Towards A Good Samaritan World

Thursday, October 27, 2005

THE NEXT MIERS DEBATE

The debate about Harriet Miers is not over because all parties have a stake in defining just what precedent was set by the withdrawal.

Michelle Malkin writes that:

Exit strategy hinged on refusal to release privileged White House documents... Whatever. We know the real reasons.


Do we? What is it then? Did the White House cave in to conservatives? Did the Miers nomination fail because it didn't have any constituency of firm supporters, as Josh Marshall argues? Was it that the "wingnuts won," as Kos and Harry Reid claim? Or was Miers just under-qualified?

Republican commentators have typically argued that 1) ideological tests cannot be asked during confirmation hearings, which implies that 2) for better or worse, stealth nominees are a good strategy.

The Roberts nomination followed this script: Roberts was a stealth nominee, with mysterious views but excellent credentials; and he refused to answer questions about his ideology, got confirmed anyway, and in effect won a round of the debate against the Senate's right to test a judge's ideology. If the Miers nomination was shot down because Miers was too unknown and didn't meet conservatives' ideological standards, then the principle of no-ideological-test is shattered.

On the other hand, if the Miers withdrawal was forced by her lack of qualifications, then the Roberts precedent is intact.

To me, it seems that the issue of whether senators should be able to ask judges ideological questions is a process issue. Of course a judge shouldn't judge a case before he hears the facts. But some cases, such as Roe v. Wade, are so famous and important that any judge should already know the facts and-- if they're fit for the Supreme Court-- should pretty well know how he/she would rule. If they do, I don't see why they shouldn't tell the American people. In this case, I'm with the Democrats on the process issues.

Anyway, the next Miers debate is: was the withdrawal of the Miers nomination (1) the shooting down of a stealth nominee qua stealth nominee, that is, for being too obscure or unknown, (2) a successful purge of a nominee for ideological reasons by the conservative right, (3) the rejection of a candidate for a lack of qualifications, (4) the rejection of a candidate for being too close to the president and a potential "obsequious instrument of his pleasure" (to quote the Federalist Papers), (5) the separation-of-powers difficulty that the White House stated as the reason for the withdrawal, namely that the executive's own confidentiality needs prevented them from releasing papers that the Senate needed to see to perform their "advice and consent" role, or (6) something else.

If the Democrats can make the case that the Miers withdrawal was case (1) or case (2), they can claim that the Miers precedent forces a change in the dynamics of the whole confirmation process. For if conservatives can vet nominees ideologically, can't Democrats? And if even conservatives are not comfortable with stealth nominees, by their own president, then surely Democrats have a right to know a nominee's views! I wouldn't mind seeing the Democrats win this argument, but I don't think they can, because conservatives can argue for (4) and (5), or, in a pinch, (3).

If Bush nominates Michael McConnell next (here's hoping) then Democrats will try to blast him on ideological grounds, and we'll have a salutary national debate on judicial philosophy. Like Bork. Maybe we can win it this time. To block McConnell, Democrats could filibuster, and if they do, I hope Republicans will capitulate-- after a few weeks. (What would be really cool is if the Democrats, gambling that moderate Republicans would block the nomination, allow an up-or-down vote, and lose.) If Democrats filibustered McConnell, they'd have to justify why the minority in a democracy should be able to block the will of the majority. Or they'd have to claim that they did represent the majority. Maybe the polls, those slicky-tricky polls that show Bush losing to a nameless Democrat, would come to their aid. Anyway, it would be interesting, and it would serve to democratize the judiciary a bit, which would be a step in the right direction.

Friday, October 14, 2005

"INCOMPETENCE"

T. Bevan of RealClearPolitics writes about "The Myth of Incompetence." Just what I've been thinking for months.

The "incompetence" charge strikes me as cowardly, in that it allows people to be pro-Iraq War while disavowing all the problems and travails that have come with the war (though they're not really all that bad). Maybe that's unfair. Some people really do have the expertise to say "such-and-such should have been done, and X is why the Bush administration should have known it." But very few. The number of people who are actually qualified to judge competence is tiny compared to the number who mouth off about it. And even those few who are really experts could be wrong about the strategy Y and strategy Z that would have worked better. Experts are often wrong.

Saying "incompetence" is a way to bash the administration without having to come up with an alternative position to defend. It's a way for anti-war Democrats to let pro-war Democrats (or independents or whatever) back into the tent. "Yeah, you supported the war, but you supported a competent war, not like this, so we'll forgive you, but we won't forgive Bush."

