Antonin Scalia, RIP

Posted on 17 February 201617 February 2016 by Rob Harrison | No Comments

I’m late noting this, I realize, but I’m just getting over a nasty bug that laid me out for more than a week. Even late, though, I couldn’t just let this go, because I believe Antonin Scalia’s death is a great loss to the Republic. Justice Scalia was indeed “one of the most brilliant and combative justices ever to sit on the Court, and one of the most prominent legal thinkers of his generation,” as Lesley Stahl described him in the introduction to his 60 Minutes profile.

He was also, by the testimony of his fellow justices, a good colleague and a good friend. Though a passionate conservative in matters of law and society, his closest friend on the Court was its leading liberal mind, Ruth Bader Ginsburg, with whom he had a close relationship going back to their days on the D.C. Circuit Court. (Hence Justice Ginsburg in the thumbnail for the first video above.) That didn’t mean that he pulled his punches; he always treated her with respect, which meant in part that he knew she was tough enough and smart enough to argue hard. Ginsburg once commented, “I love him, but sometimes I’d like to strangle him.” On the whole, though, she appreciated it:

We disagreed now and then [!?], but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation.

Justice Scalia nailed all the weak spots — the “applesauce” and “argle bargle”—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh.

Resisting the politics of character assassination

Posted on 8 July 201019 October 2015 by Rob Harrison | 2 Comments

I’ve had a bit of an issue getting this up, but near the top of the sidebar, you’ll notice a link to the Sarah Palin Legal Defense Fund. This being a congressional election year, there are a lot of demands for money out there, and a lot of worthy candidates; but if you’re in a position to give political donations, I would strongly encourage you to send some money to the SPLDF.

You may remember that during and after the last presidential campaign, people with an axe to grind (whose scruples had served as the grindstone) launched a blizzard of frivolous ethics complaints against the Governor; though they were dismissed, one after the other, they still drove her legal bills up over half a million dollars. In response, she followed the well-trodden path of establishing a legal defense fund, called the Alaska Fund Trust, to raise money to cover those costs.

Apparently, however, the Obama administration and their minions couldn’t bear the thought that they might not succeed in bankrupting Gov. Palin, and there was an ethics challenge filed against the AFT. Barack Obama’s personal law firm, Perkins Coie, which is also counsel of record for the Democratic National Committee, the Democratic Leadership Council, the Democratic Senatorial Campaign Committee and the Democratic Congressional Campaign Committee (and Osama bin Laden’s former bodyguard), produced an opinion declaring that fund in violation of Alaska law, which was then upheld by yet another Democrat. Said Democrat did concede that

Governor Palin was nevertheless following the express advice of one of her attorneys who told her the Trust complied with all laws and was indeed unassailable,

and thus that she wasn’t guilty of anything whatsoever; in that sense, she has once again been exonerated.

However, there is a complication as the result of all this: all donations made to the AFT must be returned, and while Gov. Palin hasn’t taken any money from the AFT, some of that money has gone to administrative expenses while the fund was in limbo. Also, of course, the process of returning donations will cost a noticeable amount of money. As such, it’s necessary for her new legal defense fund, the SPLDF, to raise $100,000 just to comply with the terms of this settlement—and that’s before they can raise any money to address any other legal costs.

If you donated to the AFT, I would certainly encourage you to take your donation, once it’s returned, and re-donate it to the SPLDF; but before that, please give a little more to enable it to cover the costs of shutting down the AFT.Some would no doubt consider this a partisan appeal, but I don’t; I think this is a necessary part of standing up for citizen government, and I’d support a Democrat just as well. Our government is supposed to be a government of the people, in which issues are decided in open debate and open votes, and anything that diminishes that diminishes our nation. The attempt by some to destroy a politician by bankrupting her with spurious legal assaults sets a precedent which is detrimental to our entire political culture, and should be resisted with extreme prejudice by honest voters on both sides of the political aisle. It was wrong to do this to Gov. Palin, it would be just as wrong to do it to a Democrat, and we ought to stand up and do everything we can to ensure that the next time someone contemplates trying such a thing for political gain, they’ll conclude that it wouldn’t be worth the trouble.

Sarah Palin doesn’t just represent conservatives over against liberals; she also represents the common people of America over against our elite. We need a lot more of the former in office, in place of some of the latter—representing both parties. I very much hope Carly Fiorina can beat Barbara Boxer in the U.S. Senate race in California this fall, but if Mickey Kaus had won the Democratic primary, I would have been rooting for him. I agree with him on far less than I do with Fiorina, but his independent voice within the Democratic caucus on the Hill would have been of immeasurable value.

As I wrote last year,

I firmly believe that one of the reasons why the political elite has tried so hard to marginalize and destroy this woman—elitists on the Right as well as on the Left—is that she’s not one of them; she’s not from the elite class, she didn’t rise through any of our political machines, and so she’s not beholden to them and they have no leverage on her. Our monoclonal political class likes its grip on power; sure, they have their ideological differences that reflect the differences in beliefs that exist in the rest of the country, but their deepest loyalty is to their class, their deepest commitment to business as usual. They are not truly representative in any meaningful sense.

If we want to change that, we need to elect people—liberals as well as conservatives—from outside that class, people who truly are a part of we, the people rather than “we, the Beltway.” Gov. Palin isn’t just a conservative politician, she’s a complete outsider to the Beltway, someone who came from a normal (if somewhat uncommon) American family, upbringing, and life. As such, she’s a test case for this: can any politician who is truly of the people, by the people, for the people long endure?

I don’t expect many liberals to support her, much less vote for her, because like anyone else, in general, liberals should vote for people who share their political principles, and she doesn’t; but I do think that liberals should be pulling for her to succeed, to thrive, to win re-election in 2010 and the GOP nomination in 2012, even if they then want her to lose in November. Why? Because if she succeeds, if she triumphs, she will show other potential citizen candidates that it can be done, and it can be endured, and it’s worth doing; if she succeeds, she will be followed, she will be emulated, and we will see others—in both parties—walking the trail she blazed. If Republican and Democratic voters are going to reclaim our parties for the principles in which they’re supposed to believe, it’s going to require candidates who are beholden to us rather than to the structures of those parties—and if that’s going to happen in our generation, it has to begin here, with Sarah Palin. We cannot let her be snuffed out if we want to see anyone else who isn’t machine-approved (and machine-stamped) run for anything much above dogcatcher.

As such, I’ll say it again: liberals who would like to see the Democratic Party break free of the corruptocrats who run it have just as much vested in Gov. Palin as conservatives who would like to see the GOP break free of the domination of its own trough-swilling pigs, and just as much reason to help her overcome this challenge.

All about the science? Don’t be so sure

Posted on 6 July 201019 October 2015 by Rob Harrison | 2 Comments

We may have gotten a lot of pious talk from this administration about setting science free from political agendas, but don’t believe it. William Saletan connects the dots on one illustrative example:

Fourteen years ago, to protect President Clinton’s position on partial-birth abortions, Elena Kagan doctored a statement by the American College of Obstetricians and Gynecologists. Conservatives think this should disqualify her from the Supreme Court. They understate the scandal. It isn’t Kagan we should worry about. It’s the whole judiciary. . . .

