Engaged Activism or Active Engagement?

After the watered down version of health care reform was signed into law, the right blathered on about the act's unconstitutionality, and several Republican Attorneys General filed lawsuits.  After fourteen of these cases were dismissed, including two which rejected on the merits (as opposed to procedural grounds) that the law was unconstitutional, Judge Henry E. Hudson, a federal district judge in Virginia, held that the individual mandate requirement of the act is unconstitutional.  Putting aside the fact that the issue could have been avoided had health care reform included a public option (and that the individual mandate was originally a Republican idea), Judge Hudson's decision offers a prime example of the new judicial activism.

According to Judge Hudson, who was appointed by George W. Bush, requiring Americans to obtain health insurance exceeded the regulatory authority granted to Congress under the Constitution's Commerce Clause.  Judge Hudson's ruling appears to be deeply flawed (Yale law professor Jack Balkin describes the opinion as "pure sophistry"), but that may not matter given that the case will move to the ideologically conservative Fourth Circuit Court of Appeals and then, most likely, to the Supreme Court.

As I have previously written, Republican administrations since Ronald Reagan have aggressively pushed for the appointment of extremely conservative judges – i.e., politically conservative, not conservative by judicial temperament -- while Democrats have been less focused on ensuring the appointment of liberal nominees or blocking extreme right wing Republican nominees.  This has resulted in a sea change in the federal courts, which now boast a strong majority of Republicans.  As we have seen with Judge Hudson's health care ruling, the implications for public policy are dire.

Emblematic of conservative Republican judges, Judge Hudson, as the Washington Post previously reported, has long been active in Republican politics.  He even owns a large share of a Republican consulting firm.  But despite Hudson's conservatism and political activism, his nomination sailed through the Senate where he was approved by voice vote in August 2002.  (In a stark contrast, there are currently 34 pending judicial nominees who have already been approved by the Judiciary Committee but have been stalled by Senate Republicans).

Which brings us to the meaning of judicial activism.  Judicial activism has been described as "legislating from the bench," and reaching rulings that substitute a judge's personal views for those of the democratically elected branches of government.  Republicans have long condemned as judicial activist rulings they did not like, particularly those that have upheld rights of criminal defendants and civil plaintiffs, and protected privacy and individual liberty.  But now that they can claim a large majority of the judiciary, they have embraced judicial activism, although they won't call it that.  Thus, as E.J. Dionne has written, conservative judges are overturning "decisions made by democratically elected bodies in areas such as pay discrimination, school integration, antitrust laws and worker safety regulation."  The current Supreme Court, as the Times wrote back in 2007 uses judicial activism in service of conservative ideology.  And, as Dionne put it,"[i]f anyone doubted that the Supreme Court's current conservative majority wants to impose its view no matter what Congress or state legislatures decide -- or what earlier precedents held -- its decision in the Citizens United case should end all qualms."

A couple of weeks ago, conservative columnist George Will, anticipating Judge Hudson's decision, argued that holding the health care reform's individual mandate requirement unconstitutional should not be considered judicial activism.  Will attempted to distinguish the judicial activist, who he claims "creates rights not specified or implied by the Constitution" and what he calls the "engaged judge," who "defends rights the Framers actually placed there and prevents the elected branches from usurping the judiciary's duty to declare what the Constitution means."  What a relief.  I was worried that Judge Hudson's unprincipled and result-oriented ruling was a product of judicial activism.  It turns out that unlike the 14 other federal judges that rejected similar challenges to the health care law, Judge Hudson was merely acting engaged.

[Related posts:  Vacant and Lame, Corporate Takeover, Activist Judges,

Vermont's Finest

In the spring of 1978, during my freshman year of college at the University of Vermont, Ben Cohen and Jerry Greenfield opened an ice cream parlor in a renovated gas station in downtown Burlington.  There was no Chunky Monkey in those days but the ice cream was incredible, and it wasn't long before Ben & Jerry's became a national sensation.  Ben & Jerry's not only made great ice cream, but they capitalized, so to speak, on their success to give back to the community and fund many charitable works.

