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

Wednesday, April 27, 2005

Revisiting Revisionism

Prof. Reynolds is once again decrying “historical revisionism” in an Editorial by a MSM. In this case the culprit is this editorial over at the NYTimes (is there any more MS in the MSM?). Prof. Reynolds proclaims that the “claim that democratic transformation was some sort of new rationalization is, not to put too fine a point on it, an out-and-out lie.”

Here is the offending passage from the editorial:
The only plausible reason for keeping American troops in Iraq is to protect the democratic transformation that President Bush seized upon as a rationale for the invasion after his claims about weapons of mass destruction turned out to be fictitious. If that transformation is now allowed to run off the rails, the new rationale could prove to be as hollow as the original one.(emphasis in Prof. Reynolds’)
As I have said elsewhere
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.
So where do I put the NYTimes editorial? Either (a), (d) or none of the above. To paraphrase a former President: “It depends on what the meaning of the word ‘seize’ is?”

If one reads the “seize upon” language to mean “seize upon a justification that was not previously given”, then I would agree with Prof. Reynolds that the editorial is in error. I think the best justification for this reading is the use of the article “a” (“seized upon as a rationale”) by the editorial. If this is what the editorial means, then they are either liars or forgetful.

If on the other hand, one reads the “seize upon” language to mean “seize upon a justification that was not previously the primary justification” then I would not contend that the editorial is guilty of historical revisionism. Of course if that is what it meant they should have said “seized upon as the primary rationale” (or words to that effect) rather than “seized upon as a rationale.”

As an aside, I will confess that I started out writing this to point out that I think that Prof. Reynolds and others are too quick to lambaste media outlets for such “revisionism”. I think that in this instance, his criticism is well put. The way the editorial is drafted demonstrates forgetfulness or deceit. I am left to ponder how Prof. Reynolds would react if a media outlet pointed out that the democratization/liberation of Iraqis was not the primary justification given going into the conflict.

[UPDATE: Over at The Mudville Gazette , the author observes
Perhaps there's a certain percentage of the American population that had to have the fear of their own death via a nuclear, biological, or chemical attack made clear to them before they would give their personal approval to sending someone else's kids off to defend them in a war.

If he needs an example of this sentiment, I would point him to Paul Wolfowitz who noted in May, 2003:
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. . . . 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.

OK so they are not on all fours but it is clear that Mr. Wolfowitz was cognizant of the fact that many Americans would not support the effort solely based on the liberation/democratization of Iraqis.

Look anyone who says that the liberation/democratization of Iraq was not a reason or one of the primary reasons for the military action is not right. At the same time, anyone who says the liberation/democratization of Iraq was the reason or even the primary reason given to the American people for the military action is not correct either. It may have been (and I suspect it will prove to be) the best reason but without the WMD angle and/or links to Al-qaeda style terrorists the military action would not, initially, have been supported by a majority of the American people.

With regard to the Gazette’s observation that the NYTimes’ editorial could be read to support the “nuclear option” with respect to Senate filibusters, I will tell you what. I will write a letter to the editorial staff there demanding that they take such a position if the Gazette if the Gazette writes to Senator Isakson (.mov file) and demand that he take to the Senate floor and support the filibuster here as he does in Iraq. Let me know.]

Tuesday, April 26, 2005

Are religious tests justified for some nominees?

Professor Bainbridge (and Juan Non-Volokh , among others) are arguing with Cathy Young (and Prof. Volokh , among others) about whether it is fair to say that Senate Democrats are engaging in religious bigotry against devout Catholic or Evangelical judicial nominees. I think it is fair to say that Prof. Bainbridge argues that the Democrats are -- in effect -- discriminating against devout Roman Catholics and Evangelical Christians since certain Democrats are referring to reservations about the nominees "values". Young and Volokh (among others) argue that (I think it is fair to characterize) we should refrain from saying that the disparate impact is evidence of discrimination against Roman Catholics and Evangelical Christians.

Here is how screwed up I am. I am more interested in the question that Stop the Bleating (who Prof. Bainbridge cites with approval) states, namely:
If Schumer truly does intend to create a test for judges on the basis of their deeply held moral beliefs about abortion, that test arguably isn't job-related.

and that Mark Kleiman goes some way to answering it (at least as it relates to devout Roman Catholics) when he points to a story where a Vatican official encourages Roman Catholic governmental officials not to execute the duties of their office, even on pain of losing their job.

The case in question there is a proposed law in Spain authorizing homosexual marriage. The Vatican argues that Roman Catholic officials should not officiate same-sex weddings even if it is their duty to. (Curious what the guidance would be for an official called upon to officiate a “civil union”.)

