on the process of writing the State of the Union address. (Elizabeth Bumiller, Summing Up the Union, and in the Boss's Words.) There have been lots of leaks in advance of the speech, especially as we noted last week on the subject of the president's possible proposals on health care. Be sure to watch the speech tomorrow night and to read coverage of it the next day.

The Washington Post reviews how current political scandal and negative poll numbers for congressional Republicans are playing out in the House election on Thursday to choose a new Majority Leader to replace Tom Delay. (Jonathan Weisman, Corruption Scandals Cast Shadow on GOP Leadership Race.)

On another less pressing note, the Washington Post also covers a conference of social psychologists who have done some fascinating research on how people form political attitudes. In Chapter 11, we talk about how attitudes are transferred from generation to generation through political socialization, but these individual level studies put a new twist on how attitudes form -- how we process negative information about politicians we like and also how our racial biases influence our political choices. Controversial, but interesting stuff. (Shankar Vedantam, Study Ties Political Leanings to Hidden Biases.)

A Summary of the Week's News 1-27-06

No big news items this week on the domestic front, but lots of little ones. I've been saving them for a single post and, since today's news coverage obliging has some good catch up pieces, this post will be kind of long. You can savor it over the weekend.

Mostly the domestic news of the week has been focused on three issues: the Alito confirmation, the White House's offensive on the NSA spying issue, and the leaks and hints about the content of the President's State of the Union Address coming up on Tuesday.

Alito

As far as the Alito hearings go, it looks like the White House has the votes to confirm. No Republicans have defected so far and at least three Democrats will vote to confirm. Other Democrats oppose his confirmation either on the grounds that they think he would vote to overturn Roe v. Wade, which says that a woman's decision to have an abortion in the first three months of pregnancy is an exercise of the right to privacy, or because they believe that he will rule in a way to give too much power to the president (see the post on signing statements, below.)

Thursday Senator John Kerry announced that he would attempt to filibuster the vote on Alito and said he had the support of Senator Ted Kennedy. As we explain in KTR (pp. 306-308) a filibuster allows a minority of senators to halt activity on the Senate floor, but it can be stopped by a vote of cloture (which takes 60 votes.) The White House says it has those votes, and it probably does. In 2005 Republicans threatened to eliminate the use of the filibuster for judicial confirmations(a strategy they called the nuclear option) but a group of moderate Democrats and Republicans reached an agreement to preserve the legislative maneuver in exchange for an agreement not to support a filibuster unless there were extraordinary circumstances (KTR, p. 308.) It is unlikely that Kerry and Kennedy would seriously jeopardize the filibuster's fate here, but if they know they will lose the cloture vote they can take a stand without risking the nuclear option. The tactic is still controversial among Democrats right now. Though it pleases the Democratic base, many in the party fear that it will distract from issues where they feel the Republicans are really vulnerable. (Charles Babbington, Democrats Split Over Filibuster on Alito, WaPo, 1/27/06.) Senator Frist plans to schedule a vote to end debate on Monday and a vote to confirm Alito on Tuesday, a nice send-off for the President's State of the Union speech that night (see KTR, p. 334.)

NSA Eavesdropping

One issue the Democrats want to keep on the public's agenda is the NSA's domestic spying operation. The Bush administration has launched an offensive to frame the surveillance as necessary to keep Americans safe -- fanning out to TV talk shows and making public speeches (Bush even gave one at the NSA) arguing that only Americans having conversations with Al Qaeda members were eavesdropped on. They don't call it spying or eavesdropping they call it a "terrorist surveillance program," and they say they can't discuss it much because to do so would help the enemy. Critics of the eavesdropping dispute that and argue that the issue here is not safety, since Bush could have conducted the surveillance legally had he chosen to get search warrants, but rather the unchecked power of the executive. Nothing is new on this legally since I posted below; what has changed is the Bush administration's decision to take the case to the public in black and white terms. The political fight here is for how the issue is to be understood: If Bush succeeds in making it about security, the public is likely to support him; if his critics can make it about civil liberties and an executive power grab, they are less likely to do so. The latest New York Times poll shows this in graphic terms; 53% of respondents support eavesdropping to reduce the threat of terrorism, but only 46 % support it if terrorism is removed from the question. (Adam Nagourney and Janet Elder, New Poll Finds Mixed Support for Wiretaps, NYT, 1/27/06.) See the KTR public opinion chapter for a discussion of how important question wording can be in polling (pp. 465-466) and the media chapter for a discussion of framing (pp. 659-660) and news management (pp. 666-669.)

