It’s been a long couple of days of hearings — three days, really, if you count Monday’s prepared statements (which I do because I had to read them all after a day of responding to big Court decisions) — and I’m still trying to separate in my mind the issues I care about from those less important and trying to remember some of the lighter moments that will color people’s recollections of these proceedings for decades. As I gradually sift through my notes and review key sections of testimony, here are some things that will stick with me:
- Kagan refused to identify anything the government couldn’t do under its Commerce Clause power. She recited over and over the limitations the Lopez and Morrison cases give, the power to regulate interstate commerce doesn’t extend to non‐economic activity or that traditionally subject to state prerogative, but she refused to tell Senator Coburn that his hypothetical bill requiring Americans to eat fruits and vegetables was unconstitutional. “Dumb,” sure, but perhaps worthy of the deference to the political branches that she hailed again and again. Nor did she offer her own examples of unconstitutional bills.
- Not only is Aharon Barak, the philosopher‐king Israeli judge, the nominee’s hero but so apparently is Oliver Wendell Holmes, whom Kagan cited several times for the proposition that broad regulations, even if unwise and infringing on individual liberty, is for the people to correct, not the courts. In response to Senator Kaufman’s questions about the pending financial market reforms, for example, she invoked Holmes and argued that while courts still have an important role in holding Congress to certain constitutional limits, they “should realize that they’re not the principal players in the game.”
- Putting together the above two points, conservatives may have hoisted themselves on their own petard by insisting for decades that “judicial activism” equates to acting without the sort of majoritarian deference Kagan full‐throatedly endorses.
- The Kagan hearings were much more engaging than the Sotomayor hearings, even though they’ve gotten less press coverage in light of the continuing oil spill saga, Russian spies, Petraeus confirmation, and Senator Byrd’s death (and the World Cup!). The solicitor general is more articulate, has a better grasp of almost every area of the law (though Sotomayor probably wins on large swaths of criminal law), has a good sense of humor, and genuinely tried to answer questions. Just as Kagan admitted that judging was not a “robotic” task of applying law to facts, her presentation to the committee was anything but “robotic.”
- Still, Kagan failed the Kagan Standard set out in her classic “Confirmation Messes” article — which I’ve now read several times and am honestly struck by its perceptiveness. Her incessant repetition that all Supreme Court decisions are “well‐settled law” that she would not “grade” — virtually the only parts of her responses, whether I agreed or disagreed, that annoyed me — has no principled basis. For example, she flat‐out refused to answer this type of question: “Ms. Kagan, if you were on the Court in 1942, and setting aside considerations of stare decisis that may affect how you would rule in a current case presenting related issues, how would you have ruled in Wickard v. Filburn?” That to me is unacceptable. Yes, nominees should refuse legal issues that are likely to come before the Court, but asking about previous decisions is fair game.
- I’m disappointed but not surprised by Kagan’s position on use of foreign law. Yes, it’s never binding and, of course, you should use it in evaluating international treaties and conflicts of law situations, but it’s simply irrelevant to interpreting the U.S. Constitution. Yet Kagan consciously left herself plenty of breathing room to cite foreign law inappropriately.
- Finally, and I will be going over this section with a fine‐toothed comb, in an instructive dialogue with Senator Coburn, Kagan disclaimed the idea of natural rights — looking pained at times to even understand what they are. “Does the Constitution give us our rights, or do they pre‐exist government?” Coburn asked. Kagan evaded. “What about the discussion of the ‘inalienable rights’ in the Declaration of Independence?” he pressed. Kagan denied that the Declaration of Independence had anything to do with the role of a judge. This is sad, really, and ironic given that we’re heading into the Fourth of July weekend.
I do not yet know how I would counsel a senator to vote on Kagan’s nomination — she’s more than qualified in terms of legal knowledge, indeed better qualified in terms of temperament than to be solicitor general — but I know that I’m disturbed by much of what I’ve witnesses lo these last 48 hours. Last year at this time I suggested that the argument for Sonia Sotomayor’s confirmation was “not proven”; she was fine at her hearings but did not carry her burden of persuasion. That may well be the case again.
CP at Townhall
Tradeoffs are an incurable part of reality. Unfortunately, many school choice supporters like to believe that there are no tradeoffs between school choice policies; public and private school choice, targeted or restricted, big or small, voucher or tax credits, it’s all choice and it’s all good. But some good things are better than others. And most things have some mix of positive and negative effects.
Charter schools often provide a safer, better alternative to traditional public schools. That’s good. Charter schools also destroy private schools, decrease educational options, pull private‐school students into the government education system and thereby add significant new costs to taxpayers. These are all very bad things. And they are not at all balanced by theories of long‐term shifts in how citizens conceive of choice in education.
Here’s the latest on how government charter schools are killing what’s left of the private sector in education:
The number of students enrolled in these public, independently run schools has risen dramatically in this decade. Philadelphia school district officials estimate that 73 percent of the children now in charters came from district schools and 27 percent from other schools. That 27 percent amounts to about 9,000 students, and Catholic‐school educators believe that most of them came from Catholic schools.
Charter schools have one distinct advantage over Catholic schools. They do not charge tuition.
