The Anonymous Liberal

Health Insurance is Not an Ipod

noreply@blogger.com (A.L.) — Thu, 02 Jul 2009 03:06:00 +0000

The Wall Street Journal offers this typically inane criticism of the public option:

The 1,500 or so private plans don't produce enough competition? Making it 1,501 will do the trick? But then why stop there? Eating is even more important than health care, so shouldn't we have government-run supermarkets "to keep the private ones honest"? After all, supermarkets clearly put profits ahead of feeding people. And we can't run around naked, so we should have government-run clothing stores to keep the private ones honest. And shelter is just as important, so we should start public housing to keep private builders honest. Oops, we already have that. And that is exactly the point. Think of everything you know about public housing, the image the term conjures up in your mind. If you like public housing you will love public health care.

The are about a million things wrong with this "analysis." For starters, while there are lots of private health plans, most are regionally concentrated and don't compete with one another. In much of the country private plans enjoy near monopoly status. Second, if the difference in quality between a private and public plan is really as stark as the difference between public and private housing, then the private insurers really have nothing to worry about. As with public housing, only those who can't afford the private option will utilize the public one. Third, as Jamison Foser explains (h/t Steve Benen):

Supermarkets make money by selling people food. Clothing stores make money by selling people clothes. If they don't give people food/clothing, they don't get money.

Insurance companies, on the other hand, make money by selling people insurance -- and they make even more money by selling insurance, and then denying claims.

This is an excellent point, of course, but I'd go a step farther. Insurance just isn't like other products. It's not a tangible thing like a pair of jeans or an Ipod. It's not a service like house cleaning or hair styling. An insurance policy is not a product in any traditional sense. It's merely a promise to pay future bills, should they come due. To quote Chris Rock:

They shouldn't even call it insurance. They should just call it ''in case shit.'' I give a company some money in case shit happens.

Put bluntly, there is absolutely no reason to believe the government can't make this particular "product" just as well, if not better, than the private sector. Insurance policies aren't like consumer goods. People don't care who pays the bills as long as they get paid. Money is money. Private insurance isn't going to sound better, taste better, look better, or work better than public insurance. Indeed, as the saying goes, the insurance business is all about trust. What you're buying is a promise. And while the government may not be good at making stuff, it is pretty darn reliable. Bonds always get paid back. Social security checks arrive on time. And, importantly in this context, the government isn't going to drop you or rescind your policy at the time you most need it because you failed to disclose something in your application. This may actually be what scares private insurers the most. They've been hosing people over for so long that they've lost the public's trust. Many people would choose the public option simply because they believe the government will treat them more fairly than a private insurer, that the government will actually come through when needed. That's exactly the kind of competition the health insurance industry needs.

What do the world's "laboratories of democracy" tell us about health care?

noreply@blogger.com (A.L.) — Wed, 01 Jul 2009 17:29:00 +0000

Republicans, at least rhetorically, claim to value federalism and to believe that the states can function as "laboratories of democracy"-- places where policy experimentation can take place. Through this process, flawed policies are exposed and voted down and newer, better policies are given a chance to prove themselves. Over time, the policies that prove to be the best are adopted by other states.

For some reason, though, the only laboratories of democracy that matter to Republicans are those located within the United States.

This is especially true when it comes to health care. The United States is not the only industrialized democracy in the world. We are, however, the only one that does not guarantee basic health care to all of its citizens. When Democrats propose relatively mild reforms to our current dysfunctional system, such as creating a public insurance option, Republicans flip out and suggest that doing so will result in some sort of socialized health care dystopia.

But we don't need to travel into some hypothetical world to understand what universal health care looks like. There are literally dozens of countries in the real world that have functioning universal health care systems. Indeed, the verdict of the world's laboratories of democracy is pretty clear. Virtually all of them produce better health outcomes at less cost while covering everyone. We're the outliers. We're the laboratory that's stubbornly refusing to acknowledge that its experiment has failed.

To adopt the Republican position on health care requires believing that every other country in the world is wrong, that their policy experts are misguided and their citizens confused. Indeed it requires believing that the American people themselves are wrong, that despite endless opinion polls to the contrary, people in this country really love the system we have.

You would think that, at some point, these lovers of federalism would ask themselves why it is that no country in the world currently has (or has any plans to adopt) the kind of health care system they're clamoring for. After all, if the ideal health care system is one in which the government plays the least active role and lets the free market work its magic, you would think that some country would have already tried that by now. Such a policy is, after all, much easier to execute and to fund. It's infinitely less complex and requires much less government spending, so you would think that at least some group of lawmakers somewhere would have given the "do nothing" approach a shot. And if the results were as great as the Republicans claim, by now most countries would be following such a system.

Of course, the reason no one follows such a system is because it doesn't work. As economists have understood for many decades, markets don't work very well in the area of health care, at least if the goal is producing a world in which most people can afford care. Indeed, the reason we have a patchwork system of health care in this country is precisely because the market doesn't work and the government has been forced to step in and remedy its most glaring failures. Under a free market system, most elderly people are priced out of the market (hence the need for Medicare). Under a free market system, the poor can't afford health care (hence the need for Medicaid). Under a free market system, children of those without insurance have no access to health care (hence the need for S-CHIP). Every health insurance regulation or government program currently on the books was passed in order to address a significant failure of the market.

Other countries have confronted the exact same issues, but instead of trying to solve these problems piecemeal, they have opted for a comprehensive approach. In an effort to discredit the far better approaches taken by other countries, Republicans like to cherry-pick stories of people who were denied treatment or had to wait for treatment under a universal system (while ignoring the very same kinds of stories in our country). But here are some numbers they ignore:

The number of people in other industrialized democracies who go bankrupt as a result of medical bills = 0

The number of people in other industrialized democracies who lack access to routine medical care = 0

The number of people in other industrialized democracies who feel trapped at their jobs for fear of losing their (or their family's) health insurance = 0.

That last number is particularly galling given conservative reverence for entrepreneurism. Though it's difficult to quantify, I would bet that our dysfunctional health care system, more than any other factor, discourages entrepreneurial risk-taking in this country. Which makes all this talk about free markets all the more absurd.

Obama and Indefinite Detention

noreply@blogger.com (A.L.) — Sun, 28 Jun 2009 15:42:00 +0000

It's hard to know what to make of this Washington Post article, but it's certainly troubling. If there was anything comforting about Obama's previous--and very concerning--suggestion that some sort of indefinite detention program may be necessary, it was the apparent concession that it could only be done with Congressional approval. The most egregious aspect of the Bush administration's disregard for the rule of law was it's repeated willingness to not only act unilaterally and without Congressional approval, but in many cases to act in direct contravention of existing laws.

If the Washington Post's sources are correct, the Obama administration is now considering implementing an indefinite detention program via executive order, a move that would be troubling for any number of reasons and, as Glenn Greenwald explains, completely contradict Obama's rhetoric and record of statements on this issue.

So what explains this apparent reversal? Has Obama changed his views? Were his views never what we thought they were? Has he compromised his views for political reasons?

While it's never easy to read minds, if I had to guess, I'd guess the latter. I suspect that Obama entered office with the intention of ending the Bush administration's policy of indefinite detention, believing that he could either charge or release everyone currently in custody. And he can. The problem he's discovered is that there are a group of people--certain legacy Bush administration detainees--for whom there is not enough admissible evidence to successfully try but for whom there is enough "evidence" to make a strong public case that the person is dangerous. Having worked as a prosecutor, I can tell you that there is often an enormous gap between what you know and what you can prove in court and an even bigger gap between what you believe and what you can prove in court. And the problem isn't just about statements obtained through coercion (which are inherently unreliable anyway). Key witnesses can become unavailable. Physical evidence can be lost or tainted. Reliable evidence can be excluded because it was the fruit of statements or evidence obtained illegally. Some evidence may be unusable because it would compromise intelligence assets. And all of these problems are compounded by time and by the manifest incompetence of the Bush administration. In other words, there are likely some detainees whom the administration genuinely believes are dangerous but for whom there is simply not enough admissible evidence to convict of a crime.

The result is a difficult political problem. If these people are released or charges are brought against them and then dismissed by a court, Republicans will pounce, accusing Obama of endangering the American people. All of the "evidence" against these people--most of it inadmissible-- will quickly find its way into the media through Republican leaks. We've already seen how Republicans reacted to the prospect of moving Guantanamo detainees to domestic prisons. Their reaction to this would be ten times as aggressive. And if, God forbid, any of these released detainees was ever involved in a future terrorist attack, the political consequences for Obama would be disastrous.

I guess this is a long way of saying that I think the best explanation for what's going on here is simple political cowardice. I suspect that Obama, if not subject to political pressure, would not be in favor of indefinite detention. But I think he's unwilling (or at least very wary) of giving the Republicans this kind of political fodder to attack him with. That's not a defensible reason for doing the wrong thing, of course, but I suspect that it is the explanation. Doing the right thing in this case would carry significant political risk.

As for the prospect of instituting such a program through executive order, as opposed to legislation, it's a bit of a wash. On the one hand, it would be deeply troubling to see Obama bypass Congress, which is something his predecessor was fond of doing. On the other hand, the courts will be much more likely to strike down unilateral executive action, which could result in some very favorable case law. Part of me suspects that the Obama administration may actually be hoping that the courts weigh in and limit what they're allowed to do. To the extent that happens, it provides them with political cover to do the right thing. Of course, such a strategy can also result in court rulings that uphold unilateral exercises of executive power, which is the worst of both worlds.

