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    Preview to the Presidency: Judicial Filibusters

    At the beginning of Bush’s second term, Rehnquist and O’Connor were expected to soon retire.  Republicans were worried that Democrats would filibuster conservative nominees to the court to death – as they had successfully killed several Reagan nominations.  The Republican Senate majority considered preemptively changing senate rules to remove the minority’s power to filibuster judicial nominations.

    Democrats were understandably opposed.  Barack Obama had this to say:

    I rise today to urge my colleagues to think about the implications the nuclear option would have on this chamber and this country. I urge you to think not just about winning every debate, but about protecting free and democratic debate.

    Again, I urge my Republican colleagues not to go through with changing these rules. In the long run, this is not a good result for either party. One day Democrats will be in the majority again, and this rule change will be no fairer to a Republican minority than it is to a Democratic minority.

    Barack Obama supported the right to filibuster as an important tool to preserving democratic debate.  Later, he seems to have endorsed it also as a simple procedural tactic, when he expressed his lukewarm support for filibustering Alito’s nomination:

    Obama expressed sympathy, but, as he told reporters later, the senator expressed pessimism that a filibuster could be sustained.

    “It’s really a question whether I vote against Judge Alito once or twice,” he said. Obama conceded that there is some doubt precisely how many Democrats might oppose a filibuster, describing the situation as “in flux.”

    And also:

    “There is an over-reliance on the part of Democrats for procedural maneuvers,” he told ABC’s “This Week.”  

    In other words, Obama was going to vote against Alito no matter what, and he acknowledged that the filibuster was a simple procedural measure, not an important component of due legislative consideration or the exchange of ideas.

    Finally, Obama actually participated in the failed filibuster attempt.

    Now it looks like the tables are turning.  Two or three Supreme Court vacancies are expected during Obama’ next 4 years in office, and some Republicans are already expressing support for a filibuster.

    Kyl, Arizona’s junior senator, expects Obama to appoint judges in the mold of U.S Supreme Court Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer. Those justices take a liberal view on cases related to social, law and order and business issues, Kyl said.

    Kyl said if Obama goes with empathetic judges who do not base their decisions on the rule of law and legal precedents but instead the factors in each case, he would try to block those picks via filibuster.

    Obama has provided Senate Republicans with a rhetorical defense of the filibuster, he has legitimated it as a purely tactical procedures, and he has even personally participated in a (failed) filibuster attempt.  If Democrats do not capture a filibuster-proof majority (the count is still uncertain), the Republican minority may be equipped with a strong defense against Democratic imposition of the nuclear option.  Perhaps Obama’s term will see the first failed Democratic nominations to the Supreme Court since Lyndon Johnson.

    There is a respectable Constitutional argument in favor of the nuclear option: that the Senate is neglecting a Constitutional duty to give their “advice and consent” on Presidential Supreme Court nominees.  I’m not sure how I stand on the issue.  Perhaps a subject for another post someday.

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    Preview to the Presidency: Iran

    Debate over how the United States should handle Iran and its likely development of nuclear weapons was a hot topic during at least parts of the past campaign cycle.  Both Obama and McCain claimed that they would be tough enough to face down Iran.  Obama, for example, has called Iran’s nuclear programs “unacceptable”.  He suggested that he would be able to deter Iran from obtaining nuclear weapons by engaging in diplomacy and perhaps divesting – a college-student liberal’s favorite non-strategies for dealing with violations of international law.

    When people say something is “unacceptable”, they usually mean that they will act to prohibit it.  Here though, the United States seems to really mean that we won’t “accept” the reality that we aren’t willing to do anything about Iranian nuclear weapons – as we did little to prevent Russia, China, Pakistan, India, Israel, or North Korea from developing nukes.

    To paraphrase Kissinger, nations base their foreign policy on their self-interest, not on the polite requests of august statesmen such as President Elect Obama.  Though he claims to be keeping all options open, it is nearly inconceivable that Obama, who opposed war with a genocidal tyrant in Iraq, would support one against an Iran still maintaining a shell of democracy.  If Iran faces no serious consequences, it stands to reason that they will develop the nuclear weapons that are supported by a majority of Iranians.

    So it was not much of a surprise when, soon after the Nov. 4 election, Iran scoffed at Obama’s transparent posturing:

    Ali Larijani said Saturday that Obama should apply his campaign message of change to U.S. dealings with Iran.

    “Obama must know that the change that he talks about is not simply a superficial changing of colors or tactics,” Larijani said in comments carried by the semi-official Mehr News Agency.

    “What is expected is a change in strategy, not the repetition of objections to Iran’s nuclear program, which will be taking a step in the wrong direction.”

    He added that Iran does not mind if the United States provides other Persian Gulf countries with nuclear technology, but “you should know that you cannot prevent the Islamic Republic [from reaching its goals in the nuclear field],” according to the news agency.

    It will not be Obama’s fault if and when Iran decides to develop nuclear weapons.  McCain’s contention that he was better equiped to face down Iran was risible.  The United States would have been just as unwilling to embrace military action under Republican leadership.  But Obama will nonetheless pay a steep price if the “hope” he has sold the American people proves to be false.

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    Preview to the Presidency

    Today Barack Obama got to take his first official tour of the White House as President Elect of the United States.

    Over the last couple of days, we too have gotten a preview of sorts to some of the issues likely to be relevant during Obama’s first term.  I’m going to be writing a series of posts to discuss a few of the issues that have caught my eye.  The first post, hopefully done soon, will discuss Iran.

