Balkinization  

Saturday, June 21, 2003

JB

President Bush Confesses That He Has Made Americans Less Safe By Invading Iraq

At least this seems to follow from these remarks in his weekly radio address, as reported by Reuters:

President Bush, floating a new explanation for the failure to find banned weapons, said suspected arms sites had been looted as Saddam's government crumbled.

"For more than a decade, Saddam Hussein went to great lengths to hide his weapons from the world. And in the regime's final days, documents and suspected weapons sites were looted and burned," Bush said in his weekly radio address.


One of the reasons why war skeptics like myself opposed the war was that if we attacked Saddam he might give away his weapons of mass destruction to terrorist organizations, or those weapons would be spirited out of Iraq during the chaos and confusion of war. Because the stated reason for the war was to make American more secure from weapons of mass destruction held by rogue states, attacking Saddam might well prove to be counterproductive.

In his eagerness to explain why the weapons of mass destruction have not been found (and thus why the Administration was not misleading the public about their existence) the President has now essentially conceded that the very dangers war skeptics warned about may have occurred-- he is attempting to justify the failure to find weapons of mass destruction on the theory that these weapons may have been stolen during the war.

What I want to know is why isn't this an even bigger problem for the Administration than the possibliity that Saddam no longer had weapons of mass destruction when we attacked him? If the Administration concedes the possibility that the weapons were looted, then it has conceded that in its eagerness to go to war it has made Americans less safe, not more. This is not an accomplisment of which the Administration should be particularly proud. It suggests rather that the Administration belicose policies have backfired. And as Americans continue to die in Iraq, and Afghanistan teeters on the verge of collapse, the Administration's foreign policy failures are mounting day by day.

I only wish someone in Congress would have the courage to point this out.


JB

Is the Bush Administration Courting the Taliban?

Yes, says this report from Asia Times:

Such is the deteriorating security situation in Afghanistan, compounded by the return to the country of a large number of former Afghan communist refugees, that United States and Pakistani intelligence officials have met with Taliban leaders in an effort to devise a political solution to prevent the country from being further ripped apart.

According to a Pakistani jihadi leader who played a role in setting up the communication, the meeting took place recently between representatives of Pakistan's Inter-Services Intelligence (ISI), the US Federal Bureau of Investigation and Taliban leaders at the Pakistan Air Force base of Samungli, near Quetta.


Hey weren't the Taliban evildoers or something? Come to think of it, weren't they the guys who gave al-Qaeda a safe haven-- you remember al-Qaeda, don't you, the guys who bombed the U.S. on 9-11?

When I read this report, I really couldn't believe it. What was the FBI doing in Pakistan? They do domestic surveillance, right? Then I read this report from the Washington Times:

FBI Director Robert Mueller discussed new plans to catch al-Qaida suspects in a recent visit to the Middle East and Pakistan, diplomatic sources told United Press International Thursday.

The plan includes speeding up efforts to catch Osama bin Laden and other al-Qaida leaders believed to be hiding in a tribal zone between Pakistan and Afghanistan, the sources said.

The FBI already has an extensive presence in both the Middle East and South Asia, but is now trying to expand its network with the help of regional intelligence agencies.


If it turns out that Administration officials knew of or authorized a meeting with the Taliban, they will have some serious explaining to do.


Thursday, June 19, 2003

JB

Same Sex Marriage in Canada

A truly revolutionary set of changes is occurring right now in Canada, which will have important repercussions in the United States.

The Canadian Federal Government has announced that it will rewrite national laws recognizing same sex marriages. The Canadian government acted in response to two appellate decisions, the most recent in Ontario, Halpern v. Attorney General of Canada, which held that the national law which defined marriage as being only between a man and a woman violated section 15 of the Canadian Charter of rights and freedoms.

Alberta Premier Ralph Klein has threatened to invoke section 33's notwithstanding clause to prevent same-sex marriage in his province. For those of you unfamiliar with Canadian constitutional law, if a court declares that a national or provincial law violates certain sections of the Charter, the government that passed the law may repass it, declaring that it shall be valid notwithstanding the court decision. (It must repass the law every five years thereafter). The problem is that the law in question was a federal law, and it is not clear that a province may invoke section 33 where a Canadian court holds that a national law violates the Charter. Alberta may have laws on solemnization of marriage by clergy that it might seek to protect through section 33, but this should not affect the right of same sex couples to be married in civil ceremonies.

Several things are interesting about the decision from an American perspective:

First, in Canada the rights and benefits of marriage are a matter of federal law, not state law. In the United States many people (including members of the Supreme Court) have argued that issues of marriage and divorce are inherently local subjects and therefore must be left up to state governments. The Canadian example suggests that there is no inherent reason why this has to be the case, other than tradition.

