Congressional redistricting can be one of the most highly partisan battles in American politics. Here are some interactive links related to the topic.
The Redistricting Game
Current Congressional District Maps:
http://www.politico.com/electionmap2008/index.html
http://innovation.cqpolitics.com/atlas/district_08?tab2=e
Wednesday, June 3, 2009
Tuesday, June 2, 2009
Inside the White House
Here is NBC News' exclusive look inside the White House. It is quite interesting.
http://www.msnbc.msn.com/id/30892505/
http://www.msnbc.msn.com/id/30892505/
Sunday, May 31, 2009
U.S. Iraqi Occupation Cultural Effects
I found this article's discussion of the diffusion of culture to be quite interesting.
http://www.msnbc.msn.com/id/31023977
http://www.msnbc.msn.com/id/31023977
Friday, May 22, 2009
Dems are everywhere in D.C., so where’s the unity?
In today’s more partisan age, many assume Democratic control of Congress and the White House means miles of smooth sailing for the majority. And a lot of the time it does. Yet the ongoing spat between House Speaker Nancy Pelosi and the CIA also reveals some tricky shoals just below the surface. Does the president side with his legislative leader or a critical agency in his own administration?It’s a tough choice. This specific drama will play out in the weeks ahead, but it’s also emblematic of a much larger ongoing institutional tension between the executive and legislative branches. And while it’s not often as visible as the current Pelosi-CIA dust-up, it occurs in one form or another on a daily basis.
Understanding the competition and these strains between the branches of government — even among those in the same party — is key to grasping how Washington really works. In many ways, unified party control in Washington greases the achievement wheels. Look at the majority party’s achievements so far this year.
Democrats in Congress and the Obama White House glided to easy victories on a host of issues, including the stimulus bill, the budget and children’s health. True, getting there meant navigating some rarely exposed tough and messy internal negotiations. But Congress and the president belted out some pretty nice harmonies in these first few months.
In fact, based on their early success, the Democrats and the Obama White House sounded like they sang in unison. But the Pelosi fight with the CIA underscores a deeper truth: Congress and the president are — to borrow presidential scholar Richard Neustadt’s phrase — “separate institutions sharing power.” Currently, Pelosi is taking major issue with the CIA’s specific behavior regarding her being briefed with respect to its use of torture. While the personal dimension of this interaction is apparent, at its core this is an institutional spat.
She, like many of her colleagues in the Democratic Caucus, believes the agency misled them. Many in Congress, not just Democrats, could argue that this type of treatment by the CIA might have gotten worse but that it did not begin during the last administration. They suggest that it is illustrative of the intelligence agency’s inherent disregard for Congress.
The decision by President Barack Obama to allow a public defense of the CIA by its current director was obviously made with knowledge of the potential risk and consequence to his administration’s congressional relationships and possibly even aspects of his policy agenda.
Nevertheless, when faced with this trade-off, the president’s institutional concerns prevailed. This dynamic was probably further complicated by Obama’s decision to reverse himself in deciding not to release photos involving potential mistreatment of prisoners. It appeared he was acknowledging the advice of the CIA and others in the government while irritating liberal interests on Capitol Hill and elsewhere.
The lesson from all this is clear. Despite many common interests, in the end, the president and Congress have separate agendas and constituencies. When they intersect, it’s great for both sides. But when they don’t — and this happens even when the same party controls Congress and the White House — it creates major tensions and embarrassing spectacles. The current Pelosi-CIA spat is just one more example.
If these fights were only about reconciling political spats, they would be easier to resolve. But they are not. These underlying tensions are more institutional than political. They even transcend partisan loyalty. Their origins are in the Constitution.
It’s tempting to think Democrats in Congress and the Obama administration always share interests. They are, after all, members of the same party. But they don’t.
Individual lawmakers will normally pursue what’s best for their own electoral timing and institutional goals. Presidents do the same.
When the interests of a Democratic president align with his party in Congress, the wheels of legislation turn cooperatively. But when they don’t and legislators and the White House pursue their own institutional interests, the grind causes some friction.
These challenges will continue to be front and center as the president and Congress turn their attention to the looming issues of health care and climate change, among others. Meanwhile, from the sound of it, Pelosi and the White House are feeling the heat generated by these conflicting demands right now.
Gary Andres, vice chairman for research and policy at Dutko Worldwide, was deputy assistant to President George H.W. Bush and Senate confirmation coordinator for President George W. Bush. Patrick J. Griffin, a partner at Griffin Williams Critical Point Management, served as assistant to President Bill Clinton and director of congressional affairs.
Thursday, May 21, 2009
AP US Government and Politics Review
The video below was a televised review session right before the 2009 AP Government test. The session aired on CSPAN and was attended by two high school AP Government teachers from Illinois. Watch the video and take notes on it. I would like you to note the questions asked, the answers given, and key terms or themes discussed.
http://www.c-spanarchives.org/library/index.php?main_page=product_video_info&products_id=285657-6&showVid=true
http://www.c-spanarchives.org/library/index.php?main_page=product_video_info&products_id=285657-6&showVid=true
Sunday, May 17, 2009
The CIA vs. Congress
Pelosi Up a Tree
By David Ignatius
Washington Post
May 17, 2009
It has been the nightmare scenario ever since the modern system of congressional oversight of intelligence was created in the late 1970s: When a scandal erupts, a member of congress will put his (or her) political interests above those of the intelligence agency whose secrets he (or she) has sworn to protect.
That’s what’s so troubling about the campaign for self-vindication that House Speaker Nancy Pelosi has been waging. To escape from the charge that she was briefed about -- and implicitly condoned -- interrogation methods that she now calls torture, Pelosi is accusing the Central Intelligence Agency of lying.
And not just the Bush-era CIA, mind you, but the Obama CIA as well.
If you read the CIA’s careful, ten-page summary of the 40 briefings it has given to Congress since 2002 on “enhanced interrogation techniques,” it’s pretty hard not to conclude that Pelosi is shading the truth to retrospectively cover her backside. “Briefing on EITs including use of EITs on Abu Zubaydah…and a description of the particular EITs that had been used,” reads the entry for the Sept. 4, 2002 briefing for Pelosi and her House Republican counterpart, Porter Goss. Those EITs included waterboarding, whose use Pelosi has repeatedly claimed she wasn’t briefed on.
Congressional Democrats are acting as if there is something sinister in the CIA releasing the records of its briefings (see, for example, Politico’s May 12 post “Democrats: CIA is out to get us”). But the deal with congressional oversight is that if members of Congress are briefed on a subject and don’t object, they shouldn’t trash the agency later in public when there’s a flap. That undermines not just CIA morale, but the integrity of the oversight process itself.
Pelosi’s apparent rewriting of the record would be shocking -- if it weren’t so typical of congressional behavior on this subject.
Playing politics with the CIA is a way of life on Capitol Hill -- love ‘em when they’re up, trash ‘em when they’re down. Republicans and Democrats both play this game, from administration to administration. Though rarely has it been as naked as in Pelosi’s case. Having climbed up a very tall tree, she is now watching -- and yelping -- as the CIA saws off the limb.
CIA veterans remember how William Casey protected his flank when he was CIA director in the 1980s. To get congressional support for his plan to undermine the Nicaraguan economy by having the contras plant mines in Managua harbor, Casey invited leading members of congress to the super-secret Site 39 in North Carolina where the operation was being planned. There was even a photo of then-Sen. Daniel Patrick Moynihan sitting atop one of the big mines that was to be used, “looking like the actor Slim Pickens riding a nuclear warhead in Dr. Strangelove,” remembers a former agency officer.
When the mining operation became public and Moynihan and others began expressing indignation -- and threatened to call CIA officers to testify -- Casey paid a visit to Capitol Hill to meet with the congressional leadership. The demand for CIA testimony disappeared, and agency officers involved in the program suspected that Casey had brought along some of the Site 39 photos in his briefcase.
What will President Obama do in this latest of the never-ending skein of CIA flaps? If Pelosi forces a political showdown, I have a feeling that Obama will side with his CIA director, Leon Panetta, and not the House speaker.
By reversing his position this week on the release of Defense Department photos documenting the abuse of detainees, Obama put his responsibilities as commander in chief first -- and his loyalty to fellow Democrats second. That’s the way it’s supposed to work, and, if Obama follows through, it will be one of the defining moments of his presidency.
Obama’s yardstick for evaluating these issues, says a top White House aide, is “what does it take to make the country safer.”
The White House official offers this national-security rationale for three Obama decisions about Bush-era policies: He decided to release the Office of Legal Counsel torture memos last month because the information had already leaked, and because he believed the memos release would undermine an al-Qaeda propaganda weapon; he decided against releasing the detainee photos because, in that case, he thought the pictures would hand al-Qaeda a new recruiting tool; and he will announce today that he is retaining the Bush administration’s plan for military commissions to try terrorist suspects because he believes that’s the most effective legal tool.
And if congressional Democrats complain about these policies? “The president doesn’t want to re-litigate the past,” says the White House adviser. And he seems to mean it.
________________________________________________________
Panetta to CIA employees: We told Pelosi the truth.
By Glenn Thrush
Politico.com
May 15, 2009
CIA Director Leon Panetta just sent a stern message to his employees defending the agency against Speaker Nancy Pelosi's criticisms.
His message: We didn't mislead Congress; stay focused on your job.
