Monday, May 17, 2010

Days of Our Lives

The same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy. 
In this week's Sift:
  • The Disruption Strategy: Unacknowledged Bipartisan Continuity. If neo-conservatives want to make Bush's anti-terrorism policies into an unassailable bipartisan consensus, all they have to do is acknowledge President Obama as one of their own. The fact that they aren't tells me that they're more concerned about two-party politics than about defending America.
  • Cutting Through the Nonsense About Kagan. It would be nice if we could evaluate Elena Kagan on her actual virtues and vices. So far it doesn't seem to be happening.
  • Pray for Separation of Church and State. Church-and-state law is usually defined by cases that are more symbolic than consequential. The latest concerns the National Day of Prayer, which you just missed.
  • Short Notes. Arizona's non-existent immigrant crime wave. Nazi Tourette Syndrome. The political consequences of Neanderthal DNA. E coli conservatives and Jack Bauer Republicans. The morality of corporations. And more.

The Disruption Strategy: Unacknowledged Bipartisan Continuity
Here's something David Frum said on CNN in the wake of the failed Times Square bombing:
If you look at the period from 1990 to 2001, each terrorist plot (even the ones that are defeated) is more sophisticated, more elaborate -- more people, more moving parts -- than the one before. Since 9-11, each plot: less sophisticated, fewer moving parts, until finally you're in a situation where people make bad bombs because they can't communicate. This is what success in the War on Terror looks like. 
In other words: As long as people hate us, some of them will try to do us harm. But if we have good intelligence, good surveillance, and take action against terrorist safe havens and training grounds whenever we find them, they won't be able to put together the kind of big, complicated plots that might actually work on a 9-11 scale. 

If I wanted to, I could argue. (Occasionally some of those small plots are going to do serious damage, a la Timothy McVeigh. And we shouldn't gloss over the why-do-they-hate-us question.) But instead I'll point this out: Frum is an intelligent person making a legitimate point about the security policy of the United States. He sees things from a conservative point of view. But given that ideological perspective, he's commenting fairly and honestly.

We used to have this kind of discussion all the time during the Cold War. Hawks and doves would argue about whether we needed more weapons or less, about whether arms control treaties could work, and about how (or whether) to fight some particular war like Vietnam or Korea. But the mainstream of both parties recognized some common ideas: 
  • President Truman had put forward a strategy of "Containment" against the Soviet Union, and all presidents after him were carrying it out in one form or another. (The goal of Containment -- collapse of the Soviet empire from within, no American attack needed -- was achieved during the presidency of the first President Bush. That success came from 40 years of consistent policy by four Democratic presidents and five Republicans.)
  • Containment required that we maintain a credible nuclear deterrent and a military force capable of responding to Soviet attack wherever it might occur.
  • We were not going to start World War III on our own. (In an Eisenhower-era policy known as massive retaliation we threatened to escalate any Soviet attack to nuclear war, but even this was a reactive stance rather than an aggressive one.)
For 40 years, through nine administrations, that was gospel.

If you listen to mainstream Republican rhetoric today, you would never guess that we are seeing a similar continuity in policy from Bush to Obama. President Obama has taken the edge off of some of the Bush administration's worst excesses -- black sites, torture, and so on -- and does not have such an in-your-face attitude towards international organizations and other countries in general. But by and large he has continued the Bush anti-terrorism strategy that we might call Disruption. Under Obama we are:
  • winding down the Iraq War along the lines already mapped out under Bush
  • escalating in Afghanistan
  • continuing Predator drone strikes against suspected Taliban and Al Qaeda havens in Pakistan
  • defending internal spying and surveillance practices widely considered unconstitutional prior to the Bush administration
The friendlier face Obama presents to the outside world can be seen as an attempt to do Disruption better: to get more international cooperation (especially in Muslim countries) in tracking terrorist plots and in disrupting their communications and financing.

Conservatives should be happier about all this continuity than I am. They might react to it by breathing a sigh of relief and touting the successes of the bipartisan Disruption strategy, as Frum is doing. That's what they would do, in fact, if they took the War on Terror seriously and cared about our strategy for fighting it. Recognizing Disruption as a bipartisan strategy would cement it in place and make it very hard to dislodge in the future. If you're a patriotic American who really believes that Disruption is the right strategy for protecting our country, then establishing Disruption as a bipartisan consensus should be your goal.

