All Shook Up – 4/19/06

The papers are abuzz this afternoon with the newly announced “staff shakeups” in the Bush administration. I won’t provide links since all the media are covering this and there is not much good analysis yet.

Here’s a summary: White House Chief of Staff Andy Card left his job a week or so ago, to be replaced by Joshua Bolten, then director of Management and Budget (who in turn was just replaced by former congressman Rob Portman). Yesterday White House Press Secretary Scott McClellan said that Bolten had suggested that any administration officials who were thinking about leaving do so, as changes were going to be made. This morning brought the news that McClellan himself is one of those changes, as well as Karl Rove, who continues as Deputy Chief of Staff but drops his role as policy advisor to concentrate on the November elections. The blogs are all atwitter with the questions of what the change in Rove’s status really means, and most conclude that it means nothing, but the War Room on the liberal online magazine Salon speculates that it could mean that Rove has lost his security clearance because of his role in the Plame leak.

The position about which there has been the most noise is the one with the least shaking up. Despite calls from a number of senior military officers for the resignation of Defense Secretary Donald Rumsfeld, Bush announced yesterday in typical Bush language that Rumsfeld is staying put. As reported by the AP:  

“I hear the voices and I read the front page and I know the speculation,” the president said testily. “But I'm the decider and I decide what's best. And what's best is for Don Rumsfeld to remain as the secretary of defense.”

For weeks now, fretful Republicans who fear Bush’s falling approval ratings will hurt them at the polls in November have been calling for changes in the White House, an infusion of new blood that will energize the administration. What are the most likely causes for Bush’s fall in the ratings? Are the personnel changes that have been announced so far likely to affect those factors?

Immigration and Presidential Leaking – 4/10/06

Yesterday and today, thousands of Hispanics are marching in major cities around the country to encourage Congress to loosen restrictions on immigration. Members of Congress, however, stalled out last week on their effort to get a bill passed, and have gone home for spring recess. (Robert D. McFadden, Across the U.S., Growing Rallies for Immigration, NYT, 4/10/06.) At issue in the debate over the immigration bill is whether the U.S. should have a guest worker program allowing people form other countries to come here to work, and whether people who have already crossed the border illegally should be given some sort of amnesty. Democrats generally want a more expansive policy making citizenship easier to obtain, Republicans want more restrictive laws, especially when it comes to what they see as condoning illegal immigration.

As Republicans try harder to get the Hispanic vote, this becomes a divisive issue. Moderates or those who are more tactical (President Bush and Arizona Senator and presidential candidate John McCain, for instance) are willing to relax restrictions in order to court that growing voter base, but core conservatives like Senate Majority Leader Bill Frist fight hard against it, making it a wedge issue for the party. Agreement right now is made more difficult because Democrats want to deprive Republicans of a victory so that they can point to their inability to get a law passed in the November election.

As we explain in Chapter 2, what is often at stake in immigration issues is the question of what vision of America we hold: crazy salad or melting pot. That is partly what is going on now, but there is also a real reluctance on the part of some conservatives to approve what they see as violations of law and order, and there are clearly also considerations that are less ideological and more political.

The bill being crafted in the Senate was more generous than the harsher House bill but it stalled out at the last minute at the end of last week. There are different takes on the politics involved. The Wall Street Journal says this is due to lack of leadership on the Republican side (Frist) and cunning politics on the part of Democratic leadership (Harry Reid) as Reid seeks to ensure that Republicans do not have an immigration victory to run on. (David Rogers, Dual Display of Politics Delays Senate Vote on Immigration Bill, 4/8/06, subscription required.) The LAT argues that each side is suspicious of the other, leading to deadlock. (Ron Brownstein, Immigration Bill Snared in Web of Suspicion, 4/8/06.)

An enormously interesting segment on All Things Considered on Thursday (National Public Radio) suggested that all the focus on Mexico is misplaced. As relatively highly paid workers at home, Mexicans won’t be the chief beneficiary of a guest worker program but rather Arabs and Asians, which would have the effect of making the U.S. more like Europe, with a large number of poor Islamic immigrants. The commentator, Mark Kirkorian, did a nice job of outlining the economic, assimilation, and security issues that would be likely to follow. (The Guest Worker Idea, A Non-starter in Debate, 4/6/06.)

Meanwhile, Hispanic activists hope to parlay this issue into a coherent civil rights movement (N.C. Aizenman, From Latino’s Rally, Hopes for a Movement, WaPo 4/9/06), hence the coordinated marches today. As we discuss in Ch. 5, characteristics like diversity, low socio-economic status, etc., have kept Hispanics from converting their considerable and growing numbers into political power.