The basic story is pretty clear: Kagan, with ACOG’s consent, edited the statement to say that intact D&X “may be the best or most appropriate procedure” in some cases. Conservatives have pounced on this, claiming that Kagan “fudged the results of [ACOG’s] study,” “made up ‘scientific facts,’” and “participated in a gigantic scientific deception.” These charges are exaggerated. The sentence Kagan added was hypothetical. It didn’t assert, alter, or conceal any data. Nor did it “override a scientific finding,” as National Review alleges, or “trump” ACOG’s conclusions, as Sen. Orrin Hatch, R-Utah, contends. Even Power Line, a respected conservative blog, acknowledges that ACOG’s draft and Kagan’s edit “are not technically inconsistent.” Kagan didn’t override ACOG’s scientific judgments. She reframed them.

But Kagan’s defense is bogus, too. On Wednesday, at her confirmation hearing, Hatch pressed Kagan about this episode. She replied that she had just been “clarifying the second aspect of what [ACOG] thought.” Progressive blogs picked up this spin, claiming that she merely “clarified” ACOG’s findings and made its position “more clear” so that its “intent was correctly understood.” Come on. Kagan didn’t just “clarify” ACOG’s position. She changed its emphasis. If a Bush aide had done something like this during the stem-cell debate, progressive blogs would have screamed bloody murder. . . .

By reframing ACOG’s judgments, she altered their political effect as surely as if she had changed them.

She also altered their legal effect. And this is the scandal’s real lesson: Judges should stop treating the statements of scientific organizations as apolitical. Such statements, like the statements of any other group, can be loaded with spin. This one is a telling example.

National Review, CNSNews, and Power Line make a damning case that courts mistook the ACOG statement for pure fact. In 2000, when the U.S. Supreme Court struck down Nebraska’s ban on partial-birth abortions, it cited ACOG: “The District Court also noted that a select panel of the American College of Obstetricians and Gynecologists concluded that D&X ‘may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.’” That sentence, we now know, was written by Kagan. . . .

All of us should be embarrassed that a sentence written by a White House aide now stands enshrined in the jurisprudence of the Supreme Court, erroneously credited with scientific authorship and rigor. Kagan should be most chastened of all. She fooled the nation’s highest judges. As one of them, she had better make sure they aren’t fooled again.

On my read, Saletan is trying hard to underplay what Kagan actually did; I don’t think saying she “reframed” the ACOG statement is really sufficient, because the sentence she inserted was intended to deceive through misdirection. Even so, Saletan doesn’t shy away from the deceptive force of that statement, or the consequences of that deception.

Of course, this all happened under a previous administration, not the current one; but the fact that the President would appoint someone, not once but twice, to a high position who was guilty of seriously subverting science to a political agenda clearly shows that in fact he has no objection to doing so—as long as it’s his own agenda. Yuval Levin sums the matter up nicely:

What’s described in these memos is easily the most serious and flagrant violation of the boundary between scientific expertise and politics I have ever encountered. A White House official formulating a substantive policy position for a supposedly impartial physicians’ group, and a position at odds with what that group’s own policy committee had actually concluded? You have to wonder where all the defenders of science—those intrepid guardians of the freedom of inquiry who throughout the Bush years wailed about the supposed politicization of scientific research and expertise—are now. If the Bush White House (in which I served as a domestic policy staffer) had ever done anything even close to this it would have been declared a monumental scandal, and rightly so.

Or take another example, the moratorium on offshore drilling unilaterally declared by Interior Secretary Ken Salazar, which didn’t pass the smell test:

In a scathing ruling . . . New Orleans-based [federal judge Martin] Feldman overturned the administration’s radical six-month moratorium on deepwater drilling—and he singled out Salazar’s central role in jury-rigging a federal panel’s scientific report to bolster flagrantly politicized conclusions. In a sane world, Salazar’s head would roll. In Obama’s world, he gets immunity. . . .

Scientists who served on the committee expressed outrage upon discovering earlier this month that Salazar had—unilaterally and without warning—inserted a blanket drilling ban recommendation into their report. As Feldman recounted in his ruling:

In the Executive Summary to the Report, (Salazar) recommends “a six-month moratorium on permits for new wells being drilled using floating rigs.” He also recommends “an immediate halt to drilling operations on the 33 permitted wells, not including relief wells currently being drilled by BP, that are currently being drilled using floating rigs in the Gulf of Mexico.”

Much to the government’s discomfort and this Court’s uneasiness, the Summary also states that “the recommendations contained in this report have been peer-reviewed by seven experts identified by the National Academy of Engineering.” As the plaintiffs, and the experts themselves, pointedly observe, this statement was misleading. The experts charge it was a “misrepresentation.” It was factually incorrect.

Allow me to be more injudicious: Salazar lied. Salazar committed fraud. Salazar sullied the reputations of the experts involved and abused his authority.

You can’t downplay that one by saying Secretary Salazar “reframed” the work of the scientists his department had consulted, either, because their position was clear, unequivocal, and diametrically opposed:

A blanket moratorium is not the answer. It will not measurably reduce risk further and it will have a lasting impact on the nation’s economy which may be greater than that of the oil spill. We do not believe punishing the innocent is the right thing to do.

The lesson is clear: for the Obama administration, when the science conflicts with the agenda, go with the agenda.

Supreme Court refuses to protect Christian group

Posted on 30 June 201019 October 2015 by Rob Harrison | No Comments

I’ve been trying for a couple days now to figure out what to make of this, and I’m still not sure.

In a 5-4 decision this morning, the Supreme Court said that a California law school can require a Christian group to open its leadership positions to all students, including those who disagree with the group’s statement of faith.

The majority opinion, issued by Justice Ruth Bader Ginsburg, said that Hastings College of the Law’s “all comers” policy, which required all groups to open all positions to all students, “is a reasonable, viewpoint-neutral condition on access to the student-organization forum.” The Christian Legal Society (CLS) chapter at the University of California school, Ginsburg wrote, “seeks not parity with other organizations, but a preferential exemption from Hastings’ policy.”

“Hastings, caught in the crossfire between a group’s desire to exclude and students’ demand for equal access, may reasonably draw a line in the sand permitting all organizations to express what they wish but no group to discriminate in membership.” Ginsburg wrote.

However, Ginsburg gave some hope to CLS, which had argued that Hastings officials had selectively enforced its “all comers” policy, allowing organizations like the Latino group La Raza, but not CLS, to have rules restricting its membership. Noting that lower courts had not addressed is accusation of selective enforcement (and that the Supreme Court “is not the proper forum to air the issue in the first instance”), Ginsburg said the Ninth Circuit Court could consider the argument.