But a comment like Frum's is actually quite rare, and that points to a darker truth: Most Republicans don't really believe their own rhetoric about the War on Terror being a "generational conflict" or an existential struggle. Terrorism is just another chip in the poker game of politics. If claiming that Obama has drastically reversed Bush's strategy allows them to paint Democrats as weak, if it sets them up to benefit politically in case of a successful terrorist attack -- well then that's what they're going to do. That's far more important than cementing in place the policy that they believe to be correct.

Cutting Through the Nonsense About Kagan
Ultimately, the public discussion about Supreme Court nominee Elena Kagan is going to revolve around a few key points, and it would be nice if those points were actually true and pertinent. So while there will be plenty of time to consider what kind of judge Kagan will be, I'm going to start by shooting down nonsensical and irrelevant points about her.

Is she gay? The right answer is: Who cares? Did anybody discuss John Roberts' sex life? Or his ethnicity, like we discussed Sotomayor's? We never talk about how being a straight white male will affect a guy's jurisprudence, because straight white males are "normal". 

Unfortunately, though, some people do care about Kagan's sexual preference, and they're going to interpret a who-cares answer as a yes. So we have to talk about it. But I don't want to concede that the question has any relevance to whether she'll be a good judge.

The evidence that Kagan is a lesbian boils down to: She's a middle-aged woman who has never been married and she looks kind of butch. For some people, I guess, that's enough. Of course it's also possible that her career path hasn't left her a lot of time for relationships, her power and intellect intimidate potential dates, and she doesn't have the movie-star looks that would motivate a man to overcome those two obstacles. You choose.

For what it's worth, anonymous Kagan friends have told Politico that she's straight. And anonymous friends would never lie, so ... it really doesn't mean anything, does it?

Is she anti-military? Supposedly Kagan banned military recruiting at Harvard Law School while she was dean there.

The real story was told in the Wall Street Journal by Kagan's predecessor Robert Clark: Harvard Law School and the military judge advocate generals have been doing a symbolic dance since 1979, when HLS instituted a non-discrimination policy. Any employer who wants to use HLS's Office of Career Services has to sign a non-discrimination statement, which the Pentagon can't do because of don't-ask-don't-tell. 

The JAG recruiters have never been banned from campus, and have continued to recruit via work-arounds like using facilities of the HLS Veterans' Association rather than the OCS. 

In 2002 (just before Kagan's term as dean), the Pentagon threatened to cancel all of Harvard University's military funding (hundreds of millions of dollars) unless they were granted an exception from HLS's non-discrimination policy. HLS caved. "Virtually all law schools affiliated with large universities did the same," Clark writes.

In 2004, the law that allowed the Pentagon to make its threat was ruled unconstitutional by a federal appeals court. In response, Dean Kagan rolled HLS' policy back to what it had been before 2002. A semester later the Supreme Court reversed the appeals court, and Kagan reinstated the military's exemption from the non-discrimination policy.

In short, this is a long-standing institutional tug-of-war between many major law schools and the Pentagon, not Kagan grinding some personal anti-military gay-rights ax. She briefly stood up for her institution's rights while she was dean. No students were affected and military recruiting was not impaired.

Is she "Obama's Harriet Miers"? Conservatives shot this bullet already against Sotomayor, but here we go again. I love Jon Stewart's reaction:
It's like no matter what happens during the Obama administration, there's the perfect Bush f**k-up for the occasion.
Harriet Miers was President Bush's failed Supreme Court nominee in 2005. She had been Bush's personal lawyer, and much of her resume consisted of jobs Bush appointed her to as he rose up the political ladder. So the Miers comparison combines two criticisms: That Kagan isn't qualified for the Supreme Court and that she's too close to President Obama.

The not-qualified complaint arises mainly because she hasn't been a judge before. This is a little unusual in recent decades (the typical nominee is an appellate judge), but not altogether strange. Recent Chief Justices William Rehnquist and Earl Warren had never been judges before joining the court, and neither had the first great chief justice, John Marshall. Kagan's main qualifications are her academic career and government work in the Clinton and Obama administrations. She clerked for Justice Thurgood Marshall. 

