Archives: 01/2010

Wednesday Links

  • David Boaz on Obama’s first year: “From this libertarian, Obama’s first year looks grim. …He may well end up like Lyndon Johnson, with an ambitious domestic agenda eventually bogged down by endless war. But I don’t think his wished-for FDR model — a transformative agenda that is both popular and long-lasting — is in the cards.”
  • The message from Massachusetts: “There can be no denying that this election was a clear cut rejection of the Democratic health care bills.”

Filibuster Obama Nominees? I’m Shocked!

At Politico Arena today, Clinton’s acting U.S. Solicitor General Walter Dellinger worries that after yesterday’s vote in Massachusetts, Obama’s Supreme Court nominees may be subject to Republican filibusters.

My response:

Walter, my good friend, where were you all during the Bush ‘43 years? I recall seeing you often in town, when you weren’t teaching down in Durham.  But if I may judge from your Arena concern today that Republican senators, after the late unpleasantry in Massachusetts, may now filibuster an Obama Supreme Court nominee, you must have missed the unprecedented and repeated Democratic filibusters of Bush appellate court nominees over several of those years.  Did you forget that after the Democrats took control of the Senate in May 2001, following Jim Jeffords becoming an Independent, eight of Bush’s first eleven May 2001 appellate court nominees had not had so much as a Judiciary Committee hearing as we were coming down to the 2002 elections?  And after the Democrats lost control of the Senate in those elections, when they could no longer stall by refusing to hold hearings, they moved to the filibuster – over no fewer than ten nominees.  Did you forget that our good friend, the eminently qualified Miguel Estrada, one of Bush’s May 2001 nominees, finally withdrew his name from consideration in September 2003, after 28 months in limbo and six failed cloture votes?

To be sure, those were appellate court nominees, but the principle is the same – and Bush’s Supreme Court nominees escaped a filibuster, let me remind you, only after the “gang of 14” finally reached a compromise, failing which the “nuclear option” would have brought an end to the unprecedented Democratic filibuster of Bush’s nominees.  (I ignore the 1968 Abe Fortas case, which had special circumstances.)

If Republicans were to filibuster an Obama nominee, therefore, instructions for doing so would be readily at hand.  I’m not suggesting they do so, however.  The filibuster is, as you know, an extra-constitutional procedure, with something of a checkered history.  For better or worse, it has served as an additional check on the passions of the lower chamber, but its use for executive nominations, as distinct from legislation, raises difficult separation-of-powers questions, which are your main concern, I’m sure.

School Choice Advocates: Beware Washington

The Brookings Institution will release a new school choice policy guide on February 2nd, and from the sound of it, children, parents, taxpayers, and the authors themselves should be concerned.  The guide will provide:

a series of practical and novel recommendations for reauthorization of the Elementary and Secondary Education Act, including national chartering of virtual education providers; expanding the types of information collected on school performance; providing incentives for low-performing school districts to increase choice and competition; and creating independent school choice portals to aid parents in choosing between schools.

The goals these recommendations are meant to achieve are entirely laudable, but there are three reasons for serious concern:

1)  The Constitution delegates to the federal government no power to provide or regulate education services, except in the execution of its explicitly enumerated powers. So the Supreme Court can ensure that state education programs abide by the Fourteenth Amendment, for example, but Congress cannot “charter virtual education providers.” Of course the federal government has been transgressing the limits on its education powers for more than half a century, but no one who supports the rule of law can condone that transgression, much less its expansion.

2)  From a regulatory standpoint, Washington is the worst level of government at which to implement an education program. National education programs impose a single set of rules on every participating provider in the country. Get those rules wrong – either up front or down the road – and you not only hobble the effectiveness of every single provider, but you eliminate the possibility of comparing outcomes between providers operating under different sets of rules. In essence you lose the ability to distinguish between different “treatments” – to determine what helps and what is harmful to the service’s overall success.