It seems to me that if this is seriously enforced, it would do serious damage to meaningful freedom of association, since the freedom to associate with those of like mind necessarily means the freedom to exclude those who are not of like mind. Obviously, we put limits on that freedom, but still, tossing it out the window entirely does not seem like a rational move. Justice Anthony Kennedy’s concurring opinion may prove important here:

In it, Kennedy said that CLS would have a substantial case “if it were shown that the policy was either designed or used to infiltrate the group or challenge its leadership in order to stifle its views.”

This isn’t just a theoretical possibility, either.

The spectre of students organizing to take over the leadership of groups they don’t like has already happened at Central Michigan University, said David French, senior counsel at the Alliance Defense Fund and director of the ADF’s Center for Academic Freedom. It’s a strong possiblity at any school with a policy like the one at Hastings, he said in a blog post.

“By emphasizing the value of dissent within groups, the Court ignores the fundamental reality of an all-comers policy: Distinct student organizations exist at the whim of the majority,” French wrote. “If ‘all comers’ can join, then the majority can override the speech of any student group. Thus the true marketplace of ideas exists by the permission (or, more likely, apathy) of the majority. The potential for minority or disfavored groups at schools with an all-comers policy to self-censor to avoid controversy—and potential hostile takeovers—is high.”

This is truly problematic, and an unhappy indicator of where the Court might be moving. But on the bright side, at least, this decision will make it hard for the Congressional Black Caucus to exclude Tim Scott when he wins his House seat this November down in South Carolina . . .

A victory for the rising tide

Posted on 26 June 201019 October 2015 by Rob Harrison | 2 Comments

I put up a post a few months ago arguing that the effort by corporations to use copyright law as a club to try to control people’s behavior is both philosophically problematic and economically counterproductive; the evidence shows, I believe, that they’re better off letting the market work than trying to over-regulate it. As I noted, though, corporations would rather regulate competition out of the way than have to actually compete, and they would rather try to control the market by regulation than have to rely on making a better product or selling it more cheaply. Thus we had, for instance, Viacom suing YouTube to try to force YouTube to remove any videos that might infringe on copyright law; as Farhad Manjoo writes in Slate,

a ruling in Viacom’s favor would have much wider repercussions. It would shift the balance of power between Web companies and entertainment companies, requiring sites to essentially ask permission or seek licenses from Hollywood and the music labels before innovating. Some of the world’s biggest Internet companies—not just YouTube, but also Facebook, Amazon, Yahoo, eBay, Flickr and others—would never have been able to get off the ground had they been required, as struggling startups, to constantly police their networks for potentially infringing material.

Interestingly, though, Viacom didn’t win—not at this stage, anyway; Judge Louis Stanton of the U.S. District Court for the Southern District of New York granted YouTube’s motion for summary judgment. Their policy has been to let copyright holders advertise alongside their content, and to take that content down if the copyright holder asks, and the judge decided that’s good enough. Viacom appealed, of course, but Judge Stanton has given us an all-too-rare victory for common sense; here’s hoping the decision stands.

Good work by Justice Stevens

Posted on 25 May 201019 October 2015 by Rob Harrison | No Comments

who wrote the opinion for the Supreme Court’s unanimous decision in American Needle v. NFL. It was an interesting case, turning on the question of whether the NFL is a single corporate entity or a collection of competing corporations, and one with potentially huge ramifications. Had the Court upheld the NFL’s claim and allowed them to act as a single corporation, it would have been an immense transfer of power to the NFL which probably would have drastically weakened the players’ union; but in denying that claim (as they did, and rightly) there was the potential to significantly weaken the league. Justice Stevens’ ruling, from what I can see, did an excellent job of maintaining the necessary balance, laying a clear legal foundation for the NFL as a collection of competing corporations which must by the very nature of their business act cooperatively and collectively in much of what they do. As Doug Farrar sums it up,

Stevens basically said that the Supreme Court, and any other Court, would test function rather than form and avoid absolute impingement of any collective activity taken on by the teams,. But any act in concert with an eye on the evasion of antitrust law would not be allowed or exempted. In effect, as Berthelsen intimated in his statement, the NFL must operate under the same constraints as almost any other business. It was a sound and reasoned ruling that penalized neither side.

Nice job of threading the needle, that.

On abortion and the political divide

Posted on 9 October 200920 October 2015 by Rob Harrison | 6 Comments

I was thinking this morning about one of the odder facts of recent American political history: the flip-flop in positions on abortion between the parties. Up into the ’60s, the Democratic Party was firmly pro-life, as hard as that may be to believe now. In large part, I imagine, that was due to the fact that Catholics were as firmly in the Democratic camp as blacks are now, and the Catholic Church has always been strongly pro-life—in fact (here’s another thing that sounds bizarre now), when Roe v. Wade was handed down in 1973, the decision was applauded by the leadership of the Southern Baptist Convention(!) on grounds of religious freedom. Abortion was seen as a Catholic issue; the SBC interpreted Roe as a victory for Protestants over Catholics, and thus (by their anti-Catholic logic) as a freeing of the law from Catholic influence. Beyond that, though, it was generally understood that the logic of liberalism and its emphasis on social justice meant defending the rights of the unborn.

Within a very short time, though, that all changed, and the pro-life movement found itself entrenched within the Republican Party instead. Why? Well, part of that is probably the rise of the Catholic Right—noted traditional Catholic William F. Buckley launched National Review in 1955, and though not an overtly Catholic magazine, it’s always had a definite Catholic character to it—but the shift came nearly two decades later; at most, the rise of the Catholic Right gave Catholics who left the Democratic Party someplace to go. It doesn’t explain why they left, nor why many non-Catholics went with them. Take the Rev. Richard John Neuhaus, who as a Lutheran pastor in NYC was a leading intellectual light on the Left in the ’60s, involved in the civil rights movement and an intimate of the Rev. Dr. Martin Luther King Jr.; how is it that by the ’80s, he was one of the most influential thinkers and leaders in this country on the Right?

The answer is that after Roe, the parties reconfigured themselves. As Princeton’s Robert P. George tells the story,

Neuhaus opposed abortion for the same reasons he had fought for civil rights and against the Vietnam War. At the root of his thinking was the conviction that human beings, as creatures fashioned in the image and likeness of God, possess a profound, inherent, and equal dignity. This dignity must be respected by all and protected by law. That, so far as Neuhaus was concerned, was not only a biblical mandate but also the bedrock principle of the American constitutional order. Respect for the dignity of human beings meant, among other things, not subjecting them to a system of racial oppression; not wasting their lives in futile wars; not slaughtering them in the womb.

It is important to remember that in those days it was not yet clear whether support for “abortion rights” would be a litmus test for standing as a “liberal.” After all, the early movement for abortion included many conservatives, such as James J. Kilpatrick, who viewed abortion not only as a solution for the private difficulties of a “girl in trouble,” but also as a way of dealing with the public problem of impoverished (and often unmarried) women giving birth to children who would increase welfare costs to taxpayers.

