Judicial Filibuster Flip-Floppery

Flip-flops are fairly common in politics, but this one is a doozy.

Eight years ago, shortly after joining the Senate, Lindsey Graham considered filing a lawsuit against the Senate to challenge the constitutionality of filibustering judicial nominees.

Last week, Graham voted to filibuster a judicial nominee.

Eight years ago, of course, there was a Republican president.  So Graham, along with Georgia's Saxby Chambliss, led "a charge to file a lawsuit against the very Senate they now serve in, challenging the constitutionality of Democratic filibusters of President Bush’s judicial nominees."  Roll Call reported:

"Lindsey Graham and I have talked seriously and extensively about this," Chambliss said, noting that it would be some time before a final decision is made and the lawsuit actually filed. "We’re thinking through it, we’ve got people researching it."

In 2005, Graham said that "if the filibuster becomes an institutional response where 40 senators driven by special interest groups declare war on nominees in the future, the consequence will be that the judiciary will be destroyed over time."

Last week, Graham and 42 senators (41 of them Republicans) voted to filibuster President Obama's nominee, Goodwin Liu.  South Carolina's other senator, Jim DeMint, who in 2005 said “denials of simple votes on judicial nominees” are “unconstitutional,” joined Graham in this "unconstitutional" vote.

This nominee has become a litmus test on the radical right.  A website, Impeach Obama Campaign, has made much of this nominee, noting with outrage that "Liu has spent the last few years lecturing about his disdain for the U.S. Constitution. ‘[S]trict construction,’ he wrote in the Stanford Law Review, '[doesn't] make a lot of sense.'"

The constitutional originalists might be shocked to learn this, but you know who else thought that strict construction doesn't make a lot of sense? Alexander Hamilton.  In his 1791 argument for a national bank, Hamilton skewered the Jeffersonian case based on strict construction.  Writing of the necessary and proper clause, Hamilton argues that “the whole turn of the clause containing it, indicates that it was the intent of the convention, by that clause, to give a liberal latitude to the exercise of the specified powers.” Somehow the posers who claim to venerate the Founders always seem to forget that.

The assertion that opposition to strict construction is somehow radical is laughable, so Liu's opponents have take to citing Liu's strong opposition to Justice Alito's confirmation as justification for blocking an up-or-down vote.  The New York Times reports that this is Graham's excuse for his hypocrisy:

“These statements about Judge Alito and the decisions he’s rendered and his philosophy are designed to basically say that people who have the philosophy of Judge Alito are uncaring, hateful and really should be despised,” said Senator Lindsey Graham, Republican of South Carolina and one of the architects of the 2005 judicial compromise. “That is a bridge too far, because I share Judge Alito’s philosophy.”

And there Graham gives it away: he opposes the nominee because he disagrees with the nominee's philosophy (and he thinks the nominee insulted his own philosophy).  Does he expect Barack Obama to appoint judges who share his views?  Elections have consequences, and Graham's man McCain was decisively defeated in 2008.

Almost exactly six years ago, on May 24, 2005, Graham said: "we can treat our judicial nominees better, because if you institutionalize a filibuster, if every nominee is subject to having their life treated like these people have been treated, good men and women will not want to be judges; and that'd be a great loss for this country."

Evidently Graham only considers it a great loss if Republican men and women don't want to be judges.  Or, perhaps, he just felt the heat from conservatives in South Carolina and decided he had to appease them with this vote.  Either way, he's shown that when it comes to judicial nominations, he has no principles, just political interests.

First Principles (or, Romney Needs a History Lesson)

President Obama's speech yesterday on American policy toward the Arab Spring and the Middle East has prompted a host of hysterical responses on the right, most of which suggest that the president has done something radical by saying: "The borders of Israel and Palestine should be based on the 1967 lines with mutually agreed swaps, so that secure and recognized borders are established for both states."

As numerous commentators have noted, this is not anything new, but the right is so accustomed at this point to reflexively condemning any position that Obama takes as "radical" that it is hardly a surprise.

