Essentially Contested America

There’s an interesting article at the Boston Review on the shift of conservative liberals toward the Left. Here’s a sample:

When Justices William Rehnquist and Sandra Day O’Connor left the bench last year, conservatives were in an anxious mood: though pleased at the prospect of shifting the Supreme Court to the right, they were worried by the record of past Republican appointments. The refrain in conservative commentary, repeated with special intensity during the Harriet Miers affair, was: Not another Souter. Not another Kennedy. Not another O’Connor. And they might have added: Not another Blackmun. Not another Stevens. Not another Warren.

They were right to be concerned. While there have been a number of relatively reliable conservative justices over the years—Antonin Scalia, Clarence Thomas, and Rehnquist being prime examples—and some important right-shifting exceptions—notably Felix Frankfurter, appointed by Franklin D. Roosevelt, and Byron White, appointed by John F. Kennedy—the tendency in recent decades to drift leftward has been strong enough to gain both popular and scholarly attention. Indeed, Larry J. Sabato, the director of the University of Virginia Center for Politics, has suggested that about one quarter of confirmed nominees over the last half century have wound up “evolving from conservative to moderate or liberal.”

To continue exploring the explanation of this phenomena click here.

One reason might be the jurisprudential dead-end which contends that there’s some neutral, value-free interpretation of abstract constitutional provisions. It is simply a self-delusional myth that law, especially the abstract provisions of constitutional, can be interpreted without relying on extra-legal and extra-constitutional values.  And which values are chosen is a political decision.  That’s the reason nominating and confirming Supreme Court Justices is (and must be) a political process.  The myth that it is not is a charade to restrict constitutional norms to their status quo understanding. Consider what Laurence Tribe, once thought the most likely nominee for the Court under a Democratic president, says on this matter:

Alito seems as decent and fair-minded as he is bright, and I don’t doubt his sincerity in separating the results he might like to see from those he concludes the law requires. I simply make a plea to quit pretending that law, life, and an individual’s unarticulated assumptions about both can be entirely separated when assessing what someone’s addition to the Supreme Court would mean for all of us well into the 21st century. . . . Slogans about just following “settled law” as though it were a computer application, sticking to the text’s “original meaning” as if that were a matter of scientific fact, never “legislating from the bench” as if judges ever think they’re doing that, remaining within an imagined “mainstream,” and by all means respecting precedent . . . offer precious little insight into how a justice might actually approach [future controversies over liberty, equality, personal privacy, and government power].

At bottom, any practice as significant as law interpreting law must include, with or without more, some mechanism for appreciating the varied consequences of different interpretations. Absent that mechanism, interpreting law might have no relation to the society it is designed to serve.

There’s a conventional understanding of why Arlen Specter defected. Basically, he defected because the Republican Party is on the cusp of imploding. There different versions of this story, one in which Specter is a cowardly villain the other which blames the contraction of the Republican Party.  But suppose there’s another reason.  Suppose Specter believed some of the damage the former administration did to American constitutionalism needs to be reversed, and only a President with the constitutional acumen and moral sensibilities of Obama would conceivably be sympathetic to this rectification. Here’s the tease line:

In the seven and a half years since September 11, the United States has witnessed one of the greatest expansions of executive authority in its history, at the expense of the constitutionally mandated separation of powers. President Obama, as only the third sitting senator to be elected president in American history, and the first since John F. Kennedy, may be more likely to respect the separation of powers than President Bush was. But rather than put my faith in any president to restrain the executive branch, I intend to take several concrete steps, which I hope the new president will support.

What follows is a description of some of the more blatant assaults by the previous administration of the constitutional principle of “checks and balances.” (Though Specter’s fulsome emphasis on how important his own role in these matters was raises legitimate skepticism about his motives.) Here’s specter’s plan for the future.

These experiences have crystallized for me the need for Congress and the courts to reassert themselves in our system of checks and balances. The bills I have outlined are important steps in that process. Equally important is vigorous congressional oversight of the executive branch. This oversight must extend well beyond the problems of national security, especially as we cede more and more authority over our economy to government officials.

As for curbing executive branch excesses from within, I hope President Obama lives up to his campaign promise of change. His recent signing statements have not been encouraging. Adding to the feeling of déjà vu is TheWashington Post ‘s report that the new administration has reasserted the “state secrets” privilege to block lawsuits challenging controversial policies like warrantless wiretapping: “Obama has not only maintained the Bush administration approach, but [in one such case] the dispute has intensified.” Government lawyers are now asserting that the US Circuit Court in San Francisco, which is hearing the case, lacks authority to compel disclosure of secret documents, and are “warning” that the government might “spirit away” the material before the court can release it to the litigants. I doubt that the Democratic majority, which was so eager to decry expansions of executive authority under President Bush, will still be as interested in the problem with a Democratic president in office. I will continue the fight whatever happens.