At the same time, more than a few notable liberals were outspokenly pro-life. In the early 1970s, Massachusetts Senator Edward M. Kennedy, for example, replied to constituents’ inquiries about his position on abortion by saying that it was a form of “violence” incompatible with his vision of an America generous enough to care for and protect all its children, born and unborn. Some of the most eloquent and passionate pro-life speeches of the time were given by the Rev. Jesse Jackson. In condemning abortion, Jackson never failed to note that he himself was born to an unwed mother who would likely have been tempted to abort him had abortion been legal and easily available at the time.

The liberal argument against abortion was straightforward and powerful. “We liberals believe in the inherent and equal dignity of every member of the human family. We believe that the role of government is to protect all members of the community against brutality and oppression, especially the weakest and most vulnerable. We do not believe in solving personal or social problems by means of violence. We seek a fairer, nobler, more humane way. The personal and social problems created by unwanted pregnancy should not be solved by offering women the ‘choice’ of destroying their children in utero; rather, as a society we should reach out in love and compassion to mother and child alike.”

So it was that Pastor Neuhaus and many like him saw no contradiction between their commitment to liberalism and their devotion to the pro-life cause. On the contrary, they understood their pro-life convictions to be part and parcel of what it meant to be a liberal. They were “for the little guy”—and the unborn child was “the littlest guy of all.”

It seems strange to think that some of the justices who crafted Roe and its successor decision, Doe v. Bolton, were considered conservatives and considered themselves to be acting on conservative principles, but it’s the truth. The decision, however, galvanized reactions, as all major decisions do, producing shifts in the political landscape:

By 1980, when Ronald Reagan (who as governor of California in the 1960s had signed an abortion liberalization bill) sought the presidency as a staunchly pro-life conservative and Edward Kennedy, having switched sides on abortion, challenged the wishy-washy President Jimmy Carter in the Democratic primaries as a doctrinaire “abortion rights” liberal, things had pretty much sorted themselves out. “Pro-choice” conservatives were gradually becoming rarer, and “pro-life” liberals were nearly an endangered species.

This, combined with the movement to re-ideologize American politics that began in earnest in 1968, is probably the most important fact in creating the political landscape as we know it.

One further thought: what of the Rev. Dr. King? He was a man who knew his history, who knew that part of the drive behind Planned Parenthood and the promotion of legalized abortion was the eugenicist impulses of white racists like Margaret Sanger who believed that “Colored people are like human weeds and are to be exterminated”; he was also, inarguably, a man of great moral courage. He’s generally thought of now as a man of the Left, and certainly had moved in that direction in a number of ways in the last few years of his life—but would he have followed the Left’s migration on the abortion issue, helping to realize Sanger’s vision of a self-inflicted black genocide? I could be wrong—I could always be wrong—but I don’t think so. Whether he would have shifted rightward with his friend the Rev. (and later Fr.) Neuhaus on economic issues is an imponderable, but I believe the man who stood so powerfully for the civil rights of people with dark skin would have stayed with Fr. Neuhaus in standing powerfully for the civil rights of the unborn. It may well be that the greatest loser in the Rev. Dr. King’s assassination was the pro-life movement then still unborn.

Reflections on Obamacare as potential law

Posted on 15 September 200921 October 2015 by Rob Harrison | No Comments

The great misnomer in the health care “reform” debate comes in references to “the health care bill” or “the health care plan.” There is no one health care bill, and no one health care plan. There are various versions of legislation, and much yet to be decided, and probably whole sections that haven’t been written. There is in no reasonable sense one coherent piece of legislation.

More importantly, though, even when there is, and even if it passes, we still won’t be that much clearer on what the law is. Randall Hoven explains:

Let’s just say that you use HR 3200 as a surrogate for Obama’s plan. It definitely has words—1,017 pages worth. Here is what Congressman John Conyers said about it.

What good is reading the bill if it’s a thousand pages and you don’t have two days and two lawyers to find out what it means after you read the bill?To appreciate this statement, you should know that Conyers has been in Congress since 1965; only John Dingell, the bill’s sponsor, has served longer in the House. You should also know that Conyers has a law degree. And now he is chairman of the House Judiciary Committee.

If a legislator of 44 years, himself a lawyer and in fact chair of the judiciary committee, along with two other lawyers cannot figure out what this bill means, what hope do you, or I, or any “neutral” fact checker have of figuring it out?

William Jacobson, a professor of law at Cornell Law School, chronicled his efforts to understand this “dense House bill” in the American Thinker. He used a “dartboard” method to randomly select pages to analyze, stopping after seven such pages. “I will try to explain what the section and provisions on the page mean. There is no guarantee that I will be able to do so, as some of these provisions may be incomprehensible.”

“Incomprehensible” to a law professor. Also incomprehensible to an experienced legislator and lawyer working with other lawyers. Yet we are supposed to believe, say, the Huffington Post, when it interprets Obama’s health care plan for us?

This is not just a health care issue; it is an issue with all modern legislation. That is, the legislation passed by Congress and signed by a President become ink blots for those left to interpret it in the future. The money to fund the legislation is quite real, but the meaning of the legislation is more like quantum mechanics: there is no “there”, just probability distributions.

In other words, whatever plan passes (if a plan passes at all) won’t be “law” in the sense that we usually think of; it will, rather, be only an approximation. The way things work these days, we might think we know what the law means, but we really don’t until the courts are done making up their collective mind how they want to rewrite—err, I mean interpret—it.

This isn’t the only issue that arises, either, when we stop to consider Obamacare not as a political issue but as a potential addition to the law code. There is in fact a more significant one: is it even constitutional? Retired attorney and constitutional law instructor Michael Connelly, having read all of HR 3200, doesn’t think so:

This legislation also provides for access by the appointees of the Obama administration of all of your personal healthcare information, your personal financial information, and the information of your employer, physician, and hospital. All of this is a direct violation of the specific provisions of the 4th Amendment to the Constitution protecting against unreasonable searches and seizures. You can also forget about the right to privacy. That will have been legislated into oblivion regardless of what the 3rd and 4th Amendments may provide.

If you decide not to have healthcare insurance or if you have private insurance that is not deemed “acceptable” to the “Health Choices Administrator” appointed by Obama there will be a tax imposed on you. It is called a “tax” instead of a fine because of the intent to avoid application of the due process clause of the 5th Amendment. However, that doesn’t work because since there is nothing in the law that allows you to contest or appeal the imposition of the tax, it is definitely depriving someone of property without the “due process of law.”

So, there are three of those pesky amendments that the far left hate so much out the original ten in the Bill of Rights that are effectively nullified by this law. It doesn’t stop there though. The 9th Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The 10th Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are preserved to the States respectively, or to the people.” Under the provisions of this piece of Congressional handiwork neither the people nor the states are going to have any rights or powers at all in many areas that once were theirs to control.

Much has been made, and quite properly, of the fact that the President wants to transfer 1/7 of the American economy to government control; but if Hoven and Connelly are right, that’s only the lesser danger. The greater danger is the corrupting effect HR3200 (or more likely, its descendant) would have on our laws and our political process. It’s a funny thing, when a Republican was in the White House, the Democrats raged against the “imperial Presidency”; but when it’s one of their own, they’re happy to go along with an absolutely unprecedented power grab by the Executive Branch. They must not figure they’re ever going to lose another election.