Panetta's note was sent to reporters via the CIA press office. Here's the key graph:
"Let me be clear: It is not our policy or practice to mislead Congress. That is against our laws and our values. As the Agency indicated previously in response to Congressional inquiries, our contemporaneous records from September 2002 indicate that CIA officers briefed truthfully on the interrogation of Abu Zubaydah, describing “the enhanced techniques that had been employed.” Ultimately, it is up to Congress to evaluate all the evidence and reach its own conclusions about what happened."
In some ways, Panetta is doing what any executive would do: He's protecting his people and trying to boost morale for an agency that's under fire. But the political message is much stronger, as you have the a serious rift now between the most powerful congressional Democrat and one of the top officials in the Obama administration.
UPDATE: Pelosi's office has responded with a gentle statement supporting the work of the intelligence community, saying she was criticizing the Bush administration, not the bureaucrats at the CIA:
"We all share great respect for the dedicated men and women of the intelligence community who are deeply committed to the safety and security of the American people. My criticism of the manner in which the Bush Administration did not appropriately inform Congress is separate from my respect for those in the intelligence community who work to keep our country safe. What is important now is to be united in our commitment to ensuring the security of our country; that, and how Congress exercises its oversight responsibilities, will continue to be my focus as we move forward."
The full Panetta memo is after the jump.
Watch Pelosi’s Thursday press conference:
Message from the Director: Turning Down the Volume
There is a long tradition in Washington of making political hay out of our business. It predates my service with this great institution, and it will be around long after I’m gone. But the political debates about interrogation reached a new decibel level yesterday when the CIA was accused of misleading Congress. Let me be clear: It is not our policy or practice to mislead Congress. That is against our laws and our values. As the Agency indicated previously in response to Congressional inquiries, our contemporaneous records from September 2002 indicate that CIA officers briefed truthfully on the interrogation of Abu Zubaydah, describing “the enhanced techniques that had been employed.”
Ultimately, it is up to Congress to evaluate all the evidence and reach its own conclusions about what happened. My advice — indeed, my direction — to you is straightforward: ignore the noise and stay focused on your mission. We have too much work to do to be distracted from our job of protecting this country.
We are an Agency of high integrity, professionalism, and dedication. Our task is to tell it like it is — even if that’s not what people always want to hear. Keep it up. Our national security depends on it.
________________________________________________________
More on the Pelosi v. CIA fight:
http://www.nytimes.com/2009/05/16/us/politics/16cong.html?_r=1&hp
Make sure to review the multipedia link on the left hand side of the page.
By David Ignatius
Washington Post
May 17, 2009
It has been the nightmare scenario ever since the modern system of congressional oversight of intelligence was created in the late 1970s: When a scandal erupts, a member of congress will put his (or her) political interests above those of the intelligence agency whose secrets he (or she) has sworn to protect.
That’s what’s so troubling about the campaign for self-vindication that House Speaker Nancy Pelosi has been waging. To escape from the charge that she was briefed about -- and implicitly condoned -- interrogation methods that she now calls torture, Pelosi is accusing the Central Intelligence Agency of lying.
And not just the Bush-era CIA, mind you, but the Obama CIA as well.
If you read the CIA’s careful, ten-page summary of the 40 briefings it has given to Congress since 2002 on “enhanced interrogation techniques,” it’s pretty hard not to conclude that Pelosi is shading the truth to retrospectively cover her backside. “Briefing on EITs including use of EITs on Abu Zubaydah…and a description of the particular EITs that had been used,” reads the entry for the Sept. 4, 2002 briefing for Pelosi and her House Republican counterpart, Porter Goss. Those EITs included waterboarding, whose use Pelosi has repeatedly claimed she wasn’t briefed on.
Congressional Democrats are acting as if there is something sinister in the CIA releasing the records of its briefings (see, for example, Politico’s May 12 post “Democrats: CIA is out to get us”). But the deal with congressional oversight is that if members of Congress are briefed on a subject and don’t object, they shouldn’t trash the agency later in public when there’s a flap. That undermines not just CIA morale, but the integrity of the oversight process itself.
Pelosi’s apparent rewriting of the record would be shocking -- if it weren’t so typical of congressional behavior on this subject.
Playing politics with the CIA is a way of life on Capitol Hill -- love ‘em when they’re up, trash ‘em when they’re down. Republicans and Democrats both play this game, from administration to administration. Though rarely has it been as naked as in Pelosi’s case. Having climbed up a very tall tree, she is now watching -- and yelping -- as the CIA saws off the limb.
CIA veterans remember how William Casey protected his flank when he was CIA director in the 1980s. To get congressional support for his plan to undermine the Nicaraguan economy by having the contras plant mines in Managua harbor, Casey invited leading members of congress to the super-secret Site 39 in North Carolina where the operation was being planned. There was even a photo of then-Sen. Daniel Patrick Moynihan sitting atop one of the big mines that was to be used, “looking like the actor Slim Pickens riding a nuclear warhead in Dr. Strangelove,” remembers a former agency officer.
When the mining operation became public and Moynihan and others began expressing indignation -- and threatened to call CIA officers to testify -- Casey paid a visit to Capitol Hill to meet with the congressional leadership. The demand for CIA testimony disappeared, and agency officers involved in the program suspected that Casey had brought along some of the Site 39 photos in his briefcase.
What will President Obama do in this latest of the never-ending skein of CIA flaps? If Pelosi forces a political showdown, I have a feeling that Obama will side with his CIA director, Leon Panetta, and not the House speaker.
By reversing his position this week on the release of Defense Department photos documenting the abuse of detainees, Obama put his responsibilities as commander in chief first -- and his loyalty to fellow Democrats second. That’s the way it’s supposed to work, and, if Obama follows through, it will be one of the defining moments of his presidency.
Obama’s yardstick for evaluating these issues, says a top White House aide, is “what does it take to make the country safer.”
The White House official offers this national-security rationale for three Obama decisions about Bush-era policies: He decided to release the Office of Legal Counsel torture memos last month because the information had already leaked, and because he believed the memos release would undermine an al-Qaeda propaganda weapon; he decided against releasing the detainee photos because, in that case, he thought the pictures would hand al-Qaeda a new recruiting tool; and he will announce today that he is retaining the Bush administration’s plan for military commissions to try terrorist suspects because he believes that’s the most effective legal tool.
And if congressional Democrats complain about these policies? “The president doesn’t want to re-litigate the past,” says the White House adviser. And he seems to mean it.
________________________________________________________
Panetta to CIA employees: We told Pelosi the truth.
By Glenn Thrush
Politico.com
May 15, 2009
CIA Director Leon Panetta just sent a stern message to his employees defending the agency against Speaker Nancy Pelosi's criticisms.
His message: We didn't mislead Congress; stay focused on your job.
Panetta's note was sent to reporters via the CIA press office. Here's the key graph:
"Let me be clear: It is not our policy or practice to mislead Congress. That is against our laws and our values. As the Agency indicated previously in response to Congressional inquiries, our contemporaneous records from September 2002 indicate that CIA officers briefed truthfully on the interrogation of Abu Zubaydah, describing “the enhanced techniques that had been employed.” Ultimately, it is up to Congress to evaluate all the evidence and reach its own conclusions about what happened."
In some ways, Panetta is doing what any executive would do: He's protecting his people and trying to boost morale for an agency that's under fire. But the political message is much stronger, as you have the a serious rift now between the most powerful congressional Democrat and one of the top officials in the Obama administration.
UPDATE: Pelosi's office has responded with a gentle statement supporting the work of the intelligence community, saying she was criticizing the Bush administration, not the bureaucrats at the CIA:
"We all share great respect for the dedicated men and women of the intelligence community who are deeply committed to the safety and security of the American people. My criticism of the manner in which the Bush Administration did not appropriately inform Congress is separate from my respect for those in the intelligence community who work to keep our country safe. What is important now is to be united in our commitment to ensuring the security of our country; that, and how Congress exercises its oversight responsibilities, will continue to be my focus as we move forward."
The full Panetta memo is after the jump.
Watch Pelosi’s Thursday press conference:
Message from the Director: Turning Down the Volume
There is a long tradition in Washington of making political hay out of our business. It predates my service with this great institution, and it will be around long after I’m gone. But the political debates about interrogation reached a new decibel level yesterday when the CIA was accused of misleading Congress. Let me be clear: It is not our policy or practice to mislead Congress. That is against our laws and our values. As the Agency indicated previously in response to Congressional inquiries, our contemporaneous records from September 2002 indicate that CIA officers briefed truthfully on the interrogation of Abu Zubaydah, describing “the enhanced techniques that had been employed.”
Ultimately, it is up to Congress to evaluate all the evidence and reach its own conclusions about what happened. My advice — indeed, my direction — to you is straightforward: ignore the noise and stay focused on your mission. We have too much work to do to be distracted from our job of protecting this country.
We are an Agency of high integrity, professionalism, and dedication. Our task is to tell it like it is — even if that’s not what people always want to hear. Keep it up. Our national security depends on it.
________________________________________________________
More on the Pelosi v. CIA fight:
http://www.nytimes.com/2009/05/16/us/politics/16cong.html?_r=1&hp
Make sure to review the multipedia link on the left hand side of the page.
