Little Hope for Change on Judges Until the Judiciary Stops Legislating

In a recent editorial, the Washington Post issued a “hope for improvements” from the vitriol, partisan rancor, and blocking of qualified candidates that has increasingly dominated nominations to the federal bench.  Don’t hold your breath; this is one hope that will not inspire change during the course of the Obama administration.

No, the poisoning of the judicial appointment process won’t end till courts stop acting as policymakers, finding powers in the Constitution that aren’t there and limiting rights that are.  Thus the problem with judicial nominations has less to do with cynical politicians and embittered ideologues than it does with a ”living Constitution” that has been stretched over the years beyond any Founder’s recognition.  In failing to enforce the constraints on federal powers – and to protect the rights retained by the people under the Ninth Amendment (along with those covered by the Fifth Amendment’s takings clause and the Fourteenth Amendment’s privileges or immunities clause, to name but the most maligned) – what Alexander Hamilton called the “least dangerous branch” has devolved into a disfunctional policymaking body that understandably attracts political passions. As various parties wrestle to direct the government’s expanded powers in their favor constituents, as my boss Roger Pilon wrote in 2002, “everything is politics, nothing is law.”

Until we reset the balances of power among the branches and the government again abides by its constitutional parameters, I’m afraid that the partisanship and politics of personal destruction surrounding judicial nominations will continue unabated – to the detriment of the nominees, the judiciary, and the country.  When so much is at stake, it can be no other way.  (You might as well ask elections to be less partisan or otherwise heated.)

But the Post’s editorial is on the right track about one thing: the failure of Republicans to define the word “extremist” when speaking of likely Obama judicial nominees.  Democrats and their hard Left brethren were so unsuccesful in blocking John Roberts and Samuel Alito in large part because they had cried bigot about practically every previous lower-court nominee.  Instead, let’s define what is unacceptable practically and establish an objective standard for judicial nominees from the new administration.  Then it will only be a matter of measuring the degree of support or opposition when analyzing each one’s record.  I suggest the following: “An extremist judge is someone who puts policy views over the text of the law as written, someone whose record shows a propensity for rewriting statutes or the Constitution.”

If you don’t like the result you get when following the law or the Constitution, change the law or amend the Constitution. As Oliver Wendell Holmes said when asked whether he would be doing justice on the Supreme Court, “This is a court of law, young man, not a court of justice.”

NSA Spying on Journalists: We Need a New Church Committee

Last week Keith Olbermann conducted a pair of interviews that gives a troubling look at the NSA’s domestic wiretapping operations. First, Olbermann talked with Russell Tice, a former NSA analyst who tells Olbermann that the NSA had access to all of the American’s peoples’ electronic communications, including those of journalists. Second, Olbermann talked to a New York Times reporter who is currently being pressured by federal prosecutors to divulge his sources for his 2006 book State of War, which focused on the CIA’s recent intelligence-gathering activities. The federal government hauled various former government officials before a grand jury and confronted them with phone records showing conversations between the government officials and Risen. Olbermann suggests that Risen’s phone records might have been obtained by the NSA using the dragnet surveillance program Tice has described.

It’s important to acknowledge that we don’t know if Risen was a target of the NSA program. Federal prosecutors do have legal powers to obtain the phone records of suspects without the knowledge of those suspects. It’s quite possible that the feds got Risen’s records using a valid subpoena under judicial supervision. However, the fact that we don’t know the full story is itself a serious problem. If Tice has described the program accurately and Risen’s phone records were obtained as part of such a surveillance program, that would be a pretty major scandal. Remember that even last year’s extremely permissive FISA Amendments Act didn’t legalize warrantless eavesdropping on purely domestic communications.

The problem is that we don’t know. And unfortunately, this is an area where our system of checks and balances have broken down. Congress has shown little appetite for performing one of its most important functions: investigating the activities of the executive branch to verify that the law is being followed.

