Brookings: Topics - Executive Branch

Susan Rice: Team Player

Michael E. O'Hanlon — Wed, 05 Jun 2013 10:00:00 -0400

Susan Rice, who President Barack Obama today named his new national security advisor, will do well in her new role. I am confident of that. She will of course face challenges, often on problems where there are no good or easy answers—starting with Syria and Iran. She will be helping a president who is leading a war-weary nation with a nearly trillion dollar deficit and numerous domestic woes that compete for his time and attention, as well as the country’s resources. And the partisan problems in Washington won’t make life any easier.

But in taking on all of this, Rice has a number of strengths. Some are well known—her experience at the United Nations, her expertise on handling Iran and North Korea sanctions issues there (and thus working with Europeans, Russians, Chinese, and others on such problems), her previous service in government. To me, however, one set of strengths stands out as a major and often underappreciated aspect of Rice’s character and personality—the ability to build and lead a team.

I saw this firsthand when Susan led then-Senator Obama’s foreign policy team in 2007 and 2008 during his first campaign for president. I was her colleague down the hall—but also a Hillary supporter, as well as a supporter of the surge in Iraq. So we were not by any stretch of the imagination aligned on all matters.

And that’s one of the reasons my admiration for her efforts grew by the month over that period. Even though Hillary was the juggernaut within the Democratic Party, and the presumed nominee, Susan helped create a network of top-notch foreign policy analysts and advisors to help a freshman senator prepare himself for a severe set of tests in taking on the former first lady and New York senator. Indeed, rather than try to run away from foreign policy, Obama decided to try to make it one of his strengths. I did not agree with him (or with Susan) on every issue, starting with the surge in Iraq. But they were very well prepared, well-disciplined in their messaging, and generally cogent in their worldview. After defeating Hillary, they then took on and defeated a great American, war hero, and extremely impressive senator, John McCain, in the general election.

Much, if not most, of the credit for the Obama operation must go to the candidate himself. But there is no doubt that Rice ran a very tight ship on foreign policy. And while there were some elbows thrown now and again, they were generally within the rules of spirited and vigorous debate. There was little to no impugning of any opponent’s character or motivations—only sharp disagreement on a variety of policy issues. The approach of the Obama team was generally fair and serious.

Because the national security advisor position is largely about making a team serve the president—and the nation—thoughtfully and well, I believe Rice is generally well suited to the task ahead. To be sure, the administration will have to be willing to shake up its previous assumptions and conventional wisdom on issues like Syria, where current policy is largely failing. And challenges such as these will no doubt test Rice in other ways. But her preparedness on a huge range of issues, as well as her ability to coordinate, motivate, and discipline a large and often unruly set of bureaucratic actors, is in my mind quite solid.

I wish Susan well, and I am glad Obama made a choice to name a national security advisor who is well-placed not just to serve the president, but to serve the interests of America as well.

Authors

Michael E. O'Hanlon

Publication: Global Public Square, CNN.com

Image Source: © Jason Reed / Reuters

The Danger of Groupthink in the Obama Administration

Paul R. Pillar — Tue, 26 Feb 2013 00:00:00 -0500

Editor's note: This article was originally published by The National Interest.

David Ignatius has an interesting take on national security decision-making in the Obama administration in the wake of the reshuffle of senior positions taking place during these early weeks of the president's second term. Ignatius perceives certain patterns that he believes reinforce each other in what could be a worrying way. One is that the new team does not have as much “independent power” as such first-term figures as Clinton, Gates, Panetta and Petraeus. Another is that the administration has “centralized national security policy to an unusual extent” in the White House. With a corps of Obama loyalists, the substantive thinking may, Ignatius fears, run too uniformly in the same direction. He concludes his column by stating that “by assembling a team where all the top players are going in the same direction, he [Obama] is perilously close to groupthink.”

We are dealing here with tendencies to which the executive branch of the U.S. government is more vulnerable than many other advanced democracies, where leading political figures with a standing independent of the head of government are more likely to wind up in a cabinet. This is especially true of, but not limited to, coalition governments. Single-party governments in Britain have varied in the degree to which the prime minister exercises control, but generally room is made in the cabinet for those the British call “big beasts”: leading figures in different wings or tendencies in the governing party who are not beholden to the prime minister for the power and standing they have attained.

Ignatius overstates his case in a couple of respects. Although he acknowledges that Obama is “better than most” in handling open debate, he could have gone farther and noted that there have been egregious examples in the past of administrations enforcing a national security orthodoxy, and that the Obama administration does not even come close to these examples. There was Lyndon Johnson in the time of the Vietnam War, when policy was made around the president's Tuesday lunch table and even someone with the stature of the indefatigable Robert McNamara was ejected when he strayed from orthodoxy. Then there was, as the most extreme case, the George W. Bush administration, in which there was no policy process and no internal debate at all in deciding to launch a war in Iraq and in which those who strayed from orthodoxy, ranging from Lawrence Lindsey to Eric Shinseki, were treated mercilessly. Obama's prolonged—to the point of inviting charges of dithering—internal debates on the Afghanistan War were the polar opposite of this.

Ignatius also probably underestimates the contributions that will be made to internal debate by the two most important cabinet members in national security: the secretaries of state and defense. He says John Kerry “has the heft of a former presidential candidate, but he has been a loyal and discreet emissary for Obama and is likely to remain so.” The heft matters, and Kerry certainly qualifies as a big beast. Moreover, the discreet way in which a member of Congress would carry any of the administration's water, as Kerry sometimes did when still a senator, is not necessarily a good indication of the role he will assume in internal debates as secretary of state. As for Chuck Hagel, Ignatius states “he has been damaged by the confirmation process and will need White House cover.” But now that Hagel's nomination finally has been confirmed, what other “cover” will he need? It's not as if he ever will face another confirmation vote in the Senate. It was Hagel's very inclination to flout orthodoxy, to arrive at independent opinions and to voice those opinions freely that led to the fevered opposition to his nomination.

Nevertheless, Ignatius is on to something that is at least a potential hazard for the second Obama term. The key factor is not so much the substantive views that senior appointees bring with them into office. As the cliché goes, a president is entitled to have working for him people who agree with his policies. The issue is instead one of how loyalty—not only to the president, but collective loyalty as part of the president's inner circle—may affect how senior officials express or push views once they are in office.