A Battle Within
We Didn’t Have to Lose Arlen Specter New York Times
By OLYMPIA SNOWE
Published: April 28, 2009
IT is disheartening and disconcerting, at the very least, that here we are today — almost exactly eight years after Senator Jim Jeffords left the Republican Party — witnessing the departure of my good friend and fellow moderate Republican, Senator Arlen Specter of Pennsylvania, for the Democratic Party.
And the announcement of his switch was all the more painful because I believe it didn’t have to be this way.
When Senator Jeffords became an independent in 2001, I said it was a sad day for the Republicans, but it would be even sadder if we failed to confront and learn from the devaluation of diversity within the party that contributed to his defection. I also noted that we were far from the heady days of 1998, when Republicans were envisioning the possibility of a filibuster-proof 60-vote margin. (Recall that in the 2000 election, most pundits were shocked when Republicans lost five seats, resulting in a 50-50 Senate.)
I could have hardly imagined then that, in 2009, we would fondly reminisce about the time when we were disappointed to fall short of 60 votes in the Senate. Regrettably, we failed to learn the lessons of Jim Jeffords’s defection in 2001. To the contrary, we overreached in interpreting the results of the presidential election of 2004 as a mandate for the party. This resulted in the disastrous elections of 2006 and 2008, which combined for a total loss of 51 Republicans in the House and 13 in the Senate — with a corresponding shift of the Congressional majority and the White House to the Democrats.
It was as though beginning with Senator Jeffords’s decision, Republicans turned a blind eye to the iceberg under the surface, failing to undertake the re-evaluation of our inclusiveness as a party that could have forestalled many of the losses we have suffered.
It is true that being a Republican moderate sometimes feels like being a cast member of “Survivor” — you are presented with multiple challenges, and you often get the distinct feeling that you’re no longer welcome in the tribe. But it is truly a dangerous signal that a Republican senator of nearly three decades no longer felt able to remain in the party.
Senator Specter indicated that his decision was based on the political situation in Pennsylvania, where he faced a tough primary battle. In my view, the political environment that has made it inhospitable for a moderate Republican in Pennsylvania is a microcosm of a deeper, more pervasive problem that places our party in jeopardy nationwide.
I have said that, without question, we cannot prevail as a party without conservatives. But it is equally certain we cannot prevail in the future without moderates.
In that same vein, I am reminded of a briefing by a prominent Republican pollster after the 2004 election. He was asked what voter groups Republicans might be able to win over. He responded: women in general, married women with children, Hispanics, the middle class in general, and independents.
How well have we done as a party with these groups? Unfortunately, the answer is obvious from the results of the last two elections. We should be reaching out to these segments of our population — not de facto ceding them to the opposing party.
There is no plausible scenario under which Republicans can grow into a majority while shrinking our ideological confines and continuing to retract into a regional party. Ideological purity is not the ticket back to the promised land of governing majorities — indeed, it was when we began to emphasize social issues to the detriment of some of our basic tenets as a party that we encountered an electoral backlash.
It is for this reason that we should heed the words of President Ronald Reagan, who urged, “We should emphasize the things that unite us and make these the only ‘litmus test’ of what constitutes a Republican: our belief in restraining government spending, pro-growth policies, tax reduction, sound national defense, and maximum individual liberty.” He continued, “As to the other issues that draw on the deep springs of morality and emotion, let us decide that we can disagree among ourselves as Republicans and tolerate the disagreement.”
I couldn’t agree more. We can’t continue to fold our philosophical tent into an umbrella under which only a select few are worthy to stand. Rather, we should view an expansion of diversity within the party as a triumph that will broaden our appeal. That is the political road map we must follow to victory.
Olympia Snowe is a Republican senator from Maine.
____________________________________________________
A Long Term Problem for Republicans
By Sean Trende; Real Clear Politics; April 28th, 2009
President Obama probably didn’t need any more good news to end his first 100 days. Yet he got it anyway, with a hefty assist from the Republican right. Senator Arlen Specter announced that he would join the ranks of the Democrats. This has several important ramifications in the short term. First, it means that Democrats will likely have 60 members once Al Franken is certified as the winner in Minnesota. The importance of this is somewhat overblown, since this doesn’t necessarily mean that Democrats will have 60 votes on all issues, but more on this later. Second, it contributes to the Democrats’ already-hefty momentum, and to the short-term marginalization of the beltway Republicans.
In the long term, the switch is a symptom of a deepening problem for the Republican party. First, it likely moves the center of the Senate further leftward. Some on the Republican party’s right will ignore this, and declare "good riddance" to Specter. After all, he cast the “wrong” vote on the stimulus bill, is pro-choice, and has cast a number of votes that fly in the face of modern conservative orthodoxy.
But as a member of the Republican party, subject to the threat of a primary challenge, conservatives had at least some leverage over Specter. Hence the flip on EFCA, hence the "no" vote on Obama's budget, hence the effort to shepherd numerous Bush appointees through the judiciary committee. Specter has cast a laundry list of votes that are anathema to Democrats. Perhaps some of those votes were cast as a matter of conscience, and Specter will not backtrack. But some likely were not.
With Specter’s party switch, any leverage from the right on these votes is gone. The pressure on Specter will now be from the opposite direction, as his new conference-mates work to secure his vote for Democratic legislation. And on one of the most important votes of each Congress – the vote to organize the Senate – he will certainly be voting for Harry Reid instead of Mitch McConnell. This pressure will almost certainly lead to a change on at least some of his votes.
Take the case of former Vermont Senator Jim Jeffords. As a Republican, Jeffords had a voting record on the left fringe of the Republican party, but to the right of every Democrat save Zell Miller. As an Independent he was on the far left of the Democratic Party. A man without a political home, he eventually retired. Vermonters then elected a Socialist to the seat.
Senator Jeffords was far from a perfect Republican by any measure, but many (apparently not all) Republicans would have preferred the voting record of “Republican Jeffords” to “Independent Jeffords” or “Bernie Sanders.” All recent party switchers – Michael Forbes, Rodney Alexander, Ben Nighthorse Campbell, Richard Shelby, Billy Tauzin, Greg Laughlin, Jimmy Hayes, Nathan Deal, Mike Parker – showed some pretty substantial movement in their Poole-Rosenthal NOMINATE scores toward the fringe of their new party after they switched parties. Republicans may rejoice in the short term at losing an occasional thorn in their side. But the long term reality is that the prospects for the passage of Obama's agenda have just been enhanced.
Finally, the attacks from the party’s right flank against members who position themselves in the center of the party will continue to erode the Republican party’s chances of regaining a majority. Pretty much every analyst agrees that Specter’s switch was brought about because polling showed that he could not win his primary battle against Club For Growth-supported Pat Toomey (this in turn was a symptom of the massive defection of Pennsylvania moderates from the Republicans to the Democrats).
In effect, Specter's chances of being re-elected as a Republican were close to nil; Specter’s choice was the rational one for a politician interested in re-election. There is no guarantee that Specter will survive a Democratic primary (in which case the center of the Senate will shift even farther leftward when the eventual Democratic nominee trounces Toomey), but at least he has a chance among the Democrats.
Specter’s pending defeat in the Republican primary in a state that leans leftward cannot be viewed in isolation. It is part of a recent pattern of well-funded kamikaze runs against moderate Republicans, even in states or districts where no conservative could win a two-way race against a Democrat. It comes on the heels of a nearly-successful primary challenge to Senator Lincoln Chafee in Rhode Island (Obama +28), a successful primary challenge to Rep. Joe Schwartz in MI-07 (Obama +5), and the derailment of moderate Republican Heather Wilson’s primary bid for the New Mexico Senate seat held by retiring Senator Pete Domenici (Obama +15).
If the Club for Growth’s track record on primary challenges had been one of defeating moderate members of the Republican caucus and successfully replacing them with conservative members, this might make sense from the right’s perspective. But the results have been the opposite. The Club weakened Lincoln Chafee with its primary challenge (he led Sheldon Whitehouse by double digits before the primary got under way); the end result was the replacement of a Senator who voted with the GOP about half of the time with the sixth most liberal Senator in the country. The successful charge against moderate Joe Schwartz has yielded a Democrat. The Club even managed to support a member who was too conservative to hold to the 27th most conservative district in the country (if that isn’t enough, in MD-01 they replaced moderate Wayne Gilchrist – lifetime ACU score 57 – with a candidate who could not carry a district John McCain was winning by 19 points)!
This strategy might make sense in a solidly right-of-center country.
But the bottom line is that the action in American politics is generally between the 45-yard lines. Only 34% of the electorate considers itself conservative, which means that to form a majority, conservatives must convince about a third of the 44% of voters who consider themselves moderate to join an electoral coalition with them.
But ploys such as the primary challenge brought against Specter have the opposite effect. You can bet that Senators Olympia Snowe (R-ME) and Susan Collins (R-ME), are giving serious thought to where their political futures best lie right now. The vast swaths of independent voters in New England and elsewhere are wondering the same thing. Young centrist voters who are just now forming partisan identities are making similar calculations.
Right now, a substantial portion of the Republican party is demanding that all of their players occupy territory somewhere around their own 10-yard line.
This may make sense in a state like Georgia. In states where a solidly conservative candidate simply cannot win because that state is positioned more around the opposing 40 (or in the case of Rhode Island, at the opposing side’s twenty yard line), it is insane. A party with such a viewpoint cannot form a lasting majority coalition, absent an implosion from the other side. So long as a substantial number of Republicans insist on positioning every member of their party between their own goal line and their own 40, they can't expect too much other than Democratic supermajorities in both houses, and the freight-train like advancement of an agenda they purport to loathe.
