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.