Pundit Watch

I pulled the September 24, 2007, copy of the New Republic out from a stack on my coffee table last night and happened on a fascinating column about the upcoming primaries. John Judis laid out in convincing detail just why the primary race was likely to go all the way to June and maybe even to the convention. He did acknowledge that people had made such predictions before:

Of course, dire prognostications of brokered conventions are made nearly every election…. But the structure of the election has changed this year. The old schedule of primaries and caucuses was designed to winnow the field. Invariably, only two candidates were left standing by March, one of whom would eventually capture enough delegates through the remaining contests to win the nomination. By contrast, the 2008 schedule concentrates more than half of the primary and caucus votes in the first month, which ends February 5. If there is no clear frontrunner by then, the race will probably continue on into June and perhaps even up until the convention.

And that’s why, he said, the delegates just might find themselves choosing the nominee at their convention in Minneapolis.

Yes, Minneapolis. Not Denver. The Republican convention. Because, Judis said, it was likely that Rudy Giuliani, Mitt Romney, and Fred Thompson would divide the states on a regional basis and no one would get a majority of the delegates. “So there is a very good chance that, by June, none of the Republican candidates will have secured the nomination.”

And then what would happen? Well, “the struggle for the nomination would probably move to the GOP convention’s rules committee,” which would have to decide, among other things, whether to disqualify delegates from Florida and other states that held their primaries too early.

TNR readers might have been worrying, Could this happen to our party? Not to worry, said Judis:

Democrats seem far less likely to face this sort of challenge next year. Indeed, Hillary Clinton appears to be putting her competition behind her, and none of her challengers has a built-in regional advantage that will ensure a respectable block of delegates….In fact, the compressed primary schedule could make a stalemate less rather than more likely for Democrats….While Republicans become ever more fractious as the general election approaches, Democrats will have already spent months coalescing around a new leader.

In this I think Judis was doubly, or triply, wrong. Not only did he get the primary process completely wrong in each party, I think he was wrong to predict that a drawn-out nominating process would be bad for the party. It seems clear today that Barack Obama has greatly benefited from the long battle with Hillary Clinton: he held the nation’s attention longer, he became a sharper debater, he raised unprecedented sums of money, he built an organization in every state, he faced a lot of the revelations and charges that would otherwise have come up closer to the election.

So … what are the pundits predicting about the fall election?

Yoo and Boumediene

John Yoo published this article in the Wall Street Journal yesterday about the Supreme Court’s Boumediene ruling. He makes too many claims for me to respond to here in a blog post, but let me address a handful.

1. Yoo: “Under the writ of habeas corpus, Americans (and aliens on our territory) can challenge the legality of their detentions before a federal judge.”

This is an astonishing statement coming from a former Department of Justice official like John Yoo. I say that because Americans were locked up in military brigs as “enemy combatants.” And their attorneys did file habeas corpus petitions in federal court. The Bush administration responded to those petitions by urging the federal courts to immediately throw them out of court! At one point in the litigation, Bush’s lawyers told the Supreme Court, “The Commander in Chief … has authority to seize and detain enemy combatants wherever found, including within the borders of the United States.” Brief for United States, Rumsfeld v. Padilla (No. 03-1027), p. 38. Yoo and others now seem to be playing down those previous assertions about the executive’s military powers, but the record is there for anyone to check. Bush’s lawyers argued that such American prisoners were perfectly free to “challenge” their imprisonment by filing a habeas corpus petition–again, just so long as the courts pronounced such petitions dead on arrival. See Hamdi v. Rumsfeld, 296 F.3d 278, 283 (2002) (“The government [argues that the courts] may not review at all its designation of an American citizen as an enemy combatant–that its determination on this score are the first and final word.”).

With that background in mind, let’s return to Yoo’s claim that Americans “can challenge the legality of their detentions before a federal judge.” To be non-misleading, one would have to add something like, “as long as the courts repudiate the Bush administration’s claims regarding executive power.” Or I suppose there is another possibility. One could prop up the claim with a clarification like “After all, any lawyer can try to challenge anything.” A lawyer can challenge a speeding ticket by the Colorado State Police by asking a judge in Maine to rule in his favor. The Maine judge isn’t going to take any action because his court has no jurisdiction, but the lawyer is nevertheless free to file his request or “challenge” in Maine, futile as it is.

