Let Obama Get Overpaid To Talk At A Healthcare Conference – He Deserves It

Yesterday we learned that President Obama has accepted a $400,000 fee for speaking to a healthcare conference sponsored by the Cantor Fitzgerald investment bank. The level of outrage that greeted the news is completely ridiculous. Many on both the right and the left have leapt up to accuse him of hypocrisy, or of being susceptible to bribery by Wall Street. Elizabeth Warren tells us she is “troubled” by this speaking fee, saying “one of the things I talk about in [my] book (“This Fight Is Our Fight: The Battle to Save America’s Middle Class”) is the influence of money. I describe it as a snake that slithers through Washington and that it shows up in so many different ways here in Washington.” Indeed it is a terrible indictment of Washington that a former politician who is not a lobbyist and lives in Chicago might accept overpayment for speaking about healthcare, which, as everyone knows, is a policy area in which he has dabbled from time to time. Either the politicians claiming this is related to bribery are being disingenuous, or they fundamentally misunderstand the nature of the speaking circuit in which so many retired politicians participate.

This isn’t bribery, it’s a status contest

Warren’s linking of Obama to money in Washington is hysterical nonsense. Barack Obama is a private citizen who will never again run for public office (Hillary Clinton’s speeches were only controversial because she went back to Washington). You can’t bribe someone who doesn’t have the power to make laws. The people paying him to speak are not doing so to influence policy; they are doing so to prove their status and attract people to their healthcare conference. Rich organizations regularly pay former politicians and central bankers to speak on a wide variety of topics in order to attract movers and shakers to their events. These politicians’ speaking fees are proportionate to the importance of their former jobs. So Nick Clegg, the former leader of the Liberal Democrat party in the UK, commands a mere $48,000 (in avg 2015 dollars), Tony Blair, a former 2 term Prime Minister, commands $600,000. Bill Clinton, Rudy Giuliani, both George Bushes, Dick Cheney, Jeb Bush, Al Gore, Howard Dean, Ben Bernanke, and Alan Greenspan are all on the speech circuit. Some of these speeches are at fundraisers, like the charity fundraiser for veterans that paid George W. Bush $100,000, some for conferences, and some for corporate retreats. These fundraisers and conferences are paying these guys to say “we have a former US President at our conference, but our competition only has the former Mayor of New York – give us your money.”

These politicians speak to their areas of expertise

There is no indication any of them are saying something different from what they have always thought. Nicolas Sarkozy, former President of France, famously told the United Israel Appeal fundraiser’s audience that the international community must pressure Israel to take down the “walls of Jericho” with which it has surrounded itself and create a Palestinian state. Sarkozy had made the Middle East peace process (to the extent one exists) a central focus of his Presidency, and so a private group paid him to talk about his views on the issue. Given Sarkozy’s commitment to a 2 state solution, they shouldn’t have been surprised about what he said. Nor has there been any indication that Bill Clinton has given speeches inconsistent with his philosophy or that of his foundation. Clinton pretty much says what he wants – conferences that hire hire him don’t even necessarily get speeches on topic. The speech circuit is basically just a pissing contest between rich organizations to get the most revered former politicians and government officials to talk about their experience in a private setting once those politicians and government officials don’t have to worry about what they say in the Press (or at least don’t have to worry as much). The organizers and sponsors are using the draw of being “in the know” and having more private access to famous politicians to promote their events. As long as Obama does not abandon all his principles to pander to his audience, there is no justification for accusing him of moral bankruptcy or hypocrisy, as some on the left have done.

The Presidency is the worst job on earth, be glad someone is paying Obama for the years it took off his life

Anyone ever notice how rapidly our last three two-term Presidents have aged? They have the worst and most difficult job in the world. These men spent 8 years never really having a moment to themselves, making the most difficult decisions on earth (always imperfectly) and being publicly shamed and lambasted for every misstep, great or small. I don’t think any of us can truly understand what that does to a human being. There is no comparable job on earth, and no one goes into it fully understanding what it will do to them. Indeed, Donald Trump has and complained incessantly about how difficult the job is, and proved his assertion by being too incompetent to even nominate sufficient staff to run the government. Obama in particular suffered more illegitimate, prejudiced personal attacks than anyone before him, and he withstood it with grace. I don’t think there is any amount of money we could have paid him to compensate for that honorable self-restraint. If a bunch of status-seeking fools want to overpay him to give his opinion about his signature healthcare law, I think we should tell him to have at it. There are much more important things to worry about.

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The Arkansas Executions Prove Politicians, Not Courts, Must End The Death Penalty

This week, Arkansas is rushing to execute as many inmates as possible before the last of its death penalty drugs expire. The 8 men slated for execution were all duly convicted under Arkansas law, and all have had the chance to appeal their convictions. Nevertheless, death penalty opponents, civil rights attorneys, and media outlets expressed outrage that Arkansas would schedule executions based on an expiration date. These activists are focusing their outrage on the wrong target. The problem is not the unseemly speed with which Arkansas has scheduled executions; the problem is that the death penalty exists at all. Activists have been trying to use the courts to end it, and that isn’t going to work. To end the death penalty permanently, the Supreme Court would have to rule that all executions violate the 8th Amendment’s prohibition against cruel and unusual punishment. They are just not going to do that when 60% of the American public supports the practice. The only way to end the death penalty is to convince Americans it cannot be justly applied in a flawed, human criminal justice system.

The Court will only abolish the death penalty if Americans stop supporting it

Ever since the Supreme Court briefly struck down the death penalty in the 1970s, activists have primarily focused on the courts as a vehicle to end it permanently. However, the Court has only been been willing to restrict application of the death penalty, not prevent states from applying it at all. Although lawyers successfully stopped the death penalty in 1972 for being racially biased, the penalty was reinstated when the Court concluded colorblind standards had been imposed (though it has since become clear executions are not blind to race).  The prohibition on executing the legally insane (legal, not medical, terminology) is also just a limitation on how you execute a marginalized group, not on whether they can be subjected to the death penalty.  The Court’s jurisprudence says you can’t execute anyone while they are actively delusional, not that an individual with mental illness cannot be executed. This delightful piece of jurisprudence has led states to forcibly medicate inmates in order to put them to death. These piecemeal measures may prolong litigation, but they seldom prevent executions.

