Balkinization  

Friday, September 07, 2012

Two Things I Wish I Understood about Democratic Party Politics

Stephen Griffin

The Democratic platform and the President's acceptance speech reminded me of two things I have puzzled about for some time.  Perhaps some of you have the answers.  Why isn't political reform a natural Democratic campaign issue?  Specifically, given the undeniable role of Senate procedures, including the filibuster and holds on nominations, in frustrating Obama's agenda, why doesn't he want to campaign (at least a little bit) on reforming the Senate?  This issue has been teed up for quite some time by plenty of respectable commentators.  Why can't political reform get some equal time from the presidential wing of the party?  Let's grant political reform can be controversial, especially when it's (wrongly) perceived as tinkering with the Constitution.  Well, the platform could commit to simply a close study of the problem.  But there's nothing.  So that's a genuine mystery to me.

The other thing is the absence of commitment with respect to judicial nominations.  The platform has a section, which I believe is pretty traditional, on civil rights and civil liberties.  Nary a word on the need to appoint judges to realize this vision.  What sort of judges does the Democratic party want?  Do they have an agenda for those judges, beyond general bromides about CR and CL?  Is this important?  Do they know?  If they don't know, why is that?  Look, this is our second Democratic law professor president to show little or no resolve or follow-through on the subject of judicial nominations.  My guess is that there is a complex, however unsatisfying, explanation for this based on political regime theory.  But I would like to hear it from the beginning.  Friends, thanks in advance!

Comments:

I have a guess on the filibuster, but it's just that:

1. It's not really a presidential issue. There's really nothing Obama can do about it. In fact, one of the problems with it is that there's no real responsibility.

2. He may not want to make the issue seem partisan rather than one of good government.

Personally, I think the filibuster needs to be eliminated entirely, and I think Senate Dems need to start the process of doing that (perhaps small steps might be more effective than immediate abolition). But I doubt it's an issue for the President on the campaign trail.
 

"Political reform" is a broad thing and it is a campaign issue to some degree on that level of generality.

Blocking nominations has been an area of dispute and Obama finally pushed the envelope with a somewhat controversial recess appointment. But, Mark Field has some bite.

Obama has been on record to be less enthusiastic about using the courts. There is this:

"Moving forward, we will continue to nominate and confirm judges who are men and women of unquestionable talent and character and will always demonstrate their faithfulness to our law and our Constitution and bring with them a sense of how American society works and how the American people live."

Isn't much, yes, but still.
 

1) Both parties like the filibuster as as a last line of defense for their preferred status quo when they lose power. Given that the voters are more likely than not to give the Senate to the GOP this cycle, the Dems have no incentive to campaign against the filibuster. The more interesting quesion is what the GOP will do when faced with a choice between the filibuster and repealing Obamacare as they are promising voters.

2) Given that a heavy majority of voters desire judges that actually follow the law as written rather than practicing common law, the Democrats have not been able to campaign on judicial appointments for a generation or so.
 

Our yodeler twice gives us "Given that ... " without facts, more like wishful thinking, less than assumptions.
 

At risk of self-promotion on the courts issue: http://www.degruyter.com/view/j/for.2010.8.2_20120105083456/for.2010.8.2/for.2010.8.2.1348/for.2010.8.2.1348.xml

In short, Obama only needs a court liberal enough to hold on the line on prior commitments, rather than move legal policy in a new direction. Also, liberals have little agreement on what big changes they would make.
 

re: filibuster. The history from the Bush W congress' Senate remains fresh in Democratic Senate leadership's minds.

My sense is that senatorial experience probably convinced the current president to respect separation of powers, and restrain rhetoric critical of filibuster, even though the current Republican minority in the Senate has blocked much of the Democratic legislative agenda and nominations thru filibusters.

I believe not that the current administration has been tentative about judicial nominations, although liberals have written as much, often recently.

It's that given the array of judges Republicans have nominated since Bork, there is an ongoing structural skirmish.

Plus, the average voter is fairly inattentive to the judge nomination issues. Bush W even banned the Amer. Bar Assn committee which evaluated nominees from doing so for a while.