I made some criticisms of the way the Iraq War has been run in my "Iraq and the Police Principle," over at TCS. But I never made the "incompetence" charge. I argued at the level of ideology:

We didn't break Iraq. Saddam did. He killed a million or more Iraqis, subjected them to ruthless terror, impoverished his country and cut it off from the world. When we invaded, Iraq had nowhere to go but up, and that's where it went. Since the liberation, the Iraqi economy has grown over 50%, refugees have been returning, Iraqis enjoy new freedoms, and a participatory political process is taking shape.

We don't own Iraq in the sense of having to annex it, everyone will agree, but do we own it in the sense of having an obligation to assume the responsibility for, and costs of, its political and economic reconstruction? The notion is incoherent. To "re"-construct implies something that has existed before. But the general features of the Iraq that Americans envision and most Iraqis desire -- constitutional democracy, basic civic freedoms, inter-ethnic peace and justice, engagement with the world, economic opportunity, an equitable division of the proceeds from oil extraction -- have not characterized any past episode of Iraq's history.

We didn't have to apologize to the Iraqis for toppling Saddam. We didn't owe them anything. Maybe we had an opportunity to help, but at what cost? Lots of countries could benefit from massive US economic aid and help suppressing local terrorists; why should they be so lucky? And anyway, what about the national interest?

I am not one of those people who claims that the US should only get involved when its "national interests" are at stake. I don't know what that means, anyway. If our love and admiration for Great Britain played a role in our decision to save it from Hitler, is that wrong? However, there's a certain shrewd Jewish carpenter's son who said, "When ye give alms, let not your left hand know what your right hand is doing," i.e. if you do charity work, be discreet about it. If you put yourself on a pedestal of virtue, people will want to pull you down from it. People are suspicious of self-appointed do-gooders, because charity is often a cloak for darker ends. There is a danger of self-deceit, too. People and nations are not conscious of all of their own motives, and preaching gets in the way of introspection. And being able to give charity implies surplus resources, but when you think you have surplus resources, usually in the medium run you don't, and you should be saving them instead.

After the fall of Saddam's regime, the US had several tangible interests in Iraq: the hunt for WMDs; capturing Saddam and his top brass; making sure the oil kept flowing; capturing terrorists; keeping our military options open, including the possibility of establishing permanent bases, but also of being able to withdraw without embarrassment; not running up the costs of the war; and not getting more US troops killed. Most of these goals would have been facilitated by stability, and the best way to achieve stability was to salvage as much as we could of the old regime.

So why didn't we make a deal with the remnants of the Baathist regime, to secure short-run stability? Why, instead, did we imagine that Iraq was a tabula rasa on which we could write the script for a democratic transition that would inspire a transformation of the Middle East?

The irony is that a cynical deal with the Baathist Party (not the higher-ups of course) and the army would probably have helped the process of Iraq's democratization. Overzealous de-Baathification and disbanding the Iraqi army are now widely seen as two of the occupation's biggest mistakes. Had we left most of the Baathist bureaucrats in place (conditional on their cooperation), and thanked the army for not defending Saddam by leaving them in their barracks and paying them, a Sunni insurgency would probably not have materialized. The Kurds would have been nervous, and the Shiites would have grumbled that things were going to end up the same as under Saddam. But everyone would have wanted to Americans to stay -- the Baathists and Sunnis, for fear of Shia vengeance; the Shiites, for fear of a Baathist revanche -- and an uneasy civil peace would likely have prevailed. Ultimately, it's a given that no mechanism other than elections could plausibly establish our occupation's successor government, particularly since Iraqis wanted democracy anyway (as they bravely proved in the January elections). Democratizing the Iraqi state was never going to be the hard part. Preserving a state worth democratizing was.

For many (this writer included), the Iraq War was a chivalrous endeavor, waged out of generosity towards Iraqi liberty-lovers, many of whose voices have now reached the world through the blogosphere. But we didn't have to say so. If civil peace and democracy in Iraq had not been advertised as war objectives, we would have been more likely to achieve them.


These arguments may or may not be valid. But the complaint against the Bush administration contained in them is not that they did anything incompetently, but that their understanding of principles, of what our obligations were, of the nature of institutional change, was flawed. Competence assumes that both objectives and moral side-constraints are agreed on, and that even without changing those one could have done better. To the extent that that's true, only a smart insider would know it. Citizens can argue ideology. Competence is up to the technocrats.

Thursday, October 13, 2005

GRIDLOCK IS GOOD

Ryan Sager and Peggy Noonan articulate the rising conservative anger with Bush. Then there's Mark Steyn, who hits the mark best as usual: Bush is "Tony Blair with a ranch." By the way, Hugh Hewitt once scoffed at CBS because most of their staff didn't know of Mark Steyn; Hewitt said that that's like a physicist not having heard of Einstein. It's no exaggeration. Steyn is beyond astute; genius is the only word that does him justice. That he is hilarious is almost misleading; it makes you think he's a joker, but the humor is the cloak of a dazzling intellect. His campy, corny phrases are secretly packed with insight.

