Sotomayor the Wise

Just to follow up on Jim’s post, I think the problem with the benign interprtation of Sonia Sotomayor’s controversial Berkeley speech is that she wasn’t just candidly acknowledging that Latina roots would lead a judge to reach different conclusions than a while male counterpart, but “more often than not reach a better conclusion” (emphasis mine). That’s a very important distinction. 

It’s true that Sotomayor’s position becomes a bit more nuanced if you read on to the point where she says, “I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires.” But that still doesn’t explain away the earlier comment.

Text of the full speech is here.

Re: Biography Over Brains

Even if some non-conservatives are making that charge, I don’t think questioning Sonia Sotomayor’s intelligence is a productive way for conservatives to oppose her nomination, becuase it’s a rather subjective and arbitrary standard that can easily be refuted by her defenders. Sotomayor came from a poor background in the South Bronx and not only attended Princeton but managed to graduate with the highest honors there and go on to Yale Law School. Even with affirmative action, she could not have achieved what she has in her life if she weren’t a smart person. Put another way, I don’t think her biography would have been possible if she didn’t have brainpower. Conservatives barked when Clarence Thomas, Ronald Reagan, George W. Bush, etc. were portrayed as dumb out of ideological spite, and I don’t think the right should go down that path with Sotomayor.

Some may grant that Sotomayor is smart by most normal standards, but not super brilliant in the way we have come to expect of Supreme Court justices. Liberal law professor Jonathan Turley, for instance, said her decisions demonstrated a “lack of intellectual depth” and warned liberals that her record does not suggest she would be the intellectual equal of Scalia. But if this turns out to be true, isn’t that a good thing from a conservative perspective? Would conservatives have preferred that Obama appoint a really brilliant and pursuasive liberal who could go toe-to-toe with Scalia, flip Kennedy on key votes, and write decisions that would profoundly shape the Court?

As for Jennifer Rubin’s suspicion that, “it won’t be an easy confirmation,” I really don’t see what would give her that impression based on what we know now. Senate Republicans, who only control 40 seats to begin with, have been publicly deferential since the pick was announced and there’s no reason to believe Democrats are wavering.

The Sotomayor Fight

I share the traditional view that elections have consequences and that the president should get to have his appointments confirmed as long as the nominees aren’t corrupt or blatantly unqualified for their positions. At the same time, the confirmation process of a high-profile position such as a Supreme Court justice is an opportunity to illuminate the consequences of elections. In the case of the Sotomayor appointment, while she’s likely to coast through the Senate given the Democrats’ sheer numbers, the American public needs to understand why this is such a radical pick. The Obama/Sotomayor idea that judges, instead of making impartial rulings based on the law and the Constitution, should base their decisions (at least in part) on their own experiences and ethnic background, is outrageous. It is perfectly appropriate for Republicans and conservatives to make this point, and there’s no reason why they can’t do so in a respectful manner. In short, the upcoming Sotomayor fight isn’t really a fight about whether she should be confirmed — Republicans pretty much lost that one last November — it’s a fight about whether Obama gets to define Sotomayor as a “moderate.”

What Hersh Actually Said

On Monday, I posted an report from a Pakistani news site claiming that Seymour Hersh went on Arab TV and accused Dick Cheney of ordering the asassination of Benazir Bhutto. I updated it soon after when Hersh denied he made those comments. This afternoon, I was able to take a look at the actual interview he gave, and it’s now clear he never made the accusation, or even mentioned Bhutto. 

Here’s part of the exchange with Hersh had with Gulf News:

GULF NEWS: You have spoken about an assassination unit that reported to Cheney called the Joint Special Operations Command (JSOC). There have been allegations that this unit was responsible for former Lebanese prime minister Rafik Hariri’s assassination.

SEYMOUR HERSH: I can’t verify [that]. What I said was, and what I have written more than once, is that there’s a special unit that does high-value targeting of men that we believe are known to be involved in anti-American activities, or are believed to be planning such activities.

In Cheney’s view this isn’t murder, but carrying out the “war on terror”. And in the view of me and my friends, including people in government, this is crazy. The vice president is committing a crime. You can’t authorise the murder of people. And it’s not just in Iraq and Afghanistan, it’s in a lot of other countries, in the Middle East and in South Asia and North Africa and even central America.

