Tag Archives: president

The Kagan Nomination: What Matters, What Doesn’t

One of the criticisms being hurled at Elena Kagan from the right is that she might be a lesbian. This concerns me.

Not the lesbian part; few things are less important to one’s judicial qualifications. My worry is that Republicans have so atrophied intellectually that this is their loudest reason for opposing her.

A thoughtful soul (I forget who) recently remarked that twenty years from now, almost everyone currently on the wrong side of gay rights issues will be embarrassed to admit it. Yet the obsolete epithets being hurled at Kagan — which may or may not be accurate, and frankly, who cares — are what many of Kagan’s opponents seem to care about the most.

And people wonder why I often take visible offense when someone tries to call me a conservative.

There are substantive reasons to be skeptical about Kagan. One of them is how she views the executive branch. “She is certainly a fan of presidential power,” one scholar remarks. This is important.

Chief Justice Roberts has similar views. He was picked in part because the Bush administration knew he wouldn’t strike down that administration’s more controversial power grabs. Harriet Miers was not rejected for her views, which are utterly conventional. Her nomination was only struck down because her lack of subtlety in expressing those views was considered gauche.

While I have never been an Obama fan, one of my hopes for his administration was that he would repudiate Bush-era excesses such as the PATRIOT Act. He embraced them instead. Having all those cool powers at his disposal was just too much to pass up.

President Obama’s Supreme Court nominees so far seem no different from Roberts or Miers: what the other branches of government want, they shall get. The exceptions, such as the Citizens United decision, are so rare that they garner weeks worth of headlines; such outbursts must be kept to a minimum. Hence Kagan.

What the Supreme Court needs is a healthy dose of judicial activism. Kagan, like Roberts, Sotomayor, and other recent nominees, is a judicial passivist. They reflexively defer to the executive and legislature, right or wrong.

What we need are Justices who will stand up and say “no” when Congress passes a law that is unconstitutional, or when the president abuses his powers. That’s why judicial review exists in the first place. This tradition goes all the way back to Marbury v. Madison, often the very first case that students read in undergraduate constitutional law classes.

As Kagan goes through the pomp and circumstance of the confirmation process, maybe she’ll prove better than her likely soon-to-be colleagues. Maybe she won’t. But so long as her Republican opponents are fixated on something so trivial as her sexual orientation, we may never find out. Given her relative youth, three decades or more of jurisprudence are at stake.


A Lesson in Cause and Effect

Ari Fleischer, President Bush’s former press secretary, has a piece in today’s New York Times that is, to be polite, dumb.

His article is a lament that the Yankees only seem to win championships when Democrats are in the White House. Fleischer is both a Republican and a Yankee fan. What is he to do?

Yes, Fleischer presumably wrote with tongue in cheek. His argument is still stupid.

Correlation does not equal causation. There is no causal relation between the current president’s party afiliation and who wins the World Series. Fleischer has no need to fret about his divided loyalties. Maybe one reason the Times is doing do badly is that it too often uses its scarce op-ed space for fluff instead of substance.

Moving On

As so often happens, Gene Healy hits a home run.

On the anniversary of 9/11, what’s clear is that, despite the cliche, September 11th didn’t “change everything.” In the wake of the attacks, various pundits proclaimed “the end of the age of irony” and the dawning of a new era of national unity in the service of government crusades at home and abroad. Eight years later, Americans go about their lives, waiting in restaurant lines, visiting our ”great destination spots,” enjoying themselves free from fear — with our patriotism undiminished for all that. And when we turn to politics, we’re still contentious, fractious, wonderfully irreverent toward politicians, and increasingly skeptical toward their grand plans. In other words, post-9/11 America looks a lot like pre-9/11 America. That’s something to be thankful for on the anniversary of a grim day.

To Heckle the President, or Not?

Over at CNN, John Feehery argues that it’s better not to heckle. I agree, but for different reasons.

Feehery’s line of thinking is that the office deserves respect. Holding one’s tongue is a matter of decorum. “The president is the commander-in-chief, the leader of the country, and in many unspoken ways treated as a king.”

Technically, the president is commander-in-chief of the armed forces, and of nothing else. The rest of his job consists of humbly executing the laws given him by the Constitution and the legislature. That’s why it’s called the executive branch.

Feehery, a partisan Republican, here manages to out-conservative Edmund Burke. Royal rhetoric pervades his piece – evidence of how far the presidency has strayed from its intended purpose. The cult of the presidency endures.

Don Boudreaux’s approach to the presidency is more realistic, if less romantic:

[T]he notion that the U.S. presidency is lofty or respectable in any ethically significant sense is ludicrous. As Saul Bellow said about politicians, “they’re a bunch of yo-yos. The presidency is now a cross between a popularity contest and a high school debate, with an encyclopedia of clichés the first prize.”

Hence the real reason to let the president have his say without being heckling him: politicians make themselves look bad far more effectively than any heckler could. He doesn’t need the help. Just take his ideas seriously:

-We can save money by spending $900,000,000,000.

-We can contain costs by isolating people from the costs they incur.

-The Medicare/Medicaid model works. Expand it.

Presidents are unremarkable creatures. Borne of much talent for campaigning and little for governing, more love for power than for principle, and the unyielding belief that they know best, presidents have the worst kind of hubris. This is perhaps their only regal trait.

President Bush thought he could win two simultaneous land wars in Asia, and use military might to build a new nation in Iraq. Hubris.

President Obama thinks he can run the auto, financial, and health care industries at the same time, all while controlling global climate patterns. Hubris.

Feehery is right that President Obama should not have been heckled. If not for the sheer harm his office causes, it would not merit the attention.