Congress wasn’t always so timid. Thirty-five years ago, after another lawless president left office, we had not just one but three investigations of the prior administration: one in the House, one in the Senate, and one in the executive branch. The most successful of the three was the Senate committee that came to be known as the Church Committee. It produced a massive report documenting a ton of illegal activities by the executive branch over the preceding half-century. Gene Healy and I discussed a few of their findings here, and Julian Sanchez has a more thorough summary of the findings here.

In the forthcoming edition of the Cato Handbook on Policy, I argue that Congress should launch a broad investigation of executive branch surveillance abuses modeled on the Church Committee. Only by uncovering the full extent of domestic surveillance activities in the past can we craft sensible safeguards to make sure that abuses cannot happen again. I think there are three crucial factors in making a new Church Committee a success. First, it needs to be bipartisan. That is, it can’t focus merely on the misdeeds of the Bush administration. I recommend starting where the Church Committee left off and including the activities of the NSA, CIA, and FBI under presidents Carter, Reagan, Bush 41, Clinton, and Bush 43. If done right, this would be more than a fig leaf. Bill Clinton was hardly a doctrinaire civil libertarian, and so investigation might uncover real abuses that occurred under Clinton’s watch.

Second, it’s important that as much of the results as possible be made public. The lasting impact of the Church Committee was largely due to the sheer quantity of illegal activities it uncovered. If the Church Committee had only released information about the most egregious violations of the law, advocates of executive power might have been able to spin them as the work of a few bad apples. But because the Church Committee documented a pattern of law breaking involving dozens of people over the course of decades, under Democratic and Republican presidents alike, it became clear that there were systematic problems requiring systematic reforms. The passage of the original FISA Act was one of the most important results of the Church Committee report.

Of course, partisans for the recently-departed Bush administration will paint any effort by Congress to expose these secret programs as a partisan witchhunt that will aid the enemy. And obviously, Congress should be careful not to reveal details that could derail ongoing terrorist investigations or put undercover agents at risk, and the like. But there’s plenty of work Congress could do that is plainly neither a partisan witchhunt nor a danger to national security. The information the Electronic Frontier Foundation has uncovered regarding cooperation between telecom companies and the government would be a good place to start. Maybe Congress will find nothing improper happened there, but it’s important for the public to know what did happen so we can decide for ourselves.

New on YouTube: Daniel J. Mitchell on ABC’s 20/20

Ever wonder why CEOs of major companies make so much money? And when the company goes bust, why does the CEO leave with millions? In this Cato Weekly Video, John Stossel interviews senior fellow Daniel J. Mitchell and others to find out.

“A contract is a contract, and one of the differences between a civilized country and a banana republic is that the rule of law is enforced,” says Mitchell.

Subscribe to Cato’s YouTube channel.

Coordinated Care Versus Government

With such a diversity of health care options, some say that health care lacks coordination and integration. But does that failure to coordinate care indicate a failure of markets or government?

In today’s Cato Daily Podcast, adjunct scholar Arnold Kling, who recently co-authored the Briefing Paper, “Does the Doctor Need a Boss?,” discusses why a private overseer would be more beneficial to patients and doctors than a government bureaucracy.

“My view as a market person is that we really don’t know what the best health care system is yet,” says Kling. “…Let’s allow some trial and error experimentation by the market and let the market determine what the best system is.”

Kling is the co-editor of EconLog, a weblog devoted to economic issues and author of several books, including Crisis of Abundance: Rethinking How We Pay for Health Care.

Let’s Just Have A Big Bonfire of Cash Instead

Can you think of a better use for taxpayer money than spending it on the most inefficient and least productive segment of our economy?

Well then it’s a good thing that the Economic Stagnation and Ruinous Debt Plan (aka “The American Recovery and Reinvestment Plan”), includes a hefty dose of dedicated funding for the government school monopoly (aka “public schools”).

Around $142 Billion, or around 17% of the “stimulus” is planned for Big Ed, and, surprise, school choice programs don’t make the cut for funding.

Dan Lips has a great overview of this small chunk of folly off the enormous folly-block presently tumbling its way through Congress.