To push courts into the conservative spectrum is an enunciated Republican goal. Democrats are being strategic about this, including both legislators and the executive branch's leadership.

One civil rights matter still clearly as heated as filibuster is a topic that has seen much litigation this national election season; namely, vote suppression. There remains one case enroute to the Supreme court, questioning one civil rights law in language very similar to the terms employed by writings of one of the supreme court judges. The issue relates to parts of quite a few states, and some entire states, which have a history of making laws to complicate voting or redistrict in ways to dilute minorities; the segment of law about to be challenged at Scotus in this regard is called VRA section 5, the so-called preclearance rule; and the prior Scotus case which invited the ongoing challenge was a matter involving the North Austin Municipal Utilities District Number One.
 

As a first approximation to an answer to the question you pose, I would say that Obama has not said anything about political reform because he is a politician deeply involved in the political process, and as such he is not in any position to propose changes in the system he is working within. One does not ask a driver going 70 mph in heavy traffic to consider at that moment how the design of the car might be changed, or a general in the midst of a battle to consider how the rules and methods of battle might be revised. This is a question for another time, or another person some distance away from the ongoing process. In sum Obama is working very hard to make the system as it is work, too hard to take the time to consider changes to it.
 

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Among the several ways to describe why there is no reform movement in the Beltway/presidential political world the most general is that the entire motivation there is to strengthen The Nation, the empire and thus those within the system to strengthen themselves.

Entrenched institutional power, military, national security, financial, corporate and others move from victory to victory in gaining power and wealth. Why on earth would they want to reform the system? None there can even conceive that the system needs reform for entre into institutional power is contingent upon belief in that concentrated institutional power as right, good and proper.

They system may dislocate from its inefficiencies and corruption but it will not end by reform. Attempted reform itself would collapse the system. Look no further than the banking/financial sector for proof. By allowing that system to continue after 08 with nary a prosecution material change the government can easily borrow $100 billion a month at zero interest. Absent that borrowing and spending which is around 10% of GDP we would have stayed in recession and entered a cycle of deflation and collapse.

 

Something like that. As the Gulf drilling moratorium demonstrates, Obama has little interest in complying with court orders. As the Dream act demonstrates, he doesn't feel the need to wait until Congress passes a law to enforce it, or to enforce a law just because a previous Congress did pass it.

If you're going to be a dictator, reforming the legislature and judiciary is not high on your list of priorities.
 

Brett's:

"If you're going to be a dictator, reforming the legislature and judiciary is not high on your list of priorities."

describes the eight (8) years of Bush/Cheney that ended with their 2008 Great Recession, and that earlier swung on the "Curveball" - and missed - resulting in many deaths and injuries.

Seriously, does Brett think that "R-MONEY/R-AYN 2012" winning would bring about reform?
 

Only relative to Obama, Shag. Only relative to Obama. On any absolute scale, Romney sucks big time.

Perhaps you can remedy my ignorance, Shag: Which court orders did the Bush administration refuse to comply with? Which laws Congress didn't enact did Bush enforce anyway? Did Bush wage any wars Congress refused to authorize, blowing past the War Powers act 90 day limit like it didn't exist?

Obama hasn't gone full blown dictator, yet. He hasn't canceled elections, or had opponents jailed. He's got a ways to go before he's as dictatorial as, say, Putin.

But he is in some respects acting more like a dictator than other recent Presidents, and I find that troubling.
 

Brett's":

"Perhaps you can remedy my ignorance, Shag: ...."

may require "torture," as pursued per Bush/Cheney (with even newer details just recently reported). And consider the results of their missing the "Curveball." Brett shares the short-term memory loss of the GOP regarding those recent eight (8) Bush/Cheney years, which ignored treaties that the Constitution makes provision for in its Supremacy Clause.
 

IOW, you weren't able to produce any actual court orders, or unauthorized wars.
 

I believe there to be another reason for Executive muting of rhetoric about courts; namely, the 'incident' during the 2011 State of the Union Address. There remains no published information about nonprofits collecting anonymous donations applied to political independent expenditure messaging this national election season; however, the assertion by the President's in that year's SOTA that foreign money might find an illicit CU-inspired way into US campaigns might be proven yet, if ever 501c4 rollodexes see the light of day from the current 2012 campaign.