Whether or not we sympathize with some of the political difficulties the Obama administration faces, it is incumbent upon those of us who care about civil liberties and the rule of law to apply continuous and aggressive pressure on the Obama administration to do the right thing and to live up to the principles they claim to believe in. If there is no political pressure coming from the left on this issue, then the only pressure the administration will feel is demagoguery coming from the right. As discouraged as I've been by recent moves by the Obama administration, I've been encouraged and heartened by the principled criticism being leveled at the administration by people who undoubtedly voted for Obama. This kind of criticism was virtually unheard of during the first few years of the Bush administration, as Republicans rushed to defend every Bush administration decision and policy, no matter how contrary they were to principles they had previously claimed to cherish. Had there been more principled criticism of the Bush administration from the right, it would have been much harder for them to get away with much of what they did.

Where Did the Emails Come From?

noreply@blogger.com (A.L.) — Thu, 25 Jun 2009 02:28:00 +0000

(updated below--mystery apparently solved)

There's a lot of discussion tonight, on cable news and the blogs, about the embarrassing personal emails between Governor Sanford and his mistress. The emails were published by the State newspaper, which has apparently had them in its possession since December. The question I don't see anyone asking, though, is how these emails came to be in the possession of the newspaper.

To her credit, Rachel Maddow did ask that question tonight, one of the reporters at the paper said that the emails had been provided to the paper by an anonymous tipster, and she implied that they had been provided independently to several different reporters since December. Given the unusually bold criticism of the Governor from many other South Carolina politicians over the last few days, including the Republican Lieutenant Governor, my guess is that the reporters at the State were not the only ones who were sent copies of those emails. Someone was clearly interested in blowing the whistle on Sanford.

But how would someone have obtained these emails? These were highly personal emails between Sanford and his Argentine mistress, neither of whom is likely to have wanted them published. And if it wasn't one of them, that really only leaves two possibilities: unauthorized access or official interception. The latter is obviously the most troubling possibility, and I hope that someone looks in to this further, if for no other reason than to rule that out.

It's not clear from the story whether Sanford was using a personal web-based email account (like gmail or yahoo) or his official state account. If the former, then I suppose just about anyone determined enough could have hacked into his account by guessing his password, the same way someone broke into Sarah Palin's personal email account during last Fall's presidential campaign. If it was a state account, then there probably needs to be an official investigation.

Whatever the case, it's more than a little problematic to have highly embarrassing personal emails of political leaders falling to the hands of random people. Whoever had these emails seems to have been intent on exposing Sanford, but it's easy to imagine people using emails like this to blackmail politicians. That's never a good situation.

UPDATE: Good to see David Corn is asking the right questions.

UPDATE II: The New York Times seems to have found the source.

Bipartisanship on Health Care Makes No Sense

noreply@blogger.com (A.L.) — Tue, 23 Jun 2009 03:30:00 +0000

Whenever I hear someone call for a "bipartisan solution" to the health care crisis in America, I just want to pull my hair out. It makes absolutely no sense whatsoever. It's like calling for a bipartisan solution to the next presidential election.

Health care policy is a definitional issue in American politics. For as long as I can remember, the Democratic party has fought to increase the government's role in providing health care coverage for Americans while the Republican party has fought to reduce the government's role. The Democrats are responsible for Medicare, Medicaid, and S-CHIP; the Republicans fought all of those initiatives. On a policy level, the Democrats believe that the best health and cost outcomes can be achieved by increasing access and encouraging widespread use of routine and preventative medical care. Republicans, on the other hand, have routinely identified the problem as over-consumption of care. Their proposals to fix the system inevitably involve significant deregulation with the goal of encouraging the use of high-deductible policies to try to discourage personal consumption of health care. Nearly every Democrat (including the blue dogs and "centrists") believes this to be bad policy.

In other words, there is virtually no common ground between the parties. The parties don't even see eye-to-eye regarding basic goals and policy assumptions. So why on earth would anyone believe that there is a bipartisan solution to health care? If one side believes the answer is behind door #1 and the other believes it is behind door #2, the correct answer is never to walk into the wall between the doors. Yet any conceivable "bipartisan solution" to health care would amount to exactly that.

Furthermore, as a simple political matter, it makes no sense to seek Republican support. First, it's a quixotic quest. Putting aside the fact that the Republicans are determined to uniformly oppose any significant Obama initiative, on this particular issue, there are actual principles and core beliefs underlying that opposition. Yes, there is a lot of standard Republican propaganda and demagoguery as well, but beneath all that disinformation is an actual philosophical disagreement. I happen to think that Republicans are dead wrong about health care, but I don't question that their beliefs are genuinely-held.

At the end of the day, no matter how willing the Democrats are to water down their proposal, they are unlikely to get any Republican support. And even if they were able to woo a few Republicans, it would not provide any meaningful political cover. The Democrats would still own the final bill.

Which is fine, because there is virtually no political downside here. The Democratic party is already identified with the issue of health care. It's one of its chief strengths. Despite their reluctance to support anything progressive, the reason red state Democrats like Ben Nelson get elected at all is because of issues like health care, where most people side with the Democrats. And it's not like what's on the table now is particularly radical. We're talking about providing people with a choice, giving them a public health insurance option if they want it. Not only is that idea already wildly popular, but it has virtually no political downside. Republicans and the insurance industry will do their best to demonize such a policy, but at the end of the day, no one is going to be upset that they are being presented with more options, and many people will be immensely thankful for it. Once the dust clears and the bill is passed, there is almost no political risk.

So the goal here should not be bipartisanship. The goal should be come up with the policy that is most likely to be effective and then browbeat every last Democrat in the Senate until they're on board. I don't say that about every issue, but on this one, there is no other sensible option.

Giving Away Your Bargaining Chips

noreply@blogger.com (A.L.) — Fri, 19 Jun 2009 14:00:00 +0000

I'm starting to get very pessimistic about the prospect of meaningful health care reform ever happening. We have a popular Democratic President who was elected less than a year ago with a mandate to reform health care and a very clear plan for doing so. We have large Democratic majorities in both houses, including a soon-to-be 60 seat majority in the Senate. The public is massively in favor of comprehensive health care reform. And yet, the Democrats seem to lack the will to even get a meaningful bill out of committee. Ezra Klein reports that the Senate Finance Committee has now dropped the public option from its bill and scaled back the bill significantly. The new plan is relies on government-seeded health care "co-ops" to provide more options to consumers. Remarkably, the plan still contains a mandate to buy coverage (along with subsidies for those who can't afford the cost).

Ezra concludes that while the new bill is far less than he would have hoped for, it would still incrementally improve the overall health care landscape in this country.

I'm sure that's true, but there's a massive opportunity cost to doing health care reform this way. First, from a political perspective, there will never be a more favorable climate for passing health care reform. The stars are aligned right now. The Democrats control all branches of government and have significant popular support. And with wide scale unemployment and lack of job security, many people are either uninsured or desperate for a system in which they don't have to constantly worry about losing their health care coverage. As time goes by and the next election nears, it will only get harder to pass meaningful reform.

Second, when you try to do health care reform piecemeal, you end up sacrificing the bargaining chips you need to get everyone on board. To take the most obvious example, the public option is incredibly unpopular with insurance companies. They know that the existence of a public option will eat into their profits and force them to be more competitive. Indeed, that's the entire point. On the other hand, insurance companies love the idea of an individual mandate. If everyone has to buy insurance, that means more customers for them, and a bigger risk pool.

By including a mandate but not a public option, the Finance Committee is essentially giving away our biggest bargaining chip with insurance companies. Once a mandate is in place, the insurance companies will have what they want and will simply devote all their lobbying efforts to killing any future attempts to create a public option. It's just bad strategy.

And frankly, it's bad politics as well. Mandates will be easy to demagogue. People don't like being told they have to buy something, even if there are lots of exceptions and subsidies. If the law is ever passed, Republicans will run ads highlighting the fines and penalties in the law for those who don't buy insurance. These attacks will be much easier to defend against if the bill also gives people an inexpensive, reliable public option. People like choices, and a great many of them would prefer the option of being insured by the government, knowing that the government won't deny them coverage because of a pre-existing condition or rescind their policy without warning based on some trivial omission in their application.

Moreover, if you have a mandate without a public option, it means that 100% of the subsidies the government is paying out to help people buy coverage go directly to the insurance companies. This amounts to a massive give-away of taxpayer money. Again, the insurance companies get to have their cake and eat it too. They get a whole bunch of new paying customers and no new competition to keep them honest and control costs.

I really think the Obama administration is being too cautious on this. They need to take the helm and really, forcefully make the case for the inclusion of a public option. If the public option doesn't happen now, it's not going to happen.

The Oblivious Partisan

noreply@blogger.com (A.L.) — Thu, 18 Jun 2009 23:59:00 +0000

Partisanship is a funny thing. Most of us who care about politics are guilty of it to greater or lesser degrees. Even those of us who make a real effort to be fair-minded have a natural tendency to give the benefit of the doubt to those we consider to be on "our side" and to be quick to criticize those on the "other side." I know I'm guilty of this at times.

On the far extreme, though, there are people like Karl Rove, who are willing to make any argument they perceive to be in their immediate partisan advantage, without any regard for consistency. These people are shameless, but they know it.

Then there are people like Victor Davis Hanson of the National Review, who is relentlessly partisan, but also obsessed with pointing out how partisan he believes everyone else is. It's truly bizarre. In this post, for instance, Hanson finally gets around to addressing the people who have been critical of his stream of cynical posts this week criticizing President Obama's handling of the situation in Iran. He writes:

It is quite amazing to see the various, sometimes conservative, explanations that most liberal (including some rather extreme leftist) pundits have suddenly advanced to support the president's mostly do-nothing, say-nothing policy on Iraq [sic]: Mousavi is no different really from Ahmadinejad; our distaste would only empower the government; the resistance does not want or need the American albatross; we should have learned our lesson from 1953, or from Iraq, or from (fill in the blanks); it is such a relief to have a calm president rather than a President Bush shouting about freedom in the hearts of everyone; we can't do anything anyway; "Bush did it" and tarnished the American brand anyway . . .