In my senior year, Bernie Sanders was elected mayor of Burlington, another progressive, socially conscious local phenomenon that has since gone national.  In 1990, after four successful terms as mayor, Sanders -- a self-described Democratic-Socialist -- won election to the House of Representatives as an independent.  In 2006, he was elected to the Senate.

Bernie Sanders has been a tireless defender of social and economic justice since well before he or Vermont's finest ice cream became household names.  He has argued strenuously for stringent environmental regulations to combat global warming, has been an ardent advocate for gay rights, and has pushed for more progressive health care reform.  And, on December 10th, for more than 8-1/2 hours, this 69-year old man with his classic Brooklyn accent took to the Senate floor and heroically proceeded to filibuster the deal President Obama cut with the Republican leadership on extending the Bush tax cuts. 

Bernie's crusade began earlier, on November 30th, when he gave a remarkable speech in the Senate.  He opened by declaring that "a war [was] being waged by some of the wealthiest and most powerful people in this country" against working families and against "the disappearing and shrinking middle class."  After detailing the growing income disparity between rich and poor, he belittled Republicans for expressing deep concern for the deficit while insisting on extending the Bush tax breaks for the wealthiest 2% and eliminating the estate tax.  And he went further.  Sanders made clear that many Republicans will not stop at tax cuts but "want to bring the United States back to where we were in the 1920s, and they want to do their best to eliminate all traces of social legislation which working families fought tooth and nail to develop to bring a modicum of stability and security to their lives," including Social Security and Medicare.  He concluded with a plea to his colleagues to "stand together and start representing those [middle class] families [or] there will not be a middle class in this country."

On Friday, in an effort to stall Senate passage of the tax cut compromise, Bernie Sanders spoke virtually uninterruptedly for 8 hours and 37 minutes (with a little help from  Sen. Sherrod Brown (D-OH) and Sen. Mary Landrieu (D-LA)).  He promised "to take as long as I can to explain to the American people the fact that we have got to do a lot better than this agreement provides."  Echoing the themes of his earlier speech, Bernie slammed the Republicans as hypocrites for evincing concern about the deficit, saying that if they voted on this deal, there should be "no more lectures" from them about spending.  He warned that the Bush tax cuts for the wealthy would likely be made permanent, contending that although Obama only agreed to a two-year extension of the tax cuts, if Obama "caves in now, who's going to believe that he's not going to do the same thing in two years." 

Sanders' epic performance was not technically a filibuster because there was no vote pending, but it received an enormous amount of notoriety, hopefully reaching people who might not otherwise be paying attention and serving to energize the left.  It remains to be seen whether it will create a tipping point and spur enough other members of Congress to stand up to the President.

Perhaps most importantly, Bernie Sanders has shown what it means to use the tools of the Senate to take a principled stand.  It is outrageous that the Democratic majority has allowed Republicans to bottle up important legislation by doing no more than demonstrating they have the 41 votes to filibuster.  When, despite having a majority of votes to repeal DADT or pass the DREAM Act or the Zadroga 9/11 Health and Compensation Act or confirm qualified judges or provide strong climate change legislation, Republicans indicate a refusal to allow an up-or-down vote, Democrats must insist on making them do what Bernie Sanders did -- stand up and defend their position for as long as they can.  My guess is that it will invariably take a whole lot less time than 8 hours and 37 minutes.

