Supreme Speculation

With no hard news to report and the Supreme Court not in session — they’ll release opinions in the remaining cases on successive Mondays (plus the Tuesday after Memorial Day) beginning May 18 — Washington is abuzz with speculation over potential high court nominees.  While Senator Orrin Hatch earlier this week said he expected an announcement this week, the White House is far more likely to take its time vetting candidates, with no real pressure to announce a pick until the Court recesses at the end of June. 

Nobody other than the president himself really knows who’s favored, but ABC News’s Jan Crawford Greenburg — who will be contributing to this year’s Cato Supreme Court Review and speaking at our Constitution Day conference September 17 — has some fascinating scuttlebutt:

No clear favorite has emerged, but the pick has prompted an internal struggle between legal and political officials within the administration, sources say.

Political officials like Chief of Staff Rahm Emanuel are favoring Sotomayor, who would be an historic pick as the Court’s first Hispanic justice.

Obama, the thinking goes, could score huge points with Hispanics, an important and increasingly powerful constituency, by nominating Sotomayor or another Latino. Sotomayor has a compelling life story, moving from the projects to the nation’s most elite educational institutions and then onto the federal bench.

But Sotomayor has not dazzled or distinguished herself on the appeals court as a forceful theoretician or writer — something Obama, the former constitutional law scholar who will drive this decision, is likely to want in his Supreme Court nominee, sources close to the process said. Moreover, she’s also been criticized for abrasiveness — which could be problematic on the high court.

Legal officials in the Administration want Obama to tap a candidate who would be a more obvious force on the Court, bringing both intellectual prowess and a proven ability to build coalitions. They favor either Kagan or Wood — prospects who could be considered judicial rock stars capable of going toe to toe with Scalia and Roberts.

I would expect Senators Claire McCaskill (D-MO) and/or Amy Klobuchar (D-MN) also to be on the shortlist — more likely the former because she was one of Obama’s first supporters in the Senate (and whose replacement would be appointed by a Democratic governor).  Senators have historically been fairly easy to confirm because of the courtesy extended to them by their erstwhile colleagues.  Still, we haven’t had such a nominee — or anyone other than sitting appellate judges — in the poisonous post-Bork world, so all bets are off.

Were it not for Ricci v. DeStefano, Sotomayor would be a shoe-in on the simple formula of Princeton+Yale Law+Second Circuit+Hispanic woman.  Now, and also for the reasons Jan cites, that is looking less likely.  I still favor Wood because she has a proven judicial temperament, sterling qualifications in technical fields like antitrust and trade regulation, and would be no worse — and quite possibly better — than the other contenders on constitutional issues.  If I were putting money on it, however, I would have to go with Kagan precisely because she was so recently vetted and confirmed (61-31, with Arlen Specter voting ”no” under Scottish law because he felt she hadn’t sufficiently answered his questions).

Shifting Trade Winds

In 2008, major public opinion surveys revealed record-high levels of skepticism about trade and record-low support for trade agreements among Americans. In 2009, results of those same surveys from Gallup, the Pew Research Center, CNN/Opinion Research, and CBS News/New York Times all suggest that American attitudes toward trade have lightened up considerably and are more in line with public opinion in years past. What explains this turnaround?

In a new Cato analysis, Scott Lincicome and I argue that America’s growing skepticism toward trade in recent years derives mostly from the perpetuation and persistence of three myths: 

  1. U.S. manufacturing is in decline. 
  2. The U.S. trade deficit means that America is losing at trade.
  3. Past administrations have been unwilling to enforce trade agreements.

Popularization of these myths by campaigning politicians has been abetted by mainstream media that have become fixated on selling information in dramatic, provocative, scary, and too-often misleading sound bites. When one considers the facts about the impact of trade on our lives, the degree of skepticism is inexplicable unless the impact of “bad press” is considered.

Too many Americans benefit from trade on a daily basis and too few have been adversely affected by trade for the survey results to reflect personal experiences or legitimate worries. After all, the Council of Economic Advisers reports that less than 3 percent of U.S. job loss is attributable to import competition or outsourcing, which means that most Americans don’t even know anyone who can attribute his woes to increased trade.

During the incredibly long election campaign of 2007–2008, antitrade rhetoric was rampant on the campaign trail. In most presidential debates (Republican and Democratic) leading into and during the primaries, trade was disparaged by one or more of the candidates on the stage. In February 2008, in the Democratic presidential debate at Cleveland State University, before millions of American television viewers, the late Tim Russert extracted promises from candidates Obama and Clinton to force Mexico and Canada to reopen NAFTA to fix its allegedly flawed and unfair provisions. If it wasn’t already by then, the word “trade” became an expletive in households across the country. And the public opinion polls cited above all bear that out.

