I rarely find myself agreeing with Media Matters. But in a recent piece MM took the position that two of nominee Sotomayor's controversial statements had been presented out of context. Imagine such a thing. Well, it is usually out of context because you can't make hay with statements presented in context. Second, context is inherently subjective. What makes "in context", a phrase, a sentence, a paragragh, an answer, an answer accompanied by the question preceding it?
Judge Sotomayor's remark about appellate courts making policy would be alarming, had she actually said that. Her remark was buried in a response to a student's question about the differences between clerking in appellate courts as opposed to trial courts. If a non-lawyer such as myself were to read her full response, how would one summarize her answer. She said that the issues are narrower in trial courts, limited primarily to the facts of the case and that appellate decisions by their nature have potential repercussions for future cases aside from the case in appeal. However decided, precedents have policy implications in a de facto sense and that clerks should be aware of that.
That said, it is hard to imagine what context could possibly justify her other controversial remark, other than an attempt at humor. If judges are called to make legal judgments, how does one persons' ethnic background make her better qualified? Did the lower court properly apply the law? Is the law constitutional? The answers are knowledge-based not empathy-based.
Hearings for Supreme court nominees typically bring out the worst in elected officials. Refer back to the Robert Bork and Clarence Thomas hearings. This one is a potential loser for Republicans. Hopefully, they will challenge Judge Sotomayor on issues of legal philosophy rather than clumsy statements or misrepresentations of her views. If Republicans stay on target, she is not a lock for confirmation albeit a long shot for defeat. If they play for the cameras, the Republicans will look small. The first issue is a loser and should be left alone. The second statement, oft repeated is fair game. There are a number of legitimate ways to challenge Judge Sotomayor and Republicans should remember that under glare of television lights.
Sunday, May 31, 2009
Friday, May 22, 2009
War of words
My reactions to the Obama/Chaney speeches of May 21, 2009 and the hours of press coverage in the aftermath.
** The left seems to emphasize that enhanced interrogation is both immoral and ineffective. If it is immoral, why qualify it? If you are going to be guided exclusively by your moral compass, then isn't the quality of the results produced immaterial?
** The point was raised more than once today that there are other, more efficient ways of getting the information. The question is not really if, it is when. Information concerning the attack on Pearl Harbor would have been very useful on December 5th in 1941, a historical footnote on December 9th.
** Vice-President Chaney made a compelling case for the release of information relating to the information elicited from these interrogations. Should that occur, he should be prepared to defend comments about the saving of thousands, perhaps hundreds of thousands of lives.
** Lanny Davis made the comment that waterboarding is torture citing a 1994 law. Legal opinions from the Bush Justice department clearly differed. This would be an interesting subject for some "journalist" to report on.
** The most interesting note in the Chaney speech was to a recent editorial referring to terrorists as abducted, saying " a major editorial page makes them sound like kidnap victims, picked up at random on their way to the movies". There was a time when no editorial page would have used such language without feeling compelled to support it in the text of the editorial.
My take - Should there be some debate over the limits of interrogation? Absolutely. But consider what actually happened here. We didn't behead anyone, hang any combatants from bridges, nor did we shoot prisoner A to encourage prisoner B to talk. We frightened them. Maybe terrified them, a concept that terrorists could probably process, maybe even admire. If you ever been in a fight with someone who has an advantage (such as being bigger and meaner than you) you might understand than one equalizer is making the opponent think that you are crazier than they are, less likely to be constrained by the rules, more likely to hit them with a chair or bite them or perhaps willing to drown them.
I hate hypotheticals but let's consider this scenario. The Twin Towers attack and the Pentagon attack occur on September 11th. The White House/Capitol attack is planned for September 16th. We pick up a planner of the attacks on September 12th and the only information we can obtain via the allowed protocol is that a spectacular attack is going to occur on the 16th. Every member of Congress is assembled and told that we have evidence an attack is imminent and are convinced that the prisoner knows the details. It is our opinion that the only hope we have of preventing an attack is to scare the shit out of Khalid. What would you have us do?