Only twice has the Court truly dealt a blow to the death penalty. In the first case, it struck down capital punishment for the “mentally retarded,” noting that public opinion polls consistently supported eliminating the practice (certain states, like Texas, keep trying to roll this one back). Two years later it eliminated the death penalty for juveniles. In both of these cases, the Court was following public opinion. All of the justices, including Justice Ginsburg, are very wary of making decisions that are too far ahead of the public. More importantly, the “cruel and unusual punishment” standard is linked to public opinion. The reason we cannot put misbehaving teenagers in the stocks is that the Court decided our society has evolving standards of what is cruel and unusual. As long as public polls show broad support for the death penalty (and they do – California, of all places, recently decided to keep it) the Court is not going to strike it down.

The courts follow the people, so someone else needs to lead them in the right direction

We have no other option but to make an argument to our fellow citizens that the death penalty cannot be justly administered under our system. To be persuasive, we have to pick one of the many valid arguments against the death penalty and promote it relentlessly (think of how successful the gay rights movement has been since they decided to focus all their efforts on the marriage narrative). Knowing that many Americans still believe in the “punishing” part of capital punishment, I don’t think arguing that the death penalty is an absolute moral wrong or that it has no deterrent effect will be a particularly promising strategy. Instead, we have to focus on the fate of an innocent man wrongly accused. We must explain why the execution of an innocent man is fundamentally inconsistent with the American conception of liberty and justice, and why such executions are inevitable in a flawed system.

How many innocent men will you kill to keep the death penalty?

Being for or against the death penalty comes down to this: do you believe a just society should let 10 guilty men go free rather than execute an innocent one? What about a hundred? What about a thousand? Our legal system goes to great procedural lengths to prevent conviction of the innocent. It is stacked in favor of the defendant because it is based on the premise that the state has immense power and should have overwhelming proof that a citizen has broken a law before depriving him of his life, liberty, or property. That is why we have a presumption of innocence. That is why we have juries – so one man does not have the power to deprive the accused of his rights in a potentially arbitrary manner (juries are actually far more effective than people usually think). Executing innocent men is antithetical to a jurisprudence so determined to protect the accused from the state.

However, such executions are inevitable under our system as it stands. All of our institutions are human, and we have discovered over the past 30 years that many people were convicted of capital murder, sat on death row for years before being exonerated. We have also learned that the human memory, and therefore all eyewitness testimony, is unreliable, that forensic experts can be unreliable, and that we all drop DNA evidence all over the place, rendering it less useful in the majority of murders where the victims know one another. Despite advancements, all criminal sentencing is still essentially the best educated (or sometimes uneducated) guess of one or more flawed human beings. It is the human flaws in our system that make the use of capital punishment inhuman. I do not often say this about fellow citizens, but anyone who cannot see that the inevitable execution of the innocent is a betrayal of our values does not understand what it is to be an American.

Shutting Down The Government Isn’t Just Stupid, It’s Ineffective

Donald Trump has decided that now is the time to withhold funding for Obamacare subsidies for millions of low-income Americans if he doesn’t get funding for his border wall. This is a typically asinine and pointless move on his part; for once, Democrats and Republicans in Congress seem to have been on their way to achieving a mutually beneficial deal without creating widespread collateral damage. Democrats’ reaction to this news was to promise they will shut down the government if funding for Trump’s border wall is included in the budget. No matter which party you support, this political brinksmanship with the basic functions of government has got to stop. If we were talking about a gross, unconstitutional threat to democracy like internment camps, there might be an argument in favor of a shutdown, but we’re not. We are talking about Trump insisting on pettily defunding a duly enacted federal program without repealing it, and the Democrats insisting on withholding funding for a stupid, pointless, expensive border wall that millions of Americans explicitly voted for. The integrity of the core institutions of government is more important than any policy goal. Holding the government hostage over partisan policy preferences erodes the structure of our Republic. More importantly, from a politician’s perspective, none of the shutdowns in the past 25 years benefited the fanatics who were responsible.

Newt Gingrich is a despicable megalomaniac and his gambit failed

Now, there were government shutdowns before Newton Leroy Gingrich came along, but they were in the order of 1-3 days. Even the first shutdown in 1995 wasn’t inconsistent with this history.  It lasted about 5 days.  However, Gingrich’s shutdown of 1995-1996 was a precedent-setting piece of political warfare that totally failed to achieve its goals. Gingrich initiated a standoff with Bill Clinton over which numbers Clinton had used to create his budget (Gingrich wanted him to use the Congressional Budget Office). Clinton, having produced a plan designed, as requested, to balance the budget in 7 years, refused to go back to the drawing board. On this basis, Gingrich shut down the government for 21 days. The American people were not impressed. Afterward, Republicans simply caved, and accepted Clinton’s proposal. The fact that the shutdown came after Gingrich felt snubbed during a ride on Air Force One did not help his reputation or make the shutdown more effective. Nevertheless, 17 years later, Republicans thought they’d have another crack at the shutdown strategy.

The Tea Party fell on its face trying to defund Obamacare

In 2013, the most fanatical tea party advocates in the House of Representatives advocated defunding Obamacare, since they did not have the ability to repeal it.  Over the summer of that year, tea party activists sent a barrage of phone calls and letters to members of Congress, demanding a government shutdown if Obamacare was not defunded. Senator Ted Cruz spoke for 21 hours on the Senate floor about his beliefs regarding shutdown. These developments forced even relatively moderate Republicans into going along with the party’s ideologues. Accordingly, the Republican House of Representatives shutting down the government for 17 days because it refused to fund the President’s signature domestic policy achievement. The shutdown ended when the Republicans were forced, due to widespread voter disapproval, to fund Obamacare. To add insult to injury, they were also compelled to raise the debt ceiling, or amount of debt the US government is able to repay, a particular bugbear of theirs during the Obama years. The shutdown was a total failure.