Tony Blair with a ranch.

Tony Blair drove Laborites crazy. Most of the British disapproved of him, but he still won a third term. That's the position Bush is putting himself in, even if it's not clear what he could gain by it now: he's driving his own party crazy, and the other party hates him too. But the Democrats, like the Tories, are trapped into hating Bush only for partisan reasons, because his policies-- failing to reform Social Security, spending a lot on hurricane relief and this, that and the other, nation-building in Iraq, appointing seemingly moderate judges-- are more or less the same as those that any electable Democratic administration would pursue. Meanwhile, he's alienated most of his base, as Blair alienated Labor, and yet however much they wanted to sack him, they couldn't, because they'd hurt themselves in the process.

To me, this is the story of Bush's low approval rating right now. A lot of people on the left hate Bush, and now a lot of people on the right disapprove of him. That leaves less than 40% who approve of him-- about the proportion of Brits who voted Labor last time. But you couldn't form a majority anti-Bush coalition, because the left-wingers and the right-wingers are angry at Bush for opposite reasons.

But then, Blair's politics were an ingenious method of being a conviction politician on a few issues of key importance-- a centrist otherwise-- amidst the peculiarities of British politics. It's less clear what Bush has to gain by being despised for ideological betrayal, yet at the same time needed, by his base, while being hated by the other side which, however, can only oppose him by backing into suicidal corners. If Republicans had the option of sacking Bush, they wouldn't do it, because they would know they would alienate just enough centrist and/or Bushies to lose power as a result. But they can't sack him anyway, given our constitution. And he can't be re-elected. So it's harder to explain what motivates Bush not to nominate Edith Jones or Michael McConnell to the Supreme Court. If he wants to expand the Republican coalition by holding the center ground, it can no longer be for his benefit; he must have some love of Republican power that goes beyond its usefulness as a vehicle either for himself or for certain ideas of government-- which is interesting.

Or is Bush a conviction politician, like Blair, compromising on everything except a few issues, angering his base in order to thwart resistance to his conviction issues-- like Iraq and immigration?

Well, I don't know, and it might be a waste of time to speculate, but one good thing does occur to me in all this: GRIDLOCK.

Let me explain. Libertarians and conservatives who supported Kerry last year wanted gridlock. They hoped that a Democrat president and a Republican Congress would be so busy battling each other that they wouldn't have time to spend much money. I thought the analysis was fatally flawed. I figured that Congress was selling out small-government principles less efficiently because there was no obvious person to sell out to; put Kerry in power, and he'd bribe Republicans to support them with pork and bring back disastrous Great Society-style big government. If Bush were elected, on the other hand, I was hoping the victory would spark an intra-Republican civil war over the meaning of conservatism.

Gridlock is good, I agree. A certain kind of gridlock, anyway, where the political class is so busy brawling they don't have time to do much damage by legislating and spending and regulating and all that. I thought, counter-intuitively perhaps, that we had better chances of getting the good kind of gridlock with a Republican Congress facing off against a Republican president.

At the moment, I'm anticipating vindication. Hurricane Katrina and Harriet Miers have shattered the Republican coalition. The political scene is all about scandal and rage rather than heroism or populism. The conservative Right, after a turbulent and frustrating period of support for Bush, is shifting into backlash mode again, like in the 1990s. Meanwhile, the economy is growing strongly. The only disadvantage vis-a-vis the 1990s is that gas and commodity prices are high so there's a threat of inflation-- and of course the deficit... but high commodity prices are the result of everyone else growing. In the late 1990s the rest of the world was racked by financial crises, so they couldn't afford to buy commidites are gas, which made things easier on us in some ways, but any humane person should agree that it's better to have strong world economic growth, as now, rather than pay less for our gas. Anyway, we've got nasty backlash politics blasting from the right, a second-term president weakened by scandal, and a growing economy. Back-to-the-future isn't quite here yet, but it's on its way.

Friday, October 07, 2005

E.J. Dionne thinks the right is being hypocritical for blasting Democrats who opposed John Roberts because of his (Catholic) religious faith, then offering Harriet Miers' (evangelical Christian) religious faith as a reason to support her. Good point, but.

First, the right is a diverse group. It's possible that some don't think religious faith should be a criterion, whereas others don't necessarily mind if it is. Dionne is not able to quote the same people objecting to a religious criterion in the case of Roberts and affirming it in the case of Harriet Miers.