Is Judge Sotomayor the best conservatives could hope for?

Posted on 27 May 200923 October 2015 by Rob Harrison | No Comments

On reflection, I think so. It was obvious from the beginning that Barack Obama was going to pick a woman to replace David Souter, which of course meant a liberal woman. While there were rumblings that he might name a non-judge such as Michigan Governor Jennifer Granholm or Homeland Security Secretary (and former Arizona governor) Janet Napolitano to the vacancy, the smart betting seemed to have it going to one of three people: Solicitor General Elena Kagan (the former dean of Harvard Law School), Judge Sonia Sotomayor, and Judge Diane Wood. Of the three, the most talked-about leading up to the nomination was Judge Wood, which made perfect sense to me since she’s the one who worried me the most; I don’t really want any of these folks on the Court, but given the likely options, I was hoping vaguely for Solicitor General Kagan, who seems to me to be the most reasonable of them.

As for Judge Sotomayor, she’s not only hard-left, she’s also a comparative lightweight (not that she’s not a very bright woman, just that she’s not in the same ballpark as, say, Diane Wood, or Antonin Scalia) and so when she was announced as President Obama’s pick, I was more than a little non-plussed; sure, she’s qualified, but hardly the best-qualified nominee, even off that very short list. Her record at the 2nd Circuit Court is uninspiring, to say the least, as Ed Morrissey notes:

The current court, including Souter, has already heard oral arguments on [Ricci v. Destefano]. They should rule on this before the end of their current session, which will come next month. If they overturn Sotomayor, that will emphasize both her incorrect decision on the merits as well as a lack of intellectual curiosity, an issue raised by her colleague Judge Cabranes.

A reversal on Ricci will raise the issue of the several reversals Sotomayor has received over her 11 years on the 2nd Circuit (the Washington Times says she bats .400 at the Supreme Court—not a confidence builder). The Supreme Court has reversed her at least four times already, at least one of those a unanimous 8-0 reversal, which makes her look either more liberal than anyone currently on the court or less competent. One of the times the court upheld Sotomayor, the majority scolded her for misrepresenting the statute in her opinion.

So why did President Obama choose her? Part of it was no doubt the identity-politics aspect of naming the first Hispanic to the court, along with the third woman. Part of it may well have been that he thought she was a safer nominee. It will almost certainly take Democratic defections to sustain a filibuster, which isn’t at all likely under normal conditions, but there’s been the suggestion that Judge Wood’s recent record on national-security issues was a red flag; the recent refusal by the Senate to support the closure of the Guantanamo detention center suggests that if Judge Wood’s views on national security worried the Blue Dog Democrats enough, a successful filibuster might be possible. Judge Sotomayor might lack the sheer intellectual firepower of Judge Wood, but she’ll be an equally reliable liberal vote and the identity politics works in her favor. Since the president will have a reasonable shot at filling three slots on the court over the course of this term, it appears he decided to take a safer and more politically appealing course for his first shot.

Now, this isn’t to say that Judge Sotomayor has no baggage; she does, and particularly the following remarks:

All of the legal defense funds out there, they’re looking for people with Court of Appeals experience. Because it is—Court of Appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don’t “make law,” I know. [audience laughter] Okay, I know. I know. I’m not promoting it, and I’m not advocating it. I’m, you know. [audience laughter] Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. Its interpretation, its application.

That line came from a 2005 panel discussion at Duke; I think Michael Eden is right to say from this that “Sotomayor clearly acknowledges her view, even as she recognizes how radical and wrong it is, and therefore says the pro forma things to cover [herself].” The other much-quoted passage of her thought will likely be this one, from a 2001 speech at Berkeley:

I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that—it’s an aspiration because it denies the fact that we are by our experiences making different choices than others. . . .

Our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am also not so sure that I agree with the statement. First, as Professor [Martha] Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.

From this, one can see why some Republicans are talking filibuster; but barring the unforeseen, it won’t work. They wouldn’t keep Maine in the fold on filibustering Judge Sotomayor, and these sorts of issues aren’t going to cause mass Senate defections. Aside from discovering that she’s five years in arrears on her taxes, or something like that, Judge Sotomayor will be Justice Sotomayor as soon as the appointed time arrives.

And for that, I think the GOP should be grateful; if they did somehow manage to block her nomination, I believe they’d end up regretting it. As a matter of pure Realpolitik, Barack Obama is going to put a liberal in that seat and that’s all there is to it; the only question is whatkind of liberal he’ll put there. Given that, I think the party and its leaders need to listen very carefully to Jonathan Turley’s complaints about the nomination (video below):

You know, we are not selecting a house pet. We’re selecting a Supreme Court justice and as an academic I have a certain bias. And that is does she have the intellectual throw weight to make a difference on the court? And I have to tell you the optics are better than the opinions in this case. I’ve read a couple of dozen of her opinions. They don’t speak well to her being a nominee on the Supreme Court. . . . I think that a lot of academics are a little bit disappointed. I am in the sense that Diane Wood, Harold Koh, were not the ultimate people to prevail. These are people that are blazingly brilliant. They would have brought to the court intellects that would frame in the conceptual way. . . .

I’ve read roughly about 30 of these opinions. She has a much larger library of opinions. But they are notable in one thing and that it’s a lack of depth. There’s nothing particularly profound in her past decisions. She’s been a judge a long time. That’s opposed to people like Judge Wood on the 7th Circuit and she was viewed as a real intellectual powerhouse. You really can’t read the opinions of this nominee and say, “Oh yeah, this person is a natural choice for the Supreme Court.” . . . I have to say that liberals obviously are enjoying rightfully a certain short term elation with this twofer, a woman and a Latina, being put on the court. But in terms of long term satisfaction she does not naturally suggest that she is going to be the equal of Scalia and I think that was the model for liberals. They wanted someone who would shape the intellectual foundations of the court. Her past opinions do not suggest that she is like that. . . .

Ultimately questions about empathy and temperament are less important than whether this person is going to have a profound impact to help shape the court and this nominee really doesn’t have a history to suggest that.

Dr. Turley is unhappy because in his estimation, Justice Sotomayor is unlikely to be anything but a vote on the Court. She’ll be a reliable leftist vote, to be sure, but she will probably have little effect on the votes of her colleagues—a point which is supported by how unpersuasive they’ve tended to find her reasoning as it’s come to them in her opinions from the 2nd Circuit. President Obama had the chance to nominate a liberal who would not only be a vote, but would influence the overall direction of the court; as far as we can tell at this point (which is, admittedly, never as far as we think it is), Sonia Sotomayor will not be that kind of justice. For that, Republicans should be thankful—and should hope that somehow the political climate changes enough between now and the next Supreme Court vacancy that the president will have to nominate someone more moderate.