SOTU

Finally, there is increasing coverage of the issues that Bush is likely to air in his State of the Union address. One issue that he seems sure to talk about is health care. While details of his proposal have not been revealed yet, from various leaks it seems clear that he will try to do something similar to what he attempted with Social Security last year -- focus on revamping the program to transfer more responsibility to individuals. (Peter Gosselin, Health Plan to Revive Debate, LAT, 1/23/06.) In this case, that will mean tax cuts to individuals to cover their own health care costs -- perhaps a beefing up of the medical savings account program where Americans carry health insurance only for catastrophic care, and pay for their other medical expenses out of tax-exempt savings accounts. The idea here, long endorsed by conservatives, is that if people have to pay for their care out of their own pockets (as opposed to having it covered by insurance) they will make more financially savvy decisions and be a lot less likely to seek unnecessary treatment, causing health care costs to decline. Eventually, if the health care system moved in this direction, employers would not offer health insurance packages to employees as they do now, and the entire face of health care provision in the country could change. As with Social Security, however, this could be a hard sell to the American people, many of whom are unwilling to face risk with only their own resources. A NYT piece about how the banks (who would have a central role in these savings accounts) are positioning themselves to take advantage of them does a pretty good job of explaining what's involved. (Eric Dash, Savings Accounts for Health Costs Attract Wall St.)

Other News Worth Noting

Bush held a press conference Thursday. (For a semi-humorous take on the conference, read Dana Milbank, Trying to Maintain Control of the State, in a State of Confusion, WaPo, 1/27/06.) Although as Milbank points out, his discussion was largely devoted to defending executive prerogative, he also fielded questions about the Hamas victory in the Palestinian legislative elections (complicated story, but briefly, Hamas is a terrorist organization, sworn to eliminate Israel; Bush supports democracy in the Mideast in Iraq and elsewhere, hoping that peaceful parties will win, but democracy is not an easy force to control as the Palestinian elections make clear) and the suppression of pictures taken with him and Jack Abramoff (he says the pictures are irrelevant; they seem to have been purged from existing records so they can't be used for "political purposes" but it's not clear who has done the purging). John Dickerson in Slate points out that they aren't irrelevant, they actually help Bush by distracting the press from questions about Abramoff's real influence in the WH. (Dickerson, All the President's Dodges, Slate, 1/16/06.)

The LAT releases new approval ratings for Bush -- 43%, the lowest Bush has received in their poll. This poll also echoes the NYT finding that people support the wiretapping if done to protect us from terrorists. (Ron Brownstein, Bush's Ratings Sink, but Trust Remains, 1/27/06.) See KTR, pp. 342-349; 364-367, to understand how important a president's public approval is to his ability to get things done.

Gonzales vs. Oregon -- 1/18/06

On p. 200 of KTR we discuss the right to die issue and point out that the Supreme Court had agreed to hear a federal challenge to an Oregon law allowing doctors to prescribe (but not to administer) medication to assist terminally ill patients (diagnosed with less than six months to live) to end their lives. 

The Court's decision in Gonzales vs. Oregon was announced Tuesday morning; by a 6-3 vote the justices upheld the Oregon law, ruling that the Controlled Substances Act under which then-Attorney General John Ashcroft challenged Oregon's law didn't empower the federal government to strike down the state law. Dissenting were Chief Justice Roberts and Justices Scalia and Thomas. 