***

The second major issue in the news over the weekend is the revelation in the testimony of Lewis Libby that Bush gave Cheney the go-ahead to reveal classified info to counter claims that he sent the U.S. to war on faulty grounds. Bush on record against leakers (see, for one compilation of the administration’s remarks on leaking, andrewsullivan.com) but the White House position now is that it is not leaking if the president does it since he has the power to declassify anything he wants and this was done in the public interest. (Tom Hamburger and Peter Wallsten, White House Does Not Deny Leak Claims, LAT, 4/9/06.)

Critics counter that even if the leaking was not illegal it is hypocritical and unethical to use classified info for political purposes. Although Bush is already low in polls (Richard Morin, Bush’s Job Approval Rating Continues to Swoon, WaPo, 4/10/06), the most stalwart conservatives are not likely to abandon him on this one so it is not clear it will send him down much lower. But as revelations continue to emerge from Libby pretrial process, it will make it hard for the White House to recover its equilibrium and get moving on its agenda. (E.g., Barton Gellman and Dafna Linzer, A 'Concerted Effort' to Discredit Bush Critic Prosecutor Describes Cheney, Libby as Key Voices Pitching Iraq-Niger Story, WaPo, 4/9/06.)

***

A few other things worth reading in the Sunday Papers.

The LAT puts leaking into context with a piece on how it is used in Washington – when and how it works. (Richard T. Cooper and Faye Fiore, In Politics, Leaking Stories is a Fine Art,  4/9/06.)

Also, a good summary piece on the Republicans’ falling fortunes. (Sheryl Gay Stolberg, Washington’s First and Last Lesson: Power is Fleeting, NYT 4/9/06.)

Sorry for the DeLay -- 4/6/06

I apologize to all for my recent absence from this site. As the editorial note posted tells you, I have been on the road a bit (I am on leave this semester to do some research for a book), but we have also been dealing with the loss of one beloved pet and the critical illness of another. Sometimes life just trips you up.

There are a couple of issues I’d like to discuss here, but I am going to divide them up over the next couple of days. Look for upcoming posts on immigration and the Massachusetts health care bill. Today we’ll talk about the announcement on Tuesday that Tom DeLay, the former House Majority Leader who resigned that post when he was indicted last year, will resign from Congress and not seek reelection in November.

The news about DeLay came in a Time Magazine exclusive interview with Mike Allen, quickly followed by an announcement by the man himself and nonstop interviews and media coverage everywhere. DeLay says he is quitting to spare the Republican Party the possible loss of his seat and because the upcoming campaign would be incredibly nasty. But DeLay has survived and even flourished in nasty campaigns before. What else is going on here?

The crash in DeLay’s career has been sudden. Just last year he was universally hailed or hated as the most powerful man in the U.S. House, a person who had almost single-handedly changed the way Congress does business (see the discussion of the K Street project below, for example) and who was largely instrumental in fostering the strong partisanship that has characterized American legislative politics since the Clinton years (DeLay was a powerful force behind the Clinton impeachment, for instance). But his tribulations quickly piled up. First he himself was indicted on money laundering charges, for which he still faces a trial. Then two close friends and former staffers have been indicted as part of the investigation into Jack Abramoff, and some believe that investigators are closing in on DeLay as well. (Jonathan Weisman and Chris Cillizza, DeLay to Resign from Congress, WaPo, 4/4/06.) With polls showing him running 50/50 in his district, the possibility that the once invincible “Hammer,” as he was called, could lose the election became very real, prompting his decision to quit (though he says he still believes he could have won).

He says his future plans are still uncertain, though he speaks of becoming a national leader of the conservative movement. The future of the Republicans he leaves behind in Congress is unclear as well. With Bush’s approval ratings too low to provide cohesion, and the man who kept them in line for so long on his way out, Republicans are beginning to show divisions in what once seemed like an unshakable party bloc (Carl Hulse, Republicans Are Finding Their House Now Divided, NYT, 4/6/06) and Democrats are delighted to see their once formidable foes on the ropes. (Howard Kurtz, Three Cheers for DeLay, WaPo, 4/5/06.)

During the DeLay years, the Republicans were remarkably successful at changing the rules of American politics to advantage their party – from the K Street Project to the Texas redistricting that bolstered their majority in the 2004 elections. The Democrats are now starting to think that they may have a chance to take back the majority (though it is a long shot still - see for example this map), at which time, of course, they would try to change the rules back to benefit their party. If you remember the theme of KTR,  that politics is about who gets what and how they get it, and that controlling the rules of the game helps you determine who will win and who will lose, much of this battle for control of Congress makes sense. If you remember the old adage that power corrupts, then the fate of Tom Delay begins to make some sense too. The Democrats, who faced corruption in their own ranks during their majority, would do well to remember it too.