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    The Election

    It’s probably difficult for me, a white man raised after the Civil Rights movement in the enlightened bubble of the educated elite, to really comprehend the incredible symbolism that Obama’s election has seared into the minds of millions of Americans. But though I can’t gauge its significance as well as others, I can understand the basic beauty of the moment. In electing a black man as President, America has repudiated the darkest chapter of its history and, as David Bernstein notes, utterly rejected the vile doctrine of white supremacy.

    Absentee ballots are still being counted, and it may be a while before we know the exact margin of Obama’s victory in the popular vote. But as the tally now stands, CNN has given Obama 53% of the vote, very close to the 53.8% I suggested were indicated in the polls. The Bradley Effect is dead.

    This is not the last word in the American conversation on race. That end will be, well, our having stopped caring about it. The goal is not simply rejection of White Supremacy, but a truly color-blind society. In that world, someday, a black man will be elected president, and no one will notice.

    In the meantime, Obama is more than a message to our past. He is President of the United States. Now that a shameful past has been repudiated, I hope that America can see past the symbolism to the issues. I have faith that the majority of Americans believe, as I do, in a freer society where individuals have the right to work towards their own ends, not those assigned them by the state or demanded by their fellow citizens. Obama believes in a more redistributive society. If we reject Obama in 2012 because of this, it will not be an embrace of racism, but of liberty and justice.

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    Punishing the Party

    A lot of libertarian and conservative commentators have been arguing that we should punish the Republican party for its abdication of fiscal controls. But a lot of the rhetoric is a pretty poorly thought-through.

    Take libertarian Megan McCardle’s off-the-cuff comment here:

    But for me, I think one thing is clear: the Republican party cannot survive without some time in the wilderness.

    So conservatives are going to lose if they don’t lose.  What?  If we don’t spend time in the wilderness, won’t that mean we are surviving?

    Or conservative Ken Adelman in his endorsement of Obama:

    Granted, McCain’s views are closer to mine than Obama’s. But I’ve learned over this Bush era to value competence along with ideology. Otherwise, our ideology gets discredited, as it has so disastrously over the past eight years.

    McCain’s temperament — leading him to bizarre behavior during the week the economic crisis broke — and his judgment — leading him to Wasilla — depressed me into thinking that “our guy” would be a(nother) lousy conservative president. Been there, done that.

    I’d rather a competent moderate president. Even at a risk, since Obama lacks lots of executive experience displaying competence (though his presidential campaign has been spot-on). And since his Senate voting record is not moderate, but depressingly liberal. Looming in the background, Pelosi and Reid really scare me.

    Ok, so an incompetent Republican will discredit the conservative ideology.  Won’t a competent Democrat do the same thing – or the mirror image, gain credit for the progressive ideology?  Shouldn’t Adelman be looking for an incompetent Democrat to endorse if he wants to shore up conservatism’s long-term health?

    I’m unsure if there are any good arguments for punishing your own party by voting for the opposition.  But I am sure that most of the arguments I have read have been pretty thin.

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    Many commentators have treated this election as a referendum on race/racism.

    Pollster.com currently has voter preferences at 51.9% for Obama and 44.3% for McCain. Let’s assume that means there are still 3.8% undecided, and that Obama can expect to win half of them. That puts the projected Obama portion of the electorate at 53.8%.

    Many people have treated the election as a referendum on racism in the United States. If this is so, will Obama’s election mean that significant racism has ended?

    The Supreme Court has suggested that affirmative action must eventually end in our universities. Should the justices refer to Obama’s election as evidence against the policy in their next ruling on the subject?

    If Obama performs below 53.8%, should we treat it as a measure of secret racism, otherwise known as the Bradley Effect? If he performs above 53.8%, will the fears of secret racism have been invalidated?

    After the referendum on racism, can we have another one on redistribution?

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    Lest We Forget

    In 2004 the United States was faced with a choice between repudiating the Iraq war and “staying the course” – between John Kerry and George W. Bush.  At the time it was unclear what that choice entailed – certainly Kerry tried to defuse concerns that he would abandon Iraq.

    “I fear that in the run-up to the 2004 election the administration is considering what is tantamount to a cut-and-run strategy,” Kerry said in remarks prepared for delivery to the Council on Foreign Relations.

    The Massachusetts senator accused Bush and his aides of a “sudden embrace of accelerated Iraqification and American troop withdrawal without adequate stability,” which he called “an invitation to failure.”

    But given his vague rhetoric, Kerry’s criticism of the war had to lead people to believe that he was more likely to withdraw.  And so, in some part, the 2004 election became a referendum on whether or not we should remain in Iraq.

    If we had thought that Bush would remain in Iraq, we were right.  If we had thought that Kerry would soon want to withdraw, we were also right.

    “The way forward in Iraq is not to pull out precipitously or merely promise to stay ‘as long as it takes,’ ” Kerry said during an address at Georgetown University. “We must instead simultaneously pursue both a political settlement and the withdrawal of American combat forces.”

    Under Kerry’s plan, the first wave of U.S soldiers would leave after Iraq’s planned Dec. 15 parliamentary elections, with the “bulk of American combat forces” withdrawn by the end of 2006.

    And if President Bush thought that continued American efforts in Iraq could eventually bring stability, he may have been right too.

    The jury is still out, of course.  There are no last words in history, after all – just one final Last Word.

    The Bush administration has made many mistakes in its prosecution of the war.  It is not a libertarian administration, and it has not governed as one.  There have been many failures in the last four years that even conservatives rightly regret.

    But, lest we forget, Bush did not fail in his most important task.  Democracy still stands in Iraq, where there was none before.  And it stands in spite, not because, of the more “realistic” advice of the man who may soon be our next president.