Also, correcting a case caption from TX, the district is Northwest, rather than simply North, cf my post, above.

In the redistricting case in Alabama, a writeup of the DC Appeals May 2012 opinion is available there; the actual opinion by judge Tatel is there. This Alabama case is the one going to Scotus. After the 2012 gauntlet of vote suppression gymnastics in quite a few states, and several favorable court decisions upholding civil rights aspects of voting laws, it is difficult to imagine how Scotus credibly could affirm the complainants who aver there is no more suppression of ethnic voting. These have been Demnocratic party issues for a long time, and I anticipate hearing more from the leadership as the campaign enters its traditionally vocal phase following Labor Day, which just passed a week ago; the campaign is underway.
 

Citing a specific case where the Administration might have breached a court order does not show he has "little interest in complying with court orders." Likewise, the fact I don't tell some woman she is fat doesn't mean I have "little interest" in telling the truth.

On the Dream Act, Obama did what other Presidents did -- prosecutorial discretion. This was raised and refuted here in the past. Repetition doesn't alter it.

As to use of military in Libya, over the years various Presidents put military personnel in harms way in questionable situations.

If you want to toss around the word "dictator," you need a bit more evidence than that.
 

Here's what Brett asked:

"Which court orders did the Bush administration refuse to comply with?" [Brett states that the Obama administration refused to comply with court orders presumably by means of the Executive Order on the Gulf drilling moratorium. Is the matter before the courts, has the XO been legally challenged?]

"Which laws Congress didn't enact did Bush enforce anyway?" [Brett seems to be suggesting that Obama enforced laws Congress didn't enact (Dream Act) by means of an XO. Is the matter before the courts, has the XO been legally challenged?]

"Did Bush wage any wars Congress refused to authorize, blowing past the War Powers act 90 day limit like it didn't exist?" [Brett seems to be suggesting that Congress REFUSED - rather than declined? - to do something and that Obama violated the War Powers Act, without reciting details. Does Brett have Libya in mind? This constituted waging war? Is there a legal challenge pending?]

Compare these to Bush/Cheney swinging at the "Curveball" and the results of their missing with deaths, loss of limbs, loss of treasure, etc, etc, etc. Perspective, Brett, perspective. There is still talk of charging Bush and Cheney with War Crimes, Crimes Against Humanity, including in the international community as well as here at home.


 

Shag, Brett does seem to be talking about Libya, and the oil drilling matter might be related to Hornbeck Offshore Services LLC v. Salazar. See also: http://www.bloomberg.com/news/2011-02-03/u-s-administration-in-contempt-over-gulf-drill-ban-judge-rules.html

 

This comment has been removed by the author.
 

Joe:

If you want to toss around the word "dictator," you need a bit more evidence than that.

Brett only scratched the surface. My book Never Allow A Crisis To Go To Waste partially wrote itself based on the outlaw actions of this regime. Here are just a few:

1) Obama and the Obamacare legislation provided a grandfather clause allowing you to keep your health insurance. The Obama HHS illegally imposed several cost and coverage requirements on existing policies, effectively erasing the grandfather clause out of the legislation.

2) The Obama HHS illegally waived a series of Obamacare mandates for over 1,400 political supporters, unions and businesses that threatened to eliminate their insurance before the election.

3) Obama illegally used TARP money appropriated to buy up failing subprime home mortgages from the banks to buy the assets (aka nationalize) of GM and Chrysler.

4) Obama blackmailed the bankruptcy court to rubber stamp its illegal sub rosa plan to have Chysler sell assets owned by secured creditors to the government for pennies on the dollar. In the footnote of its opinion, the court admitted that it could not call Obama's bluff to withdraw all funding to Chrysler and unemploy tens of thousands. The Obama Auto Team called this "stuffing the judge" in one of its emails. The Obama Auto Team then repeated the process for GM.

5) Obama illegally gave away tax payer owned assets in GM and Chrylser to Fiat and its allies in the UAW.

6) Obama illegally used TARP money to pay GM liabilities to the UAW.