Second, the Ontario court chose a different path than the Supreme Court of Vermont. In Baker v. State, the Vermont Court held that Vermont's marriage laws violated the common benefits clause of the Vermont Constitution, but the did not strike down the state's marriage laws or order that same-sex couples had the right to marry. Instead, the Court remanded the issue to the Vermont legislature asking them to come up with a statute for same sex couples that had effectively the same benefits as marriage. Vermont passed its civil unions law to comply with the court's decision. By contrast, as a result of Halpern, same sex couples may now apply for marriage licenses in Ontario. This speaks volumes about the relative political strength of the courts with respect to this very sensitive issue in Canada and the United States. The Vermont Supreme Court knew that popular referenda in Hawaii and Alaska had essentially cut short any experimentation with same sex marriage by the courts in those states, and it wanted the change in Vermont's marriage laws to have the legislature's imprimatur. In fact the Vermont legislature stopped short of granting marriage rights to same sex couples, and created an equivalent called civil unions. The Ontario court, by contrast, did not hesitate to order immediate relief; at last report, the Canadian government is planning to redraft the law to allow full same sex marriage, not civil unions.

Third, it's important to recognize that Canadian constitutional law has gone much further than U.S. law on the issue of gay rights. In 1995, The Canadian Supreme Court held that sexual orientation was a ground analogous to classifications based on race and sex, which are protected by section 15 of the Charter (roughly equivalent to the American 14th Amendment's Equal Protection Clause). Of course, the U.S. Supreme Court's decision in the Lawrence case, which is expected any day now, may change the legal landscape in the U.S. considerably, but given the nature of American politics, it is doubtful that it will catch up to what is going on in Canada for some time.

Fourth, the legalization of same sex marriage in Canada will eventually have effects on the debate over same sex marriage in the United States. Canadian marriages are generally recognized in the United States as a matter of comity between nations. (The 1996 Defense of Marriage Act does directly not apply to this question; it concerns recognition of marriages between states. Nevertheless other portions of DOMA suggest that as a matter of some aspects of federal law same sex marriages will not be recognized). Athough many states will probably refuse to recognize Canadian same sex marriages as against the state's public policy, a few states may recognize Canadian same sex marriages even if they do not themselves provide for same sex marriages. Perhaps equally important, the Canadian law will put considerable pressure on states either to recognize various spousal benefits for same sex couples or to edge closer and closer to same sex marriage. Even if the legal effects of the Canadian decision in the United States are uncertain, the decision, and Canada's subsequent legislation recognizing same sex marriages will have enormous symbolic impact.

JB

"Moral Clarity" Revisited-- The Case of Afghanistan

A report from the Council on Foreign Relations and the Asia Society warns that the U.S. is on the brink of losing the peace in Afghanistan due to its neglect of conditions after the overthrow of the Taliban.

"Unless the situation improves, Afghanistan risks sliding back into the anarchy and warlordism that prevailed in the 1990s and helped give rise to the Taliban," [the report] said, referring to the puritanical Islamic group that governed the country of 28 million from 1996 until the 2001 US-led war. . . .

The report's findings were echoed by Pakistan's President, Pervez Musharraf, who called for a huge expansion of the international force in Afghanistan to fill the growing vacuum outside Kabul.

General Musharraf estimated that the force needed to be increased from 14,000 soldiers - almost all of whom are in Kabul - to between 40,000 and 45,000. . . .

There are 5000 troops in Afghanistan under the United Nations banner and 9000 US troops. The British Government has rejected a request from Mr Karzai for more troops.

Before overthrowing the Taliban for harbouring the al-Qaeda network, accused of masterminding the September 11, 2001, terrorist attacks, the US said it would try to help rebuild the nation quickly. . . .

One of the lead authors, Frank Wisner, a former U.S. ambassador to India, said U.S. credibility was on the line and if Washington "did not get it right in Afghanistan it will be a lot harder to convince others to work with us to get it right in Iraq."


Our inability to live up to our promises in Afghanistan should give anyone pause. As Wisner points out, it casts doubt on our bona fides in Iraq. In the alternative, it suggests that the Administration has a particularly short attention span when it comes to its foreign policy committments. It is eager to use force but is unwilling to accept the inevitable consequences of using force-- that is, devoting itself to the expensive, time consuming and altogether less glorious task of cleaning up the mess it creates.