Two reactions: (1) I doubt such supportive arguments would be now advanced should a President McCain have urged similar realpolitik; (2) Should Obama have come out a few days ago with ringing endorsements for those who wish free and fair elections, and had he given a Reaganesque embrace of the dissidents' bravery and idealism, I doubt we would be reading any of what we read today.

In other words, we are in an age of ipse dixit. And that is all ye need to know.

There is no doubt some truth to Hanson's counterfactuals. If a President McCain was reacting to the Iran situation the way President Obama is now (which wouldn't happen), there would undoubtedly be some Democrats and liberals who would try to score some cheap political points by criticizing his subdued response. Similarly, had President Obama publicly embraced the Iranian dissidents (which he's too smart to do), many Democrats would undoubtedly have come to his defense.

But here's something else I know with every fiber of my being. If a President McCain was acting the way Obama is right now, Victor Davis Hanson--and every last one of his colleagues at the National Review--would be lavishing praise upon him for his intelligent and pitch perfect response to the situation. And if President Obama had rushed to publicly embrace the dissidents, Victor Davis Hanson would have already cranked out ten posts, all of them dripping with condescension and scorn, criticizing Obama for his naivete and failure to understand the dynamics of the situation. And every last one of his colleagues would be piling on.

Is Hanson really so lacking in self-awareness that he doesn't see this? Is he really so blind to the forces of partisanship that drive him? At least Karl Rove doesn't waste everyone's time with this kind of self-delusional nonsense.

What Kind of Meddling Do They Want?

noreply@blogger.com (A.L.) — Thu, 18 Jun 2009 03:49:00 +0000

Over at the National Review, Michael Ledeen implores President Obama to intervene in the Iranian situation:

You're going to be accused of meddling anyway, since out there in the real world you are believed to be the leader of the forces of freedom and democracy. So stop pretending to be a sweet innocent, and get in there and fight for people who are dying in the name of our values, and who want to be part of our world.

There are so many things wrong with these two sentences. First, what sort of meddling does Ledeen have in mind? Other than making a strong public statement (one that would in all likelihood not be welcomed by or helpful to the protesters), what does Ledeen think Obama should be doing? Does he think we should literally "get in there and fight"? If not, what exactly is he calling for here?

Secondly, I think the protesters would take issue with the suggestion that they are doing what they're doing "in the name of our values." Mousavi and his followers have aggressively and shrewdly taken up the mantles of both Iranian nationalism and Islam. They're working "within the narrative" as publius aptly puts it. Indeed, this is precisely why they aren't asking for the United States to jump into the fray. Their internal credibility depends in large part on framing this debate as being about Iranian values, about Muslim values. It takes a special sort of myopia and nationalistic narcissism to see this as being in any way about the United States.

I have no doubt that the Obama administration is doing whatever it can, quietly and behind the scenes, to aid the reformers (such as their request to Twitter the other night to delay scheduled maintenance). But jumping into the fray publicly would so obviously be counterproductive that you really have to wonder whether conservatives want the reformers to succeed. It strikes me as bizarre, too, that conservatives are suddenly willing to ascribe so much magical power to Obama's words, as if a public show of support would somehow inspire the Iranian reformers to double their efforts. How is that belief at all consistent with the relentless criticism from conservatives of Obama's Cairo speech? Has Obama suddenly developed new powers of persuasion and inspiration that conservatives all believed he was lacking a few weeks ago? Can he now will the Iranian Mullahs into submission by the sheer power of his eloquence?

I give up. These guys aren't even trying to make sense.

Iran is not Poland

noreply@blogger.com (A.L.) — Wed, 17 Jun 2009 03:40:00 +0000

(updated below--twice)

I know I shouldn't be surprised by it, but the profoundly ignorant criticism emanating from conservatives today over President Obama's handling of events in Iran is infuriating. Take, for example, this deeply oblivious and embarrassingly partisan post by Ed Morrissey. Morrissey compares Obama's reaction to current events in Iran to President Reagan's reaction to political unrest in Poland in 1981. Morrissey observes that, unlike Obama, Reagan expressed vocal support for the Polish reformers. He concludes:

Reagan took a stand on freedom, where Obama sounds desperate for engagement with the forces of oppression. . . .

It’s the difference between leadership and management. Reagan led, and he inspired the Poles to continue the struggle that eventually helped free half of Europe from iron-fisted domination by the Soviet Union. Obama wants to manage the crisis to keep from having to lead. Big, big difference.

Sorry to step on your hagiography, Ed, but there are some other "big, big differences" that are probably worth pointing out--like, for example, the fact that the current situation in Iran is not even remotely analogous to what happened in Poland. First and most obviously, the government in power in Poland in 1981 was the puppet regime of a foreign power, the Soviet Union. The regime currently in power in Iran is not. That makes a big difference. It creates a completely different dynamic. The puppet regime in Poland couldn't very well accuse the reformers of being the stooges of a foreign power because that's exactly what they themselves were.

Second, and more importantly, Poland and the United States did not have the sort of antagonistic history that Iran and the United States have. Therefore, when Reagan expressed solidarity with the Polish reformers, it didn't undermine them politically. Iran is a totally different story. Iranians still resent the U.S. (and justifiably so) for its role in orchestrating the 1953 coup that removed Iran's democratically elected leader. In the 1980s, the United States actively supported Saddam Hussein's Iraq regime in the Iran-Iraq war, a war in which millions of Iranians were slaughtered. And our last president labeled Iran a charter member of the Axis of Evil. Suffice it to say, politicians in Iran aren't exactly tripping over themselves to secure the coveted United States endorsement. The last thing Mousavi and his supporters want is for the President of the United States to express his solidarity with their cause. That would play right in to Ahmadinejad's hands.

Just about everyone in the world understands this basic reality except American conservatives. At first I thought they were just feigning ignorance and using the situation to try to score cheap political points. I'm sure that's true of many of them. But there are a number of them--and I would put Ed in this category--who appear genuinely oblivious to the basic diplomatic realities of the world. It simply doesn't occur to Ed that Obama is being careful in what he says precisely because he supports the reformers in Iran and does not want to make the situation more difficult for them, which is exactly what would happen in he followed Ed's advice. The notion of American exceptionalism is so deeply ingrained in some of these folks that they are entirely incapable of seeing how others view the United States or how things that United States leaders say come across to foreign audiences. It reminds me of a statement Liz Cheney made last week while criticizing President Obama. She said:

We've now seen several different occasions when [Obama]'s been on the international trips, where he's not willing to say, flat out, 'I believe in American exceptionalism. I believe unequivocally, unapologetically, America is the best nation that ever existed in history, and clearly that exists today.' Instead we've seen him do what we saw him do in the speech in Cairo, which is sort of, 'on one hand this, on the other hand that,' and then attempt to put himself sort of above it all. I think that troubles people.

It apparently hasn't occurred to Cheney that going around the world saying "we're better than you" is not the most effective form of diplomacy. It's the same cultural and historical obliviousness, the same inability to comprehend that people in other countries might have genuinely held grievances with the United States, that leads people like Morrissey to condemn President Obama for failing to express his solidarity with the reformers in Iran--even though such an expression of solidarity is the last thing that those reformers want or need.

UPDATE: Hilzoy and I are apparently on the same wavelength because she wrote virtually the same post and posted it at almost exactly the same time. Weird. Go read her post, too.

UPDATE II: As is often the case on the right, nearly everyone is now trumpeting the same inane criticism. Robert Kagan writes that "Obama objectively ha[s] no use for [Mousavi] or his followers" and that his "goal" now is "to deflate the opposition, not to encourage it." Andy McCarthy writes that what Obama wants is to "overlook this most recent atrocity and go on with business as usual: empowering this terrorist regime at the expense of American national interests and the desperate hopes of Iranians who cannot overthrow the mullahs without our help." Jonah Goldberg cluelessly wonders why Obama seems so indifferent to what's happening in Iran. And in the most laughably incoherent post of all, Victor Davis Hanson all but acknowledges that meddling in the situation in Iran would be counterproductive but then argues that "everyone meddles in everyone else's elections" and therefore it's "shameful" and "embarrassing" that Obama isn't expressing his support for the reformers (in all seriousness, I'm beginning to think there's something really wrong with Hanson; his level of coherence has plummeted dramatically).

I don't know if its a product of extreme partisanship clouding their mental faculties or whether this is all cynical point-scoring, but I find it baffling that anyone who pays any attention to politics or world events could honestly think that there is anyone in the current administration (at the White House, the State Department, the Pentagon, etc.) who isn't rooting for the reformers in Iran. The notion that Obama just wants everything to settle down over there so that he can begin his negotiations with Ahmadinejad is just ludicrous in the extreme. He would infinitely prefer that the current uprising lead to the installment of a more moderate, reformist regime in Iran. That would make one of his most difficult foreign policy tasks a little easier; it would buy him time and political cover to pursue aggressive diplomacy and would make unilateral Israeli military action less likely. Of course he wants the reformers to succeed. He's just smart enough to know that he won't be helping them by publicly expressing his solidarity with their cause.

Obama is by no means a perfect president. Indeed, on issues like gay rights and civil liberties, he has in many ways been disappointing. But I cannot begin to express how grateful I am on days like this that he is president and not someone like John McCain, who, based on his statements yesterday, would have done exactly the wrong thing. I'm also grateful that the morons and hacks at the National Review have absolutely no input into the situation.

