A New Generation On the Court

By a vote of 54-45, the Senate today concluded the long, bruising battle to confirm President Donald Trump’s nomination of Judge Neil Gorsuch to the U.S. Supreme Court. Chief Justice John Roberts is scheduled to swear Judge Gorsuch in at 9:00 a.m. on Monday morning. We can now look forward to the Court’s return to its normal practices, taking and deciding cases without the prospect of 4-4 decisions hanging over it.

Judge Gorsuch has often been likened to Justice Antonin Scalia, whose seat he will assume, and for good reason, for he too is a textualist and an originalist in his approach to constitutional and statutory interpretation. But he comes from a later generation, one immersed in the debates between liberals, conservatives, and classical liberals over the proper interpretation of the Constitution and the role of judges under it. During his confirmation hearings, for example, Judge Gorsuch spoke favorably of the Court’s decisions in cases like Meyer v. Nebraska and Pierce v. Society of Sisters, where the Court upheld parental rights not expressly found in the Constitution. That bodes well for his appreciation for the rich moral, political, and legal theory that stands behind and informs the often broad language of the Constitution, as his own graduate study at Oxford in natural law would suggest.

Speaking of generational change, an interesting historical note was just brought to my attention by a personal friend with whom I served in the Reagan administration, Chicago attorney Joseph A. Morris. As a law clerk for Justice Anthony Kennedy, Justice Gorsuch will be the first U.S. Supreme Court justice ever to serve on the bench alongside the justice for whom he clerked. The play between them will be fun to watch! Congratulations Judge, soon to be Justice, Neil Gorsuch.

Congratulations, Justice Gorsuch

Congratulations to Neil Gorsuch, who will be sworn in Monday as the newest Supreme Court justice. Gorsuch’s mentor, Justice Byron White, liked to say that each new justice makes for a new court, and I look forward to the breath of fresh air, intellectual rigor, collegiality, and constitutional seriousness that Justice Gorsuch will bring. I’m also glad that our nation’s political debate can move beyond this toxic episode and that we won’t ever have to discuss nuclear options with regard to judges ever again. 

Donald Trump, Syria, and the Power Problem

With his decision to launch missile strikes against an airfield in Syria, President Donald Trump has apparently learned a lesson that eventually dawns on all American presidents, especially in the post-Cold War era: with great power comes great responsibility. I call it the power problem.

The power problem was encapsulated in the exchange between then-U.N. Ambassador Madeleine Albright and Gen. Colin Powell, at the time the Chairman of the Joint Chiefs of Staff:

What’s the point of having this superb military that you’re always talking about if we can’t use it?

Relieved of the burdens to justify U.S. military actions solely on the basis of our own national security interests, U.S. presidents and the foreign policy elites who advise them have gone searching for other reasons to use force. There will never be a shortage of aggrieved parties pleading for help. There is, however, a shortage of countries willing to help.

U.S. military power, and our willingness to use it, have discouraged others from possessing power of their own. They can reasonably claim that they lack the capability to act.

The United States doesn’t have that luxury. From the moment when a president arrives in the Oval Office, he possesses vast power, and few constraints on how it is used.

Using it wisely requires tremendous discipline, and a willingness to endure the criticisms of those who will accuse you of everything from callousness to mendacity – both when you act, and when you refuse to do so.

Trump’s repeated invocation of the doctrine “America First” suggested that he would not be swayed by such criticisms. And, in the past, he has suggested that the United States should not become involved in Syria’s civil war. In September 2013, for example, Donald Trump urged President Obama via Twitter not to attack Syria. 

But now, just 77 days into his presidency, he has created an inevitable rejoinder for every successive foreign policy crisis, anywhere in the world: “Mr. President, you struck Syrian government forces in April 2017. Why are you not striking [insert name of petty tyrant here] in response to equally grievous actions against [petty tyrant’s people]?”

In his statement last night justifying the use of unilateral force against Bashar al-Assad’s forces in Syria, President Trump explained “It is in this (sic) vital, national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons.” 

It is a debatable point, and one that deserves to be debated. A new authorization for the use of military force (AUMF) would be a good place to start. There are risks, including conflict with nuclear-armed Russia. There are reasonable questions about what effect such strikes will have on Assad’s capacity to carry out similarly brutal killing by purely conventional means. And, lastly, having now introduced a very small increment of U.S. military power directly into the Syria conflict, some will wonder whether that signals a willingness to use much more. Those who castigated Barack Obama for refusing to intervene decisively in the Syrian civil war, including Sens. John McCain and Lindsey Graham, hope so. The question is whether President Trump, in the face of all this uncertainty, will be able to resist the temptation to escalate.

If he succumbs, Americans could find themselves sucked into yet another elective military quagmire in the Middle East.

U.S.-China Trade Deal Trumps U.S.-China Trade War

Amid increasing tensions between Washington and Beijing over economic and security matters, Chinese President Xi Jinping is in Florida today and tomorrow for meetings with President Trump.  Although economic frictions between the world’s two largest economies are nothing new, the safeguards that have helped prevent those frictions from sparking an explosion and plunging the relationship into the protectionist abyss may no longer be reliable.