[Related posts:  Anger Management, No Se Puede, Lame and Lamer]

Monday Jumpstart: The Dodos

Fools by The Dodos

Great Jazz Albums (IMO) #11

Thelonious Monk, Thelonious Monk Plays The Music of Duke Ellington (1955).  Thelonious Monk is considered "one of the giants of American Music."  His music has been described as some of the "most original and challenging music of the 20th century. Whether it's his dissonant chords or his uncanny sense of space and syncopation, pianist and composer [his] sound is easily recognizable."  I love so many of his albums, particularly those on the Riverside label (1955-1961).  Monk was a remarkable composer and many of his compositions have become jazz standards, but here I chose a cover album of Ellington tunes, which was his first record on Riverside.  These are all pretty familiar Ellington classics played in Monk's unique style, with Oscar Pettiford on bass and Kenny Clarke on drums.  This is a totally accessible but it never gets old.  As one reviewer put it, "Monk not only delivers an unadulterated homage to Ellington, he somehow manages to make the master sound even more ahead of his time than he already was."    [Related posts:  Really Great Jazz Albums,  #1, #2, #3, #4, #5, #6, #7, #8, #9, #10]

There won't be any new postings on the blog for a day or two.  So, please talk amongst yourselves, and take advantage of the lull to cruise around the site and catch up on some of the older stuff.  See you soon.

If It's Chanukah It Must Be . . . Yo La Tengo . . . (Femme Fatale w/ Alex Chilton)

Here is Yo La Tengo with the late Alex Chilton playing the Velvet Underground classic Femme Fatale.  Yo La Tengo traditionally plays 8 shows during the 8 nights of Chanukah at Maxwells in Hoboken, N.J.  This performance is from Chanukah 2007.  Enjoy and Happy Chanukah.

Anger Management

OK, so now we know Obama can get angry.  Remarkably, however, his anger is not directed towards the Republican Party, which boxed him into a corner where he believed the only way out was to cave on tax cuts he previously opposed.  No, he is angry at the left for not giving him more credit for making the deal.  How utterly depressing.

With a struggling economy and persistently high unemployment, the Republicans insist on passing the continuation of tax breaks for the wealthiest 2% of Americans, and will not govern until they get it.  They refuse to permit an extension of expiring unemployment benefits and effectively stymie critical and popular legislation in the remaining days of the lame duck session -- including extending a middle class tax cut, ratifying the START treaty, repealing DADT, passing the DREAM Act, and providing medical insurance for 9/11 responders.  So, to placate the Republicans, President Obama capitulates and gives them their tax cut, and for good measure throws in a waiver of the estate tax for estates worth up to $5 million dollars, in order to get the middle class tax cut and an unemployment benefit extension.  The deal will increase the deficit by 700-to-900 billion dollars and have minimal stimulative effect.  Republicans are positively gleeful over these developments while liberals are angry and disappointed because they believe Obama's negotiated settlement was neither good politics nor good policy.  The President then gives a press conference where he defends the deal, insists that it will be good for the economy, and reserves most of his ire for the left.  He condescendingly calls them "sanctimonious" for cleaving to a "purist position" in order to "feel good" about themselves, completely discounting that liberals oppose his compromises because they are unfair and ineffective.

As demoralizing as it is to see Obama reveal so explicitly his disdain for the left, it is heartening that there are still many principled and passionate Democrats who are not meekly going along with Republican blackmail and Presidential post-partisanship or whatever it is.  While Obama claims he will live to fight another day, what would have happened if, this time, he had used his formidable rhetorical skills to make the political points and trenchant analysis of the progressives and populists speaking out against the tax cut deal, such as Sen. Sherrod Brown of Ohio, Rep. John Conyers of Michigan, Rep. Anthony Weiner of New York and Sen Bernie Sanders of Vermont, as well as incoming the co-chairs of the Congressional Progressive Caucus (Keith Ellison of Minnesota and Raul Grijalva of Arizona).  And what would happen if the Democrats actually scuttled what is derisively being referred to as the McConnell-Obama Plan?