That lack of follow through has serious consequences for the War on Terrorism. If the Bush Administration does not work hard to rebuild Afghanistan (and Iraq), it will not have made our country more secure. Quite the contrary, nothing could set the peoples of the Muslim world more firmly against the United States than a practice of repeatedly invading Muslim states and leaving them in ruins.

One can see lots of things in the Administration's policies toward Afghanistan. I am afraid that moral clarity is not one of them.


Wednesday, June 18, 2003

JB

Bush Stiffarms Dems on Supreme Court

Reuters reports that President Bush has rejected offers to consult with Senate Democrats on the next Supreme Court appointment in order to avoid a trainwreck:

Democrats have urged President Bush to avert a major confirmation battle by consulting with them before making his selections.

"The more we can consult, the more we can meet, the more we can talk about avoiding a major confrontation, the better off the country and the system will be," Senate Democratic Leader Tom Daschle said after meeting with Bush at the White House.

But White House spokesman Ari Fleischer called Daschle's request a "novel new approach to how the Constitution guides the appointment process."

"We always welcome thoughts, but certainly no one wants to suggest that the Constitution be altered," Fleischer told reporters.


This is all posturing, since there's nothing in the Constitution that prevents the President from consulting with members of the Senate before putting a name forward. Presidents have often floated trial ballons and sought advice privately without surrending their right to make the ultimate determination about who they will appoint. For example, President Clinton consulted with the Republican Senate Judiciary Chairman Orrin Hatch before making his nominations of Ruth Bader Ginsburg and Stephen Breyer.

Given that Fleischer's claim that consultation with Senate Democrats would effectively amend the Constitution is just plain silly, what's going on? It's quite simple. Bush is sending signals that he is unwilling to compromise. That is standard operating procedure for this president: He does not believe in compromising unless it becomes clear that he will lose; then he is willing to cut a deal. Knowing this, the best strategy for the Democrats is to respond in kind. They must threaten a very bitter confirmation battle even if neither side wants one.

It should be obvious by now, three years into this Administration, that the President is a bully, and one must always stand up to a bully.


Monday, June 16, 2003

JB

Supreme Court Crunch Time

As Howard Bashman notes, the Supreme Court has ten very important cases left on its docket, "[w]ith one week remaining on the schedule for the announcement of decisions in argued cases." The two most highly publicized cases concern affirmative action and gay rights, but there are also key cases on Internet filters in public libraries, the scope of the commercial speech doctrine, and an important redistricting challenge in Georgia.

Usually the final weeks of a Supreme Court Term are filled with important and memorable cases, but this looks to be the most important and memorable finish in recent years.


Sunday, June 15, 2003

JB

Judicial Appointments and Good Faith: Some Notes About Constitutional Change

Matthew Yglesias argues:

Ideologicially diverse appointments do, however, have another value, namely that they demonstrate the good faith of the nominator. I would be much more inclined to believe, for example, that Bush has nominated Miguel Estrada simply because of his judicial excellence if the Bush nominees taken as a whole demonstrated a wide degree of ideological diversity. Given that, in fact, Bush only seems to nominate conservatives to the bench, I have every reason to believe that ideology rather than excellence was the controlling factor in the Estrada nomination. The point isn't that the bench should be bipartisan for the sake of bipartisanship, but rather that a president who doesn't want his nominees judged on the basis of ideology shouldn't be selecting his nominees on the basis of ideology.

It is rather rare historically that Presidents choose judges primarily on grounds of excellence. There are such examples: I mentioned Hoover's appointment of Cardozo in a previous post. Competence counts for something, to be sure, (especially as a filter that limits the pool of acceptable candidates), but the most common reasons driving judicial appointments historically have to do with party affiliation, demographic characteristics (in the old days, the state or region that a nominee came from, or their religion, and more recently, race, gender and ethnicity), paying off political favors to constituents, or, in case of Justice McReynolds, Wilson's rather obnoxious and irascible Attorney General, kicking the nominee upstairs. However, one of the most important reasons for judicial appointments has been what Sanford Levinson and I have called "partisan entrenchment," the desire to shift the meaning of the Constitution (and federal law generally) in a preferred ideological direction. This process begins with the Midnight Judges Act in 1801, when the Federalist party attempted to stock the courts with its allies (leading to the appointment of Chief Justice John Marshall), and has continued to this day. Partisan entrenchment is not an exceptional or deviant feature of presidential nominations, but rather a fairly standard practice. Some presidents are very interested in shifting or preserving the ideology of the bench, while others (like Eisenhower, as a recent example) care far less about ideology and are mostly interested in political considerations like appealing to the Catholic vote, for example (which is what led to Justice Brennan's appointment.).