Although we discuss this case in the Civil Liberties chapter under the heading "The Right to Die," it is important to note that the Court didn't decide the case on civil liberties grounds. Rather, it issued a narrow ruling, focused on the federalism issue of whether the congressional statue designed to control drug trafficking and abuse by depriving doctors of their licenses if they used them for illegitimate purposes empowered a member of the executive branch to use that statute to override the state assisted suicide law. It held that the power of physicians to write prescriptions intended to allow a terminally ill patient to end his or her own life was a legitimate medical purpose under the law. The dissenters said it was not.

Out of all the coverage this morning, the New York Times does the best job explaining that this is truly a narrow ruling, not an endorsement of the right to die, which the Court had also refused to endorse in an earlier case. (Timothy Egan and Adam Liptak, Fraught Issue, but Narrow Ruling in Oregon Assisted Suicide Case, 1/18/06.) They quote the Governor Theodore R. Kulongoski of Oregon, who said that the impact of the case will be to allow states to try out policies that their citizens want without forcing them to fit a standardized national mold. He said, "The U.S. Supreme Court recognized the delicate balance between our federal system and the right of the states to be the crucibles for new ideas and new ways to meet the changing needs of their citizens." We discuss this role of the states as "laboratories of democracy" throughout the KTR text, but primarily on pp 126, 139, 596-97, and 695-96.

Other papers are not so circumspect. The Washington Post's headline declares "Justices Uphold Oregon Assisted-Suicide Law: In a Blow to Administration, Ruling Paves Way for Other States to Follow Suit" (1/18/06), but as the LA Times article makes clear, that's not necessarily the case. (Jordan Rau, Is California Next in Line? 1/18/06.)

Things to think about:

Why would the Court sidestep the right to die issue in favor of ruling on a much more narrow legal issue?

Why would Roberts, Scalia and Thomas, arguably the three most conservative justices on the Court, at least until Alito is confirmed, dissent in this case? Conservatives  would be more likely to take the "pro-life" position here, but why would they also sign on to an endorsement of executive power over the states?

The 6-3 ruling gives the majority a good margin here. How would the result be likely to differ if Alito had already replaced Justice O'Connor, who voted with the majority? What does that say about the future ideological balance on the Court?

Updates -- 1/17/06

Today's papers have some quick follow-ups to the stories we have been covering here. None of these contain breaking news, but if you are following these stories you'll find them interesting.

Re: Alito. The Senate Democrats, while recognizing that they don't have the votes to stop Alito from being confirmed, still have a parliamentary trick or two up their sleeves to try to dilute the victory for Bush. This Washington Post article explains the maneuvering behind the timing of the Senate Judiciary Committee's vote to confirm him, currently delayed until next week. (Amy Goldstein, Senate Panel's Vote on Alito Delayed Until Next Week, 1/17/06.)

The New York Times has several articles relating to the NSA spying controversy. The most interesting relies on leaks from the FBI, whose agents seem to want to avoid getting tarnished by the emerging scandal. They say that they argued early on that the warrantless searches, which they had to follow up on, were illegal and that there were no real gains from the effort anyway, just a diversion of their time and energy. (Lowell Bergman, et al., Spy Agency After Sept. 11 Led FBI to Dead Ends, 1/17/06.)

Another NYT article discusses the intentions of two groups representing some American journalists and lawyers to sue the federal government on the grounds that the eavesdropping is illegal. The individuals fear that their conversations may have been monitored by the NSA. The Bush administration responds that their actions were legal and necessary to prevent terror attacks in the U.S. and it and opposes the law suits. The same article reports on a story all the other papers carry as well--former vice president Al Gore made a speech Monday declaring his opinion that the NSA spying without warrants constitutes a "gross and excessive power grab."  (Eric Lichtblau, Two Groups Planning to Sue Over Federal Eavesdropping, 1/17/06.)