________________________________________________________
Republicans' Family Feud Goes National
Split Between Conservatives And Moderates Plays Out In GOP Senate Primary Campaigns Across The Country
by John Mercurio
NationalJournal.com
Wednesday, May 13, 2009
Updated at 11:15 a.m. on May 13
Want to catch a glimpse of Republicans as they scramble to manage the divisions within their ranks? If so, look no further than their lightning-fast response to Florida Gov. Charlie Crist's announcement Tuesday that he'll run for Senate. Their choreography was coordinated, impressive and revealing. It said as much about Florida as it did about the national landscape.
Indeed, as they endure a protracted internal debate to redefine themselves, Republicans around the country are bracing for a series of potentially brutal Senate primary battles that say more about their national standing than about any individual campaign.
Within six minutes of Crist's early-morning announcement via Twitter, the National Republican Senatorial Committee had endorsed him over former state House Speaker Marco Rubio, an outspoken conservative who has questioned Crist's ideological purity. Less than an hour later, Rep. Vern Buchanan fell in line, declaring he wouldn't run for Senate and would support the governor. By noon, Senate Minority Leader Mitch McConnell had also backed Crist, calling him a "tireless advocate for the citizens of Florida." Message: Unity.
In case Rubio wasn't getting the hint, retiring Sen. Mel Martinez spelled it out when he endorsed Crist: "[Rubio] will not be successful at this time, so he might want to focus on a race he wants to win."
It's unusual for Senate leaders to wade into a costly, open-seat race and line up so quickly behind a non-incumbent. But Crist is no usual candidate. Florida is no usual state. And these, of course, are not usual times for the GOP.
Crist is, of course, a telegenic Republican who remains popular with Democrats and minorities -- a commodity the party is sorely lacking these days on the national stage. The race in Florida, a swing state that Barack Obama carried in 2008, poses a potentially explosive mix of racial politics; the likely Democratic standard-bearer, Rep. Kendrick Meek, is an African-American. And the GOP battle lines are already forming: On Monday, Rubio released a Web ad attacking Crist and reminding Republicans that the governor backed Obama's economic stimulus package. Advisers say Rubio plans to run an anti-establishment, low-dollar primary campaign that challenges Crist's conservative credentials and ties him to his Washington allies.
And the Florida race is proving to be the rule, not the exception. In another swing state, Missouri, former Sen. John Danforth, a darling of moderate Republicans, is aggressively promoting his former chief of staff and former U.S. ambassador, Thomas Schweich, as a viable alternative to Rep. Roy Blunt in the race to succeed retiring Republican Sen. Christopher (Kit) Bond. Notably, Danforth's moves came just days after Bond endorsed Blunt.
"I think Tom offers a positive alternative to losing," Danforth told CongressDailyAM on Monday.
"We have a better chance at keeping Senator Bond's seat with Tom Schweich than anyone else I can think of," Danforth said in another interview. "He could make the basic argument for an alternative to the current course of action in Washington. It would be better to have someone who has not been part of Washington."
Meanwhile, following former Gov. Tom Ridge's decision to forgo a Senate bid, Republicans in Pennsylvania are actively courting moderate Rep. Jim Gerlach to challenge conservative Pat Toomey in the primary. And, in Utah, Sen. Robert Bennett looks like he'll draw as many as two conservative challengers. State Attorney General Mark Shurtleff said he'll announce his plans on May 20, and Tim Bridgewater, a party activist who had been running for state GOP chairman, says he'll get into the race. "I would much rather play on the court than coach from the bench or referee," Bridgewater told the Deseret News on Monday.
The family feud isn't limited to Senate races, of course. A blockbuster battle is brewing over the Texas governor's office between Sen. Kay Bailey Hutchison and Gov. Rick Perry, who was so eager to cement his ties to anti-tax conservatives recently that he raised the specter of secession. In New Jersey this year, moderate Chris Christie, a former U.S. attorney running to challenge Gov. Jon Corzine (D), faces a stronger-than-expected race against conservative Steve Lonegan.
Primary fights are, of course, nothing new. And the GOP doesn't hold a monopoly on them in 2010. But for a party at a crossroads, they could go a long way toward defining how the party looks in 2011 -- and, more importantly, 2012.
_______________________________________________________
Florida Becomes Ground Zero for GOP Fight
The RealClearPolitics Blog
By Tom Bevan
May 13th, 2009
For a fleeting moment it looked as if Pennsylvania would be Ground Zero for the high profile proxy fight between the moderate and conservative factions of the Republican Party.
But just like that the focus has has shifted a thousand miles to the south, where Charlie Crist's entry into the Senate race has ignited the same debate as he squares off against a far more conservative opponent in Marco Rubio.
Members of GOP establishment were quick to publicly back Crist, who they rightly believe has the best chance of keeping the seat in Republican hands. But the speed with which the NRSC and the Minority Leader stepped in on behalf of the big-footing current Governor left a bad taste in some folks' mouths and helped solidify the story line of a David vs. Goliath ideological struggle.
Myriam Marquez captures the sentiment in this morning's Miami Herald:
But wait. The fix is already in, and Rubio's worst enemy is his own party.
There's no debate apparently within the National Republican Senatorial Committee. On Tuesday, the committee endorsed the popular Crist just minutes after he announced he'd take a leap toward Washington.
Why the rush to endorse in a primary? Doesn't that break Ronald Reagan's golden rule?
Marquez laments the speed of the "Crist coronation" and wonders why it was necessary for Crist to come off as "a bully with the senatorial dudes ganging up on the little guy who walks the conservative talk?" (The obvious answer, of course, is that the last thing the withered GOP minority wants is a blood-letting primary that might help give away a seat they have solid chance of holding.)
Other highlights from the fireworks accompanying yesterday's announcement:
- Rubio released an ad attacking Crist by linking him to Obama, saying "let the debate begin."
- Crist strategist George LeMieux immediately shot back, knocking Rubio for breaking his pledge not to go negative, saying, "It appears that the first debate Marco Rubio needs to have is between Marco Rubio and himself."
- Republicans in North Central Florida offered a "muted" reaction to yesterday's announcement, according to this report.
-Rubio made his case on Fox News, saying that Florida GOP voters must have an opportunity to "choose what we want 'Republican' to mean."
- On said Fox News, Glenn Beck had this to say about Crist's annoucement, "Just what we need, a 'soft, friendly' moderate GOP member. . . BARF."
________________________________________________________
| The Colbert Report | Mon - Thurs 11:30pm / 10:30c | |||
| Stephen's Sound Advice - How to Re-Brand the GOP | ||||
| ||||
The Case of Empathy
Once More, Without Feeling
The GOP's misguided and confused campaign against judicial empathy.
Slate.com
By Dahlia Lithwick
Updated Monday, May 11, 2009, at 7:15 PM ET
One is surely entitled to say that President Obama's repeated claim that he seeks "empathy" in a replacement for Justice David Souter is something less than a crisp constitutional standard. But the Republican war on empathy has started to border on the deranged, and you can't help but wonder to what purpose.
Webster's defines empathy as "the experiencing as one's own the feelings of another." Obama, in The Audacity of Hope, described empathy as "a call to stand in somebody else's shoes and see through their eyes." To Obama, empathy chiefly means applying a principle his mother taught him: asking, "How would that make you feel?" before acting. Empathy in a judge does not mean stopping midtrial to tenderly clutch the defendant to your heart and weep. It doesn't mean reflexively giving one class of people an advantage over another because their lives are sad or difficult. When the president talks about empathy, he talks not of legal outcomes but of an intellectual and ethical process: the ability to think about the law from more than one perspective.
But Republicans have gathered up their flaming torches and raised their fists to loudly denounce empathy and all empathy-based behavior as evil. Last Friday, RNC Chairman Michael Steele, sitting in for Bill Bennett on the Morning in America syndicated radio show, blurted out, "Crazy nonsense empathetic! I'll give you empathy. Empathize right on your behind!" Nice.
Sen. Orrin Hatch of Utah, speaking on This Week, warned that if a jurist were to show empathy, "politics, preferences, personal preferences and feelings might take the place of being impartial and deciding cases based upon the law, not upon politics." In an opinion piece in the Washington Times warning that Obama is poised to be the "first president to make lawlessness an explicit standard for Supreme Court Justices," Wendy Long of the Judicial Confirmation Network saw empathy as a kind of temporary insanity that so distorts a jurist's vision as to make it difficult "to uphold the federal judicial oath to dispense justice impartially." Over on Fox News, Sean Hannity warned that empathy is the first step toward "social engineering." And in a delicious Freudian slip, Sen. Jeff Sessions of Alabama snorted: "I don't know what empathy means."
You don't say.
When did the simple act of recognizing that you are not the only one in the room become confused with lawlessness, activism, and social engineering? For a group so vociferously devoted to textualism and plain meaning, conservative critics have an awfully elastic definition of the word empathy. It expands to cover any sort of judicial malfeasance they can imagine. Empathy—the quality of caring what others may feel—signals intellectual weakness, judicial immodesty, favoritism, bias, and grandiosity. John Yoo also seems to be of the view that the kind of emotional incontinence that begins with empathy for others quickly leads to being "emotive" on the bench. Evidently it's a short hop from empathy to having the judicial vapors.