What is somewhat surprising is the following comment by Mitt Romney that Andrew Sullivan picked up on:

"[The president] has also violated a first principle of American foreign policy, which is to stand firm by our friends."

Romney needs a history lesson.

If you want to talk about first principles of American foreign policy, you can't do better than the definitive statement by George Washington in his Farewell Address.  And what would Washington think about this idea that the U.S. should "stand firm by our friends"?

[N]othing is more essential, than that permanent, inveterate antipathies against particular Nations, and passionate attachments for others, should be excluded ... The Nation, which indulges towards another an habitual hatred, or an habitual fondness, is in some degree a slave. It is a slave to its animosity or to its affection, either of which is sufficient to lead it astray from its duty and its interest.... a passionate attachment of one Nation for another produces a variety of evils. Sympathy for the favorite Nation, facilitating the illusion of an imaginary common interest, in cases where no real common interest exists, and infusing into one the enmities of the other, betrays the former into a participation in the quarrels and wars of the latter, without adequate inducement or justification.

Washington would be appalled at Romney's statement, but knee-jerk support for the foreign policy of the Israeli government has become yet another article of faith on the right.  But nothing could be more contrary to "first principles" of American foreign policy.

Washington, of course, knew of what he spoke.  He had spent the previous three years fending off American friends of France, who wanted the U.S. to do whatever it could to support revolutionary France in its wars.  Washington, wisely, determined that American interests were not involved in those European conflicts and he remained uninvolved.

The pro-French faction, like Romney today, argued that the U.S. should stick by France out of friendship because of French aid in the American Revolution.  It is that fundamental error that Washington noted when he argued that such a "principle" would lead Americans "to betray or sacrifice the interests of their own country."

Someone needs to tell Romney that the "first principle" of American foreign policy is, and always has been, to pursue American national interests.

Credit, Where It Isn't Due

It has almost been amusing, watching the contortions of Republicans trying to reconcile their reflexive disdain for Barack Obama with the unquestionable merit of his accomplishment in the bin Laden operation. Ever since he emerged as the Democratic nominee in 2008, they have tried to paint him as unprepared, naïve, and indecisive. His measured but steely command in this instance has given the lie to those charges.

In response, Republicans have launched a campaign to argue that any success Obama may have had is due to his continuing the policies of the Bush administration. The more shameless variety has even tried to assert that the lead that eventually led to bin Laden originated from Bush-era torture. Others, like Ross Douthat of the New York Times, have made a more subtle--but no more convincing--case.

Douthat's column on Monday claims that "the daylight between the foreign policies of George W. Bush and Barack Obama has been shrinking ever since the current president took the oath of office." Not satisfied with that somewhat dubious claim, he even refers to the "Bush-Obama era."

Douthat is not completely wrong: there is a trite truth in his observation, one that seems shocking to people who pay more attention to campaign rhetoric than to policy, but is glaringly obvious to those who know our history. Students of American diplomacy know that continuity in foreign policy is more common than dramatic change, even when the presidency changes parties.

Perhaps the best example of how overheated political rhetoric can create the illusion of major policy differences comes from the 1952 campaign. Dwight Eisenhower, seeking to placate the McCarthyite right-wing of the Republican Party, suggested that he would pursue rollback of communism rather than mere containment. In reality, he did no such thing. Most famously, when the people of Hungary bravely rose up in 1956, Eisenhower did nothing. Like Harry Truman before him, he knew that acting to liberate the states of eastern Europe would mean World War III. He practiced containment too.

That does not mean, however, that there was no difference between Truman and Eisenhower. The latter feared that limited wars, like the one in Korea, would sap America's military and economic strength, and he determined to avoid them. When the French pleaded for American intervention in Vietnam in 1954, he said no. He relied far more on covert action (such as the CIA-assisted coup that brought the Shah to power in Iran) and nuclear brinksmanship to accomplish his goals.