[Related posts: No Se Puede, Holy Pointless Gimmick, Batman, Growth is Good, This Should Be Easy, Let 'Em Eat Catfood, Greider on Obama, Must Read: Paul Krugman]

Mid-Week Palate Cleanser: Modest Mouse

Float On by Modest Mouse

No Se Puede

Tom Tomorrow

Barack Obama's campaign was inspiring on so many levels, but there was really nothing about his prior record to suggest that he would govern from the left.  I am not surprised or disillusioned, therefore, about his failure to push for a more progressive agenda.  What is so utterly frustrating about Obama is not his ideology -- if he has one -- but his willingness to compromise on everything without a fight due to what seems to be an unshakable belief that partisanship is intrinsically a bad thing.  Obama's passivity is particularly infuriating -- and counterproductive -- in the face of a unified and vitriolic opposition who refuse to concede anything they care about and whose avowed goal is to crush him.

 I agree with Greg Sargent, who argues that the case against Obama from the left isn't ideological, it is that he "is too quick to signal that compromise, even at great cost, is his paramount goal," which puts the Democrats at a disadvantage and "emboldens Republicans to hold out for more than they otherwise might be able to secure."  As David Corn put it, "bipartisan compromise is often necessary. But it ought to come at the end of a political fight -- not before one."

Democratic Congressman Anthony Weiner, frustrated by Obama's capitulation on tax cuts, explained that "governing is more than a series of transactions, [it] is a competition of ideas on how we make the country better."  Democrats are getting trounced in this competition despite the far stronger argument.  David Corn again:  "At a time when middle- and low-income Americans are struggling, government deficits are a worry, and the corporate class is reaping tremendous profits, Obama and the Democrats were well-positioned to assail the Republicans for insisting that the well-to-do need a continuation of the Bush tax cuts and for blocking an extension of the cuts for the rest of the public."

Instead of using his remarkable, but strangely under-utilized, oratorical skills to skewer the Republicans for paying lip service to the the deficit while holding the extension of unemployment benefits -- and other critical legislation -- hostage to tax cuts for the wealthiest 2%, Obama negotiates.  And, he negotiates badly.  First, he repeatedly adopts Republican talking points by asserting that focusing on the deficit is an immediate problem that can only be solved by the government tightening its belt.  On the eve of negotiations with Republicans he announces a freeze on civilian federal wages without obtaining anything in exchange.  Soon thereafter, he signals a willingness to give in on tax cuts thereby undercutting the position of the Senate Democrats who oppose the extension.  Oh, and did I mention he also agreed to cut the estate tax for estates worth up to $5 million (I'm not exactly sure how this helps the economy or reduces the deficit).

And, it isn't just bad politics, the "compromise" is bad policy that will do little to help the economy.  Ezra Klein points out that the various aspects of the deal will worsen the deficit substantially, and they do not do enough and are not targeted well enough to spur real economic recovery (although he concedes it could have been worse).  Indeed Paul Krugman argues the Democrats should eschew any deal that includes extension of the tax cuts for the wealthy.

Rather than hammer at Republican hypocrisy and greed, Obama announced the tentative deal last night in his typically understated manner, conceding that the "compromise" was not "perfect."  And thus, the Republicans, who got near everything they wanted, have demonstrated once again that their unprincipled obstructionism works -- at least for them, if  not for the Country.  There is no doubt, however, that when the economy continues to sputter it will not be Republicans that American voters will blame.  Jamal Simmons is right:  "The time has come for the president to give voters his vision for reclaiming the American Dream and to draw a few lines in the sand. Then he needs to marshal his allies for a good fight the moment the Republicans cross them."
 
[Related posts:  Holy Pointless Gimmick, Batman, Growth is Good, This Should Be Easy, Let 'Em Eat Catfood, Greider on Obama, Must Read: Paul Krugman]

Lame and Lamer

As the Democrats prepare to cave, as expected, and agree to an extension of the Bush tax cuts for the wealthiest Americans, the hope that anything positive will be accomplished in this lame duck session is waning.  There is still, however, an opportunity to accomplish something positive while drawing a stark contrast with the Party of No Except for Tax Cuts.