In this regard it is useful to reflect on the meaning of “groupthink.” The term has come to be used loosely as a synonym for many kinds of conventional wisdom or failure to consider alternatives rigorously. But the father of research on groupthink, the psychologist Irving Janis, meant something narrower and more precise. Groupthink is pathology in decision-making that stems from a desire to preserve harmony and conformity in a small group where bonds of collegiality and mutual loyalty have been forged. It is the negative flip side of whatever are the positive attributes of such bonds. LBJ's Tuesday lunch group was one of the original subjects of Janis's writing.

With this in mind, the second term appointment that becomes even more interesting regarding Ignatius's thesis is that of John Brennan. Ignatius has Brennan well-pegged, including a comment that he “made a reputation throughout his career as a loyal deputy.” One might expand on that by observing that among Brennan's talents—and they are considerable—is a knack for what is often called managing up. Earlier in his career he was a protégé of George Tenet, and during the past four years he appears to have forged a similar relationship with Barack Obama.

One ought to ask what all of this might mean for Brennan's ability and willingness to speak truth not only to power, but to his patron—and to do so especially at politically charged times when his patron may be under pressure or may have other reasons for wanting to move in a particular direction in foreign policy. This is more of a question with Brennan than it would have been with David Petraeus if he were still the CIA director. Petraeus was very conscious of the truth-to-power issue, and more generally of the importance of objectivity, when he was appointed. As he himself observed, on matters relating to Afghanistan he might find himself “grading my own work.” Because the issue was recognized and involved obvious matters such as the Afghanistan War, and because there was nothing even remotely resembling a patron-protégé relationship between Petraeus and Obama, the issue was not destined to be a significant problem. The intimate, cloistered nature of the patronage involved in the Obama-Brennan relationship is something quite different.

Against this backdrop—and given how the Obama administration appears to have signed on to the conventional wisdom about unacceptability of an Iranian nuclear weapon—one ought to look more closely at a troubling line in Brennan's statement submitted to the Senate Select Committee on Intelligence for his confirmation hearing. In listing some of the national security challenges that require “accurate intelligence and prescient analysis from CIA,” the statement said: “And regimes in Tehran and Pyongyang remain bent on pursuing nuclear weapons and intercontinental ballistic missile delivery systems rather than fulfilling their international obligations or even meeting the basic needs of their people.” Two countries, Iran and North Korea, get equated in this statement even though one already has nuclear weapons (and recently conducted its third nuclear test) while the other forswears any intention of building any. There are other related differences as well, including ones having to do with international obligations: North Korea renounced the Nonproliferation Treaty in 2003 and has been a nuclear outlaw for ten years, while Iran is a party to the treaty and conducts its nuclear work under IAEA inspections.

The judgment of the U.S. intelligence community is that Iran has not to date decided to build a nuclear weapon and, as far as the community knows, may never make such a decision. One would think that senators would be making better use of time if, instead of asking for the umpteenth time for still more information about the Benghazi incident, they would ask instead why the nominee to be CIA director, by saying that Tehran is “bent on pursuing nuclear weapons,” disagrees with a publicly pronounced judgment of the intelligence community.

If a crunch comes that is related to this issue, perhaps the rest of the intelligence community will play a beneficial role. I have been quite critical of the intelligence reorganization of 2004 as being a poorly thought-out response to the post-9/11 public appetite to do something visible that could be called “reform.” The rapid turnover in the job of director of national intelligence is a symptom of the problems the reorganization has entailed. The current director, James Clapper, deserves the public's thanks for taking a thankless job and performing it with distinction. But maybe in the face of certain types of personal relationships and certain decision-making patterns, the new arrangement can have some payoffs. If Clapper—who does not figure into Ignatius's discussion of Obama's inner circle—becomes, on Iran or any other issue, a counterweight to any White House-centered groupthink that might emerge in that circle, he will have earned even more thanks.

Authors

Paul R. Pillar

Publication: The National Interest

Image Source: © Jason Reed / Reuters

President Obama’s Second Term: Staffing Challenges and Opportunities

Kathryn Dunn Tenpas — Thu, 14 Feb 2013 00:00:00 -0500

Recent departures of White House Chief of Staff Jack Lew and Senior Adviser David Plouffe have drawn attention to a frequently overlooked aspect of the American presidency – the men and women who work most closely with the president in the Executive Office of the President, writes Kathryn Dunn Tenpas. Though Cabinet secretaries wield significant influence within the administration, no one can deny the influence of White House advisers, many of whom consult with the president on a broader range of issues and, most likely, more frequently than Cabinet members due to their closer proximity. Little is known, however, about the frequency with which these individuals come and go.

This report documents staff turnover rates amongst the president’s “A” team (the top tier of staff in the Executive Office of the President as designated by the National Journal) and compares the Obama team to those of Presidents Reagan, Clinton and Bush. By the end of the first term, 71 percent of President Obama’s “A” team had left their original positions—a rate comparable to his predecessors. As President Obama begins his second term, less than one third of his original team will be occupying their initial positions. To be sure, staff departures affect White House operations – loss of institutional memory, costs imposed when rehiring and orienting the new people, disappearance of networking contacts and relationships on the Hill and in the Washington community – to name a few. Complicating matters further, second terms are never easy as presidents tend to overplay their hand at the start and political capital diminishes rapidly as Congress increasingly perceives the president as a lame duck. This study provides original data documenting staff turnover rates and discusses President Obama’s staffing challenges and opportunities in his final term.

Download the full paper » (PDF)

Downloads

Download the paper

Authors

Kathryn Dunn Tenpas

Image Source: © Reuters Photographer / Reuters

A Suggestion for President Obama’s State of the Union Address

Bill Frenzel — Mon, 11 Feb 2013 00:00:00 -0500

The president’s State of the Union (SOTU) message next Tuesday will tell America much about the next four years.

After his successful 2 year battle over Obamacare, the past two years have seen the legislative process develop into a stalemated cat fight between the president, aided by his party’s majority in the Senate, and the Republican House. The absence of cooperation has prolonged the fiscal crisis and slowed the recovery. The American people were the losers.