3)  We have ample evidence about the quality of education programs implemented by the federal government. For example, after 45 years and $166 billion, Head Start has just been proven entirely ineffective. (See also the NCLB paper linked to in “1)”, above). Once again, this problem is exacerbated by the all-encompassing nature of federal programs. Get them wrong and you get them wrong for every participating student, everywhere in the country. With variation in programs among states, by contrast, we not only have the ability to compare the merits of alternative approaches, we have powerful incentives for states to get their programs right. Just as tax competition drives businesses from one state or nation to another, so, too, can education policy competition. States with better policies will attract businesses and more mobile residents from states with worse ones, eventually compelling the inferior policy states to redress their errors.  We’re just beginning to see the prospects for this now, as school choice programs proliferate and grow at the state level, and introducing national programs that might well interfere with this process would be a disastrous mistake.

I hope that school choice advocates, including those who have contributed to the forthcoming Brookings report, will weigh these concerns.

Scott Brown and the Future Supreme Court Vacancy

Josh Blackman and Lyle Denniston offer some thoughts on the effect of Scott Brown’s Massachusetts earthquake on the looming retirement of – and the nomination of a replacement for – Justice John Paul Stevens.  Josh and Lyle both latch onto the idea that Brown’s providing the 41st vote to sustain a potential Republican filibuster could cause President Obama to nominate someone more moderate than would be the case if the Democrats had maintained their super-majority.  Lyle goes on to speculate that both Obama and Senate Democrats, looking to this fall’s election, will generally want to tack right in the face of an emboldened GOP and impatient electorate.

I think this sort of analysis is a misapplication of otherwise correct political analysis to the sui generis event that is a Supreme Court nomination.  Yes, Scott Brown’s presence in the Kennedy people’s seat will change the dynamic of the health care debate, definitively kill cap and trade, otherwise alter the Democrats’ legislative agenda – and even affect lower court nominees.  But I’m not so sure it will affect Obama’s calculus in picking a new Supreme Court justice.

Here’s why:  Despite having been a constitutional law professor – whom I did not have when I was in law school, though I passed him in the halls a few times – the president has not really tried to advance his ideological agenda in the courts.  It’s bizarre, really, that judicial nominations have not at all been a priority for this administration given that few people pay attention to lower court appointments and this could have been a place where the president could have thrown some bones to his base at little political cost (and certainly far less cost than the rest of his domestic agenda).

Moreover, based on the Sotomayor nomination, we see that when it comes to the Supreme Court, Obama is much more about affirmative action than appointing either the best-qualified Democrats or the most ”progressive” ones (or both, to provide a counterweight to Justice Scalia).  (Note that Sotomayor at the time of her nomination was nowhere near the best or most left-wing member of the federal judiciary.)  Even with a filibuster-proof Senate majority, we would have been unlikely to see a Cass Sunstein or Harold Koh pick – though each took not insignificant heat and delay in being confirmed to regulatory czar and head State Department lawyer, respectively.  (And Larry Tribe is too old.)

With Sonia Sotomayor, Obama hit the “twofer” of a woman and a Hispanic (the first unless you count Benjamin Cardozo).  With the Stevens replacement, women and minorities are still slightly preferred but the key “diversity” quota to fill is “non-judge” – and, per the above, a non-controversial one on whom the president won’t have to spend much political capital.

And so, while the prohibitive favorite – solicitor general Elana Kagan (and a woman) – is no surprise, you heard it here first that the other likely nominees, in no particular order, are Janet Napolitano (DHS secretary, woman), Deval Patrick (Massachusetts governor, black), Jennifer Granholm (Michigan governor, woman), Kathleen Sullivan (former Stanford dean, lesbian), Amy Klobuchar (senator, woman), and Akhil Amar (Yale law professor, South Asian).  I’ll comment on their relative merits in future posts, but nobody on that list is both a radical and an intellectual heavyweight, and the list has not changed with Scott Brown’s election (though the indirect spotlight during the campaign on Gov. Patrick’s unpopularity might have hurt his chances).

SSA Fails to Verify With E-Verify

Stephen Dinan reports in the Washington Times that the Social Security Administration—an integral part of the E-Verify government background check system—regularly fails to use E-Verify properly.

Despite helping run the government’s electronic database designed to weed out illegal-immigrant workers, Social Security failed to run E-Verify checks on its own employees nearly 20 percent of the time.