A failed strategy that damages government institutions is no strategy at all

It’s time to stop the madness. These ideological shutdowns don’t work! In this case, Congress seems to be working together, and Trump needs to stay out of it. Perhaps Trump is laboring under the delusion that he will get a popularity bump like Bill Clinton and Barack Obama did when the opposing party shut down the government. The trouble is, both of those men were trying to compromise with fanatics in Congress, not trying to insert poison pills into the negotiation at the eleventh hour. The Democrats seem to think taking a page out of the fanatics’ playbook is a great idea. It isn’t. In the last 25 years, Congress has never gotten its way from a shutdown. In our current political environment, I am vehemently opposed to drawing false equivalencies between the Democratic Party and the GOP under Trump. That said, if Congress fails to fund the government and shuts it down, I wish a pox on both their houses.

Jeff Sessions Declares War On Blue America

Like many Americans, I was surprised to learn that the fiftieth American state is just an island in the Pacific with a seriously uppity judge. Earlier this week, Attorney General Jefferson Beauregard Sessions III went on the Mark Levin show, a conservative talk radio program, and expressed bewilderment that a federal judge in Hawaii can interfere with the President’s constitutional prerogatives. Many on social media have excoriated Sessions for insulting Hawaii, and delighted in explaining the functions of the third branch of government to him. I certainly also feel moved to remind him that Hawaii was the only American state to suffer attack by a foreign adversary in the 20th century; if it was American enough for Tojo, it should be American enough for him. His home state of Alabama, in contrast, hasn’t seen action since it picked up its toys and went home because it couldn’t put slaves in Oregon.

Jeff Sessions didn’t attack a Hawaiian judge because he doesn’t understand the Constitution or historical significance of the state. As a former US attorney and Senator, he doesn’t need reminders about the power of the judiciary, and he remembers Pearl Harbor just fine. In fact, this fresh attack against poor Hawaii is part of an insidious effort to undermine the credibility of judges and lawmakers in Democrat-dominated states and cities. This strategy started during Trump’s campaign and shows no sign of stopping. Sessions’s statements are just the latest salvo in what appears to be a full on assault by the Trump Administration and its Justice Department not just on the judiciary as an institution, but on judges, residents, and policymakers in blue states.

Somehow, only blue state judges are “fake” and biased

Trump’s attacks on judges began during his campaign, when he accused Indiana-born California Federal District Judge Gonzalo Curiel of bias against him due to Curiel’s Mexican heritage and Trump’s blatant anti-Mexican rhetoric. Trump attacked Washington Federal District Judge James Robart as a “so-called judge” when he stayed Trump’s first travel ban, inviting criticism even from Trump’s own Supreme Court nominee. Now Sessions has attacked Hawaii Federal District Judge Derrick Watson for staying his second travel ban. All of these judges hail from reliably blue states. Notably, the judge in purple (formerly red) Virginia did not receive the same criticism. Sessions and Trump have not criticized red state judges who ruled against their policy preferences. Yesterday, the 5th Circuit Court of Appeals, the most conservative in the country, ordered Texas to pay $600,000 to the couples who fought their marriage ban. Likewise a Federal District Judge in Texas threw out Texas’s congressional redistricting map under the Voting Rights Act, which Sessions does not support. Trump and Sessions are not only attacking the judiciary – they are attacking the legal and political perspectives and rights of states held by the political opposition.

Sessions’s announced policies would endanger many residents of blue states and cities

The Trump Administration, particularly Jeff Sessions, has not stopped at attacking Blue State judges. He is reviewing consent decrees with police departments in Baltimore and Chicago – which are widely supported by the communities – saying that it is not the Justice Department’s job to intervene in this way, and it would rather enact policies to “support” the police. Fourteen cities across the country are under Obama-era consent decrees and are designed to reverse abuses in overwhelmingly Democratic and minority-dominated communities where the police have been particularly abusive. The consent decrees don’t exist in every city; they are designed to intervene to protect the civil rights and bodily safety of citizens who are put at risk by state government. His announced policy of reversing them can only be described as punitive to the most vulnerable urban citizens, who also happen to be the most reliable Democratic constituency.

Sessions has threatened economic attacks on blue states

Sessions has threatened to revoke federal funding for sanctuary cities, which decline to allow the federal government to deputize local law enforcement to carry out federal mandates. These cities are almost universally run by Democrats and mostly found in Democrat-run states. These cities have the legal right to refrain from participating in Sessions’s immigration roundups.  It is a part of the separation of powers.  The federal judge hearing a challenge to this policy has already expressed skepticism. So in this case, a former Southern “state’s rights” Senator is cracking down on state prerogatives to economically punish the states and cities run by the political opposition. Sessions’s economic punishment doesn’t end there. The Trump Administration’s extremism on immigration and deportation has led them to attack H1-B visas, which Silicon Valley and many New York companies rely on to import the educationally qualified workers from India and East Asia they cannot find in the US. These visas are not a threat to US workers; there are not enough Americans to meet employers’ needs. There is no valid reason for Trump’s attack. Sessions has also attacked marijuana legalization – a Democratic initiative primarily found in blue states. Major marijuana industries have sprung up in California, Oregon, Washington, and Colorado, and they are likely to spread. By attacking legalized marijuana, Sessions is really attacking the economies of liberal states who have legalized it.