The president’s popularity has rebounded nicely from the pre-election lows. He enters his second term in a strong position to lead the Congress out of its warfare mode into a solution-searching mode. The Republican House lacks his popularity, but remains adamantly opposed to many of his programs, especially his budget policies.

The SOTU is not the be-all, nor the end-all, for the president and his programs. It will, however, provide pretty good clues as to how he plans to proceed for the next four years.

If he decides to offer cooperation with the Congress, and a pledge to provide the badly needed persistent presidential leadership on the thorny problems that confront the country today, there is a chance to move the legislative process towards solutions instead of stalemate. Even partial, temporary solutions are better than gridlock.

On the other hand, if he decides to stay on the campaign bus, there will be more trouble ahead. If he directly challenges the House, and demands his programs or none, the public can expect more dreary years of stalemate.

The Republican House is as convinced of the soundness of its positions as is the president of his own. It reacts badly when it thinks it being bullied. If challenged, it has powerful enough weaponry to prolong the current stalemate for at least two, and probably four more years.

Therefore the president would be well advised to be nice to the Congress in the SOTU. He does not have to abandon any of his positions, nor capitulate to the House. He should, instead, offer to work with both houses of Congress to jointly solve the country’s problems. He should start with the easier stuff where the parties have some similarities in position, like immigration, energy, and national security. The hard stuff, like budget policy must be included, but that fight does not have to be the centerpiece of the SOTU.

One area in which little progress has been made in the 1^st term is trade. It is of enormous interest to the House. The President now seems to want both a Trans-Pacific Partnership (TPP) and a Trans-Atlantic Free Trade Agreement (TAFTA). Emphasis on the two proposed trade agreements would be a relatively easy way to attract the House’s attention. It could build a sense of cooperation, and, eventually, win new friends for the President.

Making nice won’t suddenly turn the Capitol into a quivering bowl of comity, but, especially in difficult times, nothing good happens without presidential leadership. Leadership includes more than just a vision of the country’s future. Leadership also includes finding all the ways, however inelegant, of moving toward the goal.

President Reagan was not a centrist type, but he knew how to lead, when to fight, and when to concede. The same may be said for President Clinton. President Obama can choose the hard way and fight all the way through the second term, or he can try a little Reagan-Clinton charm, beginning with the SOTU.

Authors

Bill Frenzel

Publication: Forbes

Image Source: © Mary Calvert / Reuters

The Morning After: What a Narrow Win Would Mean for Obama’s Second Term

William A. Galston — Thu, 01 Nov 2012 00:00:00 -0400

If President Obama is reelected, his second term will be shaped by the terms of that victory, and by the circumstances he will face the morning after.

In all probability, Obama’s winning margin would be the lowest for the incumbent since 1916—maybe ever. Worse, there is a non-negligible chance that he could win a split decision—a narrow victory in the Electoral College, a narrow defeat in the popular vote. Whatever may have been the case when the Constitution was drafted, majority rule is the core of legitimacy in contemporary political culture. Unless the next few days yield a strong surge toward Obama, he will enter his second term holding a relatively weak hand.

The nature of the 2012 campaign poses an additional difficulty. I cannot remember an election in which the gap was greater between the magnitude of our problems and the substance of our politics. With rare exceptions, Mitt Romney has alternated vacuity and self-contradiction, with interludes of fuzzy math.

Regrettably, Barack Obama has done little better. A president who entered office with transformational aspirations has chosen to run a tactical, transactional reelection campaign. After the debt ceiling fiasco in the summer of last year, Obama and his political team all but abandoned governing and subordinated everything to the imperatives of winning the 2012 election. The president systematically used the bully pulpit and his executive authority to reinvigorate the building blocks of his 2008 coalition. For young people, lower rates on student loans. For Latinos, announce a non-legislative version of the Dream Act. For gays and lesbians, endorse same-sex marriage. For single women, pick a fight over contraception with the Catholic Church and run a national convention in which the centrality of abortion rights startled even seasoned observers. Bill Clinton’s mantra—safe, legal, and rare—is a distant memory. In its place: “Julia.”

At the same time, Obama decided not to place a clear, ambitious agenda at the heart of his reelection campaign, focusing instead on a relentless effort to portray Mitt Romney as an unacceptable alternative. Even after the first debate, which blew up that effort beyond repair, the president continued to resist pressure from within his own party to put a more explicit second-term plan on the table. His interview with the Des Moines Register, which he tried to keep off the record, revealed more about his intentions that anything he had said on the stump. A fiscal “grand bargain” and comprehensive immigration reform—two key items in that interview—cannot succeed without public support. You can’t get public support for proposals you don’t push—hard—during the campaign, as George W. Bush found out in the spring and summer of 2005.

I have no doubt that Obama’s aspiration to do big things is as burning as ever. He believes that we need sustained public investments in areas such as education and training, basic and applied research, infrastructure and energy if we are to place the U.S. economy on a sound foundation in a globalized and increasingly competitive world. (For the record, I agree with him.) My point is rather than the way he has chosen to conduct his campaign will make it even harder than it had to be to get these things done during his second term.

That matters because Obama is all but certain to preside over a government that remains divided. While the Democrats may narrowly maintain control of the Senate, everyone with the possible exception of Nancy Pelosi expects the House to remain where it now is—in Republican hands. So as has been the case since November of 2010, the president’s post-election choices reduce to two—compromise or gridlock.

As it has been for some time, the key to picking the lock is fiscal policy. The most urgent challenge—starting the day after the election—is the fiscal cliff, which unaccountably went undiscussed through three presidential debates. Its components include, not only sequestration and the Bush tax cuts, but also the alternative minimum tax, Medicare payments to doctors, and much else. Between November 7 and the end of December, a reelected President Obama would have to decide whether he is willing to go over the cliff, as some Democrats have urged. The downside is macroeconomic: a CBO analysis suggests that the post-cliff combination of tax increases and spending cuts would be enough to push the fragile economy back into recession—not the ideal way for Obama to begin his second term. If the president is not willing to accept these foreseeable consequences of inaction, he must decide what he’s willing to accept to prevent them.