And in that hope, this nomination may well be useful. The concerns about Judge Sotomayor won’t be enough to create Democratic opposition, but they may help the GOP make its case to the electorate, as Ed Morrissey argues:

The Republicans have an opportunity with Sotomayor that doesn’t involve knocking her off the court. They have an opportunity to use the hearings to show Sotomayor as a routine appellate jurist with a spotty record who got elevated to this position as an act of political hackery by a President who couldn’t care less about his responsibilities to find the best and brightest for the job. Like many of Obama’s other appointments, it demonstrates a lack of executive talent and intellectual curiosity on his part. This appointment makes an argument for more Republicans in the Senate after the midterms, if for no other reason than to force Obama to start putting a little effort in making his nominations.

Taken all in all, as a conservative, I don’t like the pick, but I think it could and should have been a lot worse. Given that elections have consequences, and wipeouts have big consequences, that’s practically the best-case scenario.

Projecting an Obama presidency

Posted on 11 October 200818 October 2015 by Rob Harrison | 8 Comments

I noted yesterday that I expect Barack Obama to win in November. I’m not one of those who think the race is over, not by a long shot—I’m just skeptical about the McCain campaign’s ability and will to make its case, especially after blockheaded moves like writing off Michigan. The key, I think, is that they haven’t been able to convince enough people that Sen. Obama isn’t a centrist (and aren’t likely to do so), even though on all the evidence, he isn’t. He’s a gifted politician at letting people believe of him what they want to believe, and people would prefer to believe that he’s “a uniter, not a divider” (for all that, I’d prefer to believe it); John McCain hasn’t succeeded in convincing enough people otherwise to win.The thing is, unlike George W. Bush, who did have a record of working in bipartisan fashion in Texas, Sen. Obama has no such record; and if such talk from the bipartisan Gov. Bush didn’t translate to results in his presidency, how much less should we expect true bipartisanship from a President Obama?Perhaps the most interesting indicator on this came during the debate when Sen. McCain said of Sen. Obama, “It’s hard to reach across the aisle from that far to the left.” Sen. Obama’s response: “Mostly that is me just opposing George Bush’s wrongheaded policies.” He seems to have thought that was a good comeback—as did others, from the post-debate commentary—but it wasn’t; in point of fact, it was a concession, one which offered a real insight into Sen. Obama’s mind. What he said in effect was, “You can’t expect me to be bipartisan when confronted with policies with which I disagree.” Granted, one must be careful not to push one sentence too far, and certainly absolutizing it would be unjustified; but the attitude expressed in that line is the exact antithesis of true bipartisanship. It’s the attitude that defines “bipartisanship” as “I’ll work with them when they’re not wrongheaded”—which tends to boil down to “when they do most of the compromising.” And given that George W. Bush wasn’t really all that conservative, it’s not like Sen. Obama (and the rest of the congressional Democrats) were being asked to reach a long way across to the right. But then, as Stanley Kurtz notes, this is the pattern for Barack Obama:

Obama’s vaunted reputation for bipartisanship is less than meets the eye. The Illinois legislature has long been home to a number of moderate Republicans, less fiscally conservative than their colleagues, many from districts where the parties are closely balanced. It was easy enough to get a few of these Republicans to sign onto small, carefully tailored spending bills directed toward particularly sympathetic recipients. The trouble with Obama’s bipartisanship is that it was largely a one-way street. Overcoming initial opposition from Catholic groups, for instance, Obama cosponsored an incremental bill on abortion, requiring hospitals to inform rape victims of morning-after pills. Yet rejecting compromise with the other side, Obama voted against bills that would have curbed partial-birth abortions. In other words, Obama is bipartisan so long as that means asking Republicans to take incremental steps toward his own broader goals. When it comes to compromising with the other side, however, Obama says “take a hike.” Obama voted against a bill that would have allowed people in possession of a court order protecting them from some specific individual to carry a concealed weapon in self-defense. The bill failed on a 29-27 vote. Bipartisanship for thee, but not for me: That’s how Obama ended up with the most liberal voting record in the U.S. Senate.

This all suggests that all the post-partisan language we heard from Sen. Obama ca. 2004 is unlikely to be reflected in an Obama presidency—especially since whatever his talk, Nancy Pelosi and the rest of the House and Senate Democrats aren’t running on promises of bipartisanship. They’re going to want to press their agenda, and who gives a hang what the GOP wants. As a consequence, if President Obama wants to get bills passed—and he will, as every president does, because that’s how presidents have “accomplishments” and “legacies”—it will have to be the bills they want, on their terms; Speaker Pelosi, Senate Majority Leader Harry Reid, and the rest of the Democratic powers on the Hill will take up their pipes and fiddles, and President Obama will dance to their tune. Speaker Pelosi will be the dominant figure in national politics (since I expect Majority Leader Reid to turn out pretty clearly as second fiddle to her first), and it will be her agenda driving the bus.Now, this might be a pretty stiff conclusion to draw, but there are several good reasons to think that this is how it will go. First, as Dick Morris pointed out three months ago, this is what happened to Bill Clinton in 1993, even though the congressional Democratic caucus was considerably less liberal then than now (for example, the Speaker of the House was Tom Foley of conservative eastern Washington, not Nancy Pelosi of liberal San Francisco) and the new president was a former governor who was used to working with a legislature. Clinton couldn’t “triangulate” with his own party firmly in control on the Hill, and so

as he took office as president, Bill Clinton found no alternative but to move dramatically to the left, shelving for the moment his promises of a middle-class tax cut and welfare reform. He had no choice.The Democratic majorities in both Houses served him with notice: Either you stay within the caucus and not cross the aisle in search of support for centrist policies, or we will do unto you what we did to Jimmy Carter when Tip O’Neill turned on him and made his life miserable.

If Gov. Clinton couldn’t govern as a centrist with the Democratic Congress of 1993-94, it’s almost inconceivable that Sen. Obama will be able to do so with the even more liberal Democratic Congress we will likely have in 2009. For one thing, he doesn’t have the experience in how to get his own agenda through a legislature; for another, despite all his use of centrist language, Sen. Obama has no observable record of centrist political impulses, much less achievements. (Indeed, he has little record of achievements at all, but we’ll get to that in a minute.) That’s why Stanley Kurtz, in his extensive examination of Sen. Obama’s years as a state senator, says he’s “fundamentally . . . a big-government redistributionist”:

Obama’s overarching political program can be described as “incremental radicalism.” On health care, for example, his long-term strategy in Illinois was no secret. He repeatedly proposed a state constitutional amendment mandating universal health care. Prior to the 2002 budget crisis, Obama’s plan was to use the windfall tobacco settlement to finance the transition to the new system. That would have effectively hidden the huge cost of universal care from the taxpayer until it was too late. Yet Obama touted his many tiny expansions of government-funded health care as baby steps along the path to his goal. The same strategy will likely be practiced-if more subtly-on other issues. Obama takes baby-steps when he has to, but in a favorable legislative environment, Obama’s redistributionist impulses will have free rein, and a budget-busting war on poverty (not to mention entitlement spending) will surely rise again.