First, Congress has to pass an extension of unemployment benefits which are about to expire by Christmas for an estimated 1.6 million people.  It appears that Republicans are going to go along with the extension, but, remarkably, only after the Democrats "compromise" on extending tax cuts for the wealthy.  Senate Democrats also need to push for ratification of the START treaty, which past and present military and foreign policy advisers contend is critical for national security, but which also has been held hostage by Republicans insisting on first keeping their tax cut.

At minimum, the Democrats have to repeal Don't Ask, Don't Tell, and not succumb to the bigoted nonsense of John McCain and his anti-gay allies  As Greg Sargent urges, to do this Senate Democrats must schedule a vote and debate repeal.  Another no-brainer is the DREAM Act, a modest proposal which would provide a path to citizenship for undocumented students through higher education or military service.  As a Times editorial put it, the Act is a "desperately needed affirmation that fixing immigration is not all about border fear and lockdowns."

Finally, Republican obstruction and Democratic apathy have resulted in an alarming number of judicial vacancies throughout the federal courts.  The Judiciary Committee has approved 34 nominees, including 26 unanimously, but confirmation has completely stalled in the full Senate  As Alliance For Justice President Nan Aron stated, "the Senate needs to put aside partisan rancor, perform the task the Constitution has assigned to it, and confirm these qualified, diverse judges to the federal bench."

While Republicans try to run out the clock now that they are about to achieve their overarching goal of ensuring a tax cut for the wealthiest 2%, it is hard to keep in mind that Democrats still control both houses of Congress as well as the Presidency.  This Republican obsession with tax cuts over everything else has given the Democrats yet another opportunity to show that they are about something different.  It would be principled and politically advantageous to make a final strong push for important legislative action that will remind people what the Democrats stand for and, at the same time, actually strenghten national security, benefit the justice system, expand civil rights, and undermine discrimination.  It remains to be seen if they will even try.  [Related posts: So Mavericky, What's With Arizona, Vacant and Lame, Let's Make a Deal]

Monday Jumpstart: Wilco

Impossible Germany by Wilco.

Great Jazz Albums (IMO) #10

Frank Sinatra w/ Count Basie, Sinatra at the Sands (1966).  OK, maybe this is not technically jazz, but I love this album.  Sinatra is in fine voice, and while listening you feel transported back in time to Las Vegas, if that's where you want to go, with the Chairman of the Board and his vintage Rat Pack shtick.  The Count Basie Orchestra sounds great behind him, with Quincy Jones conducting and arranging.  Admittedly some of Frank's jokes are dated and offensive, but whatever one thinks of Sinatra "the man," the dude could really sing a tune, and the music is timeless.   [Related posts:  Really Great Jazz Albums,  #1, #2, #3, #4, #5, #6, #7, #8, #9]

If It's Friday It Must Be . . . Yo La Tengo (Autumn Sweater)

Autumn Sweater by Yo La Tengo @ 1997.

No Spain, No Gain

"I didn't expect a Spanish Inquisition"

In the Spring of 2009, after it became clear that the Obama Administration was not going to pursue any meaningful investigation, much less prosecution, of the Bush Administration's use of torture in its war on terror, I was heartened when Spanish Magistrate Baltasar Garzon ordered an inquiry into whether six senior Bush administration officials, the Bush Six, were responsible for "an authorized and systematic plan for torture."  Judge Garzon is a heroic figure who previously ordered the arrest of Chilean dictator Augusto Pinochet.  The torture investigation stemmed from allegations from five Spanish citizens imprisoned at Guantánamo.  (Spain was also investigating other Bush Administration misdeeds:  the death of a Spanish cameraman when Baghdad's Palestine Hotel was shelled and the use of Spanish bases and airfields for CIA extraordinary renditions flight).

We now know, thanks to WikiLeaks, that U.S. officials in the Obama Administration tried to influence Spanish prosecutors and government officials to stop these investigations.  As summarized by Scott Horton, the cables "reveal a large-scale, closely coordinated effort by the State Department to obstruct these criminal investigations."