There were continuities, to be sure. There always are: the nation's core interests do not change overnight. But there were important differences, too.

And that brings us back to Douthat's column. He asserts, seemingly in all seriousness, that "the most visible proof of this continuity" between Bush and Obama is the killing of bin Laden. The raid that killed Osama, he says, "operationalized Bush's famous 'dead or alive' dictum.'"

This is almost too silly to rebut. Bush's "dictum," as he calls it, was not a policy. It was an all-too-typical example of Bush's knee-jerk bravado, one that he did not follow up with a consistent and focused policy. When bin Laden was seemingly trapped at Tora Bora in December 2001, the necessary troops were not sent to prevent his escape, likely because the administration had already shifted its attention and resources to the coming war in Iraq.

Six months after the attacks on 9/11, Bush glibly said: "I don't know where he is, nor, I just don't spend that much time on him, to be honest with you." He said that people who were fixated on bin Laden lacked understanding: "The idea of focusing on one person really indicates to me that people don't understand the scope of the mission." By March 2002, Bush had decided "the mission" was moving on to invading Iraq.

Contrast that to Obama. He opposed the war in Iraq from the start. From the beginning of his campaign for the presidency in 2007, Obama has been saying that it was a mistake to take the nation's focus off Afghanistan, and that as president, he would finish the job against Al Qaeda there. Obama also said back in 2007 that capturing or killing Osama bin Laden would be a priority, even if he were in Pakistan (and he was roundly criticized by conservatives for that position). By that time, the Bush administration had long stopped talking about bin Laden.

It is simply not true to say, as Douthat does, that Obama was merely completing what Bush started. On the two major pieces of unfinished foreign policy business that Bush bequeathed to Obama--the wars in Iraq and Afghanistan--Obama has reversed the Bush's priorities, with positive results. He has done much to salvage something positive from the shambles he inherited.

This pathetic attempt by conservative critics to credit Bush for Obama's accomplishment does have some small merit, come to think of it. If Bush had done his job well, Obama never would have had the opportunity to clean up his predecessor's mess.

The White House and Ground Zero: Bearing Witness

It was seeing the crowds that got to me.

I was a child in the sixties. Crowds gathering in front of the White House then did not come in a spirit of unity.  They came in anger, anger at a war they did not believe in.  Later they came to drive a crooked president from office.

Last night they came to the president's house in solidarity, in response to the news that a man who ordered the death of 3,000 Americans had died.  And that he had died knowing that after nearly ten years, American soldiers were bringing the war that he declared to his doorstep.  The man who so casually sent others to their deaths was himself the latest casualty in that war.

They came.  By the dozen, then by the hundreds, they came. Just to be there, and to be together.

News commentators compared it to V-E or V-J day in 1945.  That may be too much, but certainly it is historic. There has been nothing quite like this in my lifetime.

And then there were the people flocking to Ground Zero in New York. 

I was born and raised in New Jersey, and New York is the major city I know best.  I've been to the city many times since 9/11, but I never could go to Ground Zero.  I knew no one who died there that day, and the idea of going there seemed like worst kind of macabre voyeurism.  It was not my place.

But all kinds of people went there when they heard the news.  Many had lost someone on 9/11.  Others were young, and probably count not remember a time when that man and the threat he represented did not hover over them like the mushroom clouded hovered over my childhood in the years after the Cuban missile crisis.

They reclaimed that space.  It will always be a place of mourning.  But tonight it also became a place of vindication, one for all Americans.

The horror he started will not automatically end with his death.  He was just one man.  This is not a movie.  Killing the bad guy does not mean it is over. 

But for one night at least, Americans could take some satisfaction in knowing that the living embodiment of the evil of that awful day had to, at last, pay for his crimes.  As the crowds spontaneously moving to the White House and Ground Zero said with their actions, it was an occasion for bearing witness.