Finally, the NYT reports on Congressman Bob Ney from Ohio, who, it says, is likely to face an indictment over the Abramoff lobbying scandal for doing favors for Abramoff's clients in exchange for gifts and travel. Ney claims he was tricked by Abramoff. (Anne E. Kornblut, Spotlight on Lobbying Swings to Little Known Congressman, 1/17/06.)

Domestic Surveillance by the National Security Agency -- 1/16/06

The last of our three catch-up posts. This one is a complicated story, with lots of threads, but mostly it is about presidential power and civil liberties. In a nutshell, this is what happened. (James Bamford, The Nation: Private Lives; The Agency that Could Be Big Brother, NYT, 1/25/06--subscription required.)

In the days after September 11, 2001, President Bush authorized the National Security Agency (NSA), a part of the U.S. intelligence community (see KTR, p. 818), to conduct eavesdropping operations within the United States without first stopping to get a search warrant from a special court set up for that purpose called the FISA court (for the Foreign Intelligence Surveillance Act that established it.) 

The domestic spying came to light in a NYT article on December, 16, 2005. (James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers without Courts--subscription required.) The NYT had known about the surveillance activity for a year, but had kept quiet at the request of the Bush administration (raising a storm of questions about free speech and the role of the press in holding politicians accountable. Even the NYT's own public editor was critical. (Byron Calame,  Behind the Eavesdropping Story, a Loud Silence, 1/1/06.)  When the Times decided to publish their information, Bush accused them of aiding the forces against the United States.

Bush claims that he was empowered to bypass the step of obtaining search warrants because of the need to provide national security and that Congress had basically authorized him to do so with legislation passed immediately after 9/11. Tom Daschle, who was Senate majority leader at the time, says that the Senate specifically did not give Bush that power. (Tom Daschle, Power We Didn't Grant, WaPo, 12/23/05). Other critics of the administration, including some people in the president's own party, claim that Bush overstepped his executive authority and infringed on civil liberties of Americans who are supposed to be protected against unreasonable searches and seizures (i.e., searches without a warrant). The Senate Judiciary Committee plans to conduct hearings into the legality of Bush's authorization. (Douglas Jehl, Specter Says GOP Will Scrutinize Domestic Spying, NYT, 1/15/06.) 

As we point out in KTR (pp. 157-158), there is always a tradeoff between civil liberties and national security. We could be completely safe in a locked down state, but not very free. On the other hand, total freedom carries all sorts of dangers and security risks. Drawing the line between security and liberty is a tricky political task. We argue in the book that nonauthoritarian governments are limited in the rights they can take away because citizens in a democracy will be outraged at the loss of freedom. (Katherine Shrader, Poll: Americans Want Warrants for Spying WaPo, 1/11/06.)

 

Things to think about here:

Are the American citizens outraged at the loss of freedom? How do the polls say they make the tradeoff between freedom and security? Who should decide where to draw the line--the president? Congress? The courts? Public opinion?

Similarly, what obligations does the press have to inform the public (or to keep silent) about issues like this? How do we balance freedom of the press and national security?

What are the long term costs of allowing Bush the kind of strengthened executive authority he is claiming to have here? How do his actions affect checks and balance, given the other ways that the administration has acted to shore up executive authority (see KTR, pp. 319-320; 368, and also the discussion of executive power and “signing statements” in the Alito post, 1/11/06).

 

Abramoff/DeLay -- update 1-15-06

Just quickly, to follow up on my Abramoff post of a few days ago. National Public Radio's John Ydstie had an excellent piece yesterday on Weekend Edition about Tom Delay's efforts--called the K-Street Project--to put a Republican stamp on lobbying in Washington.  K Street, by the way, is the Washington home of many interest groups, and it is often used as shorthand to signify the whole culture of lobbbying in DC.  Listen to Ydstie's well researched and interesting segment here.  He provides the background that helps you understand how a man like Abramoff could amass the power he did in the first place, and why reform will be so hard to enact.

Abramoff -- 1/12/06

Abramoff.