The Limits of Solidarity

noreply@blogger.com (A.L.) — Tue, 16 Jun 2009 14:08:00 +0000

Glenn Greenwald points out that many of the same people who are now expressing their solidarity and support for the Iranian people (McCain, Podhoretz, Kristol, etc.) are the same ones who have publicly endorsed plans to bomb the country, plans that would inevitably result in the deaths of many of those same Iranians.

To that I would add that polling in Iran has repeatedly revealed widespread popular support for the country's nuclear program. In this poll, for instance, 84% of Iranians said Iran should have the capacity to enrich uranium and 89% said that the continuation of the nuclear program was important for Iran's economy. In other words, in all likelihood, a large percentage of the Iranians who are out protesting in the streets and seeking reform support the very policy that the Bill Kristols and John Podhoretz of the world believe is sufficient provocation to warrant a massive bombing campaign against their country.

At some point, those advocating for a military action against Iran need to face up to this fundamental contradiction. Bombing that country would, in addition to generating many casualties, significantly strengthen the hand of the hardliners. It would poison public opinion against the West and stifle reform efforts. And on the flipside, if the reformers succeed and the result is a more democratic Iran, there's little reason to think Iran's elected leaders would abandon the country's nuclear program. In functioning democracies, elected leaders tend not to kill programs that are massively popular. To truly embrace democracy in the world, you have to understand that people in other countries will often see things differently than you see them.

I'm glad that events in Iran appear to be humanizing the Iranian people in the minds of many Americans. I hope that memory lasts, because I have a feeling we haven't heard the last from the bomb Iran crowd.

How Not to Respond to Iran

noreply@blogger.com (A.L.) — Mon, 15 Jun 2009 17:09:00 +0000

I don't pretend to know what has happened or what is going to happen in Iran. I am pretty confident, however, that Republican partisans who are attacking the Obama administration for its response to this weekend's events in Iran are trying to score cheap political points at the expense of basic common sense. The worst of this group is Victor Davis Hanson at the National Review. In yet another critical post, he writes:

Obama's past siren calls to quit Iraq, the "optional" war, his snubbing of Maliki, his ahistorical efforts to charm the Islamic Street, and apologies to theocratic Iran while lavishing attention on Ahmadinejad put him on the wrong side of history.

If Obama were wise, he would get out pronto a statement condemning the anti-democratic violence of the Iranian government, and suggesting it follow the Iraq example of free and internationally inspected elections.

At some point, one should see that moral equivalence and multicultural non-judgementalism, however catchy for the moment, are as stupid as they are amoral, and will put the U.S in a foolish, "make it up as we go along" position.

Putting aside the ridiculous nature of Hanson's allegations, he is giving very bad advice here. Obviously no one approves of anti-democratic violence, but the last thing the protesters in Iran need right now is vocal American support. That would only undermine their efforts. As Spencer Ackerman notes, the Obama administration's cautious approach "has the support of Iranian human rights groups, which fear the clerical regime will exploit any perception of U.S. interference to slander the opposition as American puppets — a caustic charge in a nation with a deep memory of U.S. interference in its politics."

Furthermore, what Hanson mocks as a "make it up as we go along" approach could more accurately be described as a "wait until we have more facts" approach. Attempting to intervene in the internal politics of another country (particularly a country like Iran) while events are still very much in flux and we don't have a clear understanding of the basic facts is just a very reckless and ill-considered idea. It's the kind of thing that is likely to do more harm than good. For once, let's try to approach a serious issue in a serious way and not instantly reduce everything to petty partisan point scoring. This isn't about us.

Obama Administration Mirandizes Terrorists (Just Like Bush Administration Did)

noreply@blogger.com (A.L.) — Thu, 11 Jun 2009 02:41:00 +0000

Conservatives are hyperventilating tonight over a report by Stephen Hayes of the Weekly Standard that the FBI has begun giving Miranda warnings to high value detainees being held at detention facilities in Afghanistan. John Hinderaker of Powerline, for instance, writes that this is "a real scandal (as opposed to a faux "scandal" like waterboarding)."

Guess what, though. This "scandalous" policy actually began during the Bush administration. One of the worst mistakes the Bush administration made was paying absolutely no attention in the early days to building cases against the people it detained. Evidence was improperly collected or not collected at all. Statements were elicited through torture and other coercive means. So when the Bush administration later decided that it wanted to try its high-value detainees, it had virtually no evidence to work with.

So to build cases for trial, the Bush administration sent in FBI "clean teams" to re-interrogate suspects without reference to prior statements. Here's what the Washington Post reported on February 12, 2008:

The Bush administration announced yesterday that it intends to bring capital murder charges against half a dozen men allegedly linked to the Sept. 11, 2001, terrorist attacks, based partly on information the men disclosed to FBI and military questioners without the use of coercive interrogation tactics....

FBI and military interrogators who began work with the suspects in late 2006 called themselves the "Clean Team" and set as their goal the collection of virtually the same information the CIA had obtained from five of the six through duress at secret prisons.

To ensure that the data would not be tainted by allegations of torture or illegal coercion, the FBI and military team won the suspects' trust over the past 16 months by using time-tested rapport-building techniques, the officials said....

Officials said most of the detainees talked to FBI and military interrogators, some for days, others for months, while one or two rebuffed them. The men were read rights similar to a standard U.S. Miranda warning, and officials designed the program to get to the information the CIA already had gleaned by using waterboarding, which simulates drowning, and other techniques such as sleep deprivation, forced standing and the use of extreme temperatures.

None of this is at all surprising. Reading someone Miranda warnings doesn't bestow upon them any rights that they don't already have. It merely ensures that any statements made thereafter will be admissible should you ever want to use them in court. So why not read them? It can't hurt. Even the Bush administration eventually realized this.

UPDATE: Greg Sargent gets a statement from the Obama DOJ:

But Justice spokesperson Dean Boyd emails our reporter, Amanda Erickson, that while some of this has been going on, there’s been no overall policy change. He says:
“There has been no policy change and nor blanket instruction issued for FBI agents to Mirandize detainees overseas. While there have been specific cases in which FBI agents have Mirandized suspects overseas, at both Bagram and in other situations, in order to preserve the quality of evidence obtained, there has been no overall policy change with respect to detainees.”

This makes complete sense. If you know you may want to prosecute someone eventually, it's malpractice not to mirandize them. It's a very simple measure that helps preserve evidence. I'm sure its standard FBI practice and has been for decades, including during the Bush years.

UPDATE II: Spencer Ackerman reports on a press conference this morning with General Petraeus:

A Fox News reporter asks about a Weekly Standard report that detainees were getting read Miranda rights. Petraeus says he has “No concerns at all. This is the FBI doing what the FBI does. … The real rumor yesterday is whether our forces were reading Miranda rights to detainees and the answer to that is no.” Sorry, Steve Hayes.

So that confirms everything I wrote above. Troops aren't reading Miranda warnings to people they capture. FBI investigative teams are doing that when they interview suspects, as is standard FBI protocol. This is what the FBI always does. Because it would be irresponsible not to.

Freedom Isn't a Joke

noreply@blogger.com (A.L.) — Wed, 10 Jun 2009 14:31:00 +0000

Conservative blogs are all mocking the Obama administration's reported plan to resettle most of the 17 Uighur detainees currently being held at Guantanamo Bay to the island nation of Palau. If you read their posts, there's a disturbing lack of appreciation of the most important facts in this story. These men have nothing to do with al Qaeda. They are people who were turned over to the U.S. by bounty hunters and were subsequently declared, by the Bush administration, not to be enemy combatants. We, as a country, have no legal or moral basis for holding them at all. And yet they've been imprisoned in isolation for over seven years.

The reason these men have not yet been released is because the U.S. fears that if they are returned to China they will be tortured or killed, and most other governments either fear that accepting these detainees will anger China or that the issue will be demagogued by domestic political opponents. So these men simply rot away in prison, deprived of their freedom for no reason.

That the plight of these men elicits precisely zero sympathy (indeed, it provokes laughter) from most supposedly freedom-loving conservatives in this country underscores the extent to which many conservatives have managed to dehumanize in their own minds the many foreigners whose lives are impacted by our policies. As Jonah Goldberg put it this morning in a post entitled "Enemy Combatants as Toxic Waste":

The more I think about it, the more the enemy combatant "problem" can be understood like a toxic waste issue (and, no, I'm not trying to dehumanize these fairly inhuman people — they do that just fine on their own).

Jonah's right that feckless politicians in this country are treating Guantanamo detainees like toxic waste, but he doesn't seem at all disturbed by this fact and has no problem casually describing all the detainees as "fairly inhuman people."

This is not a joke. These are real people. And many of them have been imprisoned without justification for the better part of a decade. If the Obama administration has managed to find a way to restore their freedom, that plan should be praised, not mocked.

Palin = Fail

noreply@blogger.com (A.L.) — Wed, 10 Jun 2009 02:53:00 +0000

Via Mudflats, this is the person who was almost Vice President:

Hannity: …The price of oil is going up again. It’s not quite at $140 a barrel, but it’s on its way up to $70 and $80…

Palin: Yeah, well and I thank God it’s not at $140. You know people say, “Hey, Alaska! 85% of your state budget is based on the price of a barrel of oil. Aren’t you glad the price is going up?” I say, “No!” The fewer dollars that the state of Alaska government has, the fewer dollars we spend. And that’s good for our families and for the private sector.