Matthew suggests that diverse appointments "demonstrate the good faith of the nominator." To me, this begs a very serious question, which is whether Presidents are acting in bad faith when they try to reshape the courts (and thus the positive law of the Constitution) through a policy of partisan entrenchment. Sandy Levinson and I have argued that partisan entrenchment is the most important source of constitutional change outside of Article V. An interesting question for Matthew to consider is whether Franklin Roosevelt's appointments of Hugo Black, William O. Douglas, Felix Frankfurter, Robert Jackson and Frank Murphy were in bad faith because Roosevelt wanted to change constitutional law to uphold aspects of the New Deal, or whether Johnson's appointments of Thurgood Marshall and Abe Fortas were in bad faith because he wanted to push the country further to the left on key issues like race and poverty. In like fashion, should we say that Richard Nixon's appointments of what he thought at the time were "strict constructionist" judges (Burger, Blackmun, Powell, and Renhquist) or Ronald Reagan's appointments of Sandra Day O'Connor, Antonin Scalia, and Anthony Kennedy were in bad faith because both Nixon and Reagan wanted to take back the federal courts from the wicked Warren Court and its liberalism?

What I am trying to put in issue, in other words, is the central question of whether partisan entrenchment is not a normal and perfectly legitimate form of judicial appointment strategy, and so the accusation of bad faith is inapposite. If politicians of the other party don't like the President's nominees, they can and should speak up and oppose them, something which has happened with considerable frequency in the country's history. Actual up and down votes are only the tip of the iceberg: Most political opposition is successful in that it prevents some people from ever being nominated in the first place.

To be sure, a President can be accused of bad faith if he says that party affiliation and constitutional values have nothing whatsoever to do with his appointments, but I haven't really heard Bush say that. What he and his supporters have said is that they want judges who will uphold the Constitution and the laws and construe them in accordance with the values of the Framers, which, to a conservative Republican, just means cutting back on liberal precedents and pushing forward conservative interpretations of the Constitution. Republicans don't see themselves as putting their personal preferences into the Constitution any more than Democrats do; they see themselves as offering the best interpretation of the Constitution, and thus following the law. Democrats, especially liberal Democrats, will surely disagee, but that's what a political process is for. That's why Democrats in the Senate (and moderate Republicans as well) should resist nominees that are too conservative or whose views suggest that such nominees will move the law in directions that are bad for the country. This is part of the advice and consent power of the Senate, one of the central checks and balances in the constitutional system, a structural guarantee that allows ambition to counter ambition. The Senate acts as a check on the Executive, leading the Executive to nominate people who are politically palatable to most Senators; this check on Executive power usually succeeds in keeping judicial appointments more mainstream than they would otherwise be if the President had an entirely free hand. One of the ways this checking function is signalled is through a public focus on qualifications, but qualifications aren't the only thing that the Senate cares about historically.

The strongly conservative nominations that we see from Bush are not due to his lack of good faith. They arise from the fact that Bush's people care a lot about judgeships and about moving the Constitution more in line with their interpretation of it. The Bush people don't care too much what the Democrats think because they control all three branches of government. The current Democratic filibuster of two judicial nominees (while letting many many more through, I might point out) is not the product of Republican "bad faith" but the product of Democratic political impotence, the inability of Dems to get Bush to compromise in the way that most Presidents usually compromise with leaders of the other party. Because Bush's style is not to compromise except when absolutely necessary, we have the current situation. If he compromised more, and nominated more moderate candidates, you wouldn't see filibusters from the Democrats. Compromise is the way that the system usually works, but we have a President who doesn't feel the need to compromise on much because he has a very disciplined Republican majority in Congress. His compromises are largely with forces inside his own party, which in some ways reminds me of Roosevelt's judicial appointments strategy.

That said, is ideological diversity on the federal bench a good thing? Well, often it is, especially if you are in the minority. But I'm not at all sure that Lyndon Johnson should have appointed a racial conservative to fill Tom Clark's seat in 1967 instead of Thurgood Marshall because the Warren Court was getting too liberal, and Marshall's appointment would push it even further to the left. Nor am I sure that Franlkin Roosevelt should have started to appoint some Lochner era conservatives in 1940 because there were just too many New Dealers on the Supreme Court. Rather, ideological diversity on the federal bench is produced through the give and take of regular elections, in which the parties take turns in the White House, and through political pressure by opposition politicians on the President. Ideological diversity on the federal bench, in short, is a product of democratic elections and the separation of powers. If the country wants to keep returning conservative Republicans to office, we are going to get increasingly conservative judges and Justices over time, and the content of American constitutional law will change accordingly. If you don't like that, there is a pretty obvious solution.


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