Archives for May, 2009


The Sotomayor nomination isn’t a week old yet, and I’m already bored with reading about it. I don’t see what people are so exercised about, pro or con. Yeah, I don’t like the comment about “wise Latina woman” making better decisions, and I don’t think it’s defensible (or at least I haven’t read any compelling defenses of it). Otherwise, I can’t see why this particular choice merits all the screeching. (Also, conservatives whose favorite justice is Clarence Thomas shouldn’t be heard to complain about Sotomayor’s lack of qualifications. No doubt her ethnicity was, as with Thomas, a but-for cause of her selection, but she has more experience on the bench and a more distinguished academic record than Thomas did).

As Ezra Klein points out “the Sotomayor fight” is a misnomer:

The last nominee to actually be defeated — Harriett Miers was withdrawn, remember, and withdrawn due to conservative unrest — was Robert Bork. And he was a conservative choice facing a Senate with 55 Democrats. Sotomayor is a Democratic president’s nominee who will come before a Democratic Senate. She won’t be “Borked” because, where Bork began 5 votes down, she begins 10 votes up. If Bork had enjoyed 15 more easy votes, he’d be Justice Bork today.

As such, there are certain safe predictions we can make: Barring imperfect vetting on the part of the majority, the final nominee will be pro-choice. Will be sympathetic to labor. Will be sympathetic to the federal role in regulation. Will be, in sum, the sort of Justice you’d expect from a left-of-center president and a left-of-center Senate.

I don’t like any of that stuff. And Richard Epstein provides reason to believe she may be worse than the average Democratic judicial nominee on property rights. That aside, the numbers in the Senate make it clear that, no matter what, we were always going to end up with a Justice who’d make conservatives and libertarians unhappy.

But there are other areas on which the average Democratic nominee is likely to be better than the average Republican, areas like criminal procedure and executive power. In those areas, from a libertarian perspective, maintaining a 5-4 conservative/liberal balance on the Court, is a good thing. I always thought that “getting more judges like Roberts and Alito” was a lousy reason to pull the lever for the Rs in November, particularly if you care about checks on executive power.

In his terrific book Takeover, Charlie Savage suggests that there was method behind the apparent madness of the Miers nomination:

why did Bush nominate Miers? The conventional wisdom was that the fiasco was simply the result of Bush’s feckless enjoyment of the power his office gave him to reward his friends. But in fact, Miers was a sound pick by the Bush-Cheney administration on an issue about which they cared deeply: executive power. Bush needed to pick a female justice for political reasons, but executive branch experience was almost nonexistent in the resumes of the female conservative appeals court judges and state supreme court judges favored by conservative legal activists. Miers, however, could be counted on to embrace Bush’s expansive view of presidential powers.

So too with Chief Justice Roberts. Savage reviewed an enormous trove of documents prepared by Roberts when he worked in the Reagan Justice Department, and found that Roberts was an even more enthusiastic supporter of executive power than one would naturally expect to find in Reagan’s DOJ. Tasked with analyzing the Presidential Records Act, the post-Nixon reform establishing that presidential documents are the people’s property, and allowing public access to such documents, Roberts “made clear that he loathed [the Presidential Records Act], believing it to be an unconstitutional infringement on the presidency’s power to keep information secret.” Savage writes that Roberts also

pressed to expand the president’s ability to govern in secret, pushing to roll back the Federal Advisory Committee Act… [and] warn[ed] against even appearing to endorse the idea of ‘freedom of information,’ lest it be construed as suggesting that the Freedom of Information Act was a good thing. He opposed issuing any presidential documents in connection with the War Powers Resolution that were worded in such a way as to concede that Congress had a role in deciding when military hostilities could begin or end.

There’s no denying that from a libertarian/constitutionalist perspective, McCain’s prospective nominees would have been better on some issues than either Obama’s or Clinton’s. McCain’s judges would likely have been better on campaign finance reform and the thus-far fruitless effort to restore limits on Congress’s power to regulate using the Commerce Clause. Despite Roberts’s vote in the Oregon Right-to-Die case, they would probably be better on federalism, depending on whose ox is getting gored.