The fiscal cliff is better understood as the tip of a fiscal iceberg towards which we’re headed, and it puts back on the table the entire agenda of issues left unresolved when the Obama-Boehner talks collapsed more than a year ago. If the president wants any fiscal space for meaningful public investment, he will have to confront these issues head on, and he will have to make a deal with people who fundamentally disagree with him. He can’t do that without accepting some ideas that will play poorly with the base of his own party. (Nor can Boehner.)

Easy compromises split the difference. Hard compromises contain elements that each party to the agreement regards as bad public policy. Given the polarization between the parties, getting to yes anytime in the next few years will require a series of hard compromises. The alternative to compromise is a continuation of confidence-sapping drift and slow national decline. My fear is that this election campaign has done nothing—if anything, less than nothing—to prepare the parties and the American people for the choices that lie ahead. Obama isn’t solely to blame for this, of course, but the way he chose to run for reelection has made a bad situation worse.

Authors

William A. Galston

Publication: The New Republic

Image Source: © Steve Marcus / Reuters

A Strategy to Rebuild Manufacturing in the Mountain West

John Hudak — Sun, 23 Sep 2012 00:00:00 -0400

Late last month, President Barack Obama issued an executive order intended to spur job creation in manufacturing. “Accelerating Investment in Industrial Energy Efficiency” recognizes that energy costs can substantially limit a company’s ability to be productive and grow and that there has been “an under-investment in industrial energy efficiency.” This order seeks to aid manufacturers nationwide, but the politics and policy of the order provide an opportunity for the Mountain West region that state and local leaders must seize.

The executive order requires that federal agencies bring together state and local officials, private sector leaders, and others to help address the problem of energy efficiency and motivate private investment in manufacturing. The Obama administration wants to “provide technical assistance to states and manufacturers” and mount a public information campaign about the cost-saving benefits of making industry more energy-efficient. Part of the order also directs federal agencies to “use existing federal authorities, programs and policies to support investment in industrial energy efficiency.” In effect, the president wants more funding funneled to manufacturers and he has told his hand-picked appointees to begin delivering that funding.

Specifically, the executive order will mean that existing energy- and manufacturing-related federal grant programs will support Combined Heat and Power, an energy system that captures excess or emitted energy (such as secondary heat) and converts it into usable energy on site for factory climate control. With CHP, manufacturers will not need to purchase additional energy to heat or cool their facility, a savings that drives down production costs and provides opportunities to expand employment and productivity.

Read the full piece at the Las Vegas Sun »

Authors

John Hudak

Publication: The Las Vegas Sun

Image Source: © Aaron Josefczyk / Reuters

The Case for Confirming District Court Judges

Russell Wheeler — Tue, 18 Sep 2012 00:00:00 -0400

The accepted wisdom on Congress is that the presidential campaign is likely to crowd out most real work until after Nov. 6, when all its focus abruptly changes to the fiscal cliff.

There is, though, one important noncontroversial matter that the Senate should take up now — as have previous Senates at this time: confirming district judges.

A government that can't do its mundane business is surely unlikely to be able to deal with more controversial problems. History shows that the Senate should be able to confirm a respectable number of long-standing district court nominations before Election Day — certainly before adjournment. If it cannot, this may signal that the past four years of delayed and confrontational nominations have not been an aberration but represent the new normal of district court confirmations.

Sixty-one of the nation's 673 lifetime appointment district court judgeships are vacant. President Barack Obama has submitted nominees to fill 24 of the vacancies. Seventeen of the 24 have cleared the Senate Judiciary Committee and are awaiting final action by the full Senate.

Read the full piece at Politico »

Authors

Russell Wheeler

Publication: Politico

Image Source: © Chip East / Reuters

The Case For Rob Portman as Romney's Vice President

William A. Galston — Wed, 08 Aug 2012 00:00:00 -0400

I have no idea whom Mitt Romney will choose as his running mate. But I’m fairly certain about who he ought to choose: Rob Portman. Here’s why.

Every successful presidential campaign has a theory of the case—a clear conception of the path to victory—which it works in every way to reinforce. This theory must begin with the character, experience, and priorities of the candidate and with the context in which the candidate is operating. A candidate who is challenging an incumbent must focus on the politically salient weaknesses of the incumbent and argue that he has what it takes to do better.

For Romney, there’s only one theory that makes sense, and he seems to understand that. He can’t credibly mount a populist case against an elitist president. He cannot credibly present himself as a root-and-branch reformer. And after his primary campaign, he cannot run as a moderate who will smooth the rough edges of his party and unify the country across partisan lines. (He may end up governing that way—the movement conservatives’ worst nightmare—but he certainly can’t say so now.)

Instead, he has to argue that Obama has proved inept as a manager of the economy and that he (Romney) knows how to fix it: “Because I spent most of my life in the private sector, I understand the conditions that encourage businesses to create jobs. As president, creating those conditions—which Obama has failed to do—will be Job 1.” And in an argument that combines criticism and hope, he can say, “Today’s economy may be the best that Barack Obama can do, but it’s not the best that America can do. As president, I can close that gap.”

Romney will never win a likeability contest, and he’ll have a hard time persuading average Americans that he truly understands the difficulties they face. His best hope is to persuade 51 percent of them that he’s an experienced, effective manager who knows how to get things done. (“We’ve heard all the inspiring speeches. How many jobs have they created? Americans don’t want to feel good, they want to do better. I’ve spent my life turning plans into realities. Isn’t that what counts?”)

The strongest argument for Portman is that he reinforces this core thesis. Before he won elective office, he dealt at the highest level with a series of challenging economic issues, as the budget and international trade chief of the federal government under George W. Bush. He is intelligent, highly informed, and well-spoken in a plain Midwestern way. He’s solidly conservative (on social as well as economic issues) without being hard-edged. He’s the right age (with grey hair to prove it) and has enough experience. And he would allow Romney to say what he has insisted is most important: With Rob Portman, I’ve selected someone who could step into the Oval Office on a moment’s notice and serve honorably and effectively as your president.