In light of this pronouncement by the Vatican would it be inappropriate for a Senator to ask the following question of a Roman Catholic judicial nominee:
Mr. Nominee you are aware that the Vatican has advised Roman Catholics who are governmental officials that these governmental officials should refuse to comply with appropriately enacted civil laws, even on pain of forfeiting their position. Let us assume that there are some laws of the United States, either by statute or by binding legal precedent, that are contrary to Roman Catholic teaching. Mr. Nominee if the Vatican were to advise judges of the Roman Catholic faith that these were not to approve of certain legal positions or civil laws that violate Roman Catholic teaching would you (a) follow the law, (b) refuse to follow the law or (c) resign your position?

Presumably answering (a) would be good and answering (b) would disqualify the nominee. What would happen if someone answered (c)?

Personally, I think nominees should be taken at their word if they assert that they can put aside personal beliefs (religious or otherwise) and follow the law, unless there is something in their statements to suggest otherwise.

Chile -- It just doesn't matter

Prof. Reynolds points us to this editorial by John Tierney which concludes that we have it much worse off here than they do in Chile. Ok, he really says that “our”social security is worse that Chile’s private system. It may be the case that the U.S. should scrap Social Security in favor of personal private accounts. I wish, however, that both sides would stop having us look to Chile for answers.

When pro-privatizers point to Chile, they generally (I realize that this is, in itself a generalization) they look anecdotally at the situation. They find a “man on the street” ask him how his pension account is doing and go from there. Mr. Tierney is no different. Only the man on the street he uses is a friend of his from second grade when Mr. Tierney was in school in Chile. Tierney frames his editorial as “an accidental experiment”. Mr. Tierney was the unfortunate soul who came to the United States and had to be subjected to our Social Security system. His friend, Pablo Serra stayed behind in Chile. In 1981, Chile replaced its social security system a “pioneering” system of private accounts.

It bears mentioning at this point that in 1981, Chile was not (in any real sense) a representative form of government. So one thing that Chile cannot teach us is how you convince people that they should support the change. This is not to say that we should dismiss the Chilean experience because it was not a representative government at the time the changes occurred, just to note that they did not have to deal with the ugliness of public discourse on the matter. (Call me old fashioned but I prefer such ugliness to a dictatorship.)

[Let me interject for a moment and say that choosing Pablo as the “man on the street” (admittedly my term and not Mr. Tierney’s) is suspect. I think it is a fair assumption to say that any Chilean who attended school with Mr. Tierney while Mr. Tierney’s family lived in Chile was upper-middle class at a minimum. Not only that but Pablo “grew up to become an economist”. Not only that (assuming this is the same economist Pablo Serra from the University of Chile), Pablo is an economist who has written (for the most part) favorably about the privatization (in .pdf format) of social services in Chile. That would be like taking the pulse of the American populace on the Iraq war and using Juan Cole as the barometer.]

Rather than comparing Mr. Tierney’s and Mr. Serra’s experiences, there is a better “accidental experiment”. As Mr. Parra and his co-authors note (on page 4), some individuals chose to stay in the old pension system. This sets up a real “apples to apples” comparison opportunity. As someone closer to the situation has noted (though probably with an axe to grind)
”if two work colleagues reach retirement age in Chile today, both with the same salary and the same number of years contributing to social security, one of them who remained in the old pay-as-you-go and the other who changed to the AFP system back in 1981, the latter will receive less than one-half of the pension of the former.”

My point is not that Chile’s experience has been good or bad – if you ask CATO they will tell you it is a success, if you ask the World Bank (among its milder critics) they will tell you that, despite its successes, “failure to extend access to formal financial protection for old age to a broader segment of society has been a major disappointment.” With all due respect to the all the ink that has been spilled debating Chile’s success or failure with the experience, I do not see why the debate in the United States should depend at all on the experiences of a country that is part of the “developing world”.

I would respect pro-privatizers more if they would say they don’ want 4% of wages to go into private accounts, they want all of the contributions to go to private accounts. At that point Social Security is just a paternalistic forced savings program by the federal government and I would think those individuals would be more consistent to say they don’t want Social Security at all.

Monday, April 25, 2005

Selective Filibuster History

Over at the Conspiracy, Prof. Zywicki asks, with respect to the filibuster conundrum facing the Senate,

“Is there still some debate going on with respect to Justice Owen, for instance, whose nomination has now been pending for 4 years? Are there some Senators who are still on the fence, undecided on how they want to vote on her nomination?”
Here are a few points.