This may be the stupidest thing I've ever heard a politician say, and it so beautifully illustrates the level of Republican intellectual decay that Palin represents. You can see what's going on here. She's memorized the talking point (government spending = bad) but doesn't understand the argument underlying it. She knows the punchline but not the joke.

Republican dogma holds that government spending is bad because, in order to pay for it, you have to raise taxes, and it's generally better and more productive to leave that money in private hands. In other words, even Republicans don't believe that government revenue itself is bad; their issue is with the source of revenue, which is almost always taxation.

But the question that Palin was asked had nothing to do with taxation. If the price of oil goes up, Alaska gets a revenue windfall. Palin could simply pass that extra money directly to the people of Alaska. That's the equivalent of a tax cut for everyone in her state.

By Palin's logic, Alaska should drastically cut back on the production of oil in the state. After all, 85% of the state's revenue comes from oil production and revenue is bad. The fewer dollars the state has, the fewer it will spend and that's apparently "good for our families and good for the private sector."

Remember, this is the person John McCain selected to be Vice President of the United States.

Whelan Apologizes: Good for Him

noreply@blogger.com (A.L.) — Tue, 09 Jun 2009 04:46:00 +0000

Ed Whelan just wrote the following over at The Corner:

On reflection, I now realize that, completely apart from any debate over our respective rights and completely apart from our competing views on the merits of pseudonymous blogging, I have been uncharitable in my conduct towards the blogger who has used the pseudonym Publius. Earlier this evening, I sent him an e-mail setting forth my apology for my uncharitable conduct. As I stated in that e-mail, I realize that, unfortunately, it is impossible for me to undo my ill-considered disclosure of his identity. For that reason, I recognize that Publius may understandably regard my apology as inadequate.

Credit where credit is due. It took a while, but this is an actual apology. And given the size of the hole he had already dug for himself on this issue, I'm sure it wasn't easy for Whelan to write this. Though, as he acknowledges, this apology doesn't do much for publius, it is nevertheless important and welcome. By acknowledging that he should not have done what he did, Whelan sets a helpful precedent and makes it less likely that someone else will do the same thing in the future. That's important. This episode had the potential to create a chilling effect in the blogosphere, to discourage people in certain lines of employment from participating. But I think the near universal condemnation of Whelan's conduct, coupled with his apology, may actually end up having the opposite effect. I think this episode goes a long way toward officially ratifying one of the most important unwritten rules of online ethics, i.e., that a person's decision to write under a pseudonym should be respected barring compelling reasons not to do so. And retaliating against criticism is not such a reason. To the extent that rule is widely understood and acknowledged, it will encourage greater participation in online politics and result in a greater variety of voices being heard.

It's Okay to Use a Pseudonym, But Only if You're Important

noreply@blogger.com (A.L.) — Mon, 08 Jun 2009 15:58:00 +0000

Over at National Review today, various writers are attempting to defend the indefensible, the decision by their colleague, Ed Whelan, to retaliate at a critic by publishing his identity. Whelan's childish behavior was almost universally condemned yesterday by writers from across the political spectrum. But because he's a fixture at the National Review, his colleagues are trying--not very successfully--to defend his conduct.

My favorite defense so far is this one from Jonah Goldberg. He quotes a reader email that asks: "If it's cowardly to blog anonymously, were Madison, Hamilton, and Jay cowards for publishing the Federalist Papers under the pseudonym 'Publius'?" Goldberg then responds:

Answer: No. Madison, Hamilton and Jay weren't amateur pundits. Seems like a pretty big category error.

After posting this, Goldberg apparently got a number of emails pointing out that Madison, Hamilton, and Jay were in fact "amateur pundits" by any reasonable definition. So he wrote an update to clarify his "larger and more important point":

Madison, Hamilton and Jay were anonymous not because they wanted opine [sic] on the news of the day for fun. They were anonymous because they were heroically successful revolutionaries trying to secure a republic and a constitution. Whatever the merits of this Blevins guy, he ain't Madison, Hamilton or Jay, even if he does call himself Publius. My point was the comparison is silly, and my point stands.

I see, so apparently the way we should determine whether writing under a pseudonym is appropriate is by looking at the actual identity of the writer and judging whether or not that person is important enough to warrant the privilege. Is it possible to make a dumber, less coherent argument?

The whole point of pseudonymous writing is that people don't know who the writer is. They have to judge the writing on its merits, not on the credentials of the writer. That was precisely why Madison, Hamilton, and Jay chose to use a pseudonym. They wanted their ideas to be judged separately from any opinions people had about them personally. If they wanted to cash in on their reputations as "heroically successful revolutionaries," they would have signed their own names to what they were writing.

The "category" distinction that Goldberg is trying to draw, between people whose opinions matter and those whose opinions do not, is the very distinction that the use of pseudonymity is meant to eliminate.

Secondly, the suggestion that someone like Publius' contribution to the general political dialogue in this country is insignificant because he is simply "opin[ing] on the news of the day for fun" is pretty insulting. Publius, like most political bloggers, is attempting to engage and influence the national discussion on those issues he chooses to write about. That's absolutely no different than what Goldberg does (except for the quality of writing and analysis being much higher). And though he has to compete with a great many more voices due to advances in technology, what this Publius was doing is no different in nature from what Madison, Hamilton, and Jay attempted to do with the same pseudonym two hundred years ago. With the hindsight of history, we now know who the original "publius" was and the significance of his (their) writings. But there's no way to apply a "significance" test to the present. There's no way to pick and choose who is worthy enough to write under a pseudonym (because we don't know who they are!). And without knowing the future, there's no way to fairly or reliably judge the relative significance of people's writings.

You either have a political environment in which it is possible to influence the political debate through pseudonymous writing (as was the case in the post-revolutionary period) or you don't. Those are the only two options. And when thin-skinned people like Whelan decide to publish bloggers identities for no good reason, they're pushing us toward the latter.

As an aside, I find it particularly ironic that Jonah Goldberg of all people is mocking someone as an "amateur" because he chose to write under a pseudonym and let his writing do the talking. Goldberg, after all, is someone who has been able to make a living as a professional writer due in no small part to his family name (he's the son of Lucianne Goldberg). Would Goldberg have been nearly as successful if he had chosen to write under a pseudonym and was forced to build a following based solely on the quality and persuasiveness of his prose? Who knows. I do know, however, that there are any number of pseudonymous bloggers (on the right, left, and center) who contribute as much or more to the overall political dialogue in this country than Goldberg does.

Ed Whelan Completes His Descent into Hackery

noreply@blogger.com (A.L.) — Sun, 07 Jun 2009 02:36:00 +0000

I've been debating all day whether or not to respond to this act of astounding immaturity and intellectual cowardice. On the one hand, this "outing" hits pretty close to home. In addition to being a long time reader and admirer of Publius' writing, it was my post (quoted by Publius) that seems to have gotten under Whelan's skin and caused him to lash out. On the other hand, writing about this only draws more attention to it, which is the last thing I want to do. In light of the fact that Publius has himself now written a post about this, though, I feel more comfortable addressing the subject here.

To quickly recap, I wrote a short post about Whelan a few weeks ago that described his basic M.O.:

This is Whelan's role in the conservative world, his niche. He's the guy Republicans look to when they need to discredit a Democratic legal or judicial nominee. He pores over their record, finds some trivial fact that, when distorted and taken totally out of context, makes that person look like some sort of extremist. Whelan knows this is what he's doing. It's willful. He's essentially a legal hitman, someone who provides the "expert" opinion that the right wing echo chamber then uses as the basis of its attack campaign.

Andrew Sullivan linked to the post at the time, which prompted Whelan to write a sputtering, angry retort. Clearly the guy is very thin-skinned. Meanwhile, in a much more thoughtful series of posts, Publius (who has been blogging at Obsidian Wings for years) has been systematically dismantling a number of Whelan's rather ridiculous attacks on various Obama nominees, Harold Koh in particular. Then, in a post yesterday, Publius highlighted a rather scathing critique of Whelan's latest attack on Sonia Sotomayor by conservative legal blogger Eugene Volokh. Publius ended the post by quoting from my post about Whelan (the passage where I called him a "legal hitman").

Whelan responded by publishing Publius' real identity on the National Review website and sending him an email saying "now who's the hitman, you coward and idiot."

Um, it's still you, Ed, but thanks for proving it.

It's really difficult to put into words just how despicable and childish this behavior is. This is a man who was a Deputy Assistant Attorney General. He's currently the President of the Ethics and Public Policy Center. And he's acting like a six-year-old.

In his post outing Publius, Whelan claims that he is doing the world a service by "exposing an irresponsible anonymous blogger." The entire tone of the post, however, is petty and childish. It's clear that Whelan's only motive is getting back at someone who was critical of him. Moreover, it is difficult to imagine someone who less fits the stereotype of a mud-slinging anonymous blogger than Publius, whose posts are invariably professorial in content and tone. Indeed, if you compare Publius' posts to those that Whelan churns out daily at the National Review, the contrast is rather stark.

Whelan is unquestionably a brilliant man. He graduated near the top of his class at Harvard Law School, was a Supreme Court clerk, and has had a successful career as an attorney. Which is why the jarringly hackish nature of his political writing is so striking. If you go to Bench Memos, the blog he writes at the National Review, and scan down through the posts, you'll see no hint whatsoever of the legal mind we all know that Whelan possesses. Instead, you'll see a series of dumbed-down partisan attacks written by someone who is functioning as a partisan advocate, not as a commentator. Take, for example, the post that drew the attention of Eugene Volokh. In that post, Whelan tries to take a joke Judge Sotomayor once told and turn it into some sort of indictment of her judicial philosophy. Not only is the post utterly clownish in its premise, but Whelan's entire critique is based on the notion that Supreme Court justices shouldn't be pondering the "policy implications" of their decisions, a suggestion that Volokh quickly dismantles. But here's the thing. Whelan was a Supreme Court clerk. He knows that this is a stupid point. He knows all of the justices on the Court, including the conservative ones, explicitly grapple with the policy implications of their decisions in virtually every case. But his goal here is not to provide actual insight into anything. His goal, as always, is to provide political fodder to Republicans. That's what he does.