Republicans Seek Lasting Damage in the Stimulus

Though the stimulus package racing through the house is unlikely to work, some Republicans are going a step further and seeking to ensure that it does lasting damage to our economy - and to the freedom of our society.

Amendments to the stimulus bill in committee last week include one to reauthorize “E-Verify,” the budding national identification and government background check system. Another would mandate the use of E-Verify by any business receiving stimulus money.

The growth of E-Verify would raise costs on business and make it harder for many law-abiding Americans to get work, draining energy from the economy at precisely the wrong time - not that there’s ever a good time.

I wrote about electronic employment verification programs like E-Verify in a paper called “Franz Kafka’s Solution to Illegal Immigration.”

Earmark Ban Only Treats a Symptom, Not the Problem

The Associated Press is reporting on the unsurprising attempt by special interests and their political benefactors to get around President Obama’s ban on earmarks in the massive “stimulus” bill taking shape in Congress.

They’re [lobbyists and lawmakers] just working around it — and perhaps inadvertently making the process more secretive. The projects run the gamut: a Metrolink station that needs building in Placentia, Calif.; a stretch of beach in Sandy Hook, N.J., that could really use some more sand; a water park in Miami. There are thousands of projects like those that once would have been gotten money upfront but now are left to scramble for dollars at the back end of the process as “ready to go” jobs eligible for the stimulus plan. The result, as The Associated Press learned in interviews with more than a dozen lawmakers, lobbyists and state and local officials, is a shadowy lobbying effort that may make it difficult to discern how hundreds of billions in federal money will be parceled out.

As distasteful and corrupting as congressional earmarking of taxpayer money is, earmarking is only a symptom of the problem – not the problem as some well-intentioned lawmakers imply.  The real problem is that few, if any, limitations remain on what our federal masters can spend our money on.  For example, it matters little if a water park in Miami is funded through a Senator’s explicit wishes in an appropriations bill or if it receives the money via one of the executive branch’s numerous “economic development” granting programs.  Thus, lawmakers upset with earmarking should devote more effort to killing the programs that allow for such expenditures to occur in the first place.  (For a perfect example of lawmaker inconsistency on this subject, see here.)

More from the AP story:

Instead, the money will be doled out according to arcane formulas spelled out in the bill and in some cases based on the decisions of Obama administration officials, governors and state and local agencies that will choose the projects. “Somebody’s going to earmark it somewhere,” said Howard Marlowe, a consultant for a coalition working to preserve beaches. Lobbyists are hard at work figuring out ways to grab a share of the money for their clients, but the new rules mean they’re doing so indirectly — and sometimes in ways that are impossible to track.

Tinkering with allocation formulas is a time-honored tradition in Congress.  HUD’s Community Development Block Grant program (CDBG), which would get an extra $1 billion in the current House version of the “stimulus,” offers a good example.  According to Cato’s Chris Edwards:

The Northeast-Midwest Institute represents a group of 18 states stretching from Vermont to Minnesota…Interestingly, this institute both lobbies for federal aid to its member states and receives federal aid itself. Audits show that the institute receives about $800,000 annually from 12 different federal grant programs. The Northeast-Midwest Institute’s website boasts about its lobbying prowess…The CDBG program…illustrates how technical the battles over aid can be. One item in the formula that distributes CDBG funding to the states is “housing built before 1940.” How did this obscure item get into the CDBG formula? The Northeast-Midwest Institute got a member of Congress to insert it into legislation in 1977 in order to tilt aid toward older cities.

The CDBG program formula has been stretched to the point that even relatively wealthy communities can get in on the fun.  And, just as has been the case with earmarked money, the result is often corruption.  For instance, a 2007 HUD Inspector General report found that the City of Chicopee, Massachusetts had spent $1.1 million in CDBG money on projects in an affluent neighborhood that just happened to contain the home of the city’s mayor.  In 2005, the mayor was arrested on extortion charges related to campaign contributions received from a developer the mayor tried to assist in obtaining CDBG-funded projects.