More to come in a day or so on immigration and health care.

Civil Liberties: Moussaoui's, Al Qaeda's and Ours -- 3/16/06

Good morning, everyone.  Spring Break here at I.U. – hope yours is good wherever it finds you.

A couple of stories to follow this week. 

First, there is the curious story about the FAA lawyer in the Moussaoui sentencing trial. The lawyer, Carla Martin, seems to have single-handedly undermined the federal government’s effort to get the death penalty for 9/11 conspirator Zacarias Moussaoui. In opposition to the expressed orders of the judge in the case that the witnesses should not be exposed to the trial proceedings so that they could not alter their testimony, Martin sent emails to seven witnesses, strategizing about what they were going to say on the stand. (Adam Liptak, Crossing a Fine Line on Witness Coaching, NYT, 3/16/06.) The judge called her behavior “egregious,” and  said that the federal case against Moussaoui had to proceed without the testimony from the witnesses. Prosecutors say this deals their case a death blow, and have asked the judge to reconsider. (Jerry Markon, Prosecutors Scramble to Salvage 9/11 Case After Ruling, WaPo, 3/16/06.)

Since Moussaoui has pled guilty, it is hard to see what the fuss is about here. What is at stake is not whether he gets off free (he won’t) but whether he faces the death penalty or life imprisonment. It will help to understand what is happening here if we apply the procedural/substantive distinction we lay out in Chapters 1 and 2 of KTR (pp. 10-11, 47-48). We explain that often in procedural cultures (like ours) it is more important to ensure that the rules are followed properly than to achieve some particular substantive outcome. We put our faith in procedural due process, to be sure that the rules treat everyone fairly and impartially, and trust that fair results will follow. We could of course say, “Well, we know Moussaoui is guilty, he has confessed after all, so what difference does it make if we ignore this witness tampering at the sentencing stage. What the judge in the case has to grapple with is the fact that because our system guarantees fair rules to everyone, to deny Moussaoui his rights will jeopardize the rights of all of us. If they can be waived for him, they can be waived for anyone.

This issue throws into relief the ongoing scandal of the American treatment of prisoners at Abu Ghraib and at Guantanamo Bay. Some have tried to claim that because the stakes are so huge here (preventing a future terrorist attack) or because these prisoners are not on American soil or are not American citizens, that American procedural guarantees do not apply. Others argue that we are bound by the Geneva Convention and by our own standards of morals and decency to protect the human rights of those we take prisoner. Perhaps the most compelling reason against the torture, offered by critics such as Senator John McCain, himself a former prisoner of war of the Vietnamese, is that to treat the captives as we fear they would treat us sinks us to their level and endangers the American democratic ethic which is what we want above all to protect. The online journal Salon.com has excellent in depth coverage of the Abu Ghraib scandal and has just put up on its site an archive of 279 photos and 19 videos of the abuse, obtained form the Army’s Criminal Investigation Command. (Joan Walsh, The Abu Ghraib Files, salon.com.) 

Take a look at those photos and ask yourself what difference it makes if the United States engages in torture of its prisoners. Is this kind of substantive behavior (treating people as if they are guilty without a trial and taking an “ends justify the means” approach) ever justified? In the Abu Ghraib case, who is responsible for maintaining American standards of behavior – the people on the ground or the people in charge? Does the Abu Ghraib situation shed any like on the judge’s ruling in the Moussaoui trial?

***

Other stories to follow this week. President Bush is issuing a document today reaffirming the “Bush Doctrine” of preemptive war that we discuss in Chapter 18 (pp. 811-812). (Peter Baker, Bush to Restate Terror Strategy, WaPo, 3/16/06.) Essentially, the document will recommit the U.S. to the strategy we embarked on with the war against Iraq in 2002. Should that commitment be tempered by any of the events of the last three years?

Finally, take a look at the NYT article about how Republicans are seizing on Senator Russ Feingold’s efforts to censure President Bush over the NSA spying issue. With Bush’s approval ratings at new lows in the polls, Republicans need to rally their base to get them to turn out in the November congressional elections. Declaring that it is necessary to vote Republican in order to hold off censure or even impeachment proceedings gives them a way to excite voters who are frustrated with the previously popular president’s performance since he was reelected. (David D. Kirkpatrick, Call for Censure is Rallying Cry to Bush’s Base, NYT 3/16/06.) Feingold’s efforts have not been met with any marked success – far more senators voted to censure President Bill Clinton over the Monica Lewinsky scandal than have stepped forward to support Feingold on this civil liberties issue. Why?

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?

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.

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?