But since the end of the political campaigns in November 2008, the imperative of politicians to disparage trade and demonize trade partners has dissipated (for the time being, at least). And a few other things have happened too. Without the constant buzz of antitrade political rhetoric filling the airwaves, Americans have had the opportunity to actually think about trade in the context of the current recession — and perhaps make some connections.

For example, the economy has been shrinking and unemployment has been rising, while imports and the trade deficit have been declining, too. When imports and the trade deficit were rising, the economy was growing and creating jobs, and unemployment was low. That is at odds with the stories politicians tell about how imports take our jobs away and that the trade deficit means that we’re losing at trade. Americans may be reckoning that higher levels of imports aren’t quite so bad, and that they even reflect a healthy, growing economy. After all, U.S. producers account for the majority of U.S. import value — mostly raw materials, components, and capital equipment purchases used to make things here — and, lo and behold, manufacturing exports are way down over the past year as well. Maybe more trade isn’t such a bad idea.

In addition to the decline in antitrade rhetoric and the linkage that Americans can more readily draw between trade and economic growth, there is the fact that the trade rhetoric has actually turned favorable since President Obama assumed office. Avoiding protectionism and growing our economy out of recession through trade have been thematic in Obama’s early trade policy articulations. That is not to say that there haven’t been incidences of protectionism since January 20. There have been a few and there continues to be consideration of measures that would further limit the freedom of Americans to transact with whomever and as they see fit. But in the preferred political rhetoric of this administration, trade is no longer the bad guy. And protectionism, quite appropriately, in the current dialogue is being linked successfully with policies that turned the recession in the 1930s into the Great Depression.

This set-up is laying the foundation for an Obama trade policy that is likely to be far more accommodating and liberalizing, and far less provocative and restricting, than many had feared. And I can’t say that I’m not looking forward to watching chagrined protectionist constituencies come to terms with the fact that their moment appears to have passed.


Photos From D.C. Opportunity Scholarship Rally

On Wednesday, more than 1,000 parents and students gathered in Freedom Plaza in Washington, D.C. to voice their opposition to President Obama’s decision to end the D.C. Opportunity scholarship, which gives poor children the chance to attend private schools in the area. Watch the parents in the video below and browse the pictures — these are the people that congressional Democrats and President Obama think are worth less than the financial and political support of teacher union leaders.




The top photo is from Dan Lipps from the Heritage Foundation. The bottom two are from Mary Katharine Ham at The Weekly Standard blog.

About the President’s Proposed Budget Cuts …

That didn’t take long.  Tad DeHaven yesterday took a look at the president’s truly pitiful half percent cut (I hesitate to even use the word) from $3.4 trillion in planned spending.  But the administration isn’t likely to get even that.  Alas, no one seems to have talked to congressional Democrats first.

Reports the Washington Post:

President Obama’s modest proposal to slice $17 billion from 121 government programs quickly ran into a buzz saw of opposition on Capitol Hill yesterday, as an array of Democratic lawmakers vowed to fight White House efforts to deprive their favorite initiatives of federal funds.

Sen. Dianne Feinstein (D-Calif.) said she is “committed” to keeping a $400 million program that reimburses states for jailing illegal immigrants, a task she called “a total federal responsibility.”

Rep. Mike Ross (D-Ark.) said he would oppose “any cuts” in agriculture subsidies because “farmers and farm families depend on this federal assistance.”

And Rep. Maurice D. Hinchey (D-N.Y.) vowed to force the White House to accept delivery of a new presidential helicopter Obama says he doesn’t need and doesn’t want. The helicopter program, which cost $835 million this year, supports 800 jobs in Hinchey’s district. “I do think there’s a good chance we can save it,” he said.

The news releases began flying as Obama unveiled the long-awaited details of his $3.4 trillion spending plan, including a list of programs he wants to trim or eliminate. Though the proposed reductions represent just one-half of 1 percent of next year’s budget, the swift protest was a precursor of the battle Obama will face within his own party to control spending and rein in a budget deficit projected to exceed $1.2 trillion next year.

Oh well.  Billions, trillions, quadrillions.  As a buddy of mine says:  “It’s only money!”

D.C. Should Create its Own Voucher Program

Under President Obama’s recent proposal, the federal D.C. voucher program will die of attrition after the last of its current participants graduates from high school. That’s unacceptable. Kids who entered this program when it began in 2004 are now two school-years ahead of their public school peers in reading. That kind of educational lifeline must be saved.

And it can be: the District of Columbia should create its own voucher program.