I think (I hope) that Specter’s last remark misses the mark. Few Democrats, indeed, few Republicans, are as politically psychopathic as Bush-Cheney. They were egregiously insensitive about essential constitutional values and had no appreciation for the fundamental values rendering America, in aspiration if not always in practice, a progressive beacon for the twenty-first century.

The real action lies with how the Republican Party, without Specter, will reconstruct itself, as it surely will, to meet the challenges they face with the death of traditional and woefully ineffective laissez-faire economics along with their commitment to tyrannical social policies.

For a mournful account of the Republican Party’s turn to the exclusive ultra Right click here.

It’s not entirely clear why President Obama so gleefully welcomed Senator Specter to the Democratic Party. Wouldn’t it have been preferable for the Democrats to nominate an outstanding, young Democratic man or woman who could beat Specter, but more importantly, someone who could beat Toomey because Toomey surely would have beaten Specter? How does Specter’s defection to the Democratic Party benefit Democrats?

Contrary to conventional wisdom our founding document suffers from a myriad of serious, even deadly deficiencies. One such deficiency is clearly the inability to control or even influence a rogue administration intent on imposing its own ideological dogma on on a nation even when sustained popular opinion and congressional elections indicate that the electorate opposes such an ideology. These are precisely the circumstances of constitutional dictatorship that George W. Bush exploited so deftly.  A dictatorship because he refused to change course even though the American people clearly desired an alternative direction, one that would not bring the nation, internationally and domestically, close to ruin. Constitutional  and constitutional because even though he willfully ignored the people’s voice and constitutional authority,  the Constitution provided no practicable means to curtail his nefarious behavior. Thus far, Mr. Bush has escaped accountability, though fortunately his Party was punished for continuing to support what has become the nation’s most deadly internal enemy.

The Republican spin machine is far superior to the Democrats’ responses. We’re continuously barraged with the accusation that Senator Barack Obama’s voting record makes him the most liberal senator, and Joe Biden, his Vice-Presidential running mate, is ranked third most liberal.  Why aren’t conservatives ranked also?  Who is the most conservative Senator? Not John McCain. He’s changed his positions so swiftly, on tax cuts, off-shore drilling, and immigration policy, for example, that one would get whiplash trying to pin him down. OK, which Senator has the most conservative record and why don’t Democrats make an issue of this just as the Republicans do? The C-Word should be introduced into our campaign lexicon.

Is it any wonder that deregulation of the financial markets can cause disaster? Consider the following: “The blood flowing this week from Wall Street, spilling over into the homes of most citizens and the economies of other countries, raised urgent calls for stricter regulation of major players in the U.S. economy.  . . .   Thursday’s immediate worry was the health of the two remaining large-scale private investment firms Goldman-Sachs and Morgan Stanley, as well as Seattle-based Washington Mutual. Would they make it through the day?   . . .  By mid-day Morgan Stanley was reported to be looking for a buyout by a regional bank, Wachovia.  . . .  The middle-of-the-night crisis call that all presidential hopefuls must claim to be ready for are now being directed to the Federal Reserve chairman or Treasury Secretary.   . . .  After all-night meetings and phone consultations, the Federal Reserve moved in the wee hours of Thursday to stabilise financial markets here and abroad with infusions of 55 billion dollars in the U.S. and 180 billion dollars to central banks around the world.  . . .  Will this, along with the federal takeover of the American Insurance Group and mortgage giants Freddie Mac and Fannie Mae — be enough to halt the crisis? Pundits are doubtful, tending instead to insist that stricter regulation of financial markets is the vital component needed for a long-term cure.”  To continue reading click here.

The problem with unregulated capitalism is that greed (so sorry profitability) will always find ways to game the economic system.  Had the mortgage market been regulated this crisis might have been averted.  In financial markets, one either pays now (with regulations) or pays later with massive bailouts.  Which is preferable?

For a Salon.com story on the ravages of conservatism over the past eight years click here.

For many Americans, a little familiarity with human nature, made it quite clear that President Bush and company cooked the intelligence on Iraq. We knew that the administration and its neocon hit men wanted to invade and conquer Iraq for oil, to protect Israel, and generally to try to impose “democracy” on new governments in the area which would then owe their existence and allegiance to the great white father in Washington. It was necessary, however, to make the case for invading Iraq by implementing the greatest assault on the public of double-think, double-talk, and propaganda. And the “liberal” media supported this conservative administration without raising a skeptical eye. We realized that this campaign was quintessentially propaganda because whenever anyone characterizes a risky enterprise as a piece of cake, chances are they’re trying to sell you a bill of goods. But we lacked real evidence. No eye witness account. Now one of the significant, but not too significant, actors has come clean providing us with all the evidence we need to indict the Bush-Cheney regime for choosing to go to war despite the war being unnecessary. Here’s the story in a nutshell:

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Here’s the more complete story: “Former White House press secretary Scott McClellan writes in a new memoir that the Iraq war was sold to the American people with a sophisticated ‘political propaganda campaign’ led by President Bush and aimed at ‘manipulating sources of public opinion’ and ‘downplaying the major reason for going to war.’ . . . McClellan includes the charges in a 341-page book, ‘What Happened: Inside the Bush White House and Washington’s Culture of Deception,’ that delivers a harsh look at the White House and the man he served for close to a decade. He describes Bush as demonstrating a ‘lack of inquisitiveness,’ says the White House operated in ‘permanent campaign’ mode, and admits to having been deceived by some in the president’s inner circle about the leak of a CIA operative’s name. . . . The book, coming from a man who was a tight-lipped defender of administration aides and policy, is certain to give fuel to critics of the administration, and McClellan has harsh words for many of his past colleagues. He accuses former White House adviser Karl Rove of misleading him about his role in the CIA case. He describes Secretary of State Condoleezza Rice as being deft at deflecting blame, and he calls Vice President Cheney ‘the magic man’ who steered policy behind the scenes while leaving no fingerprints. . . .¬† reasons for invading Iraq, writing that he and his subordinates were not ‘employing out-and-out deception’ to make their case for war in 2002. . . . But in a chapter titled ‘Selling the War,’ he alleges that the administration repeatedly shaded the truth and that Bush ‘managed the crisis in a way that almost guaranteed that the use of force would become the only feasible option.’ . . . ‘Over that summer of 2002,’ he writes, ‘top Bush aides had outlined a strategy for carefully orchestrating the coming campaign to aggressively sell the war. . . . In the permanent campaign era, it was all about manipulating sources of public opinion to the president’s advantage.’” To continue reading click here.

McClellan stops short of saying that Bush purposely lied about his The strategy was twofold. First, the reason to go to war involved the neocon desire to revamp the map of the Middle East. According to McClellan, Bush & Company were committed to the oxymoronic term “coercive democracy,” the strategy of forcing traditional and tyrannical societies to become democratic or else. With grand Wilsonian irony, the plan envisioned the United States imposing democracy on several nations in the Middle East. But why coercively democratize the Middle East? The answer is simply this: oil and Israel. After all, Kim Jung-il, the North Korean dictator, has murdered more of his own people than Saddam ever dreamt of doing. But even though North Korea actually possesses nuclear weapons, confronting this dictator pays no oil dividends. The second part of the strategy was selling the war to the American people. The neocon conspirators knew their actual motives wouldn’t sell on main street. Accordingly, they devised a contrived campaign of smoking guns and mushroom clouds.

The White House was livid over the disclosures. According to the NY Times, “Mr. McClellan writes that President Bush ‘convinces himself to believe what suits his needs at the moment,’ and has engaged in ‘self-deception’ to justify his political ends. He calls the decision to invade Iraq a ‘serious strategic blunder,’ and says that the biggest mistake the Bush White House made was a ‘decision to turn away from candor and honesty when those qualities were most needed.” Mr. Bush’s press secretary, Ms. Dana Perino, who incidentally could not explain what the 1962 Cuban missile crisis was, took the last resort of a scoundrel by insisting that Mr. McClellan was ‘disgruntled’ and wanted to sell books. Ironically, this is the perfunctory charge McClellan was told level at other former official who wrote “tell all” books. Click here for the rest of the reaction.

Scott McClellan forges himself a significant place in history with his memoir. We now have the evidence for what we knew from the start. America was radically ill-served by a man with this inordinate capacity to deceive himself, and by doing so deceive us as well. There’s no greater example of this capacity than a reply Mr. Bush made to a question about Iran’s greater power in the area resulting from the invasion. To paraphrase, Mr. Bush was incredulous and said Iran has something to fear in the fledgling new democracy growing stronger at the Iranian’s doorstep.

Check out a recent article at TomPaine.com on the death of Conservatism. Here’s the introduction: “Modern conservatism is dying. There’s still an electionto be held, but conservatism as we’ve known it since Ronald Reagan is failing–ground down in the desert of Iraq, drowned in the floods of Hurricane Katrina, foreclosed by the housing crisis and poisoned by toys imported from China. . . . The American people are figuring this out. While conservatives repeat their time-worn slogans–’small government, low taxes, high security’–the American people are living the consequences. . . . We’ve seen eight years of a conservative presidency, six years overlapping with a conservative Congress, and 30 years of broadly conservative ideology. Now reality is showing how the values embodied in those slogans have been betrayed. . . . Conservatives say “shrink government.” We get inadequate levees, exploding steam pipes and schools without textbooks. Conservatives say ‘deregulate,’ and now Thomas the Tank Engine is painted with toxic lead. Conservatives say ‘low taxes,’ but it primarily applies to millionaires, billionaires and crony corporations. . . . What follows is a history of these problems, and the direction people want to go instead.” For the complete article click here.