In the early days, many of the names were cleared through Cheney’s office. One of his aides, John Hanna, went on TV and acknowledged that the programme exists, and said killing these people is not murder but an act of war that is justified legally.

The former head of JSOC has just been named the new commander in charge of the war in Afghanistan, which is very interesting to me.

About Hariri, what I’ve always maintained – I was in the position of seeing and interviewing President Bashar Al Assad on the day Hariri was killed in February 2005 – it seemed clear to me that he knew nothing about it. But I never wrote anything about it, even the fact that I was there, because I had no empirical or factual basis for knowing whether he was involved or not, and I never did. And I decided to wait for the investigations and they have come up with no concrete evidence that Syria did it. Despite the fact that one of the earlier investigators speculated that he did, he didn’t know.

Could JSOC have been responsible?

No. Hariri, America. No. Impossible. There was no reason. JSOC’s responsibility was to go after what they call high-value targets.

You can read a transcript of the whole interview here.

I picked up the original item because it seemed plausible given that Hersh had already publicly claimed that Cheney had run an “executive assassination ring.” But obviously, I should have treated the Pakistani report with more skepticism.

Cheney vs. Obama

President Obama and Dick Cheney continue to be the strongest advocates for their vision of how to fight the War on Terror. The text of Obama’s speech is here and Cheney’s speech is here. Obama gave a characteristically nuanced speech, explaining how his administration has sought to fight terrorism in a way that is consistent with our values, and said “we went off course” during the Bush administration.

I thought this was the strongest section of Cheney’s speech:

The administration seems to pride itself on searching for some kind of middle ground in policies addressing terrorism. They may take comfort in hearing disagreement from opposite ends of the spectrum. If liberals are unhappy about some decisions, and conservatives are unhappy about other decisions, then it may seem to them that the President is on the path of sensible compromise. But in the fight against terrorism, there is no middle ground, and half-measures keep you half exposed. You cannot keep just some nuclear-armed terrorists out of the United States, you must keep every nuclear-armed terrorist out of the United States. Triangulation is a political strategy, not a national security strategy. When just a single clue that goes unlearned â€_ one lead that goes unpursued â€_ can bring on catastrophe — it’s no time for splitting differences. There is never a good time to compromise when the lives and safety of the American people are in the balance.

Cheney also reminded the audience that there weren’t any attacks on U.S. soil in the seven and a half years since 9/11, which he attributed to the administration’s effective policies that Obama is unraveling.

While I think this is a very important debate, there is a sense in which it doesn’t really matter. Obama is running the show now, and he’s going to decide what he thinks will make America safe — no president wants to see thousands of American civilians killed. He says that the Bush administration’s policies not only violated our ideals, but they made us less safe, fine. Now he’s changing those policies, so we’ll be able to judge him based on his performance.

That’s why I thought this statement by Obama, toward the end of his speech, was interesting:

Neither I nor anyone else can standing here today can say that there will not be another terrorist attack that takes American lives. But I can say with certainty that my Administration — along with our extraordinary troops and the patriotic men and women who defend our national security — will do everything in our power to keep the American people safe.

Obama campaigned for nearly two years on the premise that Bush was utterly incompetent and as president, Obama has displayed confidence that his own way of doing things is superior. I hope Obama is correct. But if there’s a major terrorist attack on his watch, it won’t be satisfactory to simply say “we tried our best.” It’s hard to argue that national security policies that kept us safe for seven and a half years were wrongheaded, if you change those policies and there’s another attack on the homeland.

Specter Sides With Pelosi on CIA

The Politico reports:

Sen. Arlen Specter appeared to side with House Speaker Nancy Pelosi Wednesday in her spat with the CIA over harsh interrogation methods, saying the agency has a history of being less than forthright with Congress.

“The CIA has a very bad record when it comes … to honesty. It goes back a long time,” Specter said in a speech before the American Law Institute at a Washington hotel.

Republican Lawmakers Introduce Alternative Health Care Plan

On the main site, Peter Ferarra has the details of an alternate health care plan being introduced today by four Republicans (Tom Coburn and Richard Burr in the Senate; Paul Ryan and Devin Nunes in the House).  It’s worth looking at this development both from a policy and political standpoint.