Attacking the safety of residents, rights of states, and state economies constitutes a new level of partisan warfare

These policies are not like the North Carolina bathroom law. The Obama Administration may have been criticized for interfering with states’ rights in that case, but it did not attack the North Carolina economy or safety of its citizens (even the advocates of that law could never produce evidence its citizens were being harmed). Trump and Sessions have produced and promised policies that will actively harm minority communities harassed by problematic police departments, states who elect to be sanctuaries, and businesses who rely on immigrant workers or engage in the legal sale of marijuana. They have also regularly attacked judges in those states responsible for policing executive overreach. These policies are not a normal result of a change in political parties.  They reflect a polarization so extreme that the representatives of red America are waging war on the residents and businesses in Blue America.  We can hope that, as it becomes clear to Trump voters that he is not providing the jobs he promised, they will begin to realize that by attacking the coasts, which are the engines of the American economy, they are also hurting themselves.

How Do We End Gerrymandering? By Suing A Deep Blue State

Once again, someone is asking the Supreme Court to end partisan gerrymandering of congressional districts based on a violation of the Equal Protection clause. Specifically, they asked the Court to evaluate whether the 2010 Wisconsin legislature drafted a map of congressional districts that effectively eliminated the voting power of Wisconsin Democratic voters. (This is a great explanation of how politicians use gerrymandering to keep power). There is no question that, at the moment, Republicans win the award for the most gerrymandered congressional districts. Perhaps, given how widespread the problem has become, the Court will finally decide to stop the practice. However, the outlook isn’t great. The Court ruled in 1986 that partisan gerrymandering violates the Equal Protection clause, but could not decide, either in that ruling or again in 2004, how to fix the problem. I think it’s time for a new strategy, and a law student from American University, Steve Shapiro, may have just the one. He has filed a suit arguing that gerrymandering violates the First Amendment, and sued the perfect test case – the heavily Democratic State of Maryland.

Suing a Democratic state could persuade conservative Justices

Maryland is a quiet little state nestled on the eastern seaboard, and most other Americans may only know it for its excellent crab cakes (but seriously, the crab cakes are really good). One of the interesting things about Maryland is that a fluke of history has made it one of the most gerrymandered states in the country. Democrats have held power in both houses of the legislature since 1918.  This is because Maryland was once a loyal, Democratic, segregated state in the Solid South, but since desegregation, it has gone its own way. As the rest of the South responded to Nixon’s Southern Strategy, Maryland became gradually more liberal, and today it is one of the bluest states.

Because it is a Democratic state, Maryland offers an opportunity to present the case against gerrymandering without attacking the Republican Party and its interests. Why does that matter? Four out of the five sitting Supreme Court Justices are dedicated conservatives, and Anthony Kennedy frequently sides with them. Obviously, Supreme Court Justices know that any gerrymandering decision will subsequently be applied to all states, but it doesn’t take a leap of imagination to suppose that a case brought on behalf of Republican voters might be persuasive. Supreme Court Justices are, after all, only human.

The First Amendment might be an easier sell than the Equal Protection clause

For one thing, it may be an easier argument because Anthony Kennedy seems open to it, and this is Anthony Kennedy’s Court. In the last gerrymandering case brought under the Equal Protection clause (arguing that political parties are a class of persons being deprived of equal protection of the laws) Justice Kennedy indicated he might be amenable to a free speech argument. It is no wonder – the Court has been unable to make Equal Protection work. Unlike racial classifications under the Voting Rights Act, classifying people by political party – by what they think – is a hairy prospect. It is hard to figure out when Democrats or Republicans have been discriminated against as a class and when it is appropriate for a court to intervene. Moreover, how is the Court supposed to invent a way for legislatures to re-draw the districts, without becoming overly involved in the political process?

Violations of Free Speech and Free Assembly rights under the First Amendment create a simpler metric and a simpler analysis than Equal Protection. The question is: did the Maryland General Assembly silence Republican voters deliberately? All Marylanders, like all Americans, have the right to freely form political associations and band together to have their political speech heard. If Shapiro can prove that the Maryland General Assembly took voting patterns into account when it re-drew the districts, that forms a pretty strong argument it deliberately infringed on the Free Speech and Free Association rights of Maryland Republicans. If so, the Court does not need to come up with formulas for distribution of voters, it can simply say “no legislature may take voting records into account when drawing congressional districts.”

A First Amendment argument may not solve everything, but it’s a start

You may be wondering whether simply ending the use of voter data in redistricting will fix the gerrymandering problem. It’s possible that it will not – politicians are known to be awfully tricksy, and they may find some sort of proxy for voting records that allows them to estimate voter behavior. However, that may be harder over time. People move around, demographics change, and a ban on using voter data may gradually even out congressional districts, even if it does not automatically bring an end to gerrymandering. We may never get a magic solution from the Court. The truth is, this is a problem we are supposed to be addressing through advocacy to our elected officials. The Court is in a Catch-22: it is certainly supposed to protect us from attempts by those elected officials to silence our votes and voices, but it is also not supposed to usurp the political process. Mr. Shapiro et. al. has given the Court a chance at a simpler rule against gerrymandering. Let’s hope the Court takes it.

Why Are We Still Arguing Over Reproductive Rights? The Problem With Roe v. Wade

Once again, Republican lawmakers are taking aim at the reproductive rights of American women. Assaults on Planned Parenthood don’t really make any sense – its primary purpose is to provide its patients with contraception and sexual health screening, and it’s the only provider in a lot of urban and rural communities. Planned Parenthood’s mission isn’t all that controversial. For all the prudishness expressed by many on the religious right, no one actually wants an outbreak of HIV or untreatable gonorrhea in rural and urban America (even Mike Pence). The only reason the Republican party is attacking contraception and women’s health organizations is because some Planned Parenthood clinics and many other sexual health clinics perform abortions. The “moral majority” just can’t seem to get at Roe v. Wade itself – yet. Social conservatives have allied themselves with judicial conservatives, who have a constitutional objection to Roe, for 40 years, and they aren’t likely to stop attacking reproductive rights unless the split in the legal community is resolved – which is highly unlikely.