The Thirty Years' War on Medicare

“In this present crisis, government is not the solution to our problem; government is the problem.”—Ronald Reagan, First Inaugural address, Jan. 20, 1981

That line, uttered over 30 years ago, was the first shot in a political war that may be coming to a head.

Ever since Reagan turned the New Deal mentality of the Democrats on its head with that clever statement, the Republican Party has been waging a long battle against the idea that government is necessary to solve problems that the market economy has failed to. 

That is the proper context for Rep. Paul Ryan's budget plan that effectively ends Medicare.  It is not the product of Tea Party demands.  Quite the contrary: the Tea Party is, at least in part, a result of thirty years of relentless Republican insistence that we cannot afford government programs and that taxes must always, but always, be cut.

Ryan talks about "reforming" Medicare.  This needs to be stated plainly, and repeatedly: Ryan is not proposing to reform Medicare.  He means to end it.  Yes, he protects those currently on Medicare and those over 55 who expect to have it.  But everyone else will not get it.  At all.  It will cease to exist. The program that began in 1965, and that pays the medical bills of the elderly, will come to an end, and in the future retired Americans will have to buy private health insurance.

It is worth remembering why LBJ proposed Medicare in the first place.  As he said in his statement to Congress proposing the program, "almost half of the elderly have no health insurance at all," and "the average retired couple cannot afford the cost of adequate health protection under private health insurance."  For 45 years, Medicare has solved that problem.

And now the House Republicans have voted to end that program.

The most ideological Republicans have never reconciled themselves to the existence of Medicare.  In 1964, Ronald Reagan made his national political debut making a speech advocating Barry Goldwater’s candidacy: “we're against forcing all citizens, regardless of need, into a compulsory government program.”

Goldwater lost that election, getting a lower percentage of the popular vote than Herbert Hoover did in 1932.  Undeterred, Reagan issued an LP recording of a speech against the passage of Medicare in 1965.  He famously (and foolishly) concluded that if Medicare were not stopped,

one day . . . we will awake to find that we have so­cialism. And if you don't do this, and if I don't do it, one of these days, you and I are going to spend our sunset years telling our children, and our children's children, what it once was like in America when men were free.

But Medicare did pass, with large majorities (307-116 in the House and 70-24 in the Senate).  And America is, somehow, still free.

But some Republicans have never given up the fight to do away with it.  Their major problem is the overwhelming popularity of the program.  When Jimmy Carter tried to hit Reagan with his earlier opposition to Medicare during their presidential debate in 1980, Reagan, sensing the danger, brushed it off with a bit of political misdirection:

When I opposed Medicare, there was another piece of legislation meeting the same problem before the Congress. I happened to favor the other piece of legislation and thought that it would be better for the senior citizens and provide better care than the one that was finally passed.

It is true that Republicans tried to thwart the passage of Medicare back in 1965 with an alternative they called "Bettercare."  Historian Robert Dallek has described it as "a voluntary plan providing federal payments of insurance premiums for older persons with low incomes."  In other words, it is similar to Ryan's plan to provide vouchers to buy insurance.  The main difference is that the Republicans in 1965 were not pretending to reform LBJ's proposal—they aimed to prevent it.  (Also, in 1965 they admitted that their plan "would leave most elderly Americans uncovered.")

The true lineage of Ryan’s plan is from Reagan, via Bob Dole and Newt Gingrich in the 1995 budget showdown with Bill Clinton.

In October 1995, then-Senate majority leader Dole boasted about his opposition to Medicare: "I was there, fighting the fight, voting against Medicare" when the plan was passed in 1965, he proudly said.  Gingrich denounced Medicare as "a centralized command bureaucracy."  This is how he explained the fact that Republicans were only calling for cuts in funding rather than abolition: "Now we don’t get rid of it in round one because we don't think that's politically smart…. But we believe it is going to wither on the vine because we think people are going to leave it voluntarily."