But as used by the president, the word empathy does not strike me as "code" for anything. I don't believe he used it as a proxy for female or for varied life experiences or for something that exists outside of the law at all. Oh, and empathy—at least as Obama has used the word—decidedly does not mean favoring only the poor, women, or minorities in every dispute. Again quoting from The Audacity of Hope: "Empathy … calls us all to task, the conservative and the liberal, the powerful and the powerless, the oppressed and the oppressor. We are all shaken out of our complacency. We are all forced beyond our limited vision."
What a tragically crabbed worldview one must have to believe that empathy means being sensitive only to "groups A, B, and C" because they share certain features or beliefs with you. That isn't empathy—that's bias. True empathy turns that notion on its head. It means, as Ruth Marcus wrote, the ability to recognize the ways your own experiences color your judgment. Empathy means knowing what you don't know and questioning why you think you know what you do.
Professor Douglas Kmiec of Pepperdine Law School has a thoughtful piece in America: The National Catholic Weekly in which he suggests, reflecting on the prophet Micah, that "one can be empathetic toward all sides of a dispute." Empathy means being impartial toward all litigants without being blind to the consequences of your decisions. You can send up such concerns as gooey judicial sentimentalism, unmoored from any fixed legal principle. Or you can admit that judging requires acts of judgment beyond the mechanical application of law to facts and that it's best for judges to know when the mechanical act of deciding cases gives way to ideology and personal preference. Empathy isn't sloppy sentiment. It's not ideology. It's just a check against the smug certainty that everyone else is sloppy and sentimental while you yourself are a flawless constitutional microcomputer.
When a court fails to put itself in the shoes of a 13-year-old girl who is strip-searched at school because it is too worried about the liability of a school administrator, that's not really a lack of bias. When a court fails to read a civil rights statute to protect civil rights in a pay discrimination case because it's worried about future employer liability, that's not really a lack of bias. Obama may be wrong that empathy is the single most important quality a jurist can possess. But his Republican detractors cannot possibly be right, or even wise, in suggesting that a judge who listens only to herself is preferable to a judge who both listens to others and also considers her impact on others.
Now, if the GOP really wants to run out on a rail anyone with empathy or anyone who values it, far be it from me to object. Democrats will be more than happy to feel their pain. But to the extent that the debate over empathy may shape every Supreme Court discussion we are going to have this summer, let's just be clear that the opposite of empathy isn't rigor. It's pretty close to solipsism, or the certain conviction that everything you'll ever need to know about judging you learned from your own fine self.
______________________________________________________
Should Justice Be Driven By 'Empathy'?
By Stuart Taylor Jr.
NationalJournal.com
May 15, 2009
Barack Obama first explained his "empathy" test for choosing justices in voting against the nomination of John Roberts to be chief justice in 2005:
"What matters on the Supreme Court is those 5 percent of cases that are truly difficult... In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or... whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart."
Obama has repeatedly stressed the "empathy" criterion since then. Meanwhile, conservative senators and legal experts and some centrists have criticized it as a thinly veiled rationale for seeking justices who will bend the law to benefit favored classes of people. That, the critics stress, invites a cardinal violation of the judicial oath to do "equal justice to the poor and to the rich" -- and to all others -- not to mention the constitutional command to provide all persons "the equal protection of the laws."
Conservative Edward Whelan, head of the Ethics and Public Policy Center, recently wrote in National Review Online's Bench Memos that "Obama's own language shows that he is seeking judges who will favor particular classes of people" in "what he calls the 'truly difficult' cases but what one reasonably suspects are any cases of sufficient importance in which application of traditional legal analysis doesn't yield the result that Obama really wants."
Ruth Marcus rejected such criticisms in her May 6 Washington Post column as an "absurd caricature" of Obama's meaning. The president's point, Marcus argued, is that "all judges are guided to some extent, consciously or unknowingly, by their life experience" -- not that they should make legal rulings based on "the sympathy evoked by one party or the other."
Professor Orin Kerr of George Washington University Law School has posted a nuanced analysis on the Volokh Conspiracy blog that I find persuasive. "We need to recognize the important but usually overlooked differences in how different people understand the role of ambiguity in judicial decisionmaking," Kerr wrote. "Some people see legal ambiguity as a cause for careful judicial weighing; others see legal ambiguity as a trigger for judicial empowerment. I think those differences explain a lot about contemporary legal debates, including, I suspect, President Obama's view of the Supreme Court and the role of 'empathy.'"
As Kerr details, Obama comes close to suggesting that he wants his justices to side with the "the powerless" against "the powerful" in the large number of close cases that pit individuals against big corporations, employees against employers, criminal defendants against cops, and the like.
Indeed, Obama accused then-Judge Samuel Alito of doing the converse, in voting against his Supreme Court nomination in 2006. Obama said that Alito "consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding Americans' individual rights. If there is a case involving an employer and an employee and the Supreme Court has not given clear direction, he'll rule in favor of the employer. If there's a claim between prosecutors and defendants, if the Supreme Court has not provided a clear rule of decision, then he'll rule in favor of the state."
In other comments, Obama has said: "We need somebody who's got the heart -- the empathy -- to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor or African-American or gay or disabled or old -- and that's the criteria by which I'll be selecting my judges."
A few thoughts of my own:
First, Obama is quite right to stress that the hardest cases that reach the Supreme Court cannot be resolved by cranking the facts into a human computer who will spit out an ideologically neutral ruling. The law is often ambiguous. Very few contemporary constitutional questions are clearly answered by the original meaning of the Constitution and its amendments. And countless Supreme Court precedents -- Roe v. Wade, to name just one -- have departed so far from whatever the original meaning was that today's justices must often choose between following original meaning and following precedent.
Obama is also right if he is saying that empathy for all of the people affected by a case, in the sense of coming to a sympathetic understanding of their positions, is essential to good judging.
But that's not always what he seems to be saying. Rather than equal empathy for all, some of the Obama statements quoted above stress special empathy for "the powerless," for single mothers, for employees as against employers, for criminal defendants, and the like. How does that square with the oath to do equal justice to the poor and to the rich?
In addition, law-making is supposed to be mainly a democratic exercise driven by voters, not a judicial exercise driven by empathy for selected groups. Indeed, our laws as written already reflect the balance of interests -- of empathy, if you will -- that the democratic process has struck between the powerless, the powerful and other groups.
A leading example is a case often cited by Obama and other "empathy" advocates as showing that the Supreme Court's conservatives lack empathy for the powerless. That was the 5-4 decision in 2007 against Lilly Ledbetter's claim that she had been a victim of pay discrimination based on sex, because she did not file her lawsuit until after the expiration of the 180-day time limit for suing that was specified in one of the two laws that she invoked, Title VII of the 1964 Civil Rights Act.
In my view, the court's decision was probably a correct application of Title VII's unusually short time limit. It reflected the balance that Congress had struck to encourage settlement of employment disputes by negotiation rather than litigation. The time limit was also designed to guard against employees waiting for years to bring a complaint, until after relevant evidence had been discarded and witnesses who would support the employer had died -- which happens to be exactly what Ledbetter did.
All this was lost in an explosion of liberal outrage fanned by rampant distortions of the facts by the media, congressional Democrats and President Obama. They claimed, among other things, that Ledbetter had learned that she was paid less than most male colleagues long after all time limits for suing had expired, and that the evidence left no doubt that she had been a victim of gender discrimination. The first claim was flat-out false and the second was highly debatable, as I have detailed in two columns.
The near-deification of Lilly Ledbetter helped push a bill overruling the court's decision through Congress in January. Whether the result will be to bring better justice for victims of job discrimination or to make employers more reluctant to hire women and minorities who might end up suing them remains to be seen.
Another reason to be wary of the "empathy" criterion is that decisions by justices (as well as legislators) who thought that they were helping the poor and the powerless have often had the unintended consequence of hurting a great many poor and powerless people in the long run. Examples include heavy racial affirmative action preferences for blacks and Hispanics in college admissions, judicial decisions requiring due process hearings before disruptive students can be disciplined, rent control laws, and generous welfare programs for single mothers.
To explain:
• Heavy preferences often come at the expense of better-qualified, relatively powerless whites and Asians whose family incomes are below those of the relatively affluent black and Hispanic recipients of the preferences. Such preferences have also been shown to harm many of their supposed beneficiaries, by stigmatizing the achievements of well-qualified minorities who don't need preferences and by putting underqualified minorities at a competitive disadvantage with other students, leading to high dropout rates, extraordinarily high failure rates on bar exams, and the like.
• Judicial decisions requiring due process hearings before disruptive students can be disciplined have often had the effect of making it impossible for other students to learn. The reason is that the hearing process is so arduous that many teachers and principals see themselves as essentially powerless to get chronically disruptive students out of the classroom.
• Rent control laws, which help some lower-income tenants in the short run, hurt many more in the long run by decreasing incentives for builders and landlords to cater to the needs of low-income tenants. Such laws are also exploited by affluent people who hold on to luxury apartments for decades while paying rent far below their market value.
• And generous welfare programs for poor single parents have played a leading role in hurting the inner-city poor, by providing incentives to have children out of wedlock without working to support them. Supreme Court precedents that bar states from cutting off welfare payments without due process hearings feed the same destructive incentives.