It is the legal controversy, not the moral one, that has created Roe’s destructive power in our politics, because social conservatives know they can attack Roe by appointing the right people to the Court. Many perfectly rational judges and lawyers, whether they personally support abortion rights or not, are skeptical about the constitutional theory Roe was based on. In finding a right of privacy inherent in the 14th Amendment, the Court revived one of the most controversial theories of constitutional law in American history and based women’s reproductive rights on that unstable foundation. Basically, we’re fighting to protect the right of poor women to have access to pap smears because it did not occur to the men writing the seminal case on women’s rights that the case was about the equal protection of women’s rights at all.

About that right to privacy …

So here’s the thing: a woman’s right to have an abortion is based on a right to privacy that the Constitution does not explicitly grant.  That right, as applied in Roe, is read into the 5th and 14th Amendments, which say that no citizen shall be deprived of life, liberty, or property without Due Process of law. The Court says that the right of a woman to procure an abortion before her fetus becomes viable – when it could live outside the womb – is part of the “liberty” interest the State can’t take away from her. This act of reading into the “liberty” interest is called “Substantive Due Process” (I have never heard a good explanation why). On one hand, that seems completely logical. What could be more important to liberty than the right to control one’s health and bodily function? On the other hand, many lawyers and judges are very wary about reading rights into the “liberty” interest of the Due Process clause, because doing so is associated with one of the ugliest chapters of Supreme Court history.

I mean, why shouldn’t a kid work 70 hours a week?

In the late 19th and early 20th centuries, the Supreme Court went to quite a bit of trouble to protect the property rights of the wealthy at the expense of the huddled masses of 12 year olds apparently yearning to breathe some free factory air. The Court concluded that the “liberty” interest of the Due Process clause included a right to contract. In a series of decisions knocking down labor laws, including a federal law regulating child labor, the Court concluded that the individual’s right to contract was more important than the government’s interest in ensuring corporations were not abusing and killing its citizens. This era of pro-property rights Court decisions is called the Lochner era, after one of its most famous cases. This line of cases was finally overruled in 1935, and it is among the most clear and destructive examples of “activist judging.” So when Roe was decided in 1972, reading rights into the “liberty” interest in the Due Process clause, Substantive Due Process had long been a constitutional hot potato. It is favored by some Justices for its flexibility in adapting an 18th and 19th century document to the modern world and disfavored by others for its past and potential future abuses. The problem with basing Roe on substantive Due Process is that whether you agree with it or not, there are popular and valid legal arguments against it. The debate about reproductive rights isn’t going away because there are a lot of lawyers and judges who, whatever they think of abortion, are very wary of this line of reasoning.

What’s wrong with a little Equal Protection for the ladies?

The weird thing about Roe v. Wade is that it could have been decided on a much more solid foundation: the Equal Protection clause of the 14th Amendment. Had the decision been founded on that basis, some judges might have questioned whether abortion rights are an Equal Protection issue, but no one questions whether the right to Equal Protection of the laws exists. Moreover, it’s easy to prove that reproduction places a burden on half the population that does not exist for the other half. With many women acting as heads of household, it seems a pretty obvious argument that restricting their right to control reproduction effectively restricts their right to pursue their life goals and provide for their families in competition with men, who cannot get pregnant. Few, if any, judges would contest today that the clause applies to the rights of women. Indeed, the argument against the Equal Rights Amendment was and is that women are protected by the Equal Protection Clause. It seems unlikely Roe would have remained so profoundly controversial if it had been decided on that basis.

So why are we still arguing over reproductive rights? Because the men evaluating the importance of a woman’s right to terminate a pregnancy spent a great deal of time evaluating the medical history and implications of termination, but very little time evaluating whether an abortion could impact a woman’s ability to determine her future, as any man would expect to do. Ruth Bader Ginsburg has said that she wishes the first reproductive rights case had been that of a young female Air Force Officer who, when she became pregnant in Vietnam, was given the choice of terminating the pregnancy or leaving the service. Ginsburg thinks this illustrates the fact that the issue is a woman’s choice, not the mechanics of abortion. I agree. At the time Roe was decided, it was only two years after the Equal Protection clause had been applied to women for the very first time. The world might be quite different if abortion rights had been decided a few years later. However, all speculation about how Roe could have been decided is an intellectual exercise; it is unlikely substantive Due Process is going anywhere. As with all important civil rights cases, Roe v. Wade has other precedents built on top of it, most importantly (in my opinion) the entire line of gay rights cases involving sexual privacy and marriage. So ladies, when the next Supreme Court seat opens up, grab your gay friends and protest for all you’re worth, because all of our rights depend on it.

 

 

 

It’s the Nukes, Stupid: Why We Still Need The UN

I think the hostility many Americans feel toward the UN stems from a fundamental misunderstanding of why it is important (aside from its many, many, effective humanitarian programs, which are all underfunded). Since Donald Trump was elected, Republicans are once again talking about defunding the UN. These proposals always arise when it makes decisions the US doesn’t support, like condemning Israel for its settlement activity, or blocking a resolution to impose sanctions on Syria. These critics appear to view the UN as if its primary function were to pass resolutions that agree with American policy.  In reality, although the UN was founded by Winston Churchill and Franklin Roosevelt, it is not a creature of the United States, and therein lies its usefulness.

We’re talking about an international body with 193 member states that, for better or worse, gave its 5 original members a veto they can use to protect their own interests and those of their allies.  As much as that might create gridlock and hypocrisy, the fact that Russia and China can throw their weight around as much as the US allows the UN to perform its most critical functions: representing a set of international standards of conduct respected, if not always followed, by all member states, and acting as an impartial forum in which nations can present their arguments to the international community. The US defunding the UN would effectively cripple the institution, and that would be a profoundly stupid idea in the face of a resurgent Russia and nuclear North Korea. We need only look to our own history, and the role the UN played in the Cuban missile crisis, to understand the importance of the institution.