7) Obama illegally waived tax obligations for GM and Chrysler for the next decade or so.

8) The Obama DOE gave away nearly ten billion dollars to "green energy companies" owned by campaign contributors and political donors which its bureaucracy warned did not have viable business plans. Over four billion has been lost to date as these companies went bankrupt. Solyndra is just one of several.

9) Obama illegally waived immigration law for an entire category of illegal immigrants and then illegally provided them with work permits, pressuring states to then illegally provide them with driver's licenses and various benefits. This is not prosecutorial discretion declining to prosecute egregious cases. This is the equivalent of a governor illegally declining to enforce the law requiring drivers to be 16 or older and then illegally giving driver's licenses to children between 12 and 15.

There is far, far more (I didn't even get to foreign policy), but I think I have made my point.

Where Obama is breaking new ground in executive authoritarianism is nationalizing companies and ignoring laws that inconvenience him or his political allies.

Forget the economy and policy disagreements. The voters should fire Obama for his lawlessness alone.
 

Perhaps we can expect a blurb from Brett on on yodeler's screed. Our yodeler also seems to have a short term memory loss regarding Bush/Cheney's eight inglorious years. Of course our yodeler was echoing Bush/Cheney over those years.

Our yodeler has legal training, despite which he accuses Obama of numerous alleged illegalities, including blackmail, outlaw actions. But our yodeler being a mere NOAGN* is loose as a goose with any and all accusations that started with day one of Obama's inauguration. We all know our yodeler minored in economics. Now he claims foreign policy credentials. There is not end to his idiocy.

*NIT ON A GNAT'S NUT

 

all accusations that started with day one of Obama's inauguration.

# posted by Shag from Brookline : 3:34 PM


He didn't even wait that long. He was blaming Obama for shit that was happening while Cheney was still president.
 

Shag:

As Brett noted above, you again did not rebut any of my several examples of Obama violating the law.

You did manage a light red herring and name calling.

SOP.
 

Bart

How many of your listed items have been judged illegal by our federal courts?
 

Our yodeler says:

"As Brett noted above, you again did not rebut any of my several examples of Obama violating the law."

Just where in the comment thread did Brett note that I did not rebut any of your examples. I had responded to Brett, comment, which preceded your self-promotional screed, pointing out Brett's lack of specifics. I didn't realize that Brett was our yodeler's tail-gunner, with an advanced flurry that lacked details. (Joe put up a comment with suggestions as to what Brett may have had in mind, but Brett himself has not responded.)

And that "light red herring" our yodeler refers to may be the "Curveball" swing and miss during the eight (8) Bush/Cheney years that led to many thousands of deaths, injuries, gigantic loss of treasure, etc.

As for my name calling, one only has to go through the archives of this Blog for the vile name calling of Obama by our yodeler, going back to day one (or prior thereto as BB points out). Is our yodeler claiming that Obama is not the duly elected President of the United States? Has Obama lied to Americans as Bush/Cheney did on WMD and their reliance on the "Curveball" (et al as presented to the UN by Secretary of State Colin Powell) to the extent that thousands died, many more thousands were injured and maimed, and contributing to the financial crises resulting in the 2008 Bush/Cheney Great Recession? Our yodeler, as does Brett, lacks perspective.
 

Mr. Whiskas said...

How many of your listed items have been judged illegal by our federal courts?

That is the beauty of illegally using federal funds for other purposes or refusing the enforce the law. Who is the injured party who could bring suit in court?

As to making the determination that the acts in my indictment were illegal, go read the statutes and regulations as I did in researching my book.
 

Shag:

Unlike your inability to rebut a single count of my indictment of the Obama regime, I provided the constitutional and statutory authority for all of Mr. Bush's exercises of CiC and foreign policy power during our months of debates in this forum on the subject.

The almost complete silence here when Mr. Obama exercised and often expanded the same CiC and foreign policy powers rather strongly suggests that the objections to Mr. Bush here were nearly all partisan.
 

Alas, our yodeler seems to have no standing for his charges. His self-promoting screed has no credibility. Notice his:

" ... rather strongly suggests that the objections to Mr. Bush here were nearly all partisan."