That goal has not changed, but in the last decade, Republicans have learned their lessons.  They don’t denounce Medicare and take pride in voting against it, they don’t talk about it withering on the vine. Instead they call their attack "reform."  (When George W. Bush pushed his plan for Social Security privatization in 2005, he too called it “reform,” though it was not significantly different from the basic vision of a voluntary opt-out also proposed in 1964 by Goldwater and Reagan.)

If there is a cause for optimism here, it is that the ideologues pushing this radical abolition of Medicare know that they cannot be honest about what they are doing.  The program is simply too popular. In a recent CBS News/New York Times poll, 76% believe that providing health insurance coverage for the elderly is a responsibility of the federal government, 61% think the costs of Medicare are “worth it,” 57% think there is no need to make any changes to Medicare to help balance the budget, and 56% would rather raise taxes than reduce benefits.

But unless President Obama and the Democrats drive home the essential truth that this “reform” is actually repeal, Reagan’s dream may come true.  In that same poll, a question asking if “changing” Medicare to help people buy insurance would meet their approval, 47% said yes, while 41% said no.  The Republicans can only win their long war against Medicare by stealth.  The defenders of Medicare must make Republicans fight out in the open, or they may lose the war.

"And the War Came"

One hundred and fifty years ago today, cadets from the Citadel fired on U.S. Army soldiers at Fort Sumter in Charleston harbor, and began the American Civil War.  Ironically, the first battle of the epic struggle that would take over 600,000 American lives over the next four years had no fatalities.  Today, re-enactors will stage that event again, and one can only hope that they do so with a sense of commemoration rather than celebration.

While most Americans know that events at Fort Sumter began the war, few really understand what happened and why.  This is no accident.  Apologists for the Confederate cause have worked long and hard to cleanse the national memory of any accurate recollection of why that event began the hostilities.  But on this day, of all days, it is worth remembering who fired the shots, and why they did.

While neo-Confederates to this day speak without irony of the "War of Northern Aggression," the facts of that day prove the lie inherent in that utterly false label. 

Lincoln was from the start determined that he would not begin hostilities.  In his first inaugural address, on March 4, 1861, he made that abundantly clear: "The government will not assail you. You can have no conflict without being yourselves the aggressors."  He was determined that if there were to be civil war, he would not fire the first shot.

The problem was this: secession had a concrete, practical side.  With a much smaller federal presence in those days, often the most common federal property in a state was the post office, which easily passed into state hands.  More problematic were military bases occupied by American soldiers, of which Fort Sumter was the most prominent.  South Carolina demanded it be turned over to the state.  First President Buchanan, and then Lincoln, refused.

A month after Lincoln became president, the Stars and Stripes still flew over the fort, taunting the Confederates on the shore.  Lincoln made clear that he would not give it up and announced that he was sending a ship with food to provision the fort.  If nothing were done, the standoff could go on indefinitely.

That was Lincoln's "aggression."  He refused to turn over the fort and sent food to the American soldiers stationed there.

The Confederates started the war because they feared that without an attack to take the fort, the Confederacy would flounder.  It had been two months since any state seceded.  Important slave states like North Carolina, Tennessee, and most significantly, Virginia, remained in the Union. 

The longer Lincoln presided over the country without lifting a finger to interfere with the functioning of slavery, the more absurd the secessionist caricature of him would appear.  An Alabama newspaper appealed to Jefferson Davis to take the fort by force: "Sir, unless you sprinkle blood in the face of the people of Alabama, they will be back in the Union in less than ten days!" 

The Confederate decision to initiate hostilities was meant to avoid that outcome. Faced with the prospect of peaceful reconstruction of the Union, Davis decided on war. The combat had the desired result: four more states joined the Confederacy, including Virginia.

Like secession itself, the Confederate attack on Fort Sumter was self-defeating.  Lincoln had publicly committed himself to take no offensive military action against the Confederacy.  Without Confederate aggression at Fort Sumter, Lincoln would have been hard pressed to take any meaningful action to enforce federal authority over the Confederate states.  The Confederate leadership resolved that issue for him.