That’s according to this report, which also found that SSA failed to verify employees during the correct time-frame a whopping 49% of the time.

E-Verify is not supposed to be used for pre-screening, but SSA ran a background check before hiring new employees 25% of the time. Fifty-one percent were screened timely. The remaining 24% were screened after the seven-day window during which new hires are supposed to be screened.

If the federal agency at the heart of this background check system can’t operate it well, this casts doubt on the idea of mandating every private employer across the country to use it.

I discussed some of the problems with programs like E-Verify in my paper, “Electronic Employment Eligibility Verification: Franz Kafka’s Solution to Illegal Immigration.”

The Tea Party Comes Home

Today, Politico Arena asks:

The message from Massachusetts

What now for the Democratic agenda?

My response:

Listening to Scott Brown’s long, barely scripted acceptance speech last night, you had the refreshing sense that you were listening to an ordinary American, not to some political cut-out.  Here’s a guy who campaigned in a pick-up truck with over 200,000 miles on the odometer, who listened to the voters and understood that they wanted not simply to block tax hikes but to lower taxes (and the last thing they wanted was for their taxes to pay terrorists’ lawyers bills!), who understood that even worse than the health care bill now before Congress were the back-room deals that brought it about, who’s served proudly for 30 years in the National Guard – in short, here’s guy you’d be comfortable having a beer with because, as he said, “I know who I am and I know who I serve.”

Which brings to mind the famous Rose Garden beer the president and vice president shared with Prof. Gates and Sgt. Crowley – speaking of (dis)comfort.  And that brings to mind Cambridge, which stayed true blue, 84-15, Walter Russell Mead informs us this morning in his delightfully tongue-in-cheek Arena post.  (“First, some good news for Democrats: the base is secure.”)  As goes Harvard, so goes Berkeley.

But to today’s Arena question.  The Democratic left is predictably outraged that “the people” they so love in the abstract have so disappointed them in the concrete.  Exhibit A is last night’s Arena post by The Nation’s Katrina vanden Heuvel.  Railing against “the Tea Party’s inchoate right-wing populism” (if it’s infested Massachusetts, shudder to think of it in Idaho!), Katrina tells Obama to “get tough, get bold, kiss ‘post-partisanship’ goodbye,” and “put yourself squarely back on the side of working people” by “passing the strongest possible healthcare bill as quickly as is feasible.”  And there’s the cliff, Katrina.

Lanny Davis has more sober advice for Obama in this morning’s Wall Street Journal.  To those who are pointing fingers at Martha Coakley, Lanny says, “This was a defeat not of the messenger but of the message” – the unrelenting leftism that has come from this White House and this Congress.  And he points, by way of instruction, to Bill Clinton’s response to the disastrous elections of 1994, though he doesn’t mention Clinton’s ringing, albeit inaccurate, description of his course-change – “The era of big government is over.”  Is it in Obama’s DNA to make such a course correction?  Does he have a reset button?

On health care, Obama and his party are in an almost impossible situation.  If they press ahead, as Nancy Pelosi and others are urging, the cliff awaits them in November.  But if they abandon their project, what will they run on in November?  It’s a mess of their own making, of course, so completely did they misread the election of 2008.  What better evidence of the endurance of principles of sound, limited government that some two centuries later, The Tea Party has come home to Boston.

Happy Anniversary, Mr. President

I have some thoughts on Obama after one year at npr.org:

Happy anniversary, Mr. President. Scott Brown’s victory in Massachusetts is a rude ending to a year marked by falling poll ratings and growing opposition to his signature policy initiatives….

President Obama has several models to choose from: He could reverse his tax-spend-and-regulate policies and hope for the same economic and political results that Reagan achieved. He could, like Bill Clinton, recognize the political obstacles to his sweeping ambitions and learn to work with Republicans on modest reforms. He may well end up like Lyndon Johnson, with an ambitious domestic agenda eventually bogged down by endless war. But I don’t think his wished-for FDR model — a transformative agenda that is both popular and long-lasting — is in the cards.

Read it all. And be sure to hit “Recommend” at the top and add a Comment.