There is little question however, that they would have been far worse than Democratic appointees on questions like, can the president carry out a wiretapping program in defiance of federal law, and forever shield the details of that program behind the State Secrets doctrine?

As Robert Schlesinger points out, the latter issue may well end up before the Supreme Court. We don’t know where Sotomayor stands on that issue, but I’m guessing she won’t be as bad on it as another Roberts or Alito.

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Posted on May 28, 2009 in Civil Liberties, Conservatism, Executive Power, Uncategorized | 16 Comments

Please, Mess with Joe

In Tuesday’s Examiner column, I argue that if the current veep’s gaffetasticness leads to a rift between POTUS and VPOTUS, that would be a good thing. Excerpt:

A new book by Newsweek’s Richard Wolffe reports that President Obama is dismayed by “his vice president’s indiscipline.” Who can blame him? At the height of the Swine Flu panic, our excitable veep fanned the fear on NBC’s Today Show, squeaking that, “If one person sneezes, it goes all the way through the aircraft!”

A month before, at a dinner with journalists, Biden apparently let slip the location of the secret bunker used by Dick Cheney after 9/11. Last week, the Christian Science Monitor offered this sardonic headline: “Biden Speaks at Wake Forest—does not disclose nuclear launch codes.”

“Between brain and mouth there is no interlocutor,” Sopranos character Hesh Rabkin once said of matriarch Livia Soprano, and so it is with Joe. Are Biden’s gaffes leading the president to keep VPOTUS at arm’s length? We should hope that’s the case, and not just because of this particular vice president’s verbal incontinence.

The modern conception of the vice-presidency—where the veep serves as chief advisor and virtual copresident—is a dramatic departure from the veep’s constitutional role. Worse, it clouds responsibility and makes accountability more difficult. After eight years of Dick Cheney, the last thing America needs is another Imperial Vice Presidency.

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Posted on May 27, 2009 in Executive Power | 3 Comments

The Pogo Principle

The public wants to fend off our impending fiscal apocalypse by (1) cutting the space program (less than $18 billion) and (2) raising taxes on booze and cigarettes. That’ll cover it.

Posted on May 24, 2009 in Human Nature | 17 Comments

That’s the Spirit

I recently noticed this anecdote from NRO’s Jay Nordlinger:

A reader pointed me to a treasurable fact. It can be found in an obituary of Ralph J. Perk, the mayor of Cleveland from 1972 to 1977. “President Richard M. Nixon invited Mr. Perk and his wife, the former Lucille Gagliardi, to a dinner at the White House. But Mrs. Perk sent word that she could not attend because it was her night to go bowling.”

The spirit of Lucille Perk lives on in the Steelers’ James Harrison:

Linebacker James Harrison told reporters earlier this week he’d be a no-show at the White House. He denied any political motivation for his decision. “This is how I feel — if you want to see the Pittsburgh Steelers, invite us when we don’t win the Super Bowl. As far as I’m concerned, he would’ve invited Arizona if they had won,” said Harrison, who later joked that he was staying away because the White House was located in a “bad neighborhood.”

This isn’t the first time Harrison has declined an invitation to visit 1600 Pennsylvania Avenue — he turned down an invite from former President Bush after the Steelers won Super Bowl XL. “Let me ask you a question,” he said Wednesday, according to the Pittsburgh Post-Gazette. “Why is it a big issue now that I’m not going if it wasn’t a big issue the last time?

“…Hey, James ain’t changed. I guess my profile did, but I didn’t change. I’m not going because I don’t want to go,” he said. “They’re making a big deal out of this: ‘Oh, my, James Harrison is not going to the White House; he must be a devil worshipper!'”

H/T Chuck Katz

Posted on May 23, 2009 in Asides, Cult of the Presidency | 11 Comments

The Roots of Mustardgate

greypoupon1Just finished David Mendell’s Obama: From Promise to Power. Mendell was the Chicago Tribune reporter assigned to cover Obama in his ’04 Senate race, so he had good access to BHO at an early point in his career. The book’s a bit of a hagiography, but it has a lot of useful information. In fact, if Sean Hannity had read it, he’d have realized that Obama’s condiment-based elitism started well before his infamous trip to Ray’s Hell Burger. On his first downstate trip as a new state senator, Obama was warned about this by his aide Dan Shomon:

Shomon told him to wear polo shirts and khakis throughout the trip, in order to fit in. Obama also recalled the story of Shomon advising him in a downstate restaurant to eat regular yellow mustard rather than the more pretentious Dijon mustard.