D.C. spends four times more per pupil on education today ($26,555) than the voucher-accepting schools charge in tuition ($6,620). So far from costing the District money, a voucher program would actually save millions.

And though Democrats in Congress are almost unanimously opposed to giving poor parents an easy choice between public and private schools, the same is not true of Democrats in DC — several of whom attended the rally to save the federal voucher program.

D.C. can bring the benefits of this program to every child in the city. And to do right by them, it must.

Obama Tries Flinging More Nonsense at the D.C. Voucher Issue

This week’s rally in support of the D.C. voucher program garnered a good bit of attention and perhaps even helped push President Obama into tepid support for keeping current students funded, killing the program slowly and quietly over a longer period.

Of course, as I and others have noted, that’s not the point. Here’s a roundup of what is at issue:

At the Economist’s blog yesterday, they get it spot on:

Actually, that’s not much of a compromise. That’s more of a cover-up. Let’s remember that Mr Obama, who sends his own children to private school, made the following promise during his inaugural address [to support what works] … Here’s a programme that every indication shows is working. So why aren’t we moving forward? ”It’s a cop-out,” says Joseph Robert, a supporter of the progamme. Quite right.

And Mike Petrilli notes how meaningless Obama’s nominal and seriously compromised support really is:

While it’s welcome news that President Obama will request funding to keep the D.C. voucher program’s scholarship recipients in private schools through high-school graduation, it will amount to nothing more than a cheap p.r. stunt unless he also promises to veto any appropriations bill that kills the program outright. Congress is unlikely to follow his wishes unless the president makes it clear that this is a priority for him. But really, what are the chances of that?

Hot Air’s Allahpundit puts the fight over this program in its proper and insulting context:

You’re a real sport, champ. Trillion-dollar federal budget deficits as far as the eye can see and somehow [Obama] and the Democrats can’t scrape together a few million to keep this going. Unbelievable.

“Unbelievable” is one word for it. I can think of some others…

Dan Lips gives a good run-down of the rally and what’s at stake:

To paraphrase Virginia Walden Ford of D.C. Parents for School Choice at today’s rally, we shouldn’t be satisfied until all families — regardless of background — can choose a quality school for their children.

Mary Katherine Ham weighs in as well, with pictures of the rally and of the children that congressional Democrats and Obama have decided don’t matter.

Finally, our own David Boaz notes that many of the D.C. Scholarship kids will have to return to chronically violent and dangerous public schools, and that unsafe public schools are a problem around the metro area; kids in D.C. and around the country would benefit greatly from school choice simply in terms of physical safety.

9/11 Memorial? Good. Eminent Domain Abuse? Bad.

The power of eminent domain, embodied in the Takings Clause of the Fifth Amendment, is so great that it nearly invites abuse, even when the government uses its power for constitutional, and even honorable, reasons.

Case in point: The U.S. Park Service has designed a memorial for Flight 93, the one that crashed in rural Pennsylvania on 9/11.  The plans have been in the works for some time, with the government and representatives of Flight 93’s victims working with the property owners—even explicitly assuring them in 2002 that eminent domain would not be used.

As time passed, however, and the self-imposed deadline to have a memorial in place for the 10-year anniversary of the tragedy grows nearer, the government has become impatient and now plans to condemn the land of the seven owners (representing about 500 of the planned 2,200 acre memorial and national park) who have not yet worked out a deal with the Park Service.

While there are two sides to every story, it seems that the property owners have been flexible and open to negotiation—a far cry from the extorting hold-outs against whom eminent domain is supposed to be invoked:

“It’s absolutely a surprise. I’m shocked by it. I’m disappointed by it,” said Tim Lambert, who owns nearly 164 acres that his grandfather bought in the 1930s. The park service plans to condemn two parcels totaling about five acres — land, he said, he had always intended to donate for the memorial.

“To the best of my knowledge and my lawyer, absolutely no negotiations have taken place with the park service where we’ve sat down and discussed this,” Lambert said.
Lambert said he had mainly dealt with the Families of Flight 93 and said he’s provided the group all the information it’s asked for, including an appraisal.

Even if some takings of property are warranted—a 9/11 memorial certainly fits the “public use” requirement—look at the abuse of power we have here.  Setting aside the question of why Lambert’s five acres are so crucial to a 2,200-acre project (and whether the memorial needs to be that large in the first place), why the strong-arm tactics?

Instead of letting an otherwise legitimate contract negotiation—the very foundation of our private property system—run its course, the government is resorting to robbing people because they had the misfortune to own the land near the place a historic tragedy occurred. This type of abuse is why eminent domain must be used sparingly, and why courts must be vigilant in enforcing the Fifth Amendment’s protection of property rights.

H/T: Nicki Kurokawa.