How would your representative have answered this question? It is easy to look back in history and surmise that we would have oppsed slavery in 1790 or the excesses in the aftermath of the French Revolution. We can be sure that we would have risen up against the Nazis during World War Two. We can be sure because we have the luxury of coming to our convictions far removed from the moment.
Last comment. There was precious little to admire in the analysis. That said, Dana Perino was articulate, thoughtful and forthright. I have always admired both of the Chaney girls. Liz Chaney's commentary was as well-articulated as you will hear this side of George Will. I am pretty sure that Mara Liiason is comfortably liberal but I never detect that in her analysis. I find both her and Charles Krauthammer a welcome relief from the water carriers posing as dispassionate analysts.
** The left seems to emphasize that enhanced interrogation is both immoral and ineffective. If it is immoral, why qualify it? If you are going to be guided exclusively by your moral compass, then isn't the quality of the results produced immaterial?
** The point was raised more than once today that there are other, more efficient ways of getting the information. The question is not really if, it is when. Information concerning the attack on Pearl Harbor would have been very useful on December 5th in 1941, a historical footnote on December 9th.
** Vice-President Chaney made a compelling case for the release of information relating to the information elicited from these interrogations. Should that occur, he should be prepared to defend comments about the saving of thousands, perhaps hundreds of thousands of lives.
** Lanny Davis made the comment that waterboarding is torture citing a 1994 law. Legal opinions from the Bush Justice department clearly differed. This would be an interesting subject for some "journalist" to report on.
** The most interesting note in the Chaney speech was to a recent editorial referring to terrorists as abducted, saying " a major editorial page makes them sound like kidnap victims, picked up at random on their way to the movies". There was a time when no editorial page would have used such language without feeling compelled to support it in the text of the editorial.
My take - Should there be some debate over the limits of interrogation? Absolutely. But consider what actually happened here. We didn't behead anyone, hang any combatants from bridges, nor did we shoot prisoner A to encourage prisoner B to talk. We frightened them. Maybe terrified them, a concept that terrorists could probably process, maybe even admire. If you ever been in a fight with someone who has an advantage (such as being bigger and meaner than you) you might understand than one equalizer is making the opponent think that you are crazier than they are, less likely to be constrained by the rules, more likely to hit them with a chair or bite them or perhaps willing to drown them.
I hate hypotheticals but let's consider this scenario. The Twin Towers attack and the Pentagon attack occur on September 11th. The White House/Capitol attack is planned for September 16th. We pick up a planner of the attacks on September 12th and the only information we can obtain via the allowed protocol is that a spectacular attack is going to occur on the 16th. Every member of Congress is assembled and told that we have evidence an attack is imminent and are convinced that the prisoner knows the details. It is our opinion that the only hope we have of preventing an attack is to scare the shit out of Khalid. What would you have us do?
How would your representative have answered this question? It is easy to look back in history and surmise that we would have oppsed slavery in 1790 or the excesses in the aftermath of the French Revolution. We can be sure that we would have risen up against the Nazis during World War Two. We can be sure because we have the luxury of coming to our convictions far removed from the moment.
Last comment. There was precious little to admire in the analysis. That said, Dana Perino was articulate, thoughtful and forthright. I have always admired both of the Chaney girls. Liz Chaney's commentary was as well-articulated as you will hear this side of George Will. I am pretty sure that Mara Liiason is comfortably liberal but I never detect that in her analysis. I find both her and Charles Krauthammer a welcome relief from the water carriers posing as dispassionate analysts.
Friday, May 15, 2009
5/15 A deplorable lack of curiousity
I am always fascinated by the questions that politicians are not asked. When President Obama promised to save or create 3.5 million jobs, no one asked the most obvious followup.