The title of this post is taken from Lincoln's second inaugural (and also serves as the title of one of the classic works of history on the beginning of the Civil War by the great historian Kenneth Stampp).  "Both parties deprecated war," Lincoln said in the spirit of charity that permeates the address.  He did not, however, fail to note the difference between the two sides: "but one of them would make war rather than let the nation survive, and the other would accept war rather than let it perish. And the war came." 

The final phrase reflects Lincoln's fatalism, but not before he made clear what all Americans should remember on this day: there is an important distinction between those who make war and those who accept it.

A Policy, not a Doctrine

Ever since President Obama's speech last week explaining his Libya policy, there has been much talk among pundits about a supposed "Obama Doctrine."  The president, however, has steadfastly resisted such a characterization.  There is no Obama Doctrine, he says.  While I have many doubts about the wisdom of Obama's actions in Libya, he undoubtedly is right to resist attempts to straightjacket him with a doctrine.

Ever since Secretary of State John Quincy Adams in 1823 developed what became known as the Monroe Doctrine, Americans have become accustomed to foreign policy doctrines.  In the years since World War II, we've seen a veritable explosion of such doctrines—the Truman Doctrine, the Eisenhower Doctrine, the Carter Doctrine, the Reagan Doctrine—and those are just the ones that caught on.

In each case, a specific foreign policy situation gave rise to general statement of policy meant to guide American diplomacy in other cases as well.  Today, numerous voices are trying to do the same thing.  But the problem with doctrines is that they tend to encourage doctrinaire behavior.

The Monroe Doctrine, for example, was prompted by American concern that the states of Latin America, which had recently become independent of Spain, might fall once again under control of European powers.  The first of the American doctrines was meant to deter any such attempt by expressing American opposition:

“the American continents … are henceforth not to be considered as subjects for future colonization by any European powers.”

While it was Britain's opposition (and the ability of its navy to make good on that policy) that was the more effective deterrent, the statement also proclaimed an American sphere of influence in the western hemisphere.  Eighty years later, Teddy Roosevelt transformed that doctrine into a justification for American intervention in the same states the original doctrine was designed to protect from European intervention.

More recently, the Truman Doctrine had similar unintended consequences.  His speech to Congress in March 1947 was prompted by specific circumstances—the need to bolster Greece and Turkey in the face of pressure from communist forces.  But the administration took the opportunity to proclaim what became known as containment:

“I am fully aware of the broad implications involved if the United States extends assistance to Greece and Turkey … I believe that it must be the policy of the United States to support free peoples who are resisting attempted subjugation by armed minorities or by outside pressures.”

The universalism of that statement went well beyond the immediate needs of the moment, and was meant to send a general message that the U.S. would resist further communist expansion in Europe.

But it did not specify Europe.  It did not distinguish between vital and peripheral interests. Years later, as communists made gains in Vietnam, the existence of this "doctrine" helped to constrain the actions of future administrations.  The father of containment, State Department official George F. Kennan, never intended the policy to apply to a far-off state in southeast Asia.  Twenty years after Truman's speech, 500,000 American soldiers were in Vietnam.

These are the kinds of unintended consequences that doctrines can produce, and that's exactly what Obama was trying to avoid by so carefully resisting any implication that his actions in Libya are some kind of precedent for future policy.

One of the voices calling for a doctrine is former Democratic senator and presidential candidate Gary Hart: "now would be a good time President Obama to announce an 'Obama Doctrine' similar to the Truman Doctrine … We cannot simply respond in ad hoc fashion to these local and regional crises."  Ironically, Hart cut his political teeth as a campaign official in George McGovern's anti-Vietnam war presidential campaign in 1972, and is now calling for a new doctrine that could well create pressure for another Vietnam.

Obama has learned this particular historical lesson better than that.  He may well yet be proven wrong in Libya, but he has been right to resist a doctrinaire foreign policy that might wrongly restrict his future options and those of his successors.