The conventional wisdom is that vice presidential candidates don’t make an electoral difference, and that’s mostly right. But there are a couple of exceptions. First, a flawed choice can mire a presidential campaign in controversy, change the focus of attention adversely, and call the presidential nominee’s competence into question. Portman has run for office seven times, including a high-profile senate race in 2010. The odds are low that he has as-yet unrevealed skeletons lurking in his closet.

Second, if vice presidential candidates help anywhere, it’s in their home states. Here again the case for Portman is strong. He hails from Ohio—the single most important state for Republican candidates. If Romney loses Ohio, he loses the election. Period. Portman could bring to Romney a peer’s knowledge of Ohio politics as well as a network of friends and supporters who would go all-out on behalf of the ticket. And Ohio is often close enough so that the shift of a percentage point or two makes the difference.

So what’s the case against Portman? He’s not very exciting, people say. So what? This isn’t 2008. Romney can’t prevail by exciting people, but rather by convincing enough swing voters that he can do better promoting economic growth than Obama can or would in a second term.

Second, it is said, he won’t produce a surge of enthusiasm in the Republican base. That’s probably true too, but not all that relevant. The Romney campaign has no choice but to assume that antipathy to Obama will be strong enough to bring the base out in full force. Romney cannot afford to do what McCain tried and failed to do four years ago—namely, squander his vice-presidential choice on a nominee who did at least as much to weaken his candidacy among swing voters as to overcome the reservations of hard-core Republicans.

And finally, it is said, Portman points backward to a discredited Bush administration rather than forward to a new conservative majority. There is some truth to this argument, but it is outweighed by two others. First, the new generation of Republican leaders—Ryan, Rubio, Jindal, Ayotte, and Martinez, among others—is not quite ready for prime time, and each member of this generation brings along some baggage of his or her own. And second, it is Romney’s responsibility to make the case that he won’t take the country back to Bush’s second term, which nobody wants to repeat. If he can’t make that case, he won’t persuade the country that he can manage the economy better than Obama, and he’ll lose the election—with or without Portman.

Authors

William A. Galston

Publication: The New Republic

Image Source: Â© Jim Young / Reuters

Dismantling the GOP’s Odious Philosophy of Voter Suppression

William A. Galston — Fri, 03 Aug 2012 00:00:00 -0400

Republicans should not be surprised if voter laws becomes a major topic of debate this election season—they will be the ones responsible for making it so. Over the past two years, the GOP has made a concerted attempt in a number of states to tighten voter registration procedures, cut back on alternatives such as early voting, and—most controversially—require would-be voters to show state-issued photo IDs as proof of identity. Because there’s such little evidence that these changes are needed to eliminate widespread voter fraud, it’s hard to avoid the conclusion that many Republican legislators want to discourage voting among groups—especially minorities and the poor—that cast their ballots mainly for Democrats.

But it’s worth remarking that beneath these crass political motives are some deeper moral issues. Proponents and opponents of these changes agree on one thing: Voting will be harder, and turnout will be lower. But is that necessarily a bad thing? Proponents think not. Speaking for many others, Florida State Senator Mike Bennett said, “I don’t have a problem making [voting] harder. I want people in Florida to want to vote as bad as that person in Africa who walks 200 miles across the desert. This should be something you do with a passion.”

There’s something to this, of course. It is morally gratifying to witness the joy of peoples who are able to vote for their own representatives after decades of authoritarian governments—even more so when they have won this ability through sacrifice and struggle that have cost some their lives. In the United States, the movement that enabled long-disenfranchised African Americans to cast their ballots represented a moral high point in American history. African Americans who participated or lived through that struggle have never taken voting for granted, and they have worked hard to pass on that sentiment to their children. At the same time, they insist—undeniably—that their struggle should not have been necessary: The struggle was simply the means to attain a civic status that every citizen should enjoy.

That is why African Americans have a problem with making voting harder, as should we all. It’s common knowledge that poorer and less educated citizens have a harder time navigating a system that is already the most complex least voter-friendly of all the Western democracies (which helps explain why our turnout is so low). Facially neutral registration and voting requirements will have asymmetrical effects, a fact that only the willfully blind can deny.

But this argument raises another question: Are these effects necessarily a bad thing, morally speaking? Some arch-conservatives have gone so far as to argue that encouraging the poor to vote actually undermines just and limited government, because the poor will use their political power to take economic resources from those who are not poor. One such conservative, Matthew Vadum, put it this way:

Why are left-wing activist groups so keen on registering the poor to vote? Because they know that the poor can be counted on to vote themselves more benefits by electing redistributionist politicians . . . . Registering them to vote is like handing out burglary tools to criminals.

This is a classic argument against democracy that traces all the way back to the Greeks. It disappeared from serious American political discourse when states eliminated their property qualifications for voting nearly two centuries ago. In practice, America’s poor have opted for the American Dream of equal opportunity over aggressively redistributionist politics—witness their rejection of stringent estate taxes, a stance most liberals regard as patently self-defeating and view with incomprehension.

The deepest argument revolves around the moral status of voting. Last year, Minnesota House Speaker Kurt Zellers said, “I think [voting is] a privilege, it’s not a right. Everybody doesn’t get it because if you go to jail or if you commit some heinous crime your [voting] rights are taken away. This is a privilege.”

This claim rests on an obvious confusion. Anybody who believes in the Declaration of Independence will affirm that liberty is among our inalienable rights. Nonetheless, certain sorts of crimes are thought to warrant incarceration, which is a deprivation of liberty. Does that transform liberty from a right into a privilege? Of course not.

The real logic is different. Our society presumes (as some do not) that all human beings are equal in their possession of both human and civil rights and that the burden of proof in restricting those rights must be set very high. Some people argue that no reason is compelling enough to override the right to life, for example, which is why the death penalty will always be a contentious issue.

Hardly anyone makes that argument about liberty, which is why life sentence without parole is widely regarded as a legitimate substitute for the death penalty. Without the ability to deprive some law-breaking citizens of their liberty, our entire justice system would come crashing down. But no one thinks that turns liberty into a privilege.

Voting is much the same. All citizens are presumed to be equal in their right to vote. Yes, most felons do forfeit their right to vote, at least temporarily. (We argue about whether permanent forfeiture is legitimate, even after felons have “paid their debt to society.”) But if we take the equal right to vote seriously, we must not pass laws that implicitly treat voting as a privilege some are fitter than others to enjoy. To confuse that right with a privilege is to change the understanding of American citizenship, and not for the better.