Another good example is his very next post, where he focuses on a recent statement Sotomayor made (no context provided) where she said she doesn't "know what liberal means." He then attempts to play gotcha by pointing to a 1983 New York Times article which quotes then D.A. Sotomayor as saying "[n]o matter how liberal I am, I’m still outraged by crimes of violence. Regardless of whether I can sympathize with the causes that lead these individuals to do these crimes, the effects are outrageous.” Whelan goes on to explain the earth-shattering significance of two out-of-context statements made a quarter of a century apart that don't really contradict each other anyway. The post then descends into an attack on liberal judges generally. It reads like a Jeff Foxworthy routine ("you know you're a liberal judge if . . . ").

This kind of stuff is Hannity-esque on the political hackery scale. But Whelan knows this. He's too smart not to. And I think that's why he's so thin-skinned. Getting called out on your hackery is tough if you're someone who takes pride in your intelligence. It's embarrassing. So Whelan reacted by lashing out and "outing" one of his most thoughtful and persistent critics. It's school-yard bully kind of stuff. An act of extreme insecurity.

The reality is that if you don't think your work product can withstand the scrutiny of a few anonymous bloggers, then you have no business publishing it. And if your ego can't withstand being criticized by people who write under pseudonyms, then you're far too insecure to be blogging for a living.

But since I doubt Whelan is going anywhere anytime soon, I'm sure we can all look forward to reading about why every judge or lawyer Obama appoints during the next four (or eight) years is, for various reasons, unfit for the job.

Judicial Activism and Selective Incorporation

noreply@blogger.com (A.L.) — Wed, 03 Jun 2009 17:34:00 +0000

Republicans never miss an opportunity to proclaim their disgust for "judicial activism" or claim that judges should "strictly construe" the Constitution, but when you dip even slightly below the surface with respect most constitutional debates, those terms quickly become meaningless. There's no better example of this than the debate over the reach of the Second Amendment.

Lately, Republicans have been criticizing Sonia Sotomayor over her opinion in Maloney v. Cuomo, where she held that, under controlling Supreme Court precedent, the Second Amendment does not apply to state government. This line of criticism was severely undermined yesterday when two of the more well-known conservative judges in the country, Frank Easterbrook and Richard Posner of the Seventh Circuit, issued a ruling agreeing with Sotomayor.

Nevertheless, conservatives insist that Sotomayor's opinion was wrong. And not just wrong but somehow wrong in an "activist" way. As Robert Alt of the National Review puts it, Sotomayor's "grossly adequate treatment of claims makes clear that she was seeking to impose her own policy preferences under the pretext of restraint." That's a brilliantly unfalsifiable accusation, but the true comedy comes in the explanation:

[U]nlike Easterbrook, who may well have ruled contrary to his own personal policy preferences, Sotomayor’s ruling seems to have reinforced them. The question for those reading her Second Amendment case to divine whether she was actually acting with “restraint” or giving short-shrift to claims she disfavored is this: do you honestly believe that Sotomayor would have adhered to old, dismissed, and distinguishable precedent (i.e., precedent interpreting a different clause in the Constitution (Privileges and Immunities) than the claim (selective incorporation through the Due Process clause) raised before her), if the case involved something that evoked her “empathy,” like a question of race or gender? Her own statement that judges are not able to put aside their biases in most cases (and suggesting that it might be a disservice to the country for her to do so) would seem to answer that question.

Shorter Robert Alt: Sotomayor may have reached the exact same conclusion as conservative hero Frank Easterbrook, but her reason for doing so had nothing to do with the law and everything to do with her own activist liberal beliefs. I know this because I can read minds and because Obama once used the word "empathy" in describing the kind of judges he likes.

The further absurdity of this particular criticism is apparent when you look more closely at the legal position that Alt thinks should have prevailed. For those of you who haven't taken constitutional law, the Bill of Rights, as originally interpreted, only applied to the federal government, not the states. Today we take for granted that certain rights, such as the right to free speech under the First Amendment and the right against unreasonable searches and seizures under the Fourth Amendment restrict not only the federal government, but state governments as well. But that's a relatively recent legal development. Beginning in the 1920s, the Supreme Court began holding that various rights from the federal Constitution also applied to the states. The mechanism through which this "selective incorporation" is said to have occurred was the passage of the 14th Amendment in 1868, which prohibited the states from, among things, "depriv[ing] any person of life, liberty, or property, without due process of law." The Supreme Court has held that through this due process clause, some (but not all) of the rights contained in the Bill of Rights were "incorporated" vis-a-vis the states. The right to bear arms is not one of the rights that the Court has held to be incorporated.

So, to summarize, Alt believes that Sotomayor (and Easterbrook and Posner) should have disregarded controlling Supreme Court precedent on this issue and held that the due process clause of the 14th Amendment selectively incorporated an individual right to bear arms under the Second Amendment, thereby invalidating state gun control laws that have been on the books for a long, long time.

All things being equal, this is a defensible constitutional position, but it is beyond ludicrous to defend this position while in the same breath tossing around phrases like "judicial restraint" and "strict constructionism." There is nothing remotely "strict" about the construction of the Constitution underlying the selective incorporation doctrine and there is nothing remotely "restrained" about striking down laws that have been on the books and enforced for many decades.

This whole way of framing the debate over judicial philosophy is ridiculous and bears no relationship at all to the actual political fault lines on key constitutional questions.

Newt Gingrich is a Sad, Pathetic Man

noreply@blogger.com (A.L.) — Wed, 03 Jun 2009 15:50:00 +0000

Newt supposedly deserves praise for "walking back" his accusation that Sonia Sotomayor is a "racist." Please. Gingrich's Human Events column today is a completely incoherent and fact free propaganda piece that would embarrass anyone who has any shred of intellectual integrity.

He takes two of Sotomayor's comments--neither of which are from actual judicial opinions--and quotes them entirely out of context in order to question her impartiality and paint her as a "radical liberal activist." Nowhere in his 1000-word long column, however, does he cite even a single example from Sotomayor's lengthy judicial record in which she either acted in a "radical" way or failed to be impartial. Indeed, his sole evidence that she may be impartial is an off-hand comment President Obama made about judging well before he selected Sotomayor as his nominee. Somehow Obama's empathy comment (which, by the way, merely echoes similar comments made by past Republican presidents) is not only imputed to Sotomayor but defines the very essence of her judicial philosophy.

Moreover, the only Sotomayor case that Gingrich actually cites in his piece--the Ricci case--flatly contradicts the entire thrust of his criticism. Gingrich tells the story of Frank Ricci, a sympathetic plaintiff who was denied a promotion because the test he scored well on was thrown out. In his discussion of the Ricci case, Gingrich makes no mention at all of any relevant precedent or case law. His sole purpose in relating the story is to elicit sympathy from the reader with respect to Ricci's situation. The not-even-subtle point is that Sotomayor was insufficiently empathetic with respect to Ricci. The law itself is irrelevant to Gingrich's point.

Gingrich ends his column--completely oblivious to any internal contradiction--by asking (purely rhetorically, of course) whether Sotomayor is "a radical liberal activist who will cast aside the rule of law in favor of the narrow, divisive politics of race and gender identity?"

Good question! Based on the complete lack of any shred of evidence for any one of these accusations, I'm going to go with "no." It's pathetic that, by the standards of our political discourse, politicians like Gingrich are allowed to make slanderous accusations like this without providing any evidence at all to back them up. Indeed, Gingrich is actually being praised for this column because he ever so slightly walked back his initial slanderous statement that Sotomayor was a "racist."

We're dealing here with a judge who has a decades long public record of judicial decision-making. And from that lengthy record, her opponents have so far produced exactly zero examples of any of the accusations they are leveling at her. Indeed, the examples that have surfaced dispositively contradict those accusations. In a rational world, opponents of a Supreme Court nominee would need to marshal at least some evidence to back up their accusations in order for those accusations to warrant even minimal public discussion. But that's not the world we live in. In our world, any baseless claim made by a disgraced former Republican Speaker of the House must, for reasons that defy all logic, be treated seriously and discussed by serious people. Newt Gingrich is a sad, pathetic man who has done absolutely nothing to justify the attention he receives.

Fox News Sunday

noreply@blogger.com (A.L.) — Sun, 31 May 2009 14:48:00 +0000

Wow, I made the mistake of watching Fox News Sunday this morning, which was an absolute tour de force of wingnut lunacy. The first fair and balanced segment of the show, dealing with the Sotomayor nomination, consisted of Chris Wallace asking ridiculously loaded questions to Republican Lindsay Graham and recent-Republican Arlen Specter. Wallace repeatedly took Sotomayor's 2001 quote completely out of context--as did Graham--and Specter made no effort to correct the record.

Later, in the panel discussion, Brit Hume led off by implying that Sotomayor was an unqualified product of affirmative action. Then Hume, Mara Liasson, Bill Kristol, and Juan Williams all criticized Sotomayor for the 2001 quote while making no attempt to put it in context. Kristol even stated that the rest of the 2001 speech was even worse than the quote everyone was discussing (which is a flat out lie). Kristol then explained that Sotomayor's biggest problem is that her record demonstrates that she has doesn't understand that the judge's role is to be impartial. The only example he cited was the Ricci case, which of course proves the exact opposite, that she's capable of applying the law despite the existence of sympathetic plaintiffs.