High-ranking U.S. visitors such as former Republican Party Chair Mel Martinez, Senator Greg Judd, and Homeland Security Secretary Janet Napolitano were corralled into this effort, warning Spanish political leaders that the criminal investigations would “be misunderstood” and would harm bilateral relations. The U.S. diplomats also sought out and communicated directly with judges and prosecutors, attempting to steer the cases into the hands of judges of their choosing. The cables also reflect an absolutely extraordinary rapport between the Madrid embassy and Spanish prosecutors, who repeatedly appear to be doing the embassy’s bidding.

According to the cables, the embassy discussed with Spanish authorities specific judges handling these cases and obtained a promise from prosecutors to have the torture case assigned to a judge they considered friendlier to the United States.  And, lo and behold, the torture investigation has languished.  Garzon has since been suspended after being charged with abusing his powers to investigate Spanish Civil War atrocities, and, as David Corn reports, another judge is now overseeing the case, which has gone nowhere.

President Bush, in touting his new book, proudly admitted that he authorized waterboarding and considered it legal "because the lawyer said it was legal."  These lawyers -- the Bush Six -- provided the legal justification for torture based on what well-respected legal experts have characterized as "embarrassingly weak," "blatantly wrong" and "erroneous legal analysis."  There is little doubt that they conformed their legal opinions to reach the results Bush wanted.  As Georgetown law professor David Cole put it:

They concluded that keeping suspects awake for eleven days straight, stripping them naked, exposing them to cold temperatures, dousing them with water, slamming them into walls, forcing them into cramped boxes and stress positions for hours at a time, and waterboarding them hundreds of times were not torture, not cruel, not inhuman, not even degrading, and therefore perfectly legal. The memos make clear that true accountability . . . must extend up the chain of authority, to the lawyers and Cabinet officers who approved the “enhanced interrogation techniques” in the first place. 

President Obama has stated that since his Administration won't condone torture we can simply move forward.  This is remarkably short-sighted. If we are to remain a nation of laws then when high government officials break the law or cynically bend the law to justify human rights violations there need to be consequences.  As Professor Cole eloquently states:  "Absent a reckoning for those responsible for making torture and cruel, inhuman, and degrading treatment official US policy, the United States’ commitment to the rule of law will remain a hollow shell -- a commitment to be honored only when it is not inconvenient or impolitic to do so."

We have known for some time that this reckoning would not come from the U.S. government, but it did appear that other countries might fill the breach.  What the leaked cables tell us is that the Obama Administration was not only passively refusing to examine the Bush Administration's wrongdoing but actively pressuring other governments to cease their inquiries.  It appears that Obama can be tough when he wants to be.   [Related posts:  Pitfalls of Only Looking Forward, Tortured Logic]

So Mavericky

When will John McCain fade away?  After release of the Pentagon's long-anticipated survey which demonstrated that 70% of service members believe that allowing openly gay men and women to serve openly "would be positive, mixed or of no consequence at all," McCain still objects.  He scoured the report to find that a majority of Marines in combat and close to a majority of Army combat troops think repealing Don't Ask, Don't Tell would have a negative impact. 

McCain, of course, originally agreed to abide by the recommendations of top military officials, but that was only when he believed they would agree with him.  Secretary of Defense Gates and Joint Chiefs Chairman Mike Mullen, and a raft of other top military officials, have called for repeal.  Gates ably rebutted McCain's alleged concerns by focusing on the report's broader findings and noting that that many of those in combat are young and have limited experience, but with "time and adequate preparation, we can mitigate their concerns." 

McCain undoubtedly would have opposed racial integration of the military back when President Harry Truman insisted on ending racial segregation despite widespread opposition of most service members.  With a far greater percentage of military personnel demonstrating little or no problem with repealing DADT, McCain and his anti-gay allies have run out of excuses.  But this may not matter.  It appears that the lame duck Senate may not have the votes to repeal, and McCain's bigotry may be enough to scuttle the effort.  [Related posts:  What's With Arizona?, Don't Ask, Don't Tell, Don't Be Lame, More on DADT]