Authors

William A. Galston

Publication: The New Republic

Image Source: Joel Page / Reuters

False Analogy: Why the 2012 Presidential Campaign is Nothing Like 2004

William A. Galston — Tue, 24 Jul 2012 00:00:00 -0400

The emerging conventional wisdom among many Democrats takes the form of two equations: 2012 = 2004, and Bain = Swift Boats. There’s also a supporting narrative: The negative campaign against John Kerry fatally weakened his candidacy, securing the victory of an incumbent who could not have won based on his own record. And so, the idea goes, a president whose performance the public doesn’t much like can power his way to a narrow, less than pretty win by eviscerating his challenger.

But the evidence in favor of all of these propositions is remarkably thin. The basic structure of the 2004 campaign differed fundamentally from the one we’re now enduring. The available evidence suggests that even in the short-term, the attacks on Romney have been measurably less successful than were those on Kerry. And Obama’s supporters seem to have forgotten that the reason Bush prevailed was because enough Americans ended up approving of his record and leadership in the areas they cared about the most.

In 2012, there is a single dominant issue—the economy. The people are trying to decide whether Obama has managed our economic challenges well enough to deserve another four years and, if not, whether Romney’s economic experience and plans make him an acceptable alternative.

In 2004, by contrast, there was no single dominant issue. An NBC/WSJ survey published a few days before the election found 24 percent naming terrorism as the single most important issue, followed closely by the economy (22 percent), the war in Iraq (also 22), and social issues and values (17). A CBS/NYT survey conducted not long after the election asked the respondents to name the one single consideration that had mattered the most as they cast their votes. The answers were all over the map. At the top was George W. Bush himself, with 13 percent, following by war (12 percent), Iraq (11), the economy and jobs (9), terrorism (8), and moral values (6).

Indeed, the 2004 election featured a struggle to define the agenda. Democrats focused on the economy and health care, while Republicans emphasized terrorism and values. In mid-September the public was split down the middle, 44-44, on the relative importance of these two baskets of issues. The people saw Bush as significantly more able to handle the former, and Kerry the latter. So the fact that by the eve of the election fully 50 percent had come to see the issues where Bush was strong as more important contributed to the late surge that put him over the top. 52 percent of the people thought that Bush would do a better job dealing with terrorism and homeland security, versus 29 percent for Kerry; they preferred Bush on Iraq, 50 to 37; on moral values, by 47 to 29. Kerry led 48 to 32 on jobs and unemployment and by an even wider margin of 51 to 28 on health care, but by election day those issues didn’t top the concerns of enough voters.

But what about the notorious “Swift-boating” of the decorated Vietnam veteran who headed the Democratic ticket? Most surveys suggest that it did drive down Kerry’s support in August of 2004. The RealClearPolitics survey average showed a decline from 48 percent at the beginning of the month to 45 percent at the end. But according to a detailed Pew report released in mid-September, the effects of that attack waned significantly in the two weeks after Labor Day. Kerry continued his gradual climb throughout the remainder of the campaign, finishing with a share of the popular vote slightly higher than his early August peak in the polls. Moreover, many of the negative impressions of Kerry were long-standing, not the product of the Republicans’ summer assault. For example, as early as mid-March Bush led Kerry by 52 to 34 percent as a strong leader and by 63 to 27 percent in his perceived willingness to take and maintain an unpopular stance. According to CBS/NYT survey released on the eve of the election, 60 percent of respondents felt that Kerry said what he thought people wanted to hear rather than what he really believed. But that can’t be attributed to the mid-summer Republican attacks, because 61 percent felt that way as early as April and never changed their minds. (By contrast, 60 percent felt that Bush said what they believed—again, an impression they formed early on and never revised.)

Because the Republican assault on Kerry focused so heavily on his service in Vietnam and subsequent anti-war activities, one might have expected it to undermine the public’s confidence in his ability to serve as commander-in-chief. But the evidence suggests that just the reverse occurred during the course of the campaign. In May, only 34 percent expressed confidence in Kerry as a potential commander-in-chief, while 61 percent expressed reservations ranging from moderate to intense. But Kerry’s stature grew steadily, even during the summer-long attack on his military record. By mid-October, the share of the electorate who felt confident in him had grown to 44 percent while the share with worries fell by 13 points, to 48 percent.

The real story of the 2004 isn’t that attacks disqualified Kerry as a potential president—they didn’t—but rather that in the two months from Labor Day until the election, the incumbent persuaded just enough people that his record warranted reelection. (His unwavering support of the war in Iraq temporarily halted the erosion of public support for his decision, despite its unexpectedly difficult aftermath.) During that period, the right track/wrong track numbers moved up, and the public’s assessment of Bush’s record on foreign policy, the war in Iraq, and the economy all improved. On the eve of the election, his overall job approval averaged about 50 percent, up from less than 48 percent in mid-summer and closely predicting the 50.7 percent share of the popular vote that he received.

Obama now faces a similar task. In the fourteenth quarter of his presidency, which ended July 19, his job approval averaged 46.8 percent—a bit higher than Gerald Ford’s 46.0 percent in mid-1976, but more than a percentage point lower than Bush’s 47.9 percent. While inductive generalizations are not necessary truths, the fact remains that no incumbent has ever been reelected with a job approval below 50 percent. The most recent CBS/NYT survey illuminates the challenge Obama confronts. Not only is his job approval down to the levels of last fall and winter, before four months of good economic news pushed them up, but also other indicators—such as right track/wrong track and management of the economy--are moving in the wrong direction. The people have noticed the difference between 225 thousand new jobs per month and 75 thousand, and they’ve drawn the obvious inference: Only 24 percent of Americans think the economy is improving, down from 33 percent in April.