As bad as Fox News has always been, it has really fallen off a cliff since the beginning of the Obama presidency. There is really very little daylight at this point between the kind of stuff you get from Rush Limbaugh and the kind of stuff you get on Fox News. And I'm not just talking about the Beck and Hannity clown shows. I'm talking about the shows like Fox News Sunday that, once upon a time, at least pretended to be straight news shows.

The Boies/Olson Lawsuit

noreply@blogger.com (A.L.) — Thu, 28 May 2009 17:00:00 +0000

Bill Araiza at PrawfsBlawg has a interesting post about the Boies/Olson gay marriage lawsuit that was filed in California yesterday. He echoes my thinking on the subject. Though Boies and Olson received a lot of favorable press yesterday, it's not at all clear to me that they're acting either wisely or altruistically in filing this lawsuit.

The groups that have been tirelessly fighting for marriage equality over the last decade have deliberately avoided filing federal lawsuits. They reason, correctly I believe, that the groundwork has not yet been laid for victory at the federal level. They know that the odds of the Supreme Court issuing a Loving v. Virginia type of opinion with respect to gay marriage will be greatly enhanced if, at the time the case is heard, gay marriage is legal in a majority of states and supported by a majority of the population. If the Court rules on the issue before that happens, there's a real risk that it will issue an opinion that sets the cause back, maybe for decades.

So instead of filing federal lawsuits, marriage equality advocates have been patiently pursuing a state-by-state strategy, a strategy that has recently begun to pay real dividends.

By filing this lawsuit, Boies and Olson are throwing a wrench into that strategy. They're taking a very big risk. Some have even suggested that this lawsuit is a cynical ploy to have this issue litigated at the federal level before the time is right. I don't think that's the case. I think Boies and Olson are sincere in their beliefs and want to win. I do think, however, that they are knowingly taking a big risk because they want to be the lawyers whose names are forever attached to the landmark opinion creating marriage equality. They want to be the Thurgood Marshalls of this particular civil rights issue, even though they are latecomers to the cause. In other words, they are grandstanding.

My best guess is that they're gambling that we are nearing a tipping point on gay marriage and they want to be the first lawyers to get their case all the way to the Supreme Court. They're gambling that by the time that happens, the political environment will be ripe for a Loving v. Virginia type of decision. I don't know if that's true. I've written here before that I think we'll see such a decision within ten years. But within 2 to 4? I don't know.

As Professor Araiza puts it, Boies and Olson have "grabbed a baby out of someone else's hands and are running pretty fast with it. I really hope they don't drop it."

UPDATE: In Boies and Olson's defense, they likely also believe that, given their own reputations and skill as Supreme Court advocates--as well as their reputations within the political world--a suit brought by them would stand a better chance of succeeding than one brought by the interest groups that have long been linked to this particular cause. I think that's true, and when this issue eventually does make its way to the Supreme Court, this would be the team I'd want representing the marriage equality side. I just question whether now is the right time to start this train rolling. Like I said, this is a big gamble.

On Sotomayor

noreply@blogger.com (A.L.) — Wed, 27 May 2009 18:40:00 +0000

I'm far too busy at the moment to write much of anything substantive, but I have to say that I'm somewhat shocked by the sheer brazenness of the Republican attacks on Sonia Sotomayor. I expected the standard "I oppose her because she's liberal, not because she's Hispanic" line, but instead nearly all the criticism seems to explicitly revolve around her ethnicity. She's a racist, Newt Gingrich and Rush Limbaugh are telling us. She's an affirmative action mediocrity, says the Weekly Standard.

Putting aside for a moment the deeply offensive and counterfactual nature of these attacks, I'm led to wonder whether the GOP has completely lost its collective mind. If you want to have any hope of ever getting another Hispanic vote, here's a tip: at least pretend that your opposition to Sotomayor has nothing to do with her race.

More importantly, though, take a step back and look at how insane this "identity politics" criticism is. As far as credentials go, Sotomayor is virtually identical to the last Supreme Court nominee, Samuel Alito. They went to the same undergraduate school, Princeton (where Sotomayor graduated summa cum laude). They both went to the nation's top law school. And they've had successful law careers that led to successful tenures as federal Appeals Court judges. But somehow because Sotomayor is of Puerto Rican descent as opposed to Italian descent, she is somehow less qualified. That's nonsensical and insulting on several levels. Moreover, these same conservatives bristle as the suggestion that Clarence Thomas was less qualified than others for the job of Supreme Court Justice. He went to Yale, after all.

As I wrote sarcastically on Twitter earlier, "apparently the only way to avoid 'identity politics' is to pick a white man for every job." There's an assumption in this "identity politics" canard that the only possible justification for choosing someone female or nonwhite is to appease various identity groups. It can't possibly be the case that this person is as well qualified as the various white males that could have been selected. But the reality is that Sonia Sotomayor is as qualified as anyone out there to be on the Supreme Court. She's an experienced and highly regarded federal appellate judge with impressive academic credentials. Whatever qualification threshold there should be for the Supreme Court, she has easily surpassed it. She's not Harriet Miers. Just because someone adds some diversity to the picture doesn't mean that it's coming at the expense of other qualifications.

Cheney's Cowardly, Self-Serving Speech

noreply@blogger.com (A.L.) — Sun, 24 May 2009 02:46:00 +0000

I've been insanely busy this past week (preparing for a trial), so I haven't been able to follow the news as closely as I usually do. I did finally get around to watching Dick Cheney's speech, however, and I couldn't let it go without comment. It may be the least honest, most cowardly, and most obviously self-serving speech that I've ever seen a prominent politician deliver. Let's start with this:

Today, I'm an even freer man. Your kind invitation brings me here as a private citizen - a career in politics behind me, no elections to win or lose, and no favor to seek.

Yes, Cheney is just here to speak his mind. He's not running for office, so what possible motive could he have to lie or distort the truth? Oh yeah, maybe it's relevant that he was the chief architect of all of these illegal policies and therefore has significant personal legal exposure. Other than that, though, his opinion is completely unbiased.

This was the world in which al-Qaeda was seeking nuclear technology, and A. Q. Khan was selling nuclear technology on the black market. We had the anthrax attack from an unknown source. We had the training camps of Afghanistan, and dictators like Saddam Hussein with known ties to Mideast terrorists.

Notice the careful language at the end. Saddam had ties to "Mideast terrorists." As he was making the public case for war with Iraq, Cheney was much less careful in his choice of words, asserting over and over again--based on intelligence he knew was inaccurate--that Saddam had ties with al Qaeda. Now he doesn't have the courage to repeat it. He's essentially conceding here that he misled the nation.

So we're left to draw one of two conclusions - and here is the great dividing line in our current debate over national security. You can look at the facts and conclude that the comprehensive strategy has worked, and therefore needs to be continued as vigilantly as ever. Or you can look at the same set of facts and conclude that 9/11 was a one-off event - coordinated, devastating, but also unique and not sufficient to justify a sustained wartime effort. Whichever conclusion you arrive at, it will shape your entire view of the last seven years, and of the policies necessary to protect America for years to come.

This is such a colossal straw man. You either accept all of his policies or you have learned nothing from 9/11. This is "the great dividing line in our current debate"? Please. Most of the policies Cheney is defending in this speech were rejected by the Bush administration itself years ago. Half of the administration almost resigned in 2004 rather than continue to carry out these policies. Speaking of which:

Our government prevented attacks and saved lives through the Terrorist Surveillance Program, which let us intercept calls and track contacts between al-Qaeda operatives and persons inside the United States. The program was top secret, and for good reason, until the editors of the New York Times got it and put it on the front page. After 9/11, the Times had spent months publishing the pictures and the stories of everyone killed by al-Qaeda on 9/11. Now here was that same newspaper publishing secrets in a way that could only help al-Qaeda. It impressed the Pulitzer committee, but it damn sure didn't serve the interests of our country, or the safety of our people.

Of course Cheney fails to mention why this program was newsworthy in the first place, i.e., because it was blatantly illegal. So illegal that virtually all of the senior officials in the Bush DOJ (as well as the FBI Director) came within hours of resigning in protest over it. They only backed down when Bush sided with them over Cheney. And these were all conservative Republicans who were dedicated to fighting terrorism and were operating in the exact same environment as Dick Cheney. We're talking about John effing Ashcroft, not Dennis Kucinich. That's how bad this was. But apparently the media should just ignore blatantly illegal programs, even when scores of government officials are coming forward, risking prosecution, to blow the whistle on it.

In top secret meetings about enhanced interrogations, I made my own beliefs clear. I was and remain a strong proponent of our enhanced interrogation program. The interrogations were used on hardened terrorists after other efforts failed. They were legal, essential, justified, successful, and the right thing to do. The intelligence officers who questioned the terrorists can be proud of their work and proud of the results, because they prevented the violent death of thousands, if not hundreds of thousands, of innocent people.

We're now up to hundreds of thousands? It keeps going up. By the next speech, torturing people will have saved the space time continuum from rupturing.

Our successors in office have their own views on all of these matters.

Yes, it's only the Obama administration that has different views on this. That's why the Bush administration itself stopped using these techniques years ago.

Some are even demanding that those who recommended and approved the interrogations be prosecuted, in effect treating political disagreements as a punishable offense, and political opponents as criminals. It's hard to imagine a worse precedent, filled with more possibilities for trouble and abuse, than to have an incoming administration criminalize the policy decisions of its predecessors. Apart from doing a serious injustice to intelligence operators and lawyers who deserve far better for their devoted service, the danger here is a loss of focus on national security, and what it requires. I would advise the administration to think very carefully about the course ahead.