As I noted in this recent Cato Free Trade Bulletin: 

Never have the U.S. and Chinese economies been more interdependent than they are today. Never has the value of the bilateral trade and investment relationship been greater. Never has the precarious state of the global economy required comity between the United States and China more than it does now. Yet, with Donald J. Trump ascending to power on a platform of nationalism and protectionism, never have the stars been so perfectly aligned for the relationship to descend into a devastating trade war.

What are those safeguards and why might they no longer be reliable?

First, U.S. multinational business interests that used to favor treading lightly with China, and provided a policy counterweight to U.S. import-competing industries advocating protectionism, have grown disillusioned by the persistence of policies that continue to impede their success in Chinese markets. Many think a more aggressive posture from Washington, even if that makes matters worse for them in the short run, is overdue.

Second, the pro-China-trade lobbies in Washington have grown sheepish in their advocacy on account of an economic study that went viral last year, ascribing massive U.S. jobs losses to trade with China, and because many fear political retribution from challenging Trump’s assumptions.  Full-throated support for the relationship has become conditional support.

Third, now more than ever before, U.S. policymakers, media, and the public are less inclined to look at the bilateral economic relationship in isolation from the strategic and geopolitical aspects of the relationship.  Segregating the issues in the past allowed us to focus on the win-win elements of trade, where there was broad enough agreement that mutual benefits could be derived, without being distracted by the issues where the United States and China are less likely to agree.  Today, our economic frictions are viewed through the prism of our geopolitical differences – and that makes trade disputes more difficult to manage.

Topics:

Nuclear Option Restores Senate Normalcy

Today’s removal of the filibuster – a parliamentary tool effectively requiring 60 votes to proceed with a vote on a matter – for Supreme Court nominees is the long overdue denouement of a process that began not with Senate Republicans’ refusal to vote on Merrick Garland, or even Harry Reid’s elimination of the filibuster for lower-court nominees in 2013, but with Reid’s unprecedented partisan filibusters in 2003. Recall especially the record 7 failed votes to end the filibuster of Miguel Estrada, who was blocked primarily because Democrats didn’t want President Bush to appoint the first Hispanic Supreme Court justice.

The Senate is now restored to the status quo ante, such that any judicial nominee with majority support will be confirmed. That’s a good thing.

RIP Partisan Filibuster (2003-2017)

Dollar-Denominated Cryptocurrencies: Flops and Tethered Success

A well-known obstacle to the greater popularity of Bitcoin as a medium of payment is the high volatility of its exchange value. This volatility results from its built-in quantity commitment: because the number of Bitcoins in existence stays on a programmed path, variations in the real demand to hold Bitcoin must be accommodated entirely by variations in its unit value. When demand goes up, there is no quantity increase to dampen the rise in price; and vice-versa for a fall in demand.

Not surprisingly, several cryptocurrency developers have thought of creating a cryptocurrency with a price commitment — namely a pegged exchange rate with the US dollar — rather than a quantity commitment, in hopes of greater popularity. The aim is to create a system in which dollar-denominated payments can be made with the ease, security, and low cost of Bitcoin payments, but without the exchange-rate risk.

Poor Defendants Should Get to Choose Their Lawyers Too

Americans may take for granted that if they’re ever accused of a crime, they can choose their own attorney to represent them. The Supreme Court has ruled that Americans have a right to counsel in serious criminal cases, and nobody seriously argues that the government should make that important decision for us.  

Yet that is exactly what happens across the country when defendants are too poor to hire their own attorneys.  While other countries such as the United Kingdom have long allowed indigent defendants to choose their own lawyers, American jurisdictions historically restrict that choice to either a court-appointed lawyer or an assigned public defender. 

In 2010, the Cato Institute published a study, Reforming Indigent Defense, which proposed a client choice model where poor persons accused of crimes would be able to choose their own attorney to represent them in court. If the accused opted for the public defender, he could make that choice, but if he wanted to explore other options, he could do that also.  The Texas Indigent Defense Commission became aware of the Cato report and decided to give it a try with a pilot program in Comal County, near San Antonio. The program went into operation in 2015.  

Today, the Justice Management Institute released an evaluation based on two years of data from the Comal Client Choice program.  The report, called The Power of Choice: The Implications of a System Where Indigent Defendants Choose Their Own Counsel, suggests that the program is working as well or better than the old system across a variety of metrics.  

The JMI study looks at four factors to assess the viability of the Comal program:

  • Does the model impact the quality of representation?  
  • Does the model produce a higher level of satisfaction and procedural justice?
  • Does the model impact case outcomes?
  • What is the impact of the model on overall cost and efficiency?

The study compares the results of Client Choice participants with the representations of defendants who chose to use the pre-existing court-appointment system.

While some aspects of representation were the same for both groups (for instance, client assessments of how hard their lawyers worked were not statistically distinguishable), participants in the Client Choice program were able to meet with their lawyers more quickly, had a stronger sense of fairness, and were more likely to either plead to lesser charges or exercise their right to trial than their peers.  The report also finds that the Client Choice program did not increase costs in the system.

Perhaps as important as any objective metric, a majority of defendants who were offered the ability to choose their own attorney opted to do so, suggesting that giving indigent defendants some agency in their choice of representation has a value in itself.  Freedom of choice matters to people.  

In too many jurisdictions, indigent criminal defense is in a state of crisis. Texas is in the vanguard with its Client Choice program. Hopefully these promising results will encourage more jurisdictions to consider injecting choice and market principles into their indigent defense systems.