The UN security council has always been gridlocked and difficult

The foundation of the UN was the alliance that brought down Hitler: the British Empire, the United States, the Soviet Union, the Republic of China, and the Free French. Roosevelt called the alliance the United Nations. That is why these 5 nations have permanent seats, and a veto, on the Security Council. Obviously, the veto proved problematic when, in Churchill’s words, the “Iron Curtain” fell over eastern Europe. For the approximately 40 years of the cold war, the permanent members exercised their vetoes, either formally or by implication, often enough to prevent the security council from getting much done. Important conflicts that were ignored include the partition of India (Britain), Algerian war (France), 1st Afghan War (Soviet Union), and Vietnam (US). During the height of the Cold War, the US and Soviet Union were particularly inclined to use their vetoes. If the usefulness of the UN were defined by the effectiveness of the security council at enforcing the UN charter, it would have been dead on arrival.

The UN helped prevent nuclear powers from ending life on earth

During the Cuban Missile Crisis, the UN performed two functions: 1) it offered a credible forum where the American Ambassador, Adlai Stevenson, could present evidence that the Soviet Ambassador, Valerian Zorin, had been lying about placing missiles in Cuba (you can watch it here; it’s pretty great); and 2) it gave Secretary-General U Thant the credibility he needed to mediate between the two superpowers, helping them to avert catastrophe.

When the UN got involved in the Cuban Missile Crisis, the world was at possibly the most dangerous point in human history. There was a standoff between the US and the Soviet Union from October 16-28 of 1962 over intercontinental ballistic missiles placed in Cuba by the Soviets. The US found out about the missiles through routine overflights of the area, and were understandably perturbed. The Soviets denied that the missiles existed, and the United States imposed a quarantine on Cuba, promising to intercept and turn back any Soviet vessel that tried to approach. It is difficult to exaggerate the danger of that moment. The tension was so great that, but for one man’s refusal, a Soviet submarine would have started a thermonuclear war.

Enter the UN. On October 24-25, UN Secretary General U Thant was able to convince US President John F. Kennedy to try to avoid intercepting any Russian vessels, and convince Soviet Premier Nikita Kruschev to temporarily divert his vessels away from Cuba. It was a hard sell. Initially, when asked to remove the quarantine entirely,John F. Kennedy flatly refused. During this period of mediated negotiation, Stevenson was able to present the American evidence on the floor of the UN General Assembly, which reduced Soviet credibility among other nations. On October 28, when the crisis concluded, it was in no small part due to Thant’s intervention.

It is the gridlock and power struggles that give the UN its value

The UN would have had no ability to negotiate between JFK and Nikita Kruschev if the US had more power than the Soviet Union within the organization. The UN’s impartiality is its greatest asset. It makes Russia and the US accept the judgment of Turkish coroners that Syrian civilians died of a nerve agent (even if those two nations dispute who killed them). It is an impartial arbiter precisely because Russia and China can exercise their veto when we don’t want them to. There is intrinsic value to having an organization that establishes a list of principles everyone should live by, even if we don’t live up to them all the time. Even when we, the US, or Russia, or Britain, or Argentina fail to comply with the UN charter, the Secretary-General representing the principles in that charter still has power as a mediator. The UN is a giant bureaucracy with a lot of problems, but it performs an important role in a flawed world. Without its impartiality, and the forum it provides, the world would look a whole lot grimmer.

Trump’s Syrian Reversal: A 180 Is The Wrong Angle For Diplomacy

This week Syrian President Bashar Al-Assad gassed his civilians with a nerve agent, and, Donald Trump, in a total reversal of his policy toward Syria and its ally, Russia, bombed the airfield Assad used to do it.  Some of the reactions in the Press have been pretty ludicrous, with Fareed Zakaria  even calling Trump “Presidential” for bombing the airfield, and others have been serious.  However, even though many pieces have noted that Trump’s unpredictability has now entered the international stage, most have not thoroughly explained why a swift reversal of policy is the most dangerous part of Trump’s airstrike. The issue is not whether Trump is a hawk or a dove on Syria, or whether or not he is friendly to the Russians; the issue is whether Trump has established a policy at all. If Donald Trump does not create and announce a policy for how the American government will interact with Syria, Russia, or any other country, that nation cannot rely on current diplomatic norms to prevent conflict. Trump broke the stability of international diplomacy by reversing his stance on Syria virtually overnight and failing to adopt a new one. If Trump does not develop and act on real, thoughtful policies in his international relations, it can and will have consequences for all of us.

Diplomatic norms depend on well researched policies and consistent public stances

Governments, laws, and international norms exist, at their most basic core, to resolve most conflicts before they arise and keep people from killing each other. Diplomacy is usually incredibly boring, but it exists for a reason. A policy about how one country wants to interact with another provides a roadmap for where conflict might arise. Some fights may be inevitable, but the diplomatic norm of producing policy and taking public stances on contentious issues – then sticking to those stances – ensures that conflict will not be unpredictable. It enables each party to try to think of solutions before bombs start flying.

A great example of using announced policy to avoid conflict is the US government’s One China policy, a delicate balancing act if ever there was one.  In order to have diplomatic relations with the People’s Republic of China, all countries must cut off relations with the island of Taiwan, because China considers Taiwan to be part of one Chinese nation. Taiwan, the Republic of China, is the remainder of China’s former democratic (though horribly corrupt) government, which was allied with the US and Britain during WII, and which the US has promised to defend. To navigate this conflict, the US only has diplomatic relations with Beijing, but it continues to sell arms to Taiwan, and have informal connections there, and it maintains its obligation to defend Taiwan should China attack it.  The US was able to hammer out a workable compromise because both it and China had all their cards on the table. The US isn’t prevented from violating the One China policy, or attacking China, it’s just less likely to do so because all of the potential consequences have been mapped out. Nothing in life is certain, but developing, announcing, and sticking with well thought out diplomatic policies goes a long way toward limiting the uncertainty that often causes conflict.