Another problem with the "empathy" criterion is raised by Justice Ruth Bader Ginsburg's recent remarks in an interview with USA Today about a case in which school officials looking for pain medicine strip-searched a 13-year-old girl. Ginsburg complained that the male justices, some of whom seemed skeptical of a lawsuit seeking monetary damages from the school officials who strip-searched the girl, didn't understand what a sensitive age that is for young females. "They have never been a 13-year-old girl," she said, in stressing the need for more female justices.
I share Justice Ginsburg's view that Obama should add one or more women to the court. An almost-all-male court is an unfortunate symbol at a time when women are rising to parity in so many other areas of the legal world, and when many superbly qualified women are available.
But does Ginsburg's statement, taken to its logical endpoint, suggest that female justices should tilt the law in favor of female litigants, at least some of the time?
Well, if Ginsburg's statement means anything, it means that a strip-search might be more traumatic for a 13-year-old girl than for a 13-year-old boy. How would she know that? Unlike her colleagues, she has never been a 13-year-old boy.
There may be cases in which a female justice's life experience might help her understand a female litigant's problems better than male justices. But I doubt that the strip-search case was one of them. Not unless Ginsburg meant to suggest that the justices should sometimes rule in favor of strip-searched 13-year-old girls while ruling against strip-searched 13-year-old boys in otherwise identical fact patterns.
And what else could she mean?
______________________________________________________
The GOP's misguided and confused campaign against judicial empathy.
Slate.com
By Dahlia Lithwick
Updated Monday, May 11, 2009, at 7:15 PM ET
One is surely entitled to say that President Obama's repeated claim that he seeks "empathy" in a replacement for Justice David Souter is something less than a crisp constitutional standard. But the Republican war on empathy has started to border on the deranged, and you can't help but wonder to what purpose.
Webster's defines empathy as "the experiencing as one's own the feelings of another." Obama, in The Audacity of Hope, described empathy as "a call to stand in somebody else's shoes and see through their eyes." To Obama, empathy chiefly means applying a principle his mother taught him: asking, "How would that make you feel?" before acting. Empathy in a judge does not mean stopping midtrial to tenderly clutch the defendant to your heart and weep. It doesn't mean reflexively giving one class of people an advantage over another because their lives are sad or difficult. When the president talks about empathy, he talks not of legal outcomes but of an intellectual and ethical process: the ability to think about the law from more than one perspective.
But Republicans have gathered up their flaming torches and raised their fists to loudly denounce empathy and all empathy-based behavior as evil. Last Friday, RNC Chairman Michael Steele, sitting in for Bill Bennett on the Morning in America syndicated radio show, blurted out, "Crazy nonsense empathetic! I'll give you empathy. Empathize right on your behind!" Nice.
Sen. Orrin Hatch of Utah, speaking on This Week, warned that if a jurist were to show empathy, "politics, preferences, personal preferences and feelings might take the place of being impartial and deciding cases based upon the law, not upon politics." In an opinion piece in the Washington Times warning that Obama is poised to be the "first president to make lawlessness an explicit standard for Supreme Court Justices," Wendy Long of the Judicial Confirmation Network saw empathy as a kind of temporary insanity that so distorts a jurist's vision as to make it difficult "to uphold the federal judicial oath to dispense justice impartially." Over on Fox News, Sean Hannity warned that empathy is the first step toward "social engineering." And in a delicious Freudian slip, Sen. Jeff Sessions of Alabama snorted: "I don't know what empathy means."
You don't say.
When did the simple act of recognizing that you are not the only one in the room become confused with lawlessness, activism, and social engineering? For a group so vociferously devoted to textualism and plain meaning, conservative critics have an awfully elastic definition of the word empathy. It expands to cover any sort of judicial malfeasance they can imagine. Empathy—the quality of caring what others may feel—signals intellectual weakness, judicial immodesty, favoritism, bias, and grandiosity. John Yoo also seems to be of the view that the kind of emotional incontinence that begins with empathy for others quickly leads to being "emotive" on the bench. Evidently it's a short hop from empathy to having the judicial vapors.
But as used by the president, the word empathy does not strike me as "code" for anything. I don't believe he used it as a proxy for female or for varied life experiences or for something that exists outside of the law at all. Oh, and empathy—at least as Obama has used the word—decidedly does not mean favoring only the poor, women, or minorities in every dispute. Again quoting from The Audacity of Hope: "Empathy … calls us all to task, the conservative and the liberal, the powerful and the powerless, the oppressed and the oppressor. We are all shaken out of our complacency. We are all forced beyond our limited vision."
What a tragically crabbed worldview one must have to believe that empathy means being sensitive only to "groups A, B, and C" because they share certain features or beliefs with you. That isn't empathy—that's bias. True empathy turns that notion on its head. It means, as Ruth Marcus wrote, the ability to recognize the ways your own experiences color your judgment. Empathy means knowing what you don't know and questioning why you think you know what you do.
Professor Douglas Kmiec of Pepperdine Law School has a thoughtful piece in America: The National Catholic Weekly in which he suggests, reflecting on the prophet Micah, that "one can be empathetic toward all sides of a dispute." Empathy means being impartial toward all litigants without being blind to the consequences of your decisions. You can send up such concerns as gooey judicial sentimentalism, unmoored from any fixed legal principle. Or you can admit that judging requires acts of judgment beyond the mechanical application of law to facts and that it's best for judges to know when the mechanical act of deciding cases gives way to ideology and personal preference. Empathy isn't sloppy sentiment. It's not ideology. It's just a check against the smug certainty that everyone else is sloppy and sentimental while you yourself are a flawless constitutional microcomputer.
When a court fails to put itself in the shoes of a 13-year-old girl who is strip-searched at school because it is too worried about the liability of a school administrator, that's not really a lack of bias. When a court fails to read a civil rights statute to protect civil rights in a pay discrimination case because it's worried about future employer liability, that's not really a lack of bias. Obama may be wrong that empathy is the single most important quality a jurist can possess. But his Republican detractors cannot possibly be right, or even wise, in suggesting that a judge who listens only to herself is preferable to a judge who both listens to others and also considers her impact on others.
Now, if the GOP really wants to run out on a rail anyone with empathy or anyone who values it, far be it from me to object. Democrats will be more than happy to feel their pain. But to the extent that the debate over empathy may shape every Supreme Court discussion we are going to have this summer, let's just be clear that the opposite of empathy isn't rigor. It's pretty close to solipsism, or the certain conviction that everything you'll ever need to know about judging you learned from your own fine self.
______________________________________________________
Should Justice Be Driven By 'Empathy'?
By Stuart Taylor Jr.
NationalJournal.com
May 15, 2009
Barack Obama first explained his "empathy" test for choosing justices in voting against the nomination of John Roberts to be chief justice in 2005:
"What matters on the Supreme Court is those 5 percent of cases that are truly difficult... In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or... whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart."
Obama has repeatedly stressed the "empathy" criterion since then. Meanwhile, conservative senators and legal experts and some centrists have criticized it as a thinly veiled rationale for seeking justices who will bend the law to benefit favored classes of people. That, the critics stress, invites a cardinal violation of the judicial oath to do "equal justice to the poor and to the rich" -- and to all others -- not to mention the constitutional command to provide all persons "the equal protection of the laws."
Conservative Edward Whelan, head of the Ethics and Public Policy Center, recently wrote in National Review Online's Bench Memos that "Obama's own language shows that he is seeking judges who will favor particular classes of people" in "what he calls the 'truly difficult' cases but what one reasonably suspects are any cases of sufficient importance in which application of traditional legal analysis doesn't yield the result that Obama really wants."
Ruth Marcus rejected such criticisms in her May 6 Washington Post column as an "absurd caricature" of Obama's meaning. The president's point, Marcus argued, is that "all judges are guided to some extent, consciously or unknowingly, by their life experience" -- not that they should make legal rulings based on "the sympathy evoked by one party or the other."
Professor Orin Kerr of George Washington University Law School has posted a nuanced analysis on the Volokh Conspiracy blog that I find persuasive. "We need to recognize the important but usually overlooked differences in how different people understand the role of ambiguity in judicial decisionmaking," Kerr wrote. "Some people see legal ambiguity as a cause for careful judicial weighing; others see legal ambiguity as a trigger for judicial empowerment. I think those differences explain a lot about contemporary legal debates, including, I suspect, President Obama's view of the Supreme Court and the role of 'empathy.'"
As Kerr details, Obama comes close to suggesting that he wants his justices to side with the "the powerless" against "the powerful" in the large number of close cases that pit individuals against big corporations, employees against employers, criminal defendants against cops, and the like.
Indeed, Obama accused then-Judge Samuel Alito of doing the converse, in voting against his Supreme Court nomination in 2006. Obama said that Alito "consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding Americans' individual rights. If there is a case involving an employer and an employee and the Supreme Court has not given clear direction, he'll rule in favor of the employer. If there's a claim between prosecutors and defendants, if the Supreme Court has not provided a clear rule of decision, then he'll rule in favor of the state."
In other comments, Obama has said: "We need somebody who's got the heart -- the empathy -- to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor or African-American or gay or disabled or old -- and that's the criteria by which I'll be selecting my judges."
A few thoughts of my own:
First, Obama is quite right to stress that the hardest cases that reach the Supreme Court cannot be resolved by cranking the facts into a human computer who will spit out an ideologically neutral ruling. The law is often ambiguous. Very few contemporary constitutional questions are clearly answered by the original meaning of the Constitution and its amendments. And countless Supreme Court precedents -- Roe v. Wade, to name just one -- have departed so far from whatever the original meaning was that today's justices must often choose between following original meaning and following precedent.