And his support of Bush/Cheney for their eight (8) years, including their "Curveball" swing and miss, were non-partison? Oh, YOO who soon forget. "R-MONEY/R-AYN 2012" avoided an amBUSH at their convention. I wonder why. Yet, here's our yodeler self-promoting what has had no credence in the market place of ideas. Bush/Cheney pushed executive powers during their eight (8) years to the max. Obama, like most Presidents, has accepted executive powers left by predecessors. That may not be right, but that's politics. I don't see the conservatives, including "R-MONEY/R-AYN 2012," being prepared to pull back (reform?) on executive powers, especially since their convention in effect ignored Bush/Cheney (unlike the Democratic convention that featured Bill Clinton).

So our yodeler prattles on, perhaps in the hope of a few more sales of his "outhouse" screed of a publication suitable at best to replace the Sears catalog of yore. That's about the only place our yodeler has any standing.
 

Shag, with a writing style like yours, I wouldn't have the nerve to use a word like "prattle". Maybe you're just blind to irony.

You asked if I could document any cases of Obama defying court orders. I think this seems on point:

U.S. in Contempt Over Gulf Drill Ban, Judge Rules

Your turn.
 

Might the U.S. appeal that decision? Would an appeal be defying a court order? Let's wait for a final verdict, Brett.

In any event, compare the harm of a contempt charge on drilling that may be appealed with the Bush/Cheney swing and miss at the "Curveball" with its resulting thousands of deaths, etc. Perspective, Brett, perspective.

Yes, Brett will continue his search through woodpiles, but will continue to overlook the thousands of deaths, etc, that Bush/Cheney's lies brought about with WMDs and other specious claims.
 

I think we've confirmed it: Shag has no case of the Bush administration defying a court order, and being held in contempt. Neither can he point to Bush violating the War Powers act.

Yes, Shag, the federal government might, eventually, appeal that ruling, and get it overturned. Then again, they might simply ignore the court, and continue to be in violation of the law.
 

"Who is the injured party who could bring suit in court?"

Bart, in at least several of the examples you gave their appear to be parties that could bring suit, indeed you mention some of them did so. Yet you can't point to a single one of them that was determined by a federal court (which has many GOP lifetime appointees) to be illegal?
 

"Neither can he point to Bush violating the War Powers act."

Would you take violation of the FISA act?
 

BD: "Who is the injured party who could bring suit in court?"

Mr. W: Bart, in at least several of the examples you gave their appear to be parties that could bring suit, indeed you mention some of them did so.


During its ramp up to nationalizing GM and Chrysler, the Obama Auto Team did all it could to keep its activities out of the courts and was largely successful.

The Treasury appears to have entered into a quid pro quo with the TARP banks, allowing them to pay back the TARP loans (and escape government direction) after the deal went through if they would screw over their shareholders and give up their rights as secured creditors with first claim on the GM/Chrysler assets. However, three Indiana police and teacher retirement funds would not given up their assets. The Obama Auto Team then drafted a bankruptcy plan with an illegal sub rosa sale of all the useful auto assets to new government run entities known as New Chrysler and New GM. To compel the bankruptcy judge to immediately sign off on the plan without allowing the retirement funds to conduct discovery or retain experts, Obama threatened to immediately withdraw all funding from the automakers. The judge caved.

The retirement finds were able to go to court because the Obama Auto Team was taking their property. In all the other cases, the administration is giving away public property or selectively not enforcing the law. Who are the injured parties with standing to bring suit?
 

Brett and Shag can 'argue' some more, but again, yes, I think bs-ing us into Iraq with all that entailed trumps Libya (Shag, showing the value of toning it down a little, with respect, tellingly notes Brett's sloppy use of language there) as does torture policies and the like trumps not doing enough in response (contra the "abandoning" language in a Volokh Conspiracy post). I think there is a real case that the violated the War Powers Act, but the matter there is rather open to debate, a true "dictator" would do something much more blatant than that.

And, again, Whiskas having a point too on rejecting clear law, one questionable case ("perspective") doesn't mean he doesn't care about court orders. Words have meanings.