Trump upended diplomatic norms on Syria with a rapid reversal

On its face, Trump’s airstrike seems like the sort of proportional military response Syria and the Russians should have expected. So why didn’t they? The answer is, Trump’s Secretary of State and UN Ambassador publicly announced a policy that the US is not interested in intervening in the Syrian civil war. On March 30, Secretary of State Rex Tillerson told reporters that Assad’s status as President “will be decided by the Syrian people.” The same day, UN Ambassador Nikki Haley said “our priority is no longer to sit there and focus on getting Assad out.” I think it would be excessive to suggest that they were saying they do not care about the Syrian people, but they were certainly saying that they are not interested in intervening to oust Assad.

On April 4, video footage of the gas attack emerged and was reported. White House Press Secretary Sean Spicer read an obligatory letter of condemnation for the attacks and then told the press that he would not ask Assad to step down and not acknowledging the reality of power in Syria would be “silly.”  This seemed to be a continuation of the announced policy of non-intervention. Then came the reversal. On April 5, Trump announced, without specifics, that he was changing his mind on Assad because Assad killed “innocent babies.” On April 6, Tillerson announced that Assad would have no role in governing the Syrian people, and that Trump was considering a “serious” response. That night, Trump bombed the Syrian airbase. Trump performed a 180 degree turn on the issue of whether to intervene in Syria, a Russian ally, in 48 hours. He has yet to announce its new stance on how the US, its allies, or anyone else should proceed in Syria.

Trump’s rapid change in Syria policy made ALL diplomacy unpredictable … and therefore dangerous

I think each nation is looking at the shocking reality we Americans have been experiencing every day on an individual level: “I have no idea what this person is going to do or say today and his choices affect my safety.” Our allies have ample reason for concern, and there are a lot of countries with whom the United States has fraught relationships. Every country, ally or antagonist, has to make its decisions with the possible actions of the US Government in mind. We are everywhere, and they need to rely on the American Government to be predictable. Sadly, the only clearly discernible policy in this mess appears to be “if I see dead babies on CNN I will bomb whoever did it.”  The fate of the Syrians gassed by their government is tragic, but so is the fate of the many Yemeni children dying of starvation and war right now. There are a whole lot of people who have killed babies in the Middle East, intentionally or incidentally, including Donald Trump. Bombing all of them will make a parking lot, not a solution. Now, we are facing off with the world’s second largest nuclear power over a conflict Trump didn’t care about 6 days ago. Fingers crossed Russia doesn’t bomb any preschools – it might end up on CNN.

Bush v. Trump: A Good Man is Always Better Than A Snake Oil Salesman

This week we have seen very revealing statements from two Republican Presidents who took office under a pall of illegitimacy. George W. Bush visited a clinic in Botswana that provides cervical cancer screenings under the humanitarian program that will likely be seen as his signature accomplishment. That program is on the chopping block because the Trump Administration wants to cut all foreign aid. In his statement, Bush said, “Every human life matters. And I hope the people of America understand that through their generosity millions now live.” The same day, dozens of Syrian civilians were gassed by their government, as part of conflict in which the United States is active. Donald J. Trump blamed president Obama and then told an American audience he “doesn’t want to be President of the world” so “from now on it’s going to be America First.” One man cares about human beings because they are human. The other sort of cares about some human beings because they might vote for him. Both have made destructive decisions, and Trump will doubtlessly make more. The question is, does a man’s motivation affect the impact of his bad decisions as the American President?

 Bush’s embrace of all Americans overcame the acrimony of the 2000 election

Many who were not yet of voting age (the majority of Americans) forget that when Bush took office, many Americans felt the Republic had been undermined. Bush won an election which came down to a recount in a state governed by his brother Jeb, and in which the Supreme Court intervened, effectively awarding him the Presidency. Yet Bush still retained approval ratings in the 50s and 60s throughout 2001 and after September 11, those ratings skyrocketed. Despite the acrimony of the election, Bush, who made a genuine effort to pursue “compassionate conservative” policies like No Child Left Behind (an unfortunate policy created with the best of intentions), won over the majority of the population. I think this was because, whatever his flaws, no one really doubted that he was a good man doing his best in a difficult job. Then that reputation took a hit.

Terrible foreign policy decisions undermined his, and America’s credibility

What came next made it easy to call Bush’s character into question. He picked Darth Vader as a running mate, nominated Dr. Strangelove as a Secretary of Defense, and then relied on them to determine foreign policy. This had predictable results. The invasion of Iraq has been widely discredited as a legally unjustifiable aggressive war. That invasion has, without question, destabilized the Middle East. It inarguably caused the circumstances that created what we see today in Syria; the leaders of ISIS developed their networks in American prisons. We see the human cost of Bush’s bad decisions in gassed civilians in Syria and drowned toddlers on Turkish beaches. His popularity deservedly tanked in his final years in office, and his reactionary national security policies betrayed American ideals, disappointing allies and emboldening enemies. Additionally, he alienated many domestically focused Americans through his incompetence in responding to Hurricane Katrina. However, while many people at home and abroad asked in bewilderment how America elected this guy, I rarely heard the opinion that American democracy had ceased to function. This was not the only hypocritical period in our history. We recovered before and we could recover again. More importantly, precisely because Bush is a good man, his failures are not his only legacy.

Bush also did good things, and did not undermine the institution of the Presidency (at least not more than most Presidents)

Even though his Administration saw scandals involving torture, extraordinary rendition, Guantanamo Bay, and Hurricane Katrina, Bush’s political opposition treated him as a legitimate President committed to the American Republic. For all that Bush made terrible decisions, he also promised, in his second inaugural, to make clear to every country that it had a choice between oppression and freedom. I don’t think he was lying – he just didn’t do a very good job of achieving his goal. I never heard a Democratic politician, in the 8 years of his Presidency, impugn his belief in American ideals; they just questioned his many failures to implement those ideals, which is their job.