Ah, Abramoff. Where do we begin? Every time I sit down to explain all the strands of this evolving and messy Washington scandal the post gets way too long. Let me try to keep it short.

Jack Abramoff was a professional lobbyist -- a person hired by interest groups to influence government to make policy that the groups want (KTR, p. 561-564). In Abramoff's case, the groups he worked for were primarily American Indians, and he was paid, among other things, to get Congress to pass laws that would facilitate their gambling enterprises. It's not clear where all the money Abramoff got from these groups has gone, but at least some of it found its way into the coffers of various politicians. Last week Abramoff pled guilty to charges of conspiracy, fraud (swindling his clients of up to $20 million), and tax evasion, and now many of those politicians are busy trying to donate the money to charity so that they aren't tainted by the scandal consuming Abramoff. More compromising than the campaign contributions, which are legal as long as campaign finance laws are followed (KTR, p. 623-624) are the other little inducements Abramoff and his friends offered members of Congress -- free meals at a restaurant he owned, free tickets to sporting events, and free golf outings to Scotland. 

In his plea agreement, Abramoff implicates at least one congressman (Bob Ney of Ohio), and Washington observers expect that 12 more could get caught in the net before this is over, along with various staff members. Abramoff himself is a Republican and most of his close friends and political associates are as well, partly due to the success of a strategy pursued by former House Majority Leader Tom DeLay. DeLay put pressure on lobbying firms to hire Republicans if they wanted to do business with the Republican majority in Congress., causing the boundaries between lawmaker and lobbyist to blur in some unprecedented ways (Thomas B. Edsall, Lobbyists' Emergence Reflects Shift in Capital Culture WaPo, 1/12/06). The upshot of this strategy, along with the fact that Republicans hold most of the positions of power in Washington now, is that this is, for the most part, a Republican scandal.

One huge consequence of the Abramoff plea agreement is that Tom DeLay, a close associate of Abramoff's (KTR, p.  566) who was already under indictment in Texas, had to step down from his leadership post permanently. DeLay was an extraordinarily powerful figure in the Republican Party (KTR, PP. 130, 266-267) and his departure from leadership set of a scramble to fill his seat (Mary Curtius, Across-the-Board Votes on House GOP Leaders Sought, LAT, 1/12/06).

Another consequence is that, as lawmakers wait for the other Abramoff shoe(s) to drop, they are vying to outdo themselves in their commitment to lobbying reform (KTR pp. 564-566).  But as we explain in the text, making reform stick is a tricky business when the practices in need of reform are so entrenched and when the people who would have to do the reforming are the very people who benefit from the system as it is (See Todd S. Purdum, Go Ahead, Try to Stop K Street.  NYT 1/8/06 and Jeffrey H. Birnbaum, Hill Weighs Curbs on Lobbying: More Disclosure, Ban on Sponsored Trips Under Consideration , WaPo, 1/12/06).

 

Alito, Day 2 -- 1/11/06

Keeping up with the Republic is tricky over the holidays, when we all have so many things going on in our lives. Without recapping the whole last month of news, there are some ongoing stories that readers of KTR will find helpful to illustrate points in the book, and that the framework of the book in turn can help illuminate. Three main catch-up stories seem the most important this week:

 

• the U.S. Senate confirmation hearings of Judge Samuel Alito to replace Justice Sandra Day O'Connor on the Supreme Court;
• the recent plea agreement of lobbyist Jack Abramoff, with the consequent withdrawal of Congressman Tom Delay from his position as House Majority Leader, and the race to replace him;
• the ongoing debate over the National Security Agency's wiretapping of phones without a warrant.

 

So I don't overload you with things to think about today, I'll start with Alito this morning and cover the other two over the next few days.

