Occassional reflections of a moderate (hey at least I think I am)

Thursday, April 14, 2005

Historical Revisionism

Over at Instapundit Prof. Reynolds has the faithful fired up about lefties engaging in a bit of historical revisionism. The culprit is an editorial in St. Louis paper which states "I don't recall any prewar speeches about delivering democracy to the Middle East." The Professor’s troops are busy tracking down the earliest statements demonstrating that the administration used the liberation of the Iraqis as a justification for the war. As far as I am concerned, they can stop the search.

Anyone who says that the liberation of Iraqis was not a justification given by the administration going into the war is one or more of the following (a) forgetful, (b) unaware of their surroundings as they existed then, (c) illiterate or (d) a liar.

But I would like to note a different kind of historical revisionism that is taking place; namely the notion that the liberation of Iraqis and democratization of Iraq was the primary reason for the war. Anyone who claims that the primary reason given to the American people for invading Iraq was the liberation of the Iraqi people is one or more of the following (a) forgetful, (b) unaware of their surroundings as they existed then, (c) illiterate or (d) a liar.

I think that Paul Wolfowitz summarized the matter about right when he said:
there have always been three fundamental concerns. One is weapons of mass destruction, the second is support for terrorism, the third is the criminal treatment of the Iraqi people.

Now one could say that they personally believed that the third reason was the best reason but I do not think it can be argued that the third argument was the one which was used to convince most of the American people that we should overthrow Iraq. (Did anyone do any pre-invasion polling asking “Assuming Iraq does not possess WMD and there are no connections between Iraq and Al Qaeda, do you support invading Iraq to liberate Iraqis from the oppression of Saddam Hussein?”? I kind of doubt it, but my sense is that if such polling were done it would be a small minority of people supporting an invasion under those circumstances. )

As Wolfowitz notes in the link above:
The third one by itself . . . is a reason to help the Iraqis but it's not a reason to put American kids' lives at risk, certainly not on the scale we did it.
In hindsight, there are no WMD. I think the connections to the kind of terrorism that the American people were sold on have not been proven. So that leaves the third reason. Perhaps history will prove Wolfowitz wrong and the liberation of Iraqis will prove to have been worth putting American kids’ lives at risk on the scale we did. It would, however, be disingenuous to say that was why America decided to put American kids’ lives at risk on the scale we did.

As a general rule (reasons for which may become painfully obvious) I refrain from using analogies to illustrate my point, but here goes. Saying that we went to war to liberate Iraqis is a bit like a kid going to buy a sports car. He sees the commercial that tells him how fast the car goes and he knows the ladies love the car. As he is signing the paperwork the salesman tells him about the excellent airbag system that the car has. He drives off the lot hoping to entice the ladies with his new ride, before he is able to reach 40 mph he is plowed into by an SUV. If not for the excellent airbag system he would have been killed, instead he walks away unscathed. You see the reason he bought the car was because of the excellent airbag system.

Wednesday, April 13, 2005

In Defense of the Filibuster

In response to a comment at Ann Althouse's site questioning whether the filibuster should be allowed to apply to Presidential nominees, I wrote the following:

John says that "I think there is a radical difference between using this provision to block some proposed legislation--its traditional use--and to block the effort to fill vacant governmental posts on the other."

Two points. First, "its traditional use" is kind of like beauty being in the eye of the beholder. There were Republican filibusters of judicial nominees and other appointees.

Second, as John notes, Senate Rule XXII "does not differentiate the matters on which it may be used". If the rule can be abrogated when a majority is tired of suffering the obstructionist tactics of the minority with regard to nominees, what is to stop the majority from getting rid of the rule whenever the majority tires of the minority obstructing whatever (e.g. drilling in ANWR). Once the rule is taken down for this purpose, the rule exists only at the will of the majority. In other words, the rule does not exist.