However, unless the offspring of Reagan conservatism–neoconservatism– dies also, liberation is incomplete. Economic conservatism rests on the shibboleth that when the wealthy accumulate more wealth, everyone
benefits. Wow! Over the last several years the gap between the wealthy and the poor has expanded exponentially. So much for that virtue. Economic conservatism also rejects regulation because it inhibits efficiency and growth. Tell that to people injured by a collapsing infrastructure, poisonous food, or products made with dangerous
ingredients. Neo-conservatism champions imposing “democracy” on other nations through the barrel of a gun. The debacle in Iraq, which seems to be on the brink of another surge in violence, can be laid at the doorstep of these miscreants. Oh yes, neo-conservatives give short shrift both to sustaining democracy here at home and the
egalitarianism that makes democracy possible.

“Strict constructionist” President, George W. Bush who claims Supreme Court Justices should interpret the Constitution not rewrite it is up to his familiar, anti-constitutional games. alternatively stated, “Everyone’s bound by the Constitution, except me.” Consider this report in the Boston Globe: “President Bush’s plan to forge a long-term agreement with the Iraqi government that could commit the US military to defending Iraq’s security would be the first time such a sweeping mutual defense compact has been enacted without congressional approval, according to legal specialists. . . . After World War II, for example – when the United States gave security commitments to Japan, South Korea, the Philippines, Australia, New Zealand, and NATO members – Presidents Truman and Eisenhower designated the agreements as treaties requiring Senate ratification. In 1985, when President Ronald Reagan guaranteed that the US military would defend the Marshall Islands and Micronesia if they were attacked, the compacts were put to a vote by both chambers of Congress. . . . By contrast, Bush and Iraqi Prime Minister Nouri Al-Maliki have already agreed that a coming compact will include the United States providing “security assurances and commitments” to Iraq to deter any foreign invasion or internal terrorism by “outlaw groups.” But a top White House official has also said that Bush does not intend to submit the deal to Congress. To read more click here. Americans should be aware that, as Bruce Ackerman puts it, “[t]his isn’t the way we do things in the United States. The Constitution insists that Congress must get into the act before we make sweeping commitments in the name of the nation.” The Founding design creating a separation of powers and checks and balances prevents tyranny and provides conditions for cooperation between and among the branches. George W. Bush and Dick Cheney have the idea that they can trash the Constitution and a majority of Americans would be totally unaware of their treasonous conduct or if aware, they would be unconcerned. These are the conditions which permit soft dictatorship to fester and later to thrive. Where is the outrage which conservatives spew forth when judges articulate an implied constitutional right to personal privacy and autonomy? How can constitutional limits on the executive, limits expressed in constitutional practice since ratification, be ignored? Who should pay a political price for trashing the Constitution?

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In a recent column, Slate’s Jack Schaffer inexplicably defends the NY Times’ appointment of Bill Kristol to its op-ed. page. Here’s a sample: “Last week’s appointment of Weekly Standard Editor William Kristol to a once-a-week slot on the New York Times op-ed page induced grand mal seizures among the Huffington Post left and their political bedfellows. . . . A ‘supercilious man,’ wrote Nora Ephron, who called for Kristol’s dismissal before he filed his first column. A ‘confirmed propagandist,’ added Erica Jong. An ‘ideological bully and thug,’ wrote Katha Pollitt. Jane Smiley upped the ante to ‘a war-monger and a hate-monger’ while Charles Kaiser wrote, with apparent endorsement, that many ‘Times readers consider Kristol a third-rate neocon apparatchik.’ . . . Times readers who expect the paper’s columnists to mirror their views may not like the idea of an alleged war criminal like Kristol infesting its pages any more than they liked the idea of Nixon’s pal Safire setting up a squat there. But they’re the same people who’d boycott a restaurant just because it starts serving an entree they hate.” If you can stomach it, click here for more of this tripe. Such a silly, duplicitous jermiad is designed to justify the Times’ selection of one of truths’ great manipulators and distorters. Few liberals would oppose the choice of Bill Buckley or George Will. Bill Kristol is a pit viper who uses its bite to further his own political agenda. For what that agenda might be click on ECA here. This virulent propagandist is anathema to tough, principled conservative journalism. His approach is paradigmatically partisan completely oblivious to any sense of impartiality. His obdurate commitment to the unprincipled dictum that the ends justify the means pervades virtually all his public pronouncements. Kristol has no commitment to journalistic accuracy or fairness, and will attempt to pillory anyone standing in the way of his propaganda. Liberals attack Kristol not because he is conservative, but rather because he is unscrupulous. Schaffer appears not to be aware of this obvious fact. What this says about Schaffer is not complimentary.

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