First, before 4:30 p.m. last Tuesday it was common knowledge that John Bolton would be approved by the Senate Foreign Relations Committee. Somewhere along the line someone presented arguments such that he was not approved by the committee. So, while I concede that there are more than 50 (but fewer than 60) Senators who would support Justice Owen, it certainly is possible that further debate will change some votes. Who knows maybe she, when screaming, chased a clerk through a hotel 10 years ago?

Second, while I think that the distinction Prof. Zywicki makes between a “deliberative” filibuster and a filibuster designed to “kill” legislation (or a nominee) has merit; I think it is a quaint view of the Senate that we could expect Senators to declare whether they were invoking a filibuster to delay or obstruct. How would you police such a distinction? It seems like people want to continually write things into Rule XXII that are not there (in addition to this, some argue that the filibuster should apply to legislative matters but not to executive calendar matters). The Rule does not say “you only get unlimited debate if there is a {realistic?} possibility that extended debate will result in changing votes”. The Rule says (essentially) that there will be unlimited debate unless 3/5 of the Senators say otherwise.

Third, Prof. Zywicki suggests that four years is certainly long enough to debate a nominee and that further debate is “quite clearly an abuse of the power”. I suspect Prof. Zywicki would agree (though I could find no evidence of this) that four years was long enough for Richard A. Paez to be have his nomination considered for the Ninth Circuit but there were fourteen Republican Senators (including now Majority Leader Frist) who would disagree. Now according to Sen. Bennett, ”There was no Republican filibuster on the floor of any circuit court judge” ; so I will not refer to a four year delay as a filibuster. I guess I shouldn’t refer to the fact that Senators would not cease debating the nomination as a filibuster either until cloture was invoked. At a minimum it is an “attempted filibuster”. If there were 41 Senators who had voted against cloture, then there would have been a filibuster. One can be against filibusters and in favor of attempted filibusters (i.e. failed filibusters) but it seems like an odd position to me.

Further, Prof. Zywicki notes that the “non-deliberative” filibuster “may explain why in the public mind the abuse of the filibuster is associated with such stunts as Senators reading names from a phone book, because these sorts of speeches are seen as abuse of the filibuster”. I am not sure what “public” he is talking about but I doubt the “average” Joe knows anything about Senators reading the phone book or other such tactics. It does point out another way out of this mess. If Republicans believe so strongly that Democrats will be punished for using the filibuster against nominees, they could actually make the Democrats sustain the debate. Make them go to the floor and debate the nominees and the Republicans can run TV spots telling constituents to tune into CSPAN2 to watch the Democrats make asses of themselves.

Finally, in Sen. Bennett’s comments above he notes that:
In 1995, there were nine Senators who voted in favor of eliminating all filibusters, not just judicial filibusters, all filibusters--nine Senators still serving, Senator Bingaman, Senator Boxer, Senator Feingold, Senator Harkin, Senator Kennedy, Senator Kerry, Senator Lautenberg, Senator Lieberman, and Senator Sarbanes. They voted in favor of eliminating all filibusters. They have now changed their minds. They have the right to change their minds. And I respect that. What indication do we have they will not change their minds back if we do not get this thing settled in this Congress?
I will admit that changing one’s mind on such an issue may be an outlandish thing, something that calls one’s credibility to speak on an issue. But guess how many Republican Senators voted to keep the then existing cloture rules? 100% Two notable Republicans who believed then that it should still require 3/5 of Senators to require cloture: Bennett and Frist. So if they believe now that the rule should be changed they seem to have “changed their minds”.

Sen. Bennett also observes:

I remember very clearly when President Clinton sent some nominees to this body which members of my conference decided were left-wing whackos, if I might use that phrase. . . . But they felt these nominees were too extreme to be on the bench.

When it was clear we did not have the votes to prevent them from going on the bench, there were those in the conference who said: We have to filibuster. Let's use the filibuster to prevent them. We can muster 41 votes.

The chairman of the Senate Judiciary Committee, my colleague from Utah, ORRIN HATCH, and the then-majority leader, the Senator from Mississippi, TRENT LOTT, both pled with us: Don't do it. Don't start down that road.

That doesn’t sound like a “constitutional” argument to me. Don’t you think they should have said instead “Don’t filibuster because it is unconstitutional”? At it’s core, on both sides, this is a political argument. Can the majority impose it’s will on the minority, you bet. But it is because of political power not because it is “constitutional”.

Personally, I have not had an issue with using the filibuster to “kill” nominees since 1995 when each of my (then) Senators wrote me a letter telling me that they would filibuster the President’s nominee for one of the most ceremonial positions in all of the U.S. government. Unfortunately, now one of those Senators (Sen. Lugar) will not support further filibusters of Presidential nominees; even when the nominees are more consequential than the Surgeon General.