(John does raise a very interesting question about the interplay of Rule II and Rule XXII and asks "are we to believe that it will take 60 senators to demand a vote on the credentials?" My answer would be a very qualified "yes". It is quite clear to me that the credentials referred to in Rule II are credentials of being properly elected (or appointed as the case may be) by the respective States. If the reason that some Senators were seeking to extend debate on the credentials of a prospective Senator were because of questions regarding the conduct of the election in the State (or, less likely, the appointment) then I would think that Rule XXII would apply and you would need to have three fifths of the the then duly chosen and sworn Senators to invoke cloture. On the other hand, if there were no questions about the conduct of the election and the Senators were seeking to obstruct a Senator from being sworn in because he was regarded "as too far out of the mainstream" (e.g. "We will not accept the Socialist that the people of Vermont have sent here") then I would think that the Courts would be able to step in to enforce Amendment XVII. That would make one heck of a moot court problem. [As a complete aside, I would note that the number that would be needed to invoke cloture would be south of 60.])

Personally, I agree with George Will's position that the appointments should be made, the filibusters be allowed to take place, then if the argument favors the executive, the executive should run against the obstructionist Senators.

[UPDATE: In the comments over at Prof. Althouse's site, I am reminded that Art. I, Section 5 of the Constitution provides, "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,...." Accordingly a court would never step in. I could walk through how I missed this, but "excuses are for losers".]

I wanted to add a few more comments. Current opponents of applying filibusters to Presidential nominees claim 1) Republicans did not filibuster democratic nominees and/or 2) Republicans filibustered a lot fewer nominees. Those who claim (1) are liars (if you can find a more politically correct term for it please let me know). For a brief introduction to filibusters of Presidential nominees see this report (in .pdf) by the Congressional Research Service.

With regard to the argument that Republicans filibustered fewer nominees I say "so what"? The decision is is really, it seems to me, a binary one. You are either for them or against them. If you can't filibuster any then what does it matter whether one was filibustered or a hundred?

Here's a fun report that proves the adage "lies, damn lies and statistics". The study looks at how the current Senators have voted on filibusters of Judicial nominees and completed in 2003. An astonishing 38 of the 40 Senators who have never voted in favor of a filibuster of a Judicial nominee are Republican. Geez these Republicans really do respect the President’s right to have his judicial appointees approved. But wait a second, how many of these 38 have been serving only since 2001 and therefore have only been faced with approving nominees offered by their own party. By my count there are 11 that fall into this category.

But even if you eliminate those 11 that leaves us with at least 27 principled Republicans who have never voted to filibuster a Presidential Judicial nominee. Wait one gosh darned minute, why do we limit the universe to “judicial nominees”? Presumably if the President deserves some leeway in appointing judges who have life tenure then he should also have leeway in appointing individuals to serve in his administration. Personally, I think the President should have more leeway in appointing his administration than in appointing judges but let’s assume that they should be afforded the same degree of deference. Then let us take the most ceremonial and feckless post in a President’s administration and see how much deference should be given to the President’s nominee. Of the 27 principled Republican Senators who would never consider filibustering a President’s Judicial nominee, 14 of them had the opportunity to show their deference to a President’s nominee for a pretty symbolic post in a President’s administration – the Surgeon General. Of these 14, thirteen of them decided it was appropriate to filibuster the President’s nominee. (The lone exception was Ben Nighthorse Campbell.)

The filibuster of Henry Foster is also important with regard to why there were fewer filibusters of Clinton nominees. It showed that Republicans were willing to sustain filibuster’s against his nominees. In the first two and a half years of the Clinton administration, before that confrontation, 12 filibusters were attempted against his nominees. Eleven of these nominees were confirmed (the twelfth being withdrawn by Clinton). In the remaining five and half years of the Clinton administration (after the Henry Foster successful filibuster) there were only five filibusters attempted of Clinton nominees.

So what happened? Well, after they demonstrated that they could sustain a filibuster Clinton only nominated people he thought (probably after conferring with key Republicans such as Hatch) would not be filibustered. Hence, there were fewer opportunities for Republicans to filibuster his nominees, because he didn’t nominate the people who couldn’t survive the filibuster attempt.

George W. Bush has a different view of the prerogatives of the Executive Branch. This is true most obviously in the nomination process but it can be seen elsewhere. He believes in the primacy of the Executive Branch. He thinks “I am the executive, why should I consult with people about who I nominate?” (Note: I do not mean to suggest that he is more arrogant than Clinton, just that, in this instance, Clinton was more pragmatic.) This also explains (more so than political considerations in my eyes) why he was so hot to get Frist in as Majority Leader. I can’t see Lott, Lugar, Warner or Nickles (to name a few) letting the Executive steam roll the Senate like this. If he is able to successfully reshape the dynamic between Senate and the President, this will be his biggest domestic legacy. (Other than massive, continuing structural budget deficits, but who really cares about that.)