 

Alito's confirmation hearings kicked off on Monday, with a statement from the nominee and continue this week with questioning from the senators on the Senate Judiciary Committee. As we explain in Chapter 10, Supreme Court justices are nominated by the president with the advice and consent of the Senate, which means the Senate holds hearings on the nomination in committee and then votes as a whole. The hearings can be tedious, as each Senator takes the opportunity to make a little speech, sometime seeming more interested in his or her own views than those of the nominees. While fireworks had been expected in these hearings, none have been apparent so far. (Dana Milbank, "A Day of Qs and As, and a Few Zs," WaPo, 1/11/06)

 

Many considerations go into a president's nomination of a justice, but perhaps the most important these days is ideology, which in the case of the Court means how the nominee is likely to read the Constitution: literally (a judicial philosophy we call strict constructionism) or flexibly (called interpretivism.) (KTR, p. 437.) In Alito, Bush chose a strict constructionist and the questions the senators are posing to Alito are focused on just how strict a constructionist he would be, especially with respect to abortion. Would he recognize the precedent set in Roe v. Wade that allows a woman to have an abortion in the first three months of pregnancy based on a judicially created right to privacy, or will he say no such privacy right exists in the Constitution and vote to overturn Roe? The Court is divided between constructionists and interpretivists right now, with Sandra Day O'Connor often providing the swing vote, so how Alito would vote makes a difference. Alito, although he is on record as pro-life and has voted in the past to restrict a woman's right to an abortion somewhat (he has, for instance, said a woman ought to notify her husband if she chooses to have an abortion) predictably he is not saying how he would vote, but is rather skating around the issue. (Richard W. Stevenson and Neil A. Lewis, "Alito, at Hearing, Pledges an Open Mind on Abortion," NYT, 1/11/06)

 

Another issue that has arisen in the Alito confirmation is the question of executive power. Statements from early in Alito's career when he worked in the Reagan White House indicate that he would favor a stronger role for the president, and he in fact favors the idea that a president should issue a "signing statement" when he signs a piece of congressional legislation so that when courts go to interpret the law, they rely not only on what Congress intended but also on the president's understanding of what he was signing. This doctrine, practiced by the Bush administration, which has already made several efforts to expand the power of the executive branch, would strengthen the president's role in the legislative process considerably. Bush issued a signing statement just recently, when he signed an anti-torture bill sponsored by, among others, Senator John McCain. The bill forbade the United States government to engage in torture to acquire information from detainees, essentially on the grounds that, if we fail to protect human rights we are little better than the people who seek to harm us. Bush, who has long insisted that the president needs to be able to wage the war on terror with a free hand, signed the bill and issued a statement that says that he intends to follow the law when he can. The implication, of course, is that sometimes he may not be able to, and depending on how you view the force of the signing statement, it may or may not change the meaning of the law that Congress passed. Alito has supported the expansion of presidential power in the past (which may be one of the main reasons Bush nominated him), but on Monday before the Senate Judiciary Committee, he insisted that the president is subject to constitutional limitations. (Josh White, "Kennedy Makes a Weapon of McCain's Torture Law," WaPo, 1/11/06.) The founders, who wanted a limited executive (and in fact who wanted a limited government period) would have been happy to hear that.

 

These two issues, strict constructionism/right to privacy/abortion rights and the expansion of executive power, are probably the ones to watch as the hearings proceed, although at least one analyst claims that the Democrats' inability to settle on one overarching criticism of Alito weakens their ability to make a coherent case against him. (Ron Brownstein, "Democrats Cast Wide Net Seeking Alito Flaw," LATimes, 1/11/06.)

 

Some things to think about:

• How much should the Senate's views count in the appointment of a justice? If a minority is strongly opposed, should it be allowed to filibuster the president's choice? (KTR, p. 306-308; 431.)
• What are the political implications of a justice's commitment to a philosophy of strict constructionism or interpretivism? How does it affect who gets what (who wins and who loses) in American politics? (KTR, pp. 437-438.)
• What should the limits be on the president’s power? The founders debated this issue, but came down on the side of a limited executive (KTR pp. 111-114); the Bush administration seems focused on expansion (KTR 319-320, 368; 340-341.) What are the costs of expanded executive power? What are the advantages?