Second, it's not clear to me that supporting someone based on their religious faith is relevantly the same as as opposing someone based on their religious faith. If you oppose putting a Catholic on the Supreme Court, you are implicitly semi-disenfranchising Catholics generally. If you support someone for the Supreme Court because she's an evangelical, you're not disenfranchising anyone. Of course, if Buddhist faith, Christian faith, Muslim faith, and Jewish faith, are all counted as criteria in one's favor, those without religious faith will feel they're at a bit of a disadvantage. But that's different from being disenfranchised. At worst, atheists would be in the position of white males in an affirmative-action-ridden culture: they would have to try a little harder, and they might have to watch less-talented non-white-males surpass them, but there would still be room for them to succeed. Maybe it's a bad idea to put atheists in that position (though I don't think there's any danger of it; on the contrary, academia leans very heavily against religious faith at present). But in any case, the right is not necessarily being hypocritical here. They could consistently hold that religion may be a factor in a nominee's favor, but should not be a basis for exclusion.

Tuesday, October 04, 2005

CLEVER LIBERTARIANS AND JUSTICE MIERS

I published another piece at Tech Central Station yesterday: "Why is Government Getting So Big?" Answer: "too-clever-by-half libertarians who vote Democrat deserve much of the blame." In retrospect, there might have been better things to do with my time than write this piece, but I still think the central point of the piece needed delivering, which is that 1) the two-party system, with both parties going for votes in the center, is always frustrating for the base but creates a mostly beneficent equilibrium, with one ironic result that government is bigger when the right is in power, and smaller when the left is in power, not because the parties are hypocrites but because they define "the center" jointly and then the voters elect the right or the left depending on whether the center as defined by the political class is to the right or left of the actual mid-point of voters' preferences, 2) a libertarian who votes Democrat does nothing but encourage the political class to move its guess of where the voters' center is further to the left, and thus make the government bigger.

This is really only an argument against part of the libertarian argument for voting Democrat. If you're a libertarian who cares more about gay marriage or civil liberties than about lower taxes and spending, my argument is in no way responsive to your concerns. I present a model of a country where there is only one political issue, the size of government, but really there are a lot of political issues, I know that.

But it's nice to get the model out there. It could be even be considered slightly humorous, whimsically introducing the "imaginary Democratic Republic of Ruritania." The nice thing about having a big audience like the one at Tech Central Station is that, while I except that 95% of the readers did not find the piece remotely funny, I'll bet there's a quirky few percent out there who couldn't contain their laughter as they looked at the plight of those zany Ruritanian voters... Philosophical and economic models do have an occasional capacity to amuse. It's a bit like those mirrors you sometimes see, that distort you and make you look fat or thin or up-side-down: they're so inaccurate, and yet they contain these strange grains of truth that put a smile on your face.

About the Miers nomination:

1) I was really hoping it would be Michael McConnell, so I was really saddened by the nomination.

2) I don't like it that she's a long-time friend of Bush's, for the same reason that I didn't like it that the son of a former president got nominated to be president: The politics of a republic as great as America should be more meritocratic than those practices imply.

3) If I were a woman, I'd be offended by the politics that require a woman to be nominated, since the lesson it teaches is that women are inherently less capable than men and we have to do favors for them to get them into high office.

4) The fact that Miers is 60-- and thus her life tenure will be shorter than a younger person's might-- is a good thing. It's perverse that presidents deliberately name young people to the Supreme Court. And Bush is expressing confidence in the medium-term prospects of the Republicans: he's saying that he expects Republicans to be in power in 10, 15 or 20 years when Miers retires.

5) On substance issues, I'm on the Republicans' side with respect to judges and law, but on process issues, I'm more sympathetic to Democrats. The need for silence about judges' views before they are seated on the court is beyond perverse. Of course, justices shouldn't pre-judge cases in Senate hearings; but we should look for judges with long and distinguished records so that we can discern their judicial philosophies. I also tend to like the idea of a judicial filibuster: if the public wants conservative judges that badly, let them elect 60 Republicans. So to the extent that Miers' nomination is a canny response to the peculiarities of the process issues, that makes me dislike it more. I'd rather see a big fight, regardless of how it turned out, just for the sake of overturning the perverse process principle that you have to nominate unknowns.

6) On Roe v. Wade, this might be a shrewd move, if Bush knows for certain that Miers would overturn Roe. That's a very strong argument in favor of the nomination. I take the small-d democratic view on Roe: abortion should be up to the people, not decided over the people's heads by judicial fiat. Appointing one or two hacks to the Supreme Court is a price worth paying for overturning that disastrous case. (Abortion would mostly stay legal anyway if it were up to the states, but an undemocratic landmark would be consigned to the dustbin of history.)

7) Miers is an evangelical Christian. I don't know if any other justices are, but certainly this kind of person is extremely under-represented in academic and I believe in the judiciary. This kind of "diversity" is a stronger point in Miers' favor than the fact that she is a woman.

I'm not thrilled by the nomination, but whatever, it might work out for the best.