Tuesday, April 12, 2005

Impeach Scalia Now

Orin Kerr at the Volokh Conspiracy puts forth a persuasive case for impeaching Antonin Scalia. How did that miscreant ever get nominated much less confirmed?

On a serious note, the post does point out what I really enjoy about that site; whether I agree with the conspirators or not, they are always smart, usually sharp with words and rarely too partisan for my tastes.

Bankruptcy Reform

Jane Galt writes about the pending bankruptcy reform measures and mentions, in passing, a point which I have thought about. Namely the scarcity of attention drawn to the benefits which could be gained from reforming bankruptcy provisions as they relate to the corporate side. Because she mentions it in passing I do not know exactly what she has in mind when she talks about "the corporate side of puzzle" so I will not venture a guess on her position on that topic.

In my prior job I had the opportunity to work with crediotr committees on a number of corporate bankruptcies and from what I saw, it is a minor miracle that any companies ever emerge from bankruptcy. You take a company that had various fiscal problems then foist upon it a whole cadre of professionals (consultants to run the company, new accountants for the company, accountants for the creditors, three [or more] sets of lawyers). I seriously wonder if most bankruptcies would not yield better results to the creditors by having an immediate auction of the company's assets as soon as it was determined that the company needed bankruptcy protection.

A couple of other random thoughts on the current bankruptcy measures. While I think that most of the liberal wailing and gnashing of teeth has been overblown about how there are too many ways for the wealthy to protect assets, I do think that more efforts should have been taken to reduce the ability to use the "homestead exemption" as a way to shield assets.

Finally, it will be interesting to see when credit card companies begin reducing their interest rates. I do believe that (apart from credit card companies) the biggest beneficiaries of the proposed changes are those who do not seek bankruptcy. By my way of thinking, the interest rates should come down fast and hard.

Monday, April 11, 2005

State and Local Comity

Ann Althouse writes (http://althouse.blogspot.com/2005/04/should-state-block-city-from-having.html#comments):

These days, there is a lot of attention to federalism -- the division of power between the federal government and the states -- but we do not often think about the division of power between the state government and the cities. We don't even have a word for that relationship, do we?

I think she is correct that there is no one succinct term that captures the state-municipal relationship the way "federalism" captures the federal-state relationship. However, most states (including Wisconsin) are governed by the "Dillon Rule" which basically states that "power of municipalities [is] limited to those powers 'expressly granted, necessarily or fairly implied, or absolutely indispencible' to the local governments"
( http://shakti.trincoll.edu/~bgermano/dillon.html) . Many of the States where Dillon's Rule is in place, however, have amended their constitutions to give local governments power over local affairs subject to state laws of "statewide concern". In most jurisidictions the interpretation of "statewide concern" (or similar language) reverts back to the Dillon's Rule presumption in favor of statewide legislation. (See http://www.legis.state.wi.us/lrb/pubs/consthi/04consthiIV3.htm for application in Wisconsin.)

My letter to my congressman re: DeLay

I just wated to drop you a quick note, as one of your constituents, to express my concerns about Tom DeLay continuing as the majority leader in the House of Representatives. More troubling than his corruption (even if it is not illegal) and his arrogance, is the fact that under his leadership I do not see how we get out from under persistent massive structural budget deficits. In addition, his comments on the judiciary strike me as intemperate.

If you don't believe in an independent judiciary, continue to support him. If you believe in the continued growth of government, then continue to support him. If you believe in exploding amounts of money being spent on Medicare, continue to support him.

I believe that the Medicare changes he forced down the throats of House members are such that it is irresponsible to even discuss changing Social Security until the problems with Medicare (which are much larger and loom much sooner) are addressed. If you and your colleagues do not get spending under control, which cannot be done with Mr. DeLay as majority leader, you will be forced to rescind tax cuts or to foist the bill on my three children.

Please have some courage (I know it will take much) and oppose Mr. DeLay.