Charters are NO substitute for private school choice. In fact, by destroying private schools, they seriously erode the total range of educational options.
We need to be clear‐headed about this; charter school laws, in the absence of robust private school choice programs, destroy educational freedom and choice.
Absent private choice, charters are a long‐term setback for education reform.
I agree with Jillian Bandes’s characterization of the Democrats’ “bottom of the order” questioning (the committee being stacked 12–7, the day began with the junior Dems) and indeed was dreading having to sit through all sorts of parochial bloviations. Even Al Franken wasn’t too exciting, just making the point Justice Kennedy was wrong not to consider in legislative history in arbitration cases and expounding at length on the theme that money in politics is bad and so therefore was Citizens United. Kagan responded that “Congress’s intent is the only thing that matters [to statutory interpretation]”—a position sure to infuriate her future would‐be colleague Justice Scalia—but also that the Court “should not re‐write the law,” instead allowing Congress to correct unsatisfying judgments based on flawed legislative draftsmanship. From this exchange I didn’t learn much about Kagan but did conclude that I wouldn’t ever vote for Franken for anything, except maybe the People’s Choice Awards should he ever return to show business.
The most memorable part of today’s first session of questioning (9am till after 1pm) was undoubtedly Arlen Specter pressing the nominee to answer questions about various lawsuits of special concern to him and which he detailed in several letters to Kagan about the questions he would ask. One was a Holocaust survivors’ suit, one was by families of the victims of 9/11, and one regarded the Bush‐era Terrorist Surveillance Program. The first is at the cert petition stage before the Supreme Court, in the second Kagan as SG recommended that the Court deny review, and the third eventually will be seeking review of the lower court’s dismissal on standing grounds. Kagan agreed that standing and other jurisdictional doctrines are important but would not discuss whether she would vote that the Court hear the cases or reverse the lower‐court decisions. Kagan pushed back repeatedly, saying “you wouldn’t want a judge who says she will reverse a decision without reading the briefs and hearing argument.” Specter was extremely dissatisfied, to the point where his vote is legitimately in doubt. Indeed, I would say now that Lindsey Graham is much more likely to vote for Kagan than Specter is. Of course, Specter had voted against Kagan when she was nominated to be solicitor general last year—but he was a Republican at the time.
CP at Townhall
La Nación of Argentina reports today [in Spanish] that—shocker!—the Argentine government used funds from the nationalized pension funds to finance its current spending.
Let’s remember that over a year and a half ago, the administration of Cristina Fernández announced the nationalization of the private pension funds—$30 billion worth of assets—under the claim that the international financial crisis threatened to wash away the retirement savings of Argentine workers. However, it was clear from the beginning what the government’s real intentions were, especially since a surtax imposed on farmers had just been repealed by the courts and defeated in Congress.
Even Argentina’s populist hero, Juan Domingo Perón, warned 35 years earlier about a similar move from the government as Ian Vásquez pointed out in late 2008.
I testified to President Obama’s National Commission on Fiscal Responsibility and Reform today on Capitol Hill. The Commission is tasked with creating a package of specific budget reforms by December to be considered by the House and Senate.
I suggested that the Commission propose cuts to Social Security, Medicare, Medicaid, farm subsidies, transportation subsidies, education subsidies, aid to the states, and many other activities.
Fiscal responsibility is pretty easy really–you just need to cut programs. I advised Commission members to study the recommendations on www.downsizinggovernment.org.
And I said that other countries have ditched farm subsidies and privatized Social Security, so why the heck can’t we?
My written testimony is here. The hearings are on CSPAN and being streamed at the White House website.
Thomas L. Norman's Risk Analysis and Security Countermeasure Selection is a relentlessly practical book intended to aid security consultants, of which Norman is one. There are literally dozens of codes, standards, and risk assessment methodologies that the U.S. Department of Homeland Security accepts for different institutions and infrastructures.
As he details the excruciating process of assessing the risks from all "threat actors," including economic criminals, nonterrorist violent criminals, "subversives," and petty criminals, he gets around to saying some important things about terrorists.
[T]errorists are not necessarily interested in taking out a facility but are very interested in communicating through the use of violence. . . . Terrorists use violence as language. The language of violence causes a public debate, not only about the terrorist act, but also about the causes of it and what can be done about it. Terrorists speak through violence to the public directly, past the national leadership. (page 167)
This is not a strategy book nor a counterterrorism book, but it touches on counterterrorism strategy in a similar, sensible way.
Deterrence occurs when potential threat actors evaluate the risks and rewards of an attack and determine that the risk is not worth the reward. . . . For terrorists, this could mean that an attack is not likely to succeed, that their attack would not capture the media's attention, or that they could be perceived negatively by their own constituency. (page 252)
The success or failure of a given attack matters some to terrorists, but perceptions---the salience of their menace, and interpretations of events among key audiences---matter just as much.
These ideas---common sense among security professionals---seem not yet to have taken hold among policymakers and opinion leaders. This is why Joshua Alexander Geltzer's U.S. Counter-Terrorism Strategy and al-Qaeda: Signaling and the Terrorist World View is such an important book.