 

Thanks Bart for your response and with respect, I have other reading choices, but congrats on your book. The subjective nature of your analysis is notable and the "illegal" nature of the acts open to much dispute, including acts of executive discretion done by administration after administration that might in case to case open to dispute or bad policy. The power of the executive here underlines the choice of who to vote for should not merely be based on trivial grounds, including personality contests or single issue voting.

I will not go back and forth on the details, partially because, with respect, past practice makes that not really advisable.
 

Joe:

I do not expect a response, but I use the term illegal when either the president is directly violating the law (ex. the Obamacare grandfather clause) or does not have the authority (ex. waivers and giving away government property).

You can determine this by simply reading the law and the regulations.
 

This comment has been removed by the author.
 

The application of what is obvious (what "illegal" means) to the non-obvious in dubious ways and doing so in partisan laden language is why people find it so hard to take some seriously.
 

Bart

So the answer is that no, no federal courts have determined any of that to be 'illegal,' even in the cases where there plainly was standing and suits.
 

Perhaps instead of referring to him as our yodeler, I should refer to him as "Humpty Dumpty" for his ""When I use a word, it means just what I choose it to mean—neither more nor less."
 

"Bart

So the answer is that no, no federal courts have determined any of that to be 'illegal,' even in the cases where there plainly was standing and suits."

I'm puzzled at how you'd term the status the federal courts assigned to Obama's Gulf drilling moratorium, if "illegal" is unacceptable. Is there some other term which equates to "contrary to law", the phrase the court actually used?
 

Brett should acquaint himself with legal proceedings in federal courts with respect to finality of decisions. Consider that different courts disagreed on ACA, eventually resolved by the Supreme Court. There are appeal processes to a federal district court decision/order. Maybe Brett thinks he can put Humpty Dumpty back together again
 

Brett

I was talking about Bart's examples. The one you pointed to is currently being reviewed by the Circuit Courts. An interesting thing about that is the judge that issued the contempt order had stock in companies impacted by his ruling. According to judicial guidelines he should have recused himself.

Rulings from federal judges at the district court level concluding an administration has done something flagrantly illegal are not too hard to find for any administration. Here's a quote from one re: the Bush administration you might find interesting:

"The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well."
 

Yesterday's (9/9/11) NYTimes Book Review includes a review by Alan Brinkley of "Embers of War - The Fall of An Empire and the Making of America's Vietnam," that is a reminder of concerns with the expanding executive powers, especially with respect to wars declared and undeclared post-WW II. The troubling expansions have come about under both Democrat and Republican Presidents, to the present day. Can we expect it to level off? I have my doubts.

Newly elected Presidents who may have campaigned against such expansions seem to find it difficult to bring about reform. Perhaps this is due to detailed information that a newly elected President becomes aware after being sworn in concerning threats to national security (which can include economic security).

I was 11 years old at the time of Pearl Harbor. During the Korean Conflict, I was in college and law school, with the benefit of deferment from the draft. My draft obligation was served post-Korea and pre-Vietnam. Wars are serious business, whether declared or undeclared. All Democrats/Liberals do not walk in lockstep with Democrat Presidents in the expansion of executive powers, especially those involving wars. But the public does not have the same information that the President has. Perhaps this is necessary. But often the foresight is poor. Consider both Afghanistan and Iraq post 9/11.

Now we have Iran. The views of both Obama and "R-MONEY/R-AYN 2012" are troublesome. No options, including the military, are off the table. Is this just political election jibber-jabber? While Iran with nuclear capabilities acquired can be trouble, consider that North Korea, Pakistan and India have them already, as do Russia, China, Israel and the U.S. Consider the extensive stockpiles of Russia and the U.S. Are the U.S. and its allies prepared to attack Iran militarily? What does foresight tell us about what might result? What did we learn of foresight from Afghanistan and Iraq?

National security is of course critical. As we have learned since 9/11, world economies are to be considered part of national security, especially after the financial/economic crises os 2008.

Yes, the expansion of executive powers is troubling, even more so in an election year.
 

OOPS! I failed to identify the author of "Embers of War" in my preceding comment: Fredrik Logevall. Sorry.
 

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