In context, Yoo seems to be trying to assure readers that the writ of habeas corpus is in place for Americans. Well, only if you ignore the legal precedents the Bush administration has been trying to establish. Or only if you are assured by the fact that Americans have a guaranteed right to file futile legal motions in court.

2. Yoo: “The Boumediene Five also ignored the Constitution’s structure, which grants all war decisions to the president and Congress.”

All war decisions? Should the Supreme Court have sanctioned Harry Truman’s seizure of the steel mills (Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1952))? Should the Supreme Court have sanctioned the internment of Americans during World War II (Korematsu v. United States, 323 U.S. 214 (1944)? Should the Supreme Court have affirmed the conviction of Eugene Debs under the Espionage Act for giving an anti-war speech (Debs v. United States, 249 U.S. 211 (1919)? Should the Supreme Court have sanctioned military trials for Americans during the Civil War (Ex Parte Milligan, 71 U.S. 2 (1866)? Perhaps Yoo answers all of these questions in the affirmative, but shouldn’t he make his case for such sweeping war powers more forthrightly?

3. Yoo: “Under Boumediene’s claim of judicial supremacy, it is only a hop, skip and a jump from judges second-guessing whether someone is an enemy to second-guessing whether a soldier should have aimed and fired at him.”

Here Yoo wants readers to imagine a judge in robes running between foxholes to review the battle plan. He desperately wants readers of the Wall Street Journal to ask: What in the world can our Supreme Court be thinking? Not to worry. Yoo is simply trying to caricature a position with which he disagrees. I would make two points here. First, I quite agree that judges have no place on the battlefield. However, we need to watch our terms and definitions here. I do reject the Bush administration’s claim that all of the world, including all of the USA is a “battlefield.”

Second, once the dust has settled after a patrol or firefight, is it not appropriate to review the actions of our soldiers? Unless one is prepared to argue that U.S. military personnel are simply incapable of using their weapons unlawfully, war crime allegations have to be adjudicated somewhere, right? In a previously published article, Yoo has called the Abu Ghraib abuses “sadistic.” Given that statement, it seems fair to ask whether the prosecutions and convictions arising from that case were improper because a court “second-guessed” the soldiers’ detention and interrogation methods? And should not U.S. military personnel who believe they have been unfairly prosecuted be able to pursue their legal appeals (in the event of a conviction) beyond the military system to the Supreme Court? If not, why not?

For more on the Boumediene case, go here. For more on the Bush administration’s legal record, go here. For more on John Yoo, go here.

Tanker Wars: The Saga Continues

In a boon to the state of Washington, lobbyists, and the political rags where they buy advertising, the GAO ruled in Boeing’s favor today in the tanker contract dispute.

The Air Force awarded the contract to Northrop-Grummann and its European partner EADS back in February. And despite much huffing and puffing about a legislative fix, Boeing’s Congressional backers had failed to do anything about the decision. So the GAO protest was probably Boeing’s last shot. Had the ruling gone the other way, the fight would have fizzled, and tanker development would have started down in Alabama. Now it’s back into the ring.

Technically, the Air Force could tell the GAO to buzz off. The ruling is just a recommendation to take another look at the bidders based on a review of the contracting process. The full decision is not published, but the GAO summarizes it in this brief assault on the English language. Essentially, the complaint is that the evaluation criteria were a moving target and that the Air Force got the life-cycle costs wrong. Most significantly, the GAO claims that the estimated military construction cost for the EADS tanker was too low, and that without this error, Boeing’s plane is cheaper. Apparently the expenditure in question is the expansion of hangers to accommodate bigger tankers.

The Air Force could dispute all these arguments and say it’s sticking with EADS. But the ruling is political gold for Boeing. To avoid an uproar on the Hill, the Air Force will have to do what the GAO recommends and reevaluate the bids. I bet it will then change sides and pick Boeing’s tanker. The Northrop crowd will resist, but the GAO has given the Air Force cover. Picking Boeing is the quickest way now to get tankers.