As such, where President Clinton does seem to have been at least someone uncomfortable with the line he had to toe at the beginning of his term (judging by the way he moved toward the center once the reality in Congress changed), Sen. Obama is likely to be quite comfortable with that agenda. (He has, after all, supported it 97% of the time in the Senate when he’s bothered to show up to vote.) The reality of bipartisanship can be expected to disappear on all important matters (except perhaps when congressional Democrats want to be able to blame Republicans for an unpopular necessity), leaving behind only the language—which will likely be used primarily to bash Republicans as obstructionist for not going along with the program.This is especially true given that Sen. Obama has no record of resisting his own party. Rather, he’s been a machine politician for his whole political career; it was the Chicago machine that helped create him, and its own rules by which he played to force Alice Palmer out of his way in his first election, and he’s never once stood up to it. He’s never challenged it, or questioned it, or even really sought to influence it in any way. He even endorsed Richard Daley for re-election as mayor, which was perhaps the one time he really disappointed his liberal supporters in Chicago (since Mayor Daley’s an old-school Democrat, not a modern liberal Democrat), because he’s the boss and you don’t mess with the boss. Then down in Springfield, when even Illinois politicians call their state “one of the most corrupt at this point in the United States,” he claimed to make a difference, but nothing really changed, except that he contributed to the growth in spending that has led to severe budget problems in Illinois. Indeed, even now that he’s out of that environment, his state’s junior U.S. Senator and his party’s presidential candidate, he still didn’t want to stand up to the political bosses, like his mentor Emil Jones, the president of the Illinois State Senate; when asked to use his influence to help resurrect an important ethics bill aimed at reducing the corruption in Springfield, he initially refused; it was only when coverage in the Chicago papers made that problematic that he changed his mind and asked his old mentor to reconsider the issue. The other concern that I see here is in the words and attitudes of Speaker Pelosi, Harry Reid, Charles Schumer, and other senior Dems. Every time they open their mouths, I’m a little more convinced that they don’t see Sen. Obama as the leader of their party, but as the instrument through whom they intend to accomplish their purposes. Whether it’s Sen. Schumer declaring that Sarah Palin’s “lack of experience makes the thought of her assuming the presidency troubling” while remaining serenely untroubled by Sen. Obama’s lack of experience (which makes me think that the subtext is “he’s just out front running the campaign; when it gets down to brass tacks, it will really be Uncle Joe running the show”), or Majority Leader Reid calling on Sen. McCain as essential to help solve the financial crisis while essentially ignoring Sen. Obama, I just don’t see any reason to believe that these folks take their own nominee, the presumptive head of their party, seriously. I’m increasingly of the mind that they see him as the PR-flack-in-chief, the appealing face they want to put on the front of their agenda, nothing more—and if he should try to break out of that role and stand up to them, they’ll punish him for it.As a result, I have four substantive concerns about an Obama presidency. Two might be described as “conservative concerns”—things I don’t want to see because I’m conservative in my thinking that those who are liberal will welcome. The other two I think can fairly be called general concerns, because they’re things that it seems fair to assume liberals wouldn’t want to see happen either.One, I expect to see a hard-Left turn on social issues, including a significant reshaping of the federal judiciary. This, I think, is Reward #1 President Obama will owe his base, and one which he’ll be happy to give them; based on past performance, I expect the Senate GOP to roll over for this process and present their collective belly in submission. Obviously, liberals will be glad to see an administration committed to abortion on demand, expansion of gay rights, the submission of our Constitution to international opinion, etc.; I won’t.Two, I expect to see a hard-Left turn on economic issues. Hugh Hewitt did an excellent job of laying out what this will look like in his post “President Barack Hoover”; I don’t see any need to reinvent the wheel (especially when I couldn’t do half as well at it), so I’ll just encourage you to read it, with this comment: the core of Hewitt’s post is the reality that Sen. Obama’s announced agenda, if he puts it into practice (and I believe Speaker Pelosi et al. will hold him to it), will be a recapitulation of the mistakes President Hoover made that played a major role in turning a stock-market crash into a depression. This is a very real possibility, and I believe is a major reason why the markets are continuing to perform poorly: they expect Sen. Obama to win, just as I do, and they expect him to put his plan into effect, just as I do. Thus his own plan helps drive the economic crisis that will help him win, which is another neat little irony. Still, again, I realize that the Left has a different view on this than I do; we’ll see who’s right. I’ve certainly never claimed to be infallible, but I think the record of the last eighty years bears me out: raising taxes in a crisis brought a depression; the Reagan tax cuts started a long period of growth (not uninterrupted, but an upward trend for a long time) that has benefited everyone. Yes, we still have a lot of people who are poor by comparison to society as a whole—but materially, those who are poor today are a lot richer than the poor of thirty years ago.Three, I believe the approach we’ve seen from the Obama campaign to dissent and criticism will be repeated in the policies and responses of an Obama-led Executive Branch; given the clear willingness of his campaign to suppress freedom of speech to prevent criticism of their candidate, I believe we’ll see the same willingness from his administration and his chief congressional allies. This will mean a surge in the kind of the strongarm political tactics that we’ve already seen entirely too often this year. The thin part of the wedge will be the reinstitution of the “Fairness Doctrine” as a political/legal weapon to silence conservative talk radio and the pundits of Fox News. (Given what you can do with the Internet these days, I don’t think it will actually work to any significant degree; if that drives the Dems in Congress to try to regulate Internet speech, we could really be in for a battle royale.) Now, given that many American liberals want to see the return of the “Fairness Doctrine,” it may be optimistic of me to call this a general concern; it could turn out that liberals as a class are perfectly happy with censorship and political thuggery as long as it’s only used against people with whom they disagree. Certainly that has proven to be the case in other countries. This isn’t Canada, however, and I don’t think it’s likely to be any time in the near future; until proven otherwise, I think it’s necessary to give American liberals credit that their commitment to freedom of speech is real, and thus believe that most of them will not be willing to tolerate and defend this sort of behavior over the long haul, even if carried out by politicians they otherwise support. I certainly hope they won’t, because the Obama campaign’s efforts to shout down Stanley Kurtz and David Freddoso (in an effort to intimidate Chicago radio station WGN into canceling their appearances on Milt Rosenberg’s show) ought to be disturbing to anyone who cares about free speech. Of even greater concern should be the Obama “truth squads” in Missouri, where the campaign enlisted allies in public office to threaten prosecution of any TV station that runs any ads about Sen. Obama that the campaign deems untrue. Not only is this approach outrageously biased (one side’s allowed to lie, but the other isn’t?), it gets into some very grey areas about interpretation and intent, and thus raises some real concerns as to the approach an Obama Department of Justice might take to the First Amendment. This kind of approach, like Joe Biden’s suggestion that an Obama/Biden administration might prosecute the Bush administration, is nothing more nor less than the use (or threat of use) of political power to punish one’s opponents, intimidate critics, and silence dissenters; it’s the sort of thing we’re used to seeing in Zimbabwe, not here—and as the case of Zimbabwe shows, there’s nothing, not even money, that can corrupt a democracy faster, or more severely. I’ve argued before that one of the great problems with our politics in this day and age is that we absolutize our own perspectives—we assume that our own perspectives and presuppositions are the only legitimate ones, and that those who disagree with us can’t possibly be doing so sincerely, but must be acting out of motives that are selfish or otherwise wrong. The criminalization of politics, which we’re starting to see urged by the Obama campaign, is a more extreme version of that problem, because it argues that those motives are not only wrong, but are in fact criminal in nature. The chilling effect of that sort of approach should be deeply worrisome not just to conservatives, but also to true liberals.Four, and clearly a matter of general concern: al’Qaeda is weakened badly but far from dead—they still have the ability to pull something, and there’s good reason to think they’ll try. They’ve tested each of the last two administrations with a major attack in the first year (even if the 1993 World Trade Center attack didn’t succeed), and they’re bound to repeat the pattern if they can. As Hugh Hewitt says, “International jihadism must sense this is a moment in which any strike they can muster would have enormous consequences for Western confidence,” which gives them a powerful motive. This will only be reinforced in the case of an Obama administration, because al’Qaeda will almost certainly be denouncing him as an apostate—they’ll have to follow up their propaganda with an attack. If I had to guess, I’d think they’ll target the DC area, some combination of the Pentagon, the Capitol Building and the White House; my fear would be that they’ll use suitcase nukes.If and when this happens, I predict that we’ll see the same sort of ineffective, dithering response from Obama/Pelosi/Reid and their foreign-policy advisors that we saw to al’Qaeda provocations during the Clinton administration. (Remember the cruise-missile attack on the pharmaceutical plant in the Sudan?) I say this for a couple reasons. First, the sort of thing we’ve seen from Sen. Obama on foreign policy has been stubbornly refusing to admit that the surge worked in Iraq; stubbornly refusing to admit that we’ve significantly weakened al’Qaeda through the fight in Iraq; failing to understand that Afghanistan is a nearly impossible place to fight a war; repeatedly publicly announcing his intention to violate Pakistani sovereignty should he be elected (and why is it OK to fight in Pakistan but not in Iraq?); proclaiming moral equivalence between invader and invaded when Russia launched its attack on Georgia, then changing his position a couple times; allowing his running mate to tell the Israelis that an Obama administration wouldn’t take any serious measures to prevent Iran from going nuclear; surrounding himself with people who don’t like Israel when Israel is our only firm, stable ally in the Near East; and proclaiming repeatedly that he will meet with enemy dictators face to face without preconditions. I don’t see any signs that he understands how to conduct foreign policy effectively, that he has the instincts to identify an effective response, or that he has the will to carry it out.A couple years into an Obama presidency, I expect to see someone write the same sort of article about him that James Fallows wrote about Jimmy Carter; like President Carter, Sen. Obama is bright, fluent, and well educated, but ineffectual. Indeed, he lacks even the modest record of achievement Gov. Carter could claim—he simply has no significant professional accomplishment at any level of life. He was chosen as president of the Harvard Law Review, but wrote virtually nothing for it, and while he was well-liked by everybody, this was in part because he avoided conflict and confrontation—leaving an impending crack-up to his successor. The results of his time as a community organizer were modest, at best. He ran the Chicago Annenberg Challenge, which conspicuously failed to improve Chicago schools. As a state senator, he authored no major legislation. In the U. S. Senate, the same is true. He claims his campaign as evidence of his executive ability, but the more we find out about his campaign, the less impressive that is; he’s spent a lot of money in places where he will get no significant return, his campaign staff run a disorganized, chaotic ship which makes it hard for the press accompanying them to do their job (though they dote on him despite the consistent disrespect they receive), and he can’t even keep his campaign plane from stinking. As Beldar says, this raises a real question: “If Obama can’t perceive that problem on his own campaign plane and see to it that even that problem is solved, why would you ever think he can handle the national economy or world affairs?”The funny thing is, behind all this is the reality that a McCain loss could be the best thing possible for the Republican Party. For one thing, a victory in this election won’t be the usual prize for the winner; far from it, in fact. As Gerard Baker argued in The Times just before the first debate,