It is also important to note that Bush had moments where he exemplified the best of America. Bush wanted to make undocumented residents a part of the nation’s daily life. He put all the political capital he had left (which wasn’t much) behind comprehensive immigration reform, drafted with Senators Ted Kennedy and John McCain, and would have succeeded, had both the left and the right in Congress not killed the bill. Most importantly, he has saved 11 million Africans by establishing PEPFAR, a humanitarian program delivering AIDS medication in Sub-Saharan Africa.*  Even Bob Geldof, a counter-culture musician from the ’60s turned activist, lauds Bush for his accomplishments in Africa. Especially as a post-president, I suspect George Bush may do more good for the world than a lot of his detractors may think.

Bad decisions don’t make a bad Republic, but a bad man can

A good man like Bush, hated though he often was, did not destroy the American People’s confidence in the institution of the American Presidency, or in each other. George W. Bush did both great and terrible things for the world, because he was a good person trying to do the best he could. Donald Trump may never make a single decision that causes as much destruction as Bush’s decision to invade Iraq, but given his “America First” focus and disregard for moral leadership, there’s virtually no chance he is going to save 11 million Africans either. Indeed, if his budget is any indication, he doesn’t seem particularly inclined to help struggling Americans. Trump has introduced a realpolitik into American life that dismisses morality as naiveté. He has rejected even the notion of objective truth. These two decisions have left us, as a people, questioning what it is to be an American, and whether American democracy itself can function. Going forward, we can all learn an important truth from these two Republican Presidents: you can hate a President’s decisions, but when it comes to protecting the institution of the Presidency, his or her motivation can make all the difference in the world.

* I understand that President Obama kept PEPFAR going, but then he also contributed to the mess in Iraq and Syria. If I’m blaming Bush for the Middle East, I’m also giving him credit for PEPFAR.

The Filibuster Remains: Chuck Schumer, Grow A Pair And Pee In A Bucket

In recent weeks, there has been quite the hue and cry about the possibility that, if the Democrats “filibuster” the nomination of Neil Gorsuch, House Majority Leader Mitch McConnell will invoke the “nuclear” option and remove the availability of the “filibuster” for Supreme Court nominations. Politicians being the short-sighted creatures they so often are, it seems likely  this will spell the end of the minority’s use of the “filibuster” in legislation as well. You might ask yourself why I am using quotation marks around the word filibuster; it’s because the tactic Senators intend to use against Judge Gorsuch isn’t a filibuster at all, it is the cloture rule. The filibuster was useful long before the cloture rule existed, and if Senators are willing to tough it out, it can still be useful for years to come.

What is the difference between a filibuster and cloture?

The filibuster is not a constitutional institution, nor is it a rule of the Senate. A filibuster is “the use of extreme dilatory (see dilatory tactics (as by making long speeches) in an attempt to delay or prevent action especially in a legislative assembly.” Originally, filibusters consisted of one or more Senators standing up and speaking for extended periods, usually reading documents into the record, to delay or prevent a bill from being passed. This practice became increasingly popular over the course of the 19th century, and the majority party, whether Democrat or Republican, was never particularly happy about it.

When people talk about the “filibuster” in the modern context, they are actually talking about threats of a filibuster that are overcome by something called cloture. To have “cloture” means that you have enough Senators present to force a vote on a bill or nomination after 30 hours of debate. It is a Senate rule designed to stop filibusters.

Cloture was created in 1917, because Woodrow Wilson could not get his proposals to arm merchant ships through the Senate. He had public opinion on his side, and he pushed the Democrats in the Senate to create a cloture rule as a national security measure.  After wrangling with the Republican minority, the Democrat-dominated Senate adopted the rule, which required 67 Senators to force debate on a bill. In 1975, the rule was changed to require 60 Senators. So when people talk about the “nuclear option,” they are talking about changing the cloture rule so that fewer Senators are needed to end a filibuster. No one can get rid of the filibuster, because it was never a formal rule in the first place.

The filibuster’s effectiveness doesn’t depend on blocking legislation

When I say the filibuster has been effective, I do not mean it has always successfully blocked legislation or a nomination. It’s a useful way for an individual Senator (or group of Senators) to draw attention to his or her opposition to an issue, even if they don’t successfully prevent legislation from being passed. The first was in 1841, over a rule to hire Senate printers, so they haven’t always been about the most contentious issues of the day. Some filibusters have seen one Senator boldly stand up for a principle (misguided or not) before being overcome by his fellow Senators, while others, like the coalition who filibustered the nomination of Supreme Court Justice Abe Fortas for Chief Justice, have successfully achieved their goal.

The filibuster has been a mixed blessing; it has not always been invoked for causes we’re likely to celebrate. Senator Huey P. Long of Louisiana read the Constitution, Shakespeare, and oyster recipes into the record to delay a bill giving his enemies appointments under the New Deal (this was supposedly the inspiration for Jimmy Stewart’s character in Mr. Smith Goes to Washington). Even more infamous is the record-setting filibuster of the Civil Rights Act of 1957 by Strom Thurmond of South Carolina. He stayed on the Senate floor for over 24 hours. His staffers famously got him a bucket to pee in, strategically placed so he could have one foot on the floor of the Senate. Obviously Thurmond did not kill the legislation he took aim at, but he made a hell of an impression, and the public became well aware of his position on the bill. Indeed, we still talk about it today.

The purpose of a filibuster is not just obstruction, but to prove a point

I’m not happy that Mitch McConnell is likely to make it easier to shut down filibusters of judicial nominees, and I’m even more concerned about a future in which he might kill it for legislation. However, I have no control over those likely outcomes. So I’m going to choose to look at the likely change in cloture rules in another way – let’s take back the power of an actual filibuster. Anyone remember how quickly obscure Texas legislator  Wendy Davis shot to prominence when she filibustered an anti-abortion bill in Texas? Taking an actual stand for one’s principles in a visible way is a rare occurrence in public life and no one needs an injection of visible principle more than the Senate.  We can’t change what McConnell may or may not do, so let’s make it work to our advantage. Chuck Schumer, Dick Durbin, and the rest of the Democratic Senate should prove to us that they’ll really sacrifice for our interests. I’ll even buy them a bucket.