Here’s my long-winded discussion of tanker politics from March.

Lawyers Write Laws to Protect Lawyers… I’m Shocked!

As my colleague Tim Lynch, product of Marquette Law School, can attest, graduates of Wisconsin law schools become members of that state’s bar without having to take an exam.  Understandably, out-of-staters (or even Wisconsonians who go elsewhere for law school and then want to return home) might be jealous.  Now a federal judge has granted class status to a group of law school graduates who have earned law degrees outside Wisconsin and want the same right as in-state grads to practice in the state without passing a bar exam.  (The judge also dismissed the suit as moot because the plaintiff had since passed the bar exam, but apparently this plaintiff has since added his wife and another recent law grad and hopes to take another bite at that apple.)

Wisconsin’s policy is obviously little more than a bit of protectionism meant to give its two law schools (Marquette and UW) a competitive advantage over regional rivals (or to retain, at the margins, Wisconsonians who might be tempted to go to other schools which they perceive as better or which offer them scholarships).  But it may not be unconstitutional, at least not on the grounds the suit alleges – as a violation of Congress’s exclusive power to regulate inter-state commerce (state-specific bar rules are unlike the state-specific railroad gauges – which the Supreme Court has ruled to be unconstitutional on Commerce Clause grounds – because each state has its own substantive and procedural laws).  Indeed, it is easy for Wisconsin to argue that its schools are the only ones that specifically teach its laws.  Similarly, though many states allow experienced (typically five years) lawyers to waive into their bar, others (including – surprise, surprise – all major retirement destinations: HI, CA, AZ, TX, FL) require exams of all comers, even, say, a former Supreme Court justice. 

A better argument to counteract all this nonsense can probably be made on equal protection grounds – on which the Supreme Court struck down citizenship requirements in 1973 – but even those formulations have failed in the context of, e.g., state bars that exclude non-permanent resident aliens (there goes my dream of practicing in New Orleans).  In any event, I suspect that, at least in the Wisconsin case, a court would apply “rational basis” review and, for the reasons stated above, find for the state.

A free market solution would, of course, eliminate all the bar membership requirements for legal practice, giving clients the option to hire moderately trained non-lawyers – at cheaper rates! – for relatively simple matters such as simple wills, small claims litigation, uncontested divorces, etc.  Much as lawyers can now advertise which law school they graduated from, the “real” lawyers would be able to say that they’d passed the bar, had their “character and fitness” reviewed by a committee, tried x number of cases, and other indicia that would distinguish them from hucksters selling the legal equivalent of snake oil.

Hydrogen Car Hooey

One of my pricier trade newsletters, Greenwire, reports today that Honda is manufacturing a “zero emission” vehicle. Their source? A story in today’s New York Times which spills a great deal of ink on the environmental promise of these sorts of vehicles. Well, nonsense. The hydrogen has to come from somewhere, and the emissions associated with producing that hydrogen are far from zero. In fact, hydrogen-powered vehicles are, on balance, even dirtier than conventional internal combustion engines.

Next time you see Jamie Lee Curtis tooling around in one of these things, tell her to buy some carbon credits. A lot of them.

Much Ado about Offshore Drilling

The lead story in today’s papers and the buzz on the political talk shows is about President Bush’s request to Congress that they suspend the federal ban on oil drilling off the U.S. Atlantic and Pacific coasts.

Already, drilling proponents and environmentalist opponents are gearing up for battle, and the presidential candidates are sounding off on the idea. None of their comments, so far, offer anything useful for public policy.

For people who want good policy, here are some points to consider:

  • Part of the reason for the high current price of oil (and gasoline) is that supply is “inelastic” – that is, it’s hard for producers to increase production even when prices are high and there is significant economic incentive to do so. A significant increase in production capacity would reduce oil and gas prices significantly — assuming the current condition of high inelasticity continues until the new oil is brought to market.
  • It will take a long time for that new oil to reach the market. It often takes as much as a decade or more for a new oil field to be brought online.
  • No one knows how much oil lies offshore and whether that oil is economically worthwhile to extract, as there hasn’t been any extensive studies of those areas in decades.
  • Concerns about the environmental impact of drilling are legitimate, as are concerns that the United States may be forgoing the use of a valuable resource by not drilling in these areas.