It's also worth pointing out that Kagan would have had ten years of experience as an appellate judge by now (President Clinton nominated her in 1999), but Republican Senator Orrin Hatch refused to hold hearings on her nomination.

The too-close complaint arises mainly because the top level of legal scholarship is a small world. Kagan and Obama were colleagues at the University of Chicago Law School from 1991-1995. They both graduated from Harvard Law School, but didn't attend at the same time. She's currently Obama's solicitor general. Obviously, her 1999 nomination as appellate judge and her appointment as dean of Harvard Law had nothing to do with Obama.

Does she disrespect the Constitution? The most inept criticism of Kagan came from the Republican National Committee and specifically from its chairman Michael Steele.  An RNC memo wondered if Kagan still agreed with a Thurgood Marshall statement that the original Constitution was "defective".  An embarrassed Republican blogger wrote: "But of course the answer should be, yes." It's hard to argue that allowing slavery or restricting the vote to men (exactly what Marshall was referring to) weren't defects.

Pray For the Separation of Church and State
Whether you pray every day or not at all, I'll bet you missed the National Day of Prayer on May 6. It was established by Congress in 1952, is proclaimed annually by the President, and has been celebrated on the first Thursday of May since 1988.

Ostensibly a non-sectarian holiday like Thanksgiving (there's no reason you can't thank Allah or the Great Mother for your blessings, or even just be vaguely grateful to no one in particular), in practice the NDoP belongs to the Religious Right. The self-appointed National Day of Prayer Task Force is co-located with Focus on the Family and is headed by James Dobson's wife Shirley. If you aren't plugged in to the Religious Right, May 6 probably went by without you even noticing.

In short, the NDoP is just the kind of no-big-deal event out of which case law is made. The Freedom From Religion Foundation has sued to have it declared an unconstitutional establishment of religion, and in April they won at the district level. Judge Barbara Crabb enjoined President Obama from proclaiming the NDoP, but stayed the enforcement of her ruling pending appeal.

Judge Crabb's ruling is a good primer on church/state law. The First Amendment's phrase establishment of religion sounds clear until you try to apply it. Not even the Founders agreed on what it meant. (President Washington proclaimed Thanksgiving in 1789, but President Jefferson refused on constitutional grounds in 1801.) So the Supreme Court has struggled over the years to come up with more transparent tests.

Three tests are relevant here. First, whether or not a law benefits or harms religion, is it motivated by a secular purpose? My favorite example (which no one ever uses, for some reason) is military chaplaincy. The government pays ministers to perform religious rituals for our soldiers, but the practice passes constitutional muster because it has benefits for the military, namely recruiting and morale. (If joining the military meant giving up the rituals of your religion, a lot of people just wouldn't do it.)

Second, does the law divide citizens into insiders and outsiders? Justice O'Connor put it like this in 1989:
government cannot endorse the religious practices and beliefs of some citizens without sending a clear message to nonadherents that they are outsiders or less than full members of the political community.
So imagine being a Hindu mother battling your Christian ex-husband for custody of the children. You walk into court and see a cross hanging on the wall behind the judge. How confident are you that you're going to get a fair hearing?

And finally, is the government unnecessarily taking sides in a religious controversy? This is the argument I think should ultimately prevail (but so far hasn't) in the Pledge of Allegiance case: Why does the government need to state a position on the existence of God?

According to Judge Crabb, the NDoP fails all these tests: Its primary purpose is to promote religion, it tells the non-religious that they are second-class citizens, and it unnecessarily embroils the government in religious controversy.

To me it comes down to this: Plenty of special days are recognized without the government's help. (I haven't found any presidential proclamation of Valentine's Day, for example.) If the National Day of Prayer Task Force wants to make its own proclamation, it can. What does government involvement add?

As far as I can see, it only adds what Justice O'Connor said the government shouldn't be doing: sorting the citizenry into insiders and outsiders.