Obama is also right if he is saying that empathy for all of the people affected by a case, in the sense of coming to a sympathetic understanding of their positions, is essential to good judging.
But that's not always what he seems to be saying. Rather than equal empathy for all, some of the Obama statements quoted above stress special empathy for "the powerless," for single mothers, for employees as against employers, for criminal defendants, and the like. How does that square with the oath to do equal justice to the poor and to the rich?
In addition, law-making is supposed to be mainly a democratic exercise driven by voters, not a judicial exercise driven by empathy for selected groups. Indeed, our laws as written already reflect the balance of interests -- of empathy, if you will -- that the democratic process has struck between the powerless, the powerful and other groups.
A leading example is a case often cited by Obama and other "empathy" advocates as showing that the Supreme Court's conservatives lack empathy for the powerless. That was the 5-4 decision in 2007 against Lilly Ledbetter's claim that she had been a victim of pay discrimination based on sex, because she did not file her lawsuit until after the expiration of the 180-day time limit for suing that was specified in one of the two laws that she invoked, Title VII of the 1964 Civil Rights Act.
In my view, the court's decision was probably a correct application of Title VII's unusually short time limit. It reflected the balance that Congress had struck to encourage settlement of employment disputes by negotiation rather than litigation. The time limit was also designed to guard against employees waiting for years to bring a complaint, until after relevant evidence had been discarded and witnesses who would support the employer had died -- which happens to be exactly what Ledbetter did.
All this was lost in an explosion of liberal outrage fanned by rampant distortions of the facts by the media, congressional Democrats and President Obama. They claimed, among other things, that Ledbetter had learned that she was paid less than most male colleagues long after all time limits for suing had expired, and that the evidence left no doubt that she had been a victim of gender discrimination. The first claim was flat-out false and the second was highly debatable, as I have detailed in two columns.
The near-deification of Lilly Ledbetter helped push a bill overruling the court's decision through Congress in January. Whether the result will be to bring better justice for victims of job discrimination or to make employers more reluctant to hire women and minorities who might end up suing them remains to be seen.
Another reason to be wary of the "empathy" criterion is that decisions by justices (as well as legislators) who thought that they were helping the poor and the powerless have often had the unintended consequence of hurting a great many poor and powerless people in the long run. Examples include heavy racial affirmative action preferences for blacks and Hispanics in college admissions, judicial decisions requiring due process hearings before disruptive students can be disciplined, rent control laws, and generous welfare programs for single mothers.
To explain:
• Heavy preferences often come at the expense of better-qualified, relatively powerless whites and Asians whose family incomes are below those of the relatively affluent black and Hispanic recipients of the preferences. Such preferences have also been shown to harm many of their supposed beneficiaries, by stigmatizing the achievements of well-qualified minorities who don't need preferences and by putting underqualified minorities at a competitive disadvantage with other students, leading to high dropout rates, extraordinarily high failure rates on bar exams, and the like.
• Judicial decisions requiring due process hearings before disruptive students can be disciplined have often had the effect of making it impossible for other students to learn. The reason is that the hearing process is so arduous that many teachers and principals see themselves as essentially powerless to get chronically disruptive students out of the classroom.
• Rent control laws, which help some lower-income tenants in the short run, hurt many more in the long run by decreasing incentives for builders and landlords to cater to the needs of low-income tenants. Such laws are also exploited by affluent people who hold on to luxury apartments for decades while paying rent far below their market value.
• And generous welfare programs for poor single parents have played a leading role in hurting the inner-city poor, by providing incentives to have children out of wedlock without working to support them. Supreme Court precedents that bar states from cutting off welfare payments without due process hearings feed the same destructive incentives.
Another problem with the "empathy" criterion is raised by Justice Ruth Bader Ginsburg's recent remarks in an interview with USA Today about a case in which school officials looking for pain medicine strip-searched a 13-year-old girl. Ginsburg complained that the male justices, some of whom seemed skeptical of a lawsuit seeking monetary damages from the school officials who strip-searched the girl, didn't understand what a sensitive age that is for young females. "They have never been a 13-year-old girl," she said, in stressing the need for more female justices.
I share Justice Ginsburg's view that Obama should add one or more women to the court. An almost-all-male court is an unfortunate symbol at a time when women are rising to parity in so many other areas of the legal world, and when many superbly qualified women are available.
But does Ginsburg's statement, taken to its logical endpoint, suggest that female justices should tilt the law in favor of female litigants, at least some of the time?
Well, if Ginsburg's statement means anything, it means that a strip-search might be more traumatic for a 13-year-old girl than for a 13-year-old boy. How would she know that? Unlike her colleagues, she has never been a 13-year-old boy.
There may be cases in which a female justice's life experience might help her understand a female litigant's problems better than male justices. But I doubt that the strip-search case was one of them. Not unless Ginsburg meant to suggest that the justices should sometimes rule in favor of strip-searched 13-year-old girls while ruling against strip-searched 13-year-old boys in otherwise identical fact patterns.
And what else could she mean?
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Congress comes back
India’s ruling party wins an unexpectedly thumping victoryMay 16th 2009 DELHI
From Economist.com
From Economist.com
REVERSING decades of decline, the Congress party has won India’s month-long general election by a bigger margin than its most optimistic followers had dared dream of. As results were counted on Saturday May 16th it looked likely to win around 200 of 543 available seats, which would represent the biggest win by any party for 18 years.
Under the prime ministership of Manmohan Singh, Congress will return to power at the helm of a simpler and, it is expected, more stable coalition than it has presided over for the past five years. Its United Progressive Alliance was projected to win around 260 seats. For additinal support, Congress will be able to choose from an eager host of independents and small regional parties, including several recently jettisoned allies.
India’s Communist parties, which provided support and endless headaches to the outgoing government for most of its tenure, will not be among them. The leftists were projected to do unprecedentedly badly, winning around 24 seats—down from their 2004 tally of 62. A new Congress ally in West Bengal, the Trinamul Congress, is the main beneficiary. It was set to win 20 of 42 seats in West Bengal, a state the Communists have ruled for three decades.
Confounding most predictions, another Congress ally, the Dravida Munnetra Kazhagam party, has clung on to win around half of 39 seats in Tamil Nadu, a state it swept in 2004. Yet it was Congress’s performance that was most remarkable. In the absence of any obvious national issue, or enthusiasm for Mr Singh and his patron, the party’s leader, Sonia Gandhi, it trounced its main rival, the Bharatiya Janata Party (BJP), which looked likely to win around 120 seats. In Rajasthan, which the Hindu nationalists swept in 2004, Congress was expected to win 21 of a possible 25 seats. It was also set to win ten seats in Gujarat, which is known for Hindu-Muslim violence and was considered solidly for the BJP.
Perhaps most significantly, Congress may have more than doubled its former account in Uttar Pradesh (UP), with 21 of 80 seats. That would probably make it the second-biggest party in India’s most populous state, behind the Samajwadi party, a low-caste Hindu outfit and sometime Congress ally, which was expected to win 23 seats. The Bahujan Samaj Party (BSP), which is dedicated to dalits (former “untouchables”) and rules UP, looked set to win 20 seats—half the tally its ambitious leader, Mayawati, had counted on.
At first glance, this looked to vindicate Congress’s decision to contest solo in UP, a giant state it once dominated and has long talked of recapturing. Congress’s decision to stand alone in Bihar, where it looked set to win only two out of 40 seats, was less fruitful—though given the collapse of its erstwhile ally there, the Rashtriya Janata Dal party, from 22 seats in 2004 to perhaps three, it may not have been costly.
Both decisions were attributed to Rahul Gandhi, Mrs Gandhi’s 38-year-old son. His father, Rajiv Gandhi, grandmother, Indira Gandhi, and great-grandfather, Jawaharlal Nehru, were all prime ministers of India. Mr Singh, a 76-year-old economist, is set to be the first Indian prime minister since Nehru to return to the office after serving a five-year term. But many expect that Mr Gandhi, who was re-elected to his safe seat in UP, will take over the job within a year or two.
Both decisions were attributed to Rahul Gandhi, Mrs Gandhi’s 38-year-old son. His father, Rajiv Gandhi, grandmother, Indira Gandhi, and great-grandfather, Jawaharlal Nehru, were all prime ministers of India. Mr Singh, a 76-year-old economist, is set to be the first Indian prime minister since Nehru to return to the office after serving a five-year term. But many expect that Mr Gandhi, who was re-elected to his safe seat in UP, will take over the job within a year or two.
Appearing alongside Mrs Gandhi on Saturday, Mr Singh, who has recently undergone heart-bypass surgery and campaigned little during the election, said he hoped Mr Gandhi, who entered politics in 2004, would agree to join his next cabinet. Commenting on her party’s victory, Mrs Gandhi, the enigmatic Italian-born widow of Rajiv, said: “Eventually the people of India know what’s good for them and they always make the right choice.”
That an unexpected multitude of the 714m voters registered for this election plumped for Congress is undeniable. Early figures suggest Congress increased its vote-share from 26.7% in 2004 to around 29%. And its leaders can congratulate themselves on this. Ruling in a coalition for the first time, Congress has delivered steadier government than many expected. It can also lay claim to unprecedented economic growth for its first four years in power—even if this was largely founded on economic reforms introduced by its predecessors and unusually clement global economic conditions.