Let’s start with policy. One central aspect of the plan would end the discriminatation in the tax code against people who don’t obtain their insurance through their employers. The subsidy, which is estimated at $300 billion a year by some, can instead be offered to individuals in the form of $2,300 tax credits (or $5,7000 for families). This is a key step to true health care reform, because it will help to expand coverage, broaden consumer choice, promote competition among insurers, and allow people to take their insurance with them from job to job. When John McCain proposed this during the campaign, it was savaged by the Obama campaign as a new tax on employer-based health care, but since that time both Republicans and Democrats on the Senate Finance Committee have talked about the idea of at least capping the tax subsidy given that it represents such a large amount of money. So, the political environment is much more receptive, or at least less hostile, to the idea than it was last fall.

Writing in the Wall Street Journal, Grace-Marie Turner and Joseph R. Antos describe another feature of the Republican plan:

Low-income Americans would get a supplemental debit card of up to $5,000 to help them purchase insurance and pay out-of-pocket costs. They would have an incentive to spend wisely since up to one-fourth of any unspent money in the accounts could be rolled over to the next year. The combination of the refundable tax credit and debit card gives lower-income Americans a way out of the Medicaid ghetto so they can have the dignity of private insurance.

This would represent a new subsidy, and I’d like to learn more about what levels of income it would be phased in at and how much it would cost. Philosophically speaking, I’m opposed to the idea of subsidizing health care, because I don’t think it’s one of the proper functions of the federal government even before taking into acount the costs involved. And I do believe that you can greatly expand coverage purely by changing the tax code and getting rid of costly mandates requiring insurers to offer certain benefits, because some consumers want higher-deductible policies with less generous benefits but lower monthly premiums. Even if such reforms were implemented, however, it’s undeniable that there would still be millions of low-income Americans who would slip through the cracks and still not be able to afford health care coverage. So, if we’re going to inevitably have some form of subsidies, then this debit card approach, at first blush, seems like a better way to go than some of the other ideas I’ve seen considered. But again, I’d have questions. Yes, maybe the responsible beneficiaries will budget themselves and avoid unneccessary care so that they can roll over money to the next year. But what happens to those people who aren’t as responsible, who blow through money in 6 months? In the face of news accounts of poor Americans who can’t get the health care they need because they already maxed out their debit card for the year, is the government going to say, “Sorry, tough luck”? I think we all know the answer.

Ferarra writes:

Under the bill, each state would set up their own Health Insurance Exchange, where insurers could compete to offer coverage to everyone in the state. All insurance offered on the Exchange would have to provide coverage meeting the same standards as the insurance offered to federal employees and members of Congress under the Federal Employee Health Benefits System. This would ensure comprehensive coverage. But insurers could offer, and consumers could choose to buy, insurance coverage outside the Exchange.

This also makes me skittish, because it envolves the states running exchanges in which only government-regulated policies are offered, and it creates the infastructure for the eventual introduction of a government-run plan within the exchanges. Also, the fact that each state exchange would have to meet federal guidelines anyway, undermines the purpose of having 50 different exchanges throughout the country.

That’s the policy element. Politically, I think this was a masterful move by this group of Republicans. Keep in mind that an alternative never has any chance of being passed, but it’s a statement by the minority party about their approach to an issue. Agree or disagree with the components of the plan, these Republicans have released an undeniably serious health care proposal, and they have done so months before the Democrats have come up with theirs.

The big question now is how many other Republicans will get behind it. In other words, will this simply be a Republican alternative, or will it become the Republican alternative? When I saw Republican Sen. Mike Enzi (the ranking member of the Health, Education, Labor, and Pensions Committee) speak last week, he was dismissive of the idea of presenting a GOP alternative. He argued that such a plan would be voted down easily, and then Republicans would be shut out of the process. It’s better, he said, for Republicans to work with Democrats so they can see some of their ideas reflected in the final legislation that actually has a chance of passage. Other influential Senate Republicans on health care, such as Charles Grassley and Orrin Hatch, have also been speaking about the need for a bipartisan solution. But by releasing this alternative so early in the process, it squeezes those Republicans who are engaged in an ultimately futile effort to bridge differences with Democrats over health care. This offers a way to oppose the Democratic approach to health care while pushing back against charges that the GOP is “the party of no.”

First They Take Manhattan

A pro-Palestinian group called the Coalition for Justice in the Middle East staged a protest outside of a Leonard Cohen concert at New York’s Radio City Music Hall on Sunday. What was the famed musician and poet’s crime, you ask? Did he declare that Palestinians should be wiped off the map? No. Did he write a pro-Israel song? No. Did he make a statement reaffirming Israel’s right to self-defense (God forbid!)? No.