Good public policy would examine the risks and costs underlying both of these concerns, and then make a decision (or perhaps a compromise) about drilling. However, this issue will not be decided in such a rational way. The debate will be dominated by two ideological camps — the “drill at any cost” crowd and the “don’t drill at any cost” crowd” — and their ideological priors and political power will preempt any good policy discussion.

Unfortunately, that’s how we roll here in Washington, D.C.

Obama Adviser Advocated War with North Korea

Matt Yglesias posts this list of members of Barack Obama’s “National Security Working Group.” Interesting to see that it includes William Perry, who wrote this in 2006, when North Korea was preparing to test a ballistic missile:

if North Korea persists in its launch preparations, the United States should immediately make clear its intention to strike and destroy the North Korean Taepodong missile before it can be launched. This could be accomplished, for example, by a cruise missile launched from a submarine carrying a high-explosive warhead. The blast would be similar to the one that killed terrorist leader Abu Musab al-Zarqawi in Iraq. But the effect on the Taepodong would be devastating. The multi-story, thin-skinned missile filled with high-energy fuel is itself explosive – the U.S. airstrike would puncture the missile and probably cause it to explode. The carefully engineered test bed for North Korea’s nascent nuclear missile force would be destroyed, and its attempt to retrogress to Cold War threats thwarted. There would be no damage to North Korea outside the immediate vicinity of the missile gantry.

[…]

We should not conceal our determination to strike the Taepodong if North Korea refuses to drain the fuel out and take it back to the warehouse. When they learn of it, our South Korean allies will surely not support this ultimatum – indeed they will vigorously oppose it. The United States should accordingly make clear to the North that the South will play no role in the attack, which can be carried out entirely with U.S. forces and without use of South Korean territory. South Korea has worked hard to counter North Korea’s 50-year menacing of its own country, through both military defense and negotiations, and the United States has stood with the South throughout. South Koreans should understand that U.S. territory is now also being threatened, and we must respond. Japan is likely to welcome the action but will also not lend open support or assistance. China and Russia will be shocked that North Korea’s recklessness and the failure of the six-party talks have brought things to such a pass, but they will not defend North Korea.

…The United States should emphasize that the strike, if mounted, would not be an attack on the entire country, or even its military, but only on the missile that North Korea pledged not to launch – one designed to carry nuclear weapons. We should sharply warn North Korea against further escalation.

North Korea could respond to U.S. resolve by taking the drastic step of threatening all-out war on the Korean Peninsula. But it is unlikely to act on that threat. Why attack South Korea, which has been working to improve North-South relations (sometimes at odds with the United States) and which was openly opposing the U.S. action? An invasion of South Korea would bring about the certain end of Kim Jong Il’s regime within a few bloody weeks of war, as surely he knows. Though war is unlikely, it would be prudent for the United States to enhance deterrence by introducing U.S. air and naval forces into the region at the same time it made its threat to strike the Taepodong. If North Korea opted for such a suicidal course, these extra forces would make its defeat swifter and less costly in lives – American, South Korean and North Korean.

President Bush did not, of course, launch airstrikes against North Korea. Rather, the North went ahead with the missile test and it failed.

John McCain might want to be careful about criticizing Obama too much for this, though: After all, it was John McCain who took to the pages of his favorite magazine in 2003 to make this argument about North Korea:

The use of military force to defend vital American security interests must always be a last resort, as it is in this crisis. But if we fail to achieve the international cooperation necessary to end this threat, then the countries in the region should know with certainty that while they may risk their own populations, the United States will do whatever it must to guarantee the security of the American people. And spare us the usual lectures about American unilateralism. We would prefer the company of North Korea’s neighbors, but we will make do without it if we must.

Who says there’s nothing these campaigns can agree on!