This is how you run for governor in an Alabama Republican primary these days: An attack ad implied that candidate Bradley Byrne supported evolution and questioned the Bible. So Byrne issued a statement to set the record straight:
I believe the Bible is the Word of God and that every single word of it is true. ... My faith is at the center of my life and my belief in Jesus Christ as my personal savior and Lord guides my every action. ... [T]he record clearly shows that I fought to ensure the teaching of creationism in our school text books.

This week's discovery is the Texas Freedom Network, which bills itself as "a mainstream voice to counter the religious right". Their blog, the TFN Insider, has stories like Is the Religious Right Shilling for Big Oil?, which critiques an example of
how the religious right uses its influence with people of faith to lobby for powerful economic interests associated with the political right. Instead of a story told ”from a biblical perspective,” we get a propaganda piece from the perspective of oil companies opposed to regulations that might hurt their profits.
TFN also issues reports like Just Say Don't Know about the misinformation and ineffectiveness of Texas' abstinence-only sex education. TFN is also my best source of information on the right-wing attempts to distort the Texas public school curriculum.

Short Notes
The sympathetic view of Arizona's draconian immigration law says that they had to do something about a sudden increase gang-related crime spilling over from Mexico. (I've passed on that justification myself.) But the statistics don't support that story:
Media reports on the supposed crime wave ... are held together with a string of conditional statements --"seems as though," "might indicate." Few contain police data, which is continuously available to those seeking public information. Barely any reports present the ample countervailing evidence that the United States has yet to be substantially affected by Mexican drug violence.
Among the law's critics you'll find the Phoenix chief of police.

Glenn Beck has ridiculed people who compare Arizona to Nazi Germany. So the Daily Show's Lewis Black compiled Beck's references to Nazism
This is a guy who uses more swastika props and video of the Nuremberg rallies than the History Channel. ... Glenn Beck has Nazi Tourette's: My goodness this is delicious. HITLER! That's a very nice tie you're wearing Jon. GOEBBELS!

Biologists have sequenced enough DNA to conclude that Neanderthals must have interbred with humans emigrating out of Africa.

You know what has to come next: White supremacists will portray the Neanderthals as a lost Hyperborean civilization, too generous and trusting to handle the barbarians coming out of Africa, and surviving just long enough to pass their brainy, high-culture DNA down to Europeans and Asians. The movie script almost writes itself. Overnight, Neanderthal becomes a compliment.
Daily Kos' Fishgrease gives a foul-mouthed but informative primer on those inflatable lines that are supposed to stop the oil slick. And a sequel.
Rachel Maddow made a good point Friday: As we talk about the ever-growing oil spill and the malfeasance that caused it, we shouldn't fall into the trap of characterizing BP, Transocean, and Halliburton as "bad" corporations. They are just corporations, doing what corporations do when governments let them: cutting corners and making private profit out of public risk.
A corporation is not a person. A corporation is not moral or immoral. A corporation is by design a device that is created by humans ... and its purpose is to seek profit. ... If you want [corporations] to not do those things, you have to stop them.

Rick Perlstein connects anti-government-regulation ideology to our food-safety problems and simultaneously coins a great phrase: e-coli conservatives.
Another great phrase: The Daily Beast tells us about the Jack Bauer Republicans -- two Iraq veterans who parlayed their records of detainee abuse into nominations for congress.
Over the last month the Democrats have been sneaking up in polls of the "generic Congressional ballot". The most recent TPM average has them ever-so-slightly ahead for the first time since November.
Maine, the last remaining habitat of moderate Republican senators, just had its Republican Party platform re-written along the lines of the Tea Party. Oh, and the conventioneers stole a poster from a middle-school classroom because it was too liberal.
Jon Stewart thinks the phrase "the American people" is so overused that it has become meaningless.


Eugene said...

The obvious problem with your discussion of the continuity of the war on terror from the Bush to the Obama administrations is that the argument cuts both ways. Yes Republicans should acknowledge this continuity but so should Democrats. Do you hear any Dems saying "We are continuing the Bush anti-terror policy." Neither do I. So you are focusing only on one side and giving the other side a pass. Thus the criticism of elevating partisanship above other issues would seem to apply to you as well.

Doug Muder said...


As a Democrat, I'm actually unhappy about the continuity. I voted for Obama because I wanted a change from the Bush policy, which I don't think is the best way to keep America safe. I didn't make a big deal out of it in this edition of the Sift, but I've been critical of Obama for continuing Bush's anti-terror policy.