Brave reporter: Mr. President, respectfully, that statement can be adapted to validate any result. A net gain of 1.5 million jobs (create 1.5 million, save 2 million), a loss of 4.5 million jobs (but for our efforts, 8 million jobs would have been lost, a catastrophe has been averted) What outcome are you actually predicting? The President's statement is a batting practice fastball but the press is not swinging.
Speaker Pelosi's press conference on Thursday highlighted a similar lack of curiousity. Her prepared statement about the CIA briefing expressly contradicted other published accounts and her own previous statement. Shouldn't someone have asked: Ms. Pelosi, can anyone who participated in the briefing, either from the Congress or the CIA support your recollection?
Her performance was weak and incoherent. She has two distinct recollections of the briefing. Both are diametrically opposed to the recollections of the other participants, notably the agency that gave the briefing. The press matched her step for step. The press today functions like a boxer's sparring partner. They give the champ a nice workout but under no circumstances do they hurt him or her. The sparring partner, however, works for the champ. Who does the press work for?
The point of Bernard Goldberg's book Bias was that viewers are capable of drawing their own conclusions. The role of the press is to provide us with information, not guidance. I am not suggesting that the press should set out to bloody the nose of a candidate, a congressman or a president. In a fair fight, sometimes a little blood gets spilled and that should not trouble the press. To have a fair fight, there must first be an adversary, not a sparring partner.
I am always fascinated by the questions that politicians are not asked. When President Obama promised to save or create 3.5 million jobs, no one asked the most obvious followup.
Brave reporter: Mr. President, respectfully, that statement can be adapted to validate any result. A net gain of 1.5 million jobs (create 1.5 million, save 2 million), a loss of 4.5 million jobs (but for our efforts, 8 million jobs would have been lost, a catastrophe has been averted) What outcome are you actually predicting? The President's statement is a batting practice fastball but the press is not swinging.
Speaker Pelosi's press conference on Thursday highlighted a similar lack of curiousity. Her prepared statement about the CIA briefing expressly contradicted other published accounts and her own previous statement. Shouldn't someone have asked: Ms. Pelosi, can anyone who participated in the briefing, either from the Congress or the CIA support your recollection?
Her performance was weak and incoherent. She has two distinct recollections of the briefing. Both are diametrically opposed to the recollections of the other participants, notably the agency that gave the briefing. The press matched her step for step. The press today functions like a boxer's sparring partner. They give the champ a nice workout but under no circumstances do they hurt him or her. The sparring partner, however, works for the champ. Who does the press work for?
The point of Bernard Goldberg's book Bias was that viewers are capable of drawing their own conclusions. The role of the press is to provide us with information, not guidance. I am not suggesting that the press should set out to bloody the nose of a candidate, a congressman or a president. In a fair fight, sometimes a little blood gets spilled and that should not trouble the press. To have a fair fight, there must first be an adversary, not a sparring partner.
Wednesday, May 13, 2009
February 23, 2009
Republicans, rhetorical or real?
Republicans occasionally get the politics right as they did this week. They will never receive credit for benefits that might derive from the coming stimulus package. If it is a success they will be portrayed as unwilling participants, dragged kicking and screaming into politically expedient capitulation. If the stimulus underperforms, Republicans will be portrayed as the cause of its failure, having dug an economic hole so deep that even the wise and compassionate congressional Democrats couldn’t rescue us.
At rare moments, politics and principles coincide. This is one such moment for the Republicans. They can be principled without trepidation because there is no cost attached to their courage. Republicans cannot win regardless of the outcome so there is no penalty for being, well, Republicans.
This would be the opportune time for political self-analysis. Do Republicans oppose massive spending increases or only massive Democratic spending increases? Are they repulsed by the continued expansion of government or only the expansion of liberal government?
As a conservative, I want to believe that our guys think that capitalism, over time, can rescue the poor while liberalism can only sustain them at some tolerable level of misery. I want to believe in Republicans who trust that the creation and market diffusion of wealth builds a stronger America. I want to believe in a Republican congress that wants to solve the entitlement crisis rather than own it. But I don’t.