Congress also seems to have benefitted from voters’ rising distaste for its rivals. At a time of relative calm between Hindus and Muslims, the BJP used its Hindu-supremacist rhetoric sparingly, and struggled for a convincing alternative. It also seems to have been worse affected than Congress by the traditional anti-incumbency urge of Indian voters, having until recently run state-level governments in several of its northern strongholds, including Rajasthan.
Excited by their success, some in Congress detect a deeper trend—a shrinkage in the appeal of regional parties, such as the BSP, whose rise has constituted the main trend in Indian politics for two decades. That would be good, giving hope for less chaotic and corrupt central governments than Indians are sadly accustomed too. Alas, Congress’s small success in UP is too little evidence for this claim. But Indians can at least expect their new government to be less fractious than its predecessor. And considering the remarkably messy coalition that might have been, if the vote had been as divided as predicted, that is a major blessing.
More information about Indian election:
Shift In Abortion Positions
Majority of Americans now ‘pro-life,’ poll saysFor first time in 15 years of Gallup polling, ‘pro-choice’ is overtaken
Associated Press
May 15, 2009
NEW YORK - The Gallup Poll reported Friday that 51 percent of Americans now call themselves "pro-life" rather than "pro-choice" on the issue of abortion, the first time a majority gave that answer in the 15 years that Gallup has asked the question.
The findings, obtained in an annual survey on values and beliefs conducted May 7-10, marked a significant shift from a year ago. A year ago, 50 percent said they were pro-choice and 44 percent pro-life — in the new poll, 42 percent said they were pro-choice.
The new survey showed that Americans remained deeply divided on the legality of abortion — with 23 percent saying it should be illegal in all circumstances, 22 percent saying it should be legal under any circumstances, and 53 percent saying it should be legal only under certain circumstances.
The findings echoed a recent national survey by the Pew Research Center, which reported a sharp decline since last August in those saying abortion should be legal in all or most cases — from 54 percent to 46 percent.
Taken together, the two polls have elated anti-abortion activists, who had been stung by the November election results that placed President Barack Obama and other abortion-rights supporters in power in Washington.
Obama factor?"Ironically, Obama's radical abortion policies and nominees may have helped make America more pro-life," said Wendy Wright, president of the conservative advocacy group Concerned Women for America.
The Rev. Richard Land, president of the Southern Baptist Convention's Ethics & Religious Liberty Commission, said the poll findings demonstrate that the anti-abortion cause "is a vibrant, growing, youthful movement."
"We are winning the battle for hearts and minds in our culture on the life issue," he said.
The president of a leading abortion-rights group, Nancy Keenan of NARAL Pro-Choice America, said the Gallup findings "do not square with the voting patterns in the last two elections cycles."
"It would be a mistake for anti-choice groups to interpret this one poll as a signal that Americans want even more interference from politicians in their personal, private decisions, including a woman's right to choose safe, legal abortion," Keenan said.
Another abortion-rights leader, Planned Parenthood Federation of America president Cecile Richards, questioned the terminology in the Gallup questions.
"The terms pro-choice and pro-life no longer define the parameters of the debate, witnessed by the fact that in the Gallup Poll, a majority of people say they are both pro-life and that abortion should be legal," Richards said.
She added that most Americans share Obama's stated goal of reducing the number of unintended pregnancies.
Planned Parenthood also noted that another recent national survey, a CNN/Opinion Research Corp., poll in April, reported 49 percent of respondents identifying as pro-choice and 45 percent as pro-life.
Across religious affiliationsThe Gallup poll's release came just ahead of Obama's scheduled commencement speech Sunday at the University of Notre Dame, where he also is to receive an honorary degree. Those plans by the Roman Catholic university have sparked a wave of protests by anti-abortion activists, who contend Notre Dame should not honor a such a prominent supporter of abortion rights.
Gallup said its new poll showed an increase in the pro-life position across Christian religious affiliations, including an eight-point gain among Protestants and a seven-point gain among Catholics. It also reported a 10-point shift toward the pro-life category among Republicans but said there was no significant change among Democrats.
In the new poll, men identify as pro-life, 54 percent to 39 percent, while women also tilt pro-life 49 percent to 44 percent. A year ago, Gallup found more women calling themselves pro-choice than pro-life, by 50 percent to 43 percent, while men were more closely divided: 49 percent pro-choice, 46 percent pro-life.
"It is possible that, through his abortion policies, Obama has pushed the public's understanding of what it means to be 'pro-choice' slightly to the left, politically," according to the Gallup analysis. "While Democrats may support that, as they generally support everything Obama is doing as president, it may be driving others in the opposite direction."
The Gallup survey was based on telephone interviews with 1,015 adults nationwide. Its margin of sampling error was plus or minus 3 percentage points.
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Saturday, May 16, 2009
National Security Politics: Cabinet Selection
Obama's Decision to Keep Gates Looks Ever BetterBy GERALD F. SEIB
MAY 15, 2009
Printed in The Wall Street Journal, page A2
It now appears that President Barack Obama's shrewdest personnel move wasn't making Timothy Geithner his Treasury secretary, or Lawrence Summers his chief economic adviser.
It was keeping Robert Gates, a Bush administration holdover, as secretary of defense.
Mr. Gates is a smart guy, tough in his own clipped manner, and an extremely crafty bureaucratic operator. All that was known before the president decided to keep him on.
What's now clear is that Mr. Gates, as someone appointed to top national-security jobs by the past two Republican presidents, brought to the table a credibility that no Obama appointee would have had in making a series of difficult decisions without setting off a political firestorm.
Consider three specific cases:
The debate over harsh interrogation methods. First, Mr. Gates provided important political cover to the president by endorsing his decision to release the secret memos the Bush administration used to justify waterboarding and other interrogation tactics for terrorism suspects. That decision still was attacked by those who thought the disclosure harmed American intelligence efforts, but Mr. Gates's endorsement went a long way toward muting the criticism.
Then, just this week, he helped keep the president out of hot water by tipping a second, related decision in the opposite direction. Mr. Gates successfully argued that the administration should try to block the court-ordered release of photos of prisoners under interrogation. He channeled into the White House military commanders' deep worries about a backlash against American soldiers in the Islamic world if the photos were released. That was enough to persuade key White House aides, and ultimately Mr. Obama, who reversed his previous position and decided to go to court to stop the release.
Changing course was politically embarrassing for the president, but that problem likely pales when compared with the attacks from critics and the military itself that likely would have followed unchallenged release of the photos.
A change of commanders in Afghanistan. The decision to replace the head of allied forces in Afghanistan, Gen. David McKiernan, had the potential to set off fireworks on both the right and left. On the right, there could have been a furor if a relatively new Obama appointee, rather than Mr. Gates, had decided to dump such a senior military officer in the midst of his tour. At the same time, there could have been an uproar on the left because he is being succeeded by Gen. Stanley McChrystal, a commander whose background is in the shadowy world of special operations, including seizing and handling terrorism suspects.
But because the switch was a joint Obama-Gates maneuver, criticism was muted on both sides, and largely drowned out by cheers over a decisive shift in approach in Afghanistan.
A radical revamping of the Pentagon budget. Mr. Gates has proposed a sweeping overhaul of Pentagon spending, killing some big, sacred-cow weapons systems designed for fighting a conventional war, and moving the money to less-sexy systems designed for unconventional wars and counterinsurgency operations.
This is a big change, roundly opposed by some lawmakers and defense firms deeply invested in the old programs. Imagine the outcry if a Democrat newly appointed by Mr. Obama had proposed eliminating the F-22 fighter jet and winding down the Army's multibillion-dollar Future Combat Systems program.
Charges that Democrats were again reflexively gutting defense would have come instantly.
Such charges couldn't be easily made, though, when the changes came from Mr. Gates, who had pondered them for more than two years.
Mr. Gates can do such things in part because he occupies an unusual position in Washington, and not just because he straddles administrations of two political parties. He had capped a long Washington career with a stint in the job of his dreams, as head of the Central Intelligence Agency, when he left town for business and academia in 1993. And he wasn't particularly eager to return when coaxed by President George W. Bush into taking over at the Pentagon in 2006.
He has nothing left to prove, nobody to impress, no next job to covet.
He also knows how to play the Washington game. For proof, simply look at how he handled the release of his new defense budget.
Mr. Gates has been around long enough to know how such a plan normally would be undermined. As soon as the budget started to move around the bureaucracy, it would leak to Capitol Hill, where lobbyists and lawmakers invested in the defense status quo would begin to mount a counterattack before the details were even announced.
So Mr. Gates outfoxed the system. He had Pentagon officials involved in the budget process sign nondisclosure agreements to prevent leaks. After that, defense officials say, he got permission from Mr. Obama to announce the specifics of the Pentagon plan weeks before the rest of the administration's budget details were released. He went public just as the full plan was sent to the White House budget office, aides say, thereby eliminating the mischief-making season.
Then, rather than rely on others to brief congressional leaders, he called them himself to explain his changes, putting his personal imprimatur and credibility on the plan from the outset.
It was a virtuoso bureaucratic performance, showing why Mr. Obama decided that keeping Mr. Gates around was worth whatever grief he took from allies on the left for doing so.
60 Minutes Interview with Sec. Bob Gates (5/17/09)
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