Translation: some are suggesting that I should be prosecuted. I don't want to be prosecuted.

Seriously, is it possible to give a more self-serving speech? And somehow prosecuting people for violating the law will lead to "trouble and abuse"? You know what also leads to trouble and abuse? Allowing people to violate the law and abuse their power without accountability.

In public discussion of these matters, there has been a strange and sometimes willful attempt to conflate what happened at Abu Ghraib prison with the top secret program of enhanced interrogations. At Abu Ghraib, a few sadistic prison guards abused inmates in violation of American law, military regulations, and simple decency. For the harm they did, to Iraqi prisoners and to America's cause, they deserved and received Army justice. And it takes a deeply unfair cast of mind to equate the disgraces of Abu Ghraib with the lawful, skillful, and entirely honorable work of CIA personnel trained to deal with a few malevolent men.

This is, by far, the most cowardly thing I've ever heard a politician say. There is absolutely no question that there is a straight line between the techniques Cheney authorized and what happened at Abu Ghraib. This has been documented over and over again by numerous investigations. The grunts at Abu Ghraib didn't just conjure up out of their imaginations the abusive techniques that they used on Iraqi prisoners. Those were the very same techniques that the OLC signed off on at Cheney's request. Whether or not Cheney intended these techniques to migrate to Iraq, they did, and that outcome was completely predictable. The simple truth is that Abu Ghraib would never have happened but for Cheney's actions. So for him to pass off all responsibility and pretend that there's no relationship between his interrogation program and what happened at Abu Ghraib is unbelievably cowardly. Those "malevolent men" were doing exactly the same things that Cheney is now defending.

We know the difference in this country between justice and vengeance. Intelligence officers were not trying to get terrorists to confess to past killings; they were trying to prevent future killings. From the beginning of the program, there was only one focused and all-important purpose. We sought, and we in fact obtained, specific information on terrorist plans.

Except when they were trying to get people to confess to past links between al Qaeda and Iraq for purely political purposes.

Behind the overwrought reaction to enhanced interrogations is a broader misconception about the threats that still face our country. You can sense the problem in the emergence of euphemisms that strive to put an imaginary distance between the American people and the terrorist enemy. Apparently using the term "war" where terrorists are concerned is starting to feel a bit dated. So henceforth we're advised by the administration to think of the fight against terrorists as, quote, "Overseas contingency operations." In the event of another terrorist attack on America, the Homeland Security Department assures us it will be ready for this, quote, "man-made disaster" - never mind that the whole Department was created for the purpose of protecting Americans from terrorist attack.

This from a man who has, throughout this same speech, repeatedly referred to "enhanced interrogation techniques." Good lord.

Attorney General Holder and others have admitted that the United States will be compelled to accept a number of the terrorists here, in the homeland, and it has even been suggested US taxpayer dollars will be used to support them. On this one, I find myself in complete agreement with many in the President's own party. Unsure how to explain to their constituents why terrorists might soon be relocating into their states, these Democrats chose instead to strip funding for such a move out of the most recent war supplemental.

Thanks, Harry Reid. Also, I'm curious who Cheney thinks pays for Guantanamo if not the U.S. taxpayers.

Another term out there that slipped into the discussion is the notion that American interrogation practices were a "recruitment tool" for the enemy. On this theory, by the tough questioning of killers, we have supposedly fallen short of our own values. This recruitment-tool theory has become something of a mantra lately, including from the President himself. And after a familiar fashion, it excuses the violent and blames America for the evil that others do. It's another version of that same old refrain from the Left, "We brought it on ourselves."

Of course, earlier in the speech, Cheney said that Obama's decision to withhold publication of prisoner abuse photos was the right decision, implicitly because releasing them would turn them into a "recruitment tool" for terrorists. Indeed, virtually every Republican has been explicitly making this argument with respect to those photos. So apparently photos of abuse can be a recruitment tool, but it's ridiculous to suggest that actually abusing people might have a similar effect.

I've gone on long enough. So has Cheney. He's a coward and liar and he doesn't deserve the attention.

Conservatives Lap Up Credit Card Industry Propaganda

noreply@blogger.com (A.L.) — Tue, 19 May 2009 17:33:00 +0000

The New York Times reports that, in response to proposed legislation to curb predatory practices by credit card companies, the companies are likely to seek more revenue from customers who pay their bills on time:

Banks are expected to look at reviving annual fees, curtailing cash-back and other rewards programs and charging interest immediately on a purchase instead of allowing a grace period of weeks, according to bank officials and trade groups.

“It will be a different business,” said Edward L. Yingling, the chief executive of the American Bankers Association, which has been lobbying Congress for more lenient legislation on behalf of the nation’s biggest banks. “Those that manage their credit well will in some degree subsidize those that have credit problems.”

Conservative and libertarian bloggers have, unsurprisingly, latched on to this bit of credit card industry propaganda as further evidence that the Democrats want to punish responsible people in order to subsidize irresponsible people (see clueless rants here, here, and here).

Had they read the rest of the article, however (or given this five seconds of thought), they'd have realized that the opposite is actually true, and has been for a long time. Responsible people like me, who pay our credit cards on time, have long been getting a free ride. We don't contribute to the bottom lines of these companies. We pay nothing, but we get rewards, incredible convenience, and the equivalent of a rolling interest free loan every month. It's a sweet deal. As the article notes, there's a term for people like us within the credit card industry: "deadbeats."

The reason we get this sweet deal is because credit card companies make most of their revenues from their loan sharking activities. Their business model is to keep extending credit to people in the hopes that they will eventually overextend themselves, at which point they will get stuck paying exorbitant interest rates every month and find themselves unable to make any headway on their balances. In other words, under the current system, those who have fallen behind on their payments subsidize us.

It didn't use to be that way. People used to pay annual fees for the privilege of having a credit card. The free ride that many customers now get is a result of a predatory business model made possible by the relaxing of regulation. And that business model is ultimately not good for society. It's a big part of the reason we're in our current economic mess.

It's funny to me that self-proclaimed market enthusiasts would assume that "responsible" card holders have some sort of right to a free lunch. Just because you're getting a free lunch right now doesn't mean that you deserve one. If you want a service, you should be willing to pay for it, not expect to be subsidized by the victimization of others, particularly when such a system ultimately hurts everyone.

UPDATE: In case it's not clear from my post (and judging from the comments so far, it isn't), allow me to make a few additional points. First, I'm well aware that credit card companies make money off of every transaction. Thus, even if I make all my payments on time and pay nothing for my card, I'm still making some money for the card company by using the card. This is beside the point, though. Either those fees are significant enough to warrant giving free cards to the "responsible" crowd (in which case, nothing will change) or they are not (in which case, such customers will be asked to pay more, in one form or another). Either way, it doesn't change the fact that 70% of credit card industry revenue comes from interest payments and, thus, those customers are subsidizing everyone else through the exorbitant rates they're paying.

Second, as the title of this post should have made clear, I think most of this is just credit card company propaganda. I don't, for instance, believe for one second that any companies will start charging instant interest on purchasers. Any company that did that would instantly lose all of their customers to their competitors. I think that, at worst, responsible cardholders may be forced to pay small annual fees, like they used to.

Gore vs. Cheney

noreply@blogger.com (A.L.) — Sat, 16 May 2009 03:33:00 +0000

Victor Davis Hanson, the National Review's most partisan polemicist (and that says a lot), thinks that he's spotted some hypocrisy:

A once-vein-bulging Al Gore who barnstormed the country slurring President Bush by calling him a liar now seems baffled about the precedent he set of a vice president (albeit now much more politely in the case of Cheney) questioning the policy of the current president. . . .

The problem is that between 2003-2008 there was such hysterical antagonism to Bush that the combatants never worried about the often vicious means they used to achieve their supposedly lofty ends, and so now, finding themselves in a position of responsibility, are infuriated that anyone, well, would even conceive of playing hardball as they once did.

The striking thing about the sudden wounded-fawn Democratic syndrome is that Cheney is far milder than Gore was that the CIA is not the firebrand Pelosi has been, and Bush has been silent about Obama in a way that even Clinton was not about Bush.

Even by partisan hack standards, this is a pretty weak argument. Notice the time period Hanson highlights, 2003-2008. Why start in 2003? Maybe that's because Al Gore, the Clintons, and virtually everyone else gave Bush a pass for the first two years of his presidency. Gore in particular made a point of not publicly criticizing anything Bush did during that period. And if anyone had the right to criticize Bush, it was the guy who got more votes than him in the 2000 election. The thing that finally caused Gore to break his silence was the insanely stupid and dishonest campaign by the Bush administration to launch a war against Iraq, a country that had nothing to do with 9/11. The reason he spoke out was because no one else had the courage to (oh, and by the way, I think history's vindicated Gore on that one).

And guess what, Gore was completely crucified in the media for having the temerity to question Bush's policy. There were all sorts of hysterical editorials at the time, many by supposed liberals, trashing Gore for his decision to speak up. It was so very undignified. Couldn't Gore just go away and shut up?

But here we are, four months into the Obama presidency, and Cheney is already on every channel telling us how Obama is making us all less safe. And he pretty much gets a pass for it. I haven't seen a single editorial anywhere criticizing Cheney for speaking out. Some have criticized the content of his rants, but no one is telling him to shut up and go home the way they did to Gore. And Cheney is a guy who left office in disgrace (just four months ago!) with an approval rating bordering on the single digits. He's a man who can't leave the country for fear of being charged with war crimes.

But in Victor Davis Hanson's world, Republicans are much more civilized statesmen, not like those viciously partisan Democrats.