I think this is a fairly common view on the Left: We do talk about the continuity, and we don't like it. (Glenn Greenwald is a good example of a liberal Obama critic on this issue.)

I suppose your criticism could apply to the Obama administration itself -- they could invoke the name of Bush more than they do. But I also don't see them actively claiming to have made big changes in terrorism policy.

Perhaps its my liberal myopia, but when I hear someone claiming that something is drastically different in terrorism policy, it is almost always the Republicans.

Eugene said...

It is always difficult to discuss in terms of "the Democrats say..." or "the Republicans say.." because there is a diversity of opinion on both sides. That being said you are certainly correct in saying that many left wingers decry Obama's sticking to Bush's anti-terror policy.

However I have also noted that many Republicans also note this continuity. But when they do so they are doing it to point out the hypocrisy on the left. As in "How can you make a living by trashing Bush and his war on terror then turning around and following much the same policy?" They are using this argument as part of a partisan argument but using it correctly IMHO.

The point is that Obama came to office running on an anti-Bush policy, criticizing the Iraq war and the Bush anti-terror policy, then pretty much following the Bush pattern after taking office. It is true the anti-Bush rhetoric was toned down some after Obama became president but it is still the routine hypocrisy we all expect from politicians.

We are not really discussing whose policy is better, just the hypocrisy in all politician's statements and the obsession with partisanship on both sides. Clearly this obsession is detested by the public, me included.

I do compliment you on your reasonable tone which contrasts with most political blogs on both sides.

Doug Muder said...

I agree with you on this much: In the campaign, Obama certainly let a lot of his supporters (like me) believe that terrorism policy would change a lot more than it did. I was hoping for a more across-the-board support for human rights and the right of citizens not to be spied on without probable cause. I'd have to check the record to see how close Obama came to outright lying, but I do feel misled.

It would be interesting to see what would happen if more Republicans would say, "Thank you for recognizing we were right, President Obama."

Eugene said...

Well here is an entry from Instapundit today"

"A new government program aims to train thousands of parking industry employees nationwide to watch for and report anything suspicious — abandoned cars, for example, or people hanging around garages, taking photographs or asking unusual questions.

What’s new isn’t the program, but the perfectly straight coverage from an outlet like MSNBC. When a similar program, TIPS, was proposed right after the 9/11 attacks, it was the second coming of Stasi, and was opposed by a left-right coalition of civil libertarians. Here’s how it was covered in 2002:

Attorney General John Ashcroft tried to assure dubious Senate Democrats yesterday that a new citizens watchdog program isn’t a Big Brother snooping operation.The attorney general said TIPS is aimed at reporting suspicious activity in public areas and isn’t targeted at people’s homes – a central complaint of libertarians who say the plan encourages neighbors to spy on one another.

TIPS was unveiled in President Bush’s State of the Union speech but has generated little enthusiasm. One of its primary recruiting targets – the Postal Service – has said it won’t encourage mail carriers to participate.

The plan has united liberals and conservatives in opposition. The American Civil Liberties Union contends TIPS would turn many workers into “government-sanctioned Peeping Toms.”

Of course, that was then, and this is now. Apparently we only need a left-right coalition that raises privacy objections to government policies under Republican administrations."

This illustrates what I was saying - that righties discuss Obama tactics in terms of how hypocritical they are considering the long history of criticizing Republicans for the same tactics.

In that same vein would it not now be reasonable to compare Obama to Hitler since the drone attacks in Pakistan and the US operations in Afghanistan are killing civilians. After all when Bush did similar things pictures of him with Hitler mustache appeared all over. Yet aside from a few such at tea parties I don't see this - certainly not from the left.

So again my point is that we can ignore 90% of what political blogs and politicians say since they are just attempts to gain partisan advantage and have only a weak connection to any issue.

Eugene said...

I have to admit though that the "Thank you President Obama.." thing is not really going to happen because it is not part of the program of furthering partisan advantage for Republicans.

There are a few places where Obama does get support from Republicans - the actions in Afghanistan and the Nobel acceptance speech for example.