Actually, Cohen’s crime was to schedule a concert in Tel Aviv in September as part of his current world tour, which the protesters are demanding he cancel.

According to the organization’s own account:

Protestors chanted “Leonard, Leonard Have A Heart, Don’t Help Apartheid With Your Art” and sang “Ain’t Gonna Let Occupation Turn Me Round, Gonna Keep On Walkin’, Keep Boycottin’” to the tune of “Ain’t Gonna Let Nobody Turn Me Round”. A particular crowd favorite was, to the tune of Frere Jacques,

Are you sleeping, Are you sleeping,
Leonard Cohen, Leonard Cohen
While your songs are so fine
Israel’s taking Palestine
Don’t go there, Don’t go there

A friend of mine who attended the concert confirmed the presence of the protesters, who also circulated a drawing of a guitar turning into barbed wire. More photos of the protest here.

As an aside, I attended a Cohen concert at the Merriweather Post Pavillion in Maryland last week, and he was fantastic. See him if you get the chance.

Debating “Lawfare”

This morning, I attended the opening panel of the conference I mentioned earlier on the global efforts to use the legal system to silence speech critical of Islam.

Much of the early discussion focused on the practice of “libel tourism,” a trend under which American authors are being sued in foreign courts with less free speech protections. While such lawsuits are typically unsuccessful, they have the ability to create an environment in which publishers are afraid to print works critical of Islam because they simply don’t want to go through the ordeal or expense of lawsuits.

Harvard Law School professor Alan Dershowitz called the threat “the invisible killer of the legal system,” noting that its “silent nature” has a chilling effect on free speech before it even takes place.  He said it’s an issue that “transcends politics,” and reminded the audience that he was a liberal.

James Taranto of the Wall Street Journal argued that the free speech protections in the U.S. are strong enough that American authors shouldn’t have anything to fear.

Another panelist, John J. Walsh, a lawyer at Carter Ledyard & Milburn, disagreed with the need for a law addressing libel tourism, noting that none of the foreign judgments have proven enforceable in the U.S. “If the Constitution works, why do we need a statute?” he asked.

Dershowitz responded that the legislative approach didn’t go far enough, because even if certain judgments are unenforceable, authors still can’t visit foreign countries where they are facing suits, and thus have to live like fugitives even though they haven’t done anything wrong. He said the U.S. had to make a concerted effort to spread its view of free speech.

“We have to export our theory,” he said. “We shouldn’t be satisfied simply that it isn’t enforceable in the United States.

He suggested that the U.S. should add itself as a party to lawsuits when authors are sued to defend the free speech principle. He also talked about how he himself was indicted in Italy for statements made in his Cambridge, Massachusetts office criticizing the opinion of a judge who he said freed 5 terrorists. He was charged with defaming a member of the judiciary, which carries as much as a 7-year prison sentence. Instead of avoiding Italy, Dershowitz visited the country, and said he plans to fight the charges in Italy and in the European human rights courts to set a precedent.

But Frank Gaffney, who heads the Center for Security Policy, said while he applauds what Dershowitz is attempting, foreign courts are a “rigged game.” On a broader level, he said too many people aren’t worried enough about where everything is headed because things are okay for the moment — he compared it to somebody who is falling from a 50 story building saying he’s fine at the point at which he’s only fallen 30 stories.

Gaffney also highlighted efforts to establish Sharia-based financing in the U.S. and President Obama’s pledge to speak “respectfully” of Islam as a forerunner to conforming our nation’s traditions to its stringent religious code.

But Dershowitz, while pleading ignorance on the nuances of Sharia banking, suggested that allowing such accommodation was no different than making certain legal accommodations for Jewish Kosher laws.

Taranto also said he would disassociate himself with Gaffney’s comments on respecting Islam, and said he doesn’t see Obama’s comments as a precursor to restrictions on speech.

UPDATE: Not surprisingly, liberal blogger Matt Duss tries to dismiss the conference as a display of neocon paranoia by highlighting some comments while ignoring what other panelists had to say in response. As is clear from my report above, the conference did not present a monolithic view of this issue and there was a vibrant debate among the participants. Gaffney, in particular, received a lot of pushback. This is precisely why it’s important to preserve Western values of free speech, so such disagreements can be hashed out in an open forum, Duss can write a snarky post about it, and I can set the record straight.