So the president has some work to do, and he can’t get the job done simply by attacking his adversary. Indeed, as I’ve argued in previous articles, the evidence that the all-out assault on Romney record at Bain Capital is making a difference remains thin at best. Since July 1, while Obama’s survey average has declined from 47.5 to 46.0 percent, Romney’s has actually edged up slightly, from 44.1 to 44.7 percent. A Gallup/USA Today survey released July 24 finds 63 percent of Americans believing that the challenger’s “background in business, including his time as head of Bain Capital,” would cause him to “make good decisions . . . as president in dealing with economic problems that U.S. will face over the next four years.” Only 29 percent disagree. This helps explain why Romney leads Obama by 10 points, 51 to 41, on managing the economy and by 6 points (50-44) on creating jobs.

The survey goes on to suggest that Obama still runs even with Romney because of his perceived edge in character. He leads Romney by 30 points on likeability and by 11 on understanding the problems American face in their daily lives. If the election comes down to these differences, Obama might well win a narrow victory. But there’s one other personal characteristic that tilts in the other direction: Romney has a 5-point edge over the president as a leader who can “get things done.” If the voters care more about efficacy than empathy as they enter the polling booths, Nov. 6 could be a long night for Democrats.

Authors

William A. Galston

Publication: The New Republic

Image Source: Jason Reed / Reuters

A Plan that Offers Obama a Fighting Chance

Jonathan Rauch — Thu, 05 Jul 2012 00:00:00 -0400

At this point in 1980, Jimmy Carter was on the path to oblivion but didn’t know it. Barack Obama may share Carter’s fate if he doesn’t change course soon.

The 1980 presidential race was neck and neck until the end. It finally broke for Ronald Reagan when voters concluded that Carter could not cope with the economy and that Reagan, despite his conspicuous flaws as a candidate, was a viable alternative.

The Obama campaign is in a similar position. It might eke out a victory, but it is at risk of losing control of the economic narrative. Its best hope is to stop nickel-and-diming Mitt Romney and laundry-listing forgettable initiatives and, instead, give independents reason to think that Obama has a clear, viable plan to bolster the economy.

This election will be decided largely by independent voters, most of whom can probably tell you that Mitt Romney’s economic plan is to repeal Obamacare and shrink the government. It may not make much sense, but it’s clear. Ask what Obama’s plan is, and they won’t be certain. They will know, however, that what he has done hasn’t worked. And by the fall, many independents will have made up their minds.

The president’s failure, so far, to show that he understands the scope of the economy’s problems and knows how to fix them does not stem from having nothing to say: investment in education, energy, innovation and infrastructure are reasonable things. But they are also slow-acting, small-bore stuff. Such talk does not include additional economic stimulus, an element that many economists, especially Democratic-leaning ones, consider crucial to prevent a double-dip recession. Nor does it deal realistically with long-term growth in spending.

So Obama should draw a map and send it to Capitol Hill in the form of a bill — a president’s strongest statement that he intends action. A big legislative proposal can frame the issue and paint Obama’s intentions in bold colors. It should include three elements:

1) Long-term fiscal retrenchment. The easiest and best way is to adopt the Simpson-Bowles deficit plan. The Simpson-Bowles commission’s recommendations have been established as a credible bipartisan solution. Adopting its plan outright would signal that Obama is not playing partisan games and would redress the (justified) criticism that he has finessed the deficit. Not least, Simpson-Bowles compares favorably on grounds of balance, economic plausibility and public appeal with the budget of Rep. Paul Ryan (R-Wis.), which Romney endorsed.

2) Short-term economic stimulus. Republicans will howl about more spending. Let them. Stimulus measures make sense when unemployment is high and the world is teetering on the edge of a second recession. And provided they are coupled with a credible long-term retrenchment, they are politically and economically defensible. Such measures have a further political advantage: Obama and the Democrats would be running on what they believe is the right answer, instead of running away from it.

3) A two-year debt-limit extension. Declare that another debt-limit fiasco is unacceptable and demand that the issue be taken off the table. Let Republicans explain why they want to hold a gun to the economy’s head.

Could Obama get something like this enacted before Election Day? Of course not. Could he even get it voted on? Possibly. Would he be justified in putting the package before Congress and demanding action? Absolutely. Doing so would show that he knows the economy is in trouble, that he believes the status quo is unacceptable and that he is determined to act.

One other advantage: Setting forth a boldly enunciated, easily graspable program puts Obama in a stronger position to criticize Romney’s plan as dangerously contractionary. Instead of going for Romney’s capillaries (his years-old record as governor; his even-older record at Bain Capital), Obama could go for the jugular by drawing a contrast that should be at the campaign’s core: The Republicans’ mistimed, precipitous austerity threatens to bring on another recession.

Obama could attempt to squeak through the election with a campaign modeled on, ironically, that of George W. Bush in 2004. Bush sowed just enough doubt about his challenger, and managed to pick off just enough swing voters in key states, to eke out victory. Obama is doing something like that now.

But the economic head winds Obama is fighting are much stronger than those faced by Bush, and his approval ratings are lower. In any case, a narrow victory based on electoral salami-slicing and negative advertising would leave Obama without a clear mandate or agenda for his second term. Ask Bush how that works out.

Time is short, Mr. President. Carterdom beckons.

Authors

Jonathan Rauch

Publication: The Washington Post

Image Source: © Jim Young / Reuters

Who Makes the News? Cabinet Visibility from 1897 to 2006

Christopher J. Deering and Lee Sigelman — Mon, 07 Nov 2011 14:12:00 -0500

Executive Summary

When Barack Obama selected Hillary Clinton to be Secretary of State, he not only chose an individual with “star” status, he placed her in the preeminent cabinet post. The Secretary of State is a veritable press magnet and this very fact sparked a surge of speculation that tensions and rivalries would likely follow. [i] But early in her tenure, one close observer of the Washington political scene opined: “She has about as low a news-making profile as is possible for someone who is arguably the most famous woman on the planet.”[ii]

Underlying that judgment are certain assumptions, e.g., that someone who had already achieved celebrity status before joining the cabinet would naturally continue to receive extensive coverage, and that, irrespective of his or her previous renown, the occupant of such a high-profile position would command greater coverage than the holder of a less prominent office. For the most part, though, presidents have little to fear in terms of being upstaged. A Midwestern farmer may know that Tom Vilsack is the Secretary of Agriculture, but precious few other Americans will even have heard of him.