It is highly probable that that moment, the very hour that he takes office, will be the high point of his presidency. Whoever wins on November 4 will be ascending to the job at one of the most difficult times for an American chief executive in at least half a century. . . . 2008 may be the best year there has been to lose an election.This sobering reality was startlingly underscored this week by none other than Tom Daschle, the former leader of the Senate Democrats, the national co-chairman of Mr Obama’s presidential campaign, and the likely White House chief of staff in an Obama administration. He told a Washington power breakfast that he thought the winner of the election would have a 50 per cent chance at best—at best—of winning a second term in 2012.

If my primary concern were the good of the GOP, I’d be rooting for a close but real loss for Sen. McCain—perhaps to see Sen. Obama just edge over the 50% mark. It might be fun to see the McCain campaign manage an Al Gore Special (a defeat in the Electoral College combined with a measurable lead in the popular vote) just to see all the lefty pundits who denounced the system eight years ago suddenly become its biggest fans, but that wouldn’t do. Eight years ago, that scenario left Democrats walking away thinking they didn’t need to change anything because they hadn’t really lost, and that attitude hurt them in 2002 and ’04. As Bill noted over on The Thinklings, the GOP really needs to take a long, hard look at itself, and then regroup, rethink, and reboot; and that’s not going to happen unless the party takes a defeat that its most influential folks have to admit is a defeat.Of course, one might think that a squeaker of a victory would spark the Democrats to similar humility, leading them to govern with caution and moderation; but I don’t see that happening. They’re too angry and eager, and the hard-Left wing of the party has the ascendancy—and they’re firmly committed to no-quarter politics. If they eke out a close win, I expect to see the pundits write it off as “well, that was just John McCain; against a real Republican, we would have blown ’em out,” and charge merrily off to do exactly what they want to do. If I’m right in the concerns expressed above, the result will be a backlash in 2010 at least as bad as the 1994 backlash that brought the congressional GOP to power at the midpoint of exactly the sort of disaster term that Gerard Baker was talking about, followed by another Republican in the White House in 2012. That’s the best-case scenario for the GOP, to be sure, but it’s clearly a far better case than anything a McCain victory in November could create; it’s also, however, a very bad case for the nation. (Worst case would be everything about this except the GOP taking inventory and cleaning up its act, thus giving us a return to power by a party that hadn’t learned anything from losing it.)That’s why—and you may not believe this, but it’s the absolute truth—when Sen. Obama wins in November, I’m going to be praying hard for him to make good, wise, godly decisions, to stand up to his own party—and win—to actually govern from the center and make room for the beliefs and opinions of those on the other side of the aisle; I’m going to be praying that he will respond adroitly and decisively to the crises he inherits, and promptly, forcefully, and wisely to the new ones that come along. I’m going to pray, in other words, for an Obama presidency to be a wise and clearly successful one (though I acknowledge that to some extent, I’ll be asking that he disappoint his own base in so doing), even though that’s not what would be best for the party I support. I have a lot of disagreements with Sen. McCain, but this is one thing on which I totally agree with him: when it comes to politics, it shouldn’t be party first, it should be country first.