Republicans always promise to safeguard the congressional henhouse, but history tells us that they really just want to fornicate with the other hens. It’s a shame because we are not in danger just from the ideological left. If the only thing Republicans advocate is a more modest socialism, a less powerful nanny state, pardon the electorate’s indifference.
There are a few promising seeds growing in the republican fields like Paul Ryan in Wisconsin. Will Republicans continue to embrace him when the political winds shift back to the right or will he be marginalized to preserve an inclusive bipartisan façade?
Plausible arguments can be made against much liberal economic policy. The advocates run as Democrats and govern like Democrats on growth hormone. No voter feels deceived because it is not dishonest. The opponents of those economic policies run as Republicans by rhetorical assertion and then govern like Democrats, in love with the power and feeling absolutely indispensable. The voters feel hoodwinked.
I heard a Republican strategist recently blame the McCain defeat on his inability to capture the undecideds. He no doubt thought that the undecideds in question were debating whether to vote for Obama or McCain. Clearly, some Reagan Democrats went home again. But most of the uncommitted voters still in play were debating the choice between voting for McCain and not voting. More directly, voting for a candidate who is perceived by many as a “Republican-in theory” or not voting. This debate will continue on into the next election cycle unless Republicans can persuade voters that their principles are more than a campaign tool selectively exercised in pursuit of power.
Republicans, rhetorical or real?
Republicans occasionally get the politics right as they did this week. They will never receive credit for benefits that might derive from the coming stimulus package. If it is a success they will be portrayed as unwilling participants, dragged kicking and screaming into politically expedient capitulation. If the stimulus underperforms, Republicans will be portrayed as the cause of its failure, having dug an economic hole so deep that even the wise and compassionate congressional Democrats couldn’t rescue us.
At rare moments, politics and principles coincide. This is one such moment for the Republicans. They can be principled without trepidation because there is no cost attached to their courage. Republicans cannot win regardless of the outcome so there is no penalty for being, well, Republicans.
This would be the opportune time for political self-analysis. Do Republicans oppose massive spending increases or only massive Democratic spending increases? Are they repulsed by the continued expansion of government or only the expansion of liberal government?
As a conservative, I want to believe that our guys think that capitalism, over time, can rescue the poor while liberalism can only sustain them at some tolerable level of misery. I want to believe in Republicans who trust that the creation and market diffusion of wealth builds a stronger America. I want to believe in a Republican congress that wants to solve the entitlement crisis rather than own it. But I don’t.
Republicans always promise to safeguard the congressional henhouse, but history tells us that they really just want to fornicate with the other hens. It’s a shame because we are not in danger just from the ideological left. If the only thing Republicans advocate is a more modest socialism, a less powerful nanny state, pardon the electorate’s indifference.
There are a few promising seeds growing in the republican fields like Paul Ryan in Wisconsin. Will Republicans continue to embrace him when the political winds shift back to the right or will he be marginalized to preserve an inclusive bipartisan façade?
Plausible arguments can be made against much liberal economic policy. The advocates run as Democrats and govern like Democrats on growth hormone. No voter feels deceived because it is not dishonest. The opponents of those economic policies run as Republicans by rhetorical assertion and then govern like Democrats, in love with the power and feeling absolutely indispensable. The voters feel hoodwinked.
I heard a Republican strategist recently blame the McCain defeat on his inability to capture the undecideds. He no doubt thought that the undecideds in question were debating whether to vote for Obama or McCain. Clearly, some Reagan Democrats went home again. But most of the uncommitted voters still in play were debating the choice between voting for McCain and not voting. More directly, voting for a candidate who is perceived by many as a “Republican-in theory” or not voting. This debate will continue on into the next election cycle unless Republicans can persuade voters that their principles are more than a campaign tool selectively exercised in pursuit of power.
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