What determines the amount of press coverage that cabinet officers receive? Do they labor in obscurity? Does a particular cabinet position affect the coverage they receive? Do cataclysmic events shine a brighter light on some positions? This paper examines the extent to which the visibility of cabinet members reflects an array of such influences by analyzing New York Times coverage of 357 cabinet officers from 1897 to 2006. The analysis shows that news coverage has been sharply differentiated between members of the Inner and Outer Cabinets; that political circumstances, personal attributes, and service characteristics matter; and that today’s cabinet members are far less likely to dominate the coverage they do receive.

[i] During the 2008 transition, it became widely known that President-elect Obama was impressed by Doris Kearns Goodwin’s (2005) Team of Rivals. Thus, keeping Republican Robert Gates on as Secretary of Defense and nominating Hillary Clinton to be Secretary of State provided ample fodder for pundits and beat reporters alike.

[ii] Ben Smith, “Hillary Clinton Toils in the Shadows,” Politico. June 23, 2009.

Downloads

Download the Paper

Authors

Christopher J. Deering
Lee Sigelman

Image Source: Â© Jim Young / Reuters

Web Chat: Supreme Court Nominee Elena Kagan

Sarah A. Binder — Wed, 12 May 2010 09:12:00 -0400

On May 12, Sarah Binder took your questions on President Obama’s choice of Elena Kagan for the U.S. Supreme Court and the complexity of the confirmation process in a live web chat. David Mark, senior editor at POLITICO, moderated the discussion.

The transcript of this chat follows.

12:30 David Mark: Hello everybody - thanks for joining us to discuss the upcoming confirmation hearings of Elena Kagan to the Supreme Court. Let's get started.

12:30 [Comment From Eric: ] Do you think Kagan will be confirmed? If so, how long do you think it will take?

12:31 Sarah Binder: The safe bet is that Kagan will be confirmed. Unified, Democratic party control of the White House and the Senate (with 59 Dem votes) easily predicts confirmation.

12:31 [Comment From Fred: ] Do you foresee any major stumbling points for Kagan in the confirmation process?

12:32 Sarah Binder: I think the confirmation process will largely resemble contests from the recent past. I don't see any major stumbling points, though Republican senators will try hard in the Judiciary Committee hearings to force her to be forthcoming about her views and judicial philosophy.

12:33 [Comment From Mark: ] Can you explain some of the controversy surrounding Kagan's nomination? It seems like there's a lot of debate about whether or not she is qualified, never having served as a judge before.

12:34 Sarah Binder: Good question. My sense is that Republican senators are largely looking for a "hook" on which to hang potential opposition to her nomination. Of course, even the current chief justice, John Roberts, had but two years prior experience on an appellate court bench.

12:35 [Comment From Jennie: ] Will Kagan bring a new perspective to the court?

12:38 Sarah Binder: I'm assuming that Kagan would bring a center-left perspective to the bench. That side of the bench is aging, but certainly intellectually energetic. She's said to be whipper-smart, but so is the company she's joining.

12:38 David Mark: Can senators who backed Kagan for her current post of Solicitor General be expected to support her Supreme Court nomination?

12:39 Sarah Binder: That will be an interesting little bit of Kabuki dance, I suspect. Some GOP senators noted that the qualifications for SG are different than for a lifetime appointment to the highest court. That is certainly a plausible defense of changing one's vote to oppose her confirmation, but it's hard one to sell the public.

12:40 [Comment From Maria: ] What do you think about Obama's two nominees both being women? Interesting!

12:40 Sarah Binder: Like many others, I wasn't surprised to see the president nominate a woman. Given the current gender imbalance on the court, it seems a reasonable goal to bring that ratio closer to par.

12:41 [Comment From Yan: ] Typically, what's the focus of the confirmation process? What do you think Elena will be asked?

12:43 Sarah Binder: The focus of the confirmation process-- and here, I'm thinking primarily about the hearings before the Senate Judiciary panel-- tends to differ across the two parties. Democrats, defending Kagan's selection, will laud her experience and intelligence and qualifications. If they push her on particular issues, it's likely to be ones relative to Congress's power. Republicans are more likely to focus on raising doubts about her qualifications and on boxing Kagan into specifying her views across a number of contentious issues-- abortion, among them.

12:43 [Comment From Wesley: ] what exactly is Solicitor General and what does the person in that position do?

12:45 Sarah Binder: Think of the "SG" as the "Tenth Justice." S/he represents the government's position in the case, and often times justices look to the SG's position as a signal on the key dimensions of a case.

12:45 [Comment From Bill in Va.: ] Earl Warren and William Rehnquist also never served as judges before they became justices. Do you think it's worth Democrats' time to point this out to the public and Republicans?

12:46 Sarah Binder: I have no doubt that Democrats will be pointing to these examples-- certainly Rehnquist-- as a central defense of why potential justices need not have served previously on the bench.

12:46 [Comment From Tim: ] Given the dearth of material on Kagan, should her confirmation hearing be held to the standard she outlined in her 1995 University of Chicago Law Review article in which she argues the Senate should embrace “the essential rightness — the legitimacy and the desirability — of exploring a Supreme Court nominee’s set of constitutional views and commitments”?

12:48 Sarah Binder: Great question. Yes, she should certainly be held to that standard. But there's little chance that Kagan will be more forthcoming about her judicial views and/or philosophies than previous nominees before the SJC have been. There's certainly some validity to the view that nominees can't prejudge cases by stating opinions on how they might rule. But giving the Senate a sense of how they view the Constitution and constitutional interpretation certainly seems a reasonable standard. This is a lifetime appointment, and this is the Senate's only opportunity to exercise accountability, as it were.

12:49 [Comment From Josh: ] Earl Warren!! Egads! Don't mention that to Republicans!!

12:49 Sarah Binder: Yes, Rehnquist is more likely to resonate as an example, for sure.

12:49 [Comment From Terrence: ] Have there been other SCOTUS nominees or justices whose backgrounds were so heavily slanted toward academia?

12:51 Sarah Binder: My sense is that Kagan's academic background is actually somewhat light compared to other previous nominees. Much of her experience was molded working in the executive branch over two administrations.

12:51 David Mark: Is there any chance Kagan's nomination could be sunk from the left? Liberal bloggers, activists and others are concerned she is a blank slate and not