Personally, I think ordering your burger well-done is a much greater offense.

Posted on May 23, 2009 in Asides, Conservatism | 8 Comments

White House Interns

Did anyone ever believe LBJ when he used to boast that he’d had more women by accident than JFK had on purpose?

Posted on May 23, 2009 in Uncategorized | 11 Comments


Since Rich Lowry, Karl Rove, and Charles Krauthammer have all admitted that Obama’s anti-terror policies are substantially the same as Bush’s, I assume they’ll refrain from arguing that Obama’s making the country less safe, and they’ll hold off on blaming him if and when there’s another terrorist attack.

Posted on May 22, 2009 in Civil Liberties, Conservatism, Foreign Policy and Defense, Uncategorized | 6 Comments

Bringing out My Inner Randian

My first (printable) thought when I read the story of Edmund Andrews, linked to with sympathetic comments by a number of liberal bloggers, was “If you’re paying $4K a month in child support on a journo’s salary, you can’t afford a new house for your new wife. Maybe I should cover economics for the New York Times.” But it’s probably only a matter of time before we medicalize being a deadbeat: “subprime loan addiction” or some such.

Megan McCardle has some new information that makes Andrews and his wife even less worthy of sympathy than I’d thought.

Posted on May 21, 2009 in Uncategorized | 16 Comments

The Narcissism of Small Differences

So we just got dueling Obama/Cheney speeches on the War on Terror, each consistent with each man’s respective style. Obama’s cool, professorial, methodical–and crediting the American people with a longer attention span than we’ve got. Cheney’s gruff, clipped, and forceful. He mentioned 9/11 25 times and even got a shot in at the New York Times. As I argue here, Cheney and Obama have developed a weird, codependent relationship:

the claim that Obama has abandoned “essential tools” in the fight against terror is wearing pretty thin. Real civil libertarians aren’t fooled by Obama’s “kinder, gentler” rhetoric, but Obama knows that civil libertarians are a miniscule voting block. His aim is to convince Democratic voters that he’s kept his promises to change Bush’s draconian approach to the war on terror.

In this, Dick Cheney is an enormous asset to the president. As Obama quietly adopts the Bush policies, Cheney gives him cover by loudly insisting that there’s a meaningful difference here.

It’s a very Washington sort of partnership: an argument so grating that you could be fooled into thinking there’s some great difference of principle here. Sort of like the Carville-Matalin marriage.

Posted on May 21, 2009 in Civil Liberties, Cult of the Presidency | 6 Comments

Back to Blogging. Maybe.

obama-supermanSorry to shock you if I’m still in your news aggregator, but since we have a new president, I guess I should start blogging again. It’s only been six months. In the interim I’ve been reasonably busy, blogging (occasionally) at Cato@Liberty, doing a good bit of speaking, and writing a weekly column for the Washington Examiner. Oh yeah, and the paperback edition of Cult of the Presidency just came out, featuring a new “Afterword on the Obama Presidency.”

My greatest regret is that I had to write the Afterword in the first few weeks after Inauguration, before it had become clear how massively BHO would cave on civil liberties, and so the Afterword doesn’t do enough to squelch any lingering sense of Hope. Oh well, I did predict the sellout in the post below and elsewhere.

My next prediction, for reasons explained here and in the Afterword, is that Barack Obama, despite current appearances, will end up being one of the least popular presidents of the modern era. But what do I know? As a larval pundit in 1996, I told anyone who’d listen that Phil Gramm would be our next president, and it turned out that America didn’t want a surly bald guy who’d dabbled in financing soft-core porn. So take my political prognostications with a grain of salt. Nonetheless, I think I’m right about this one.

Posted on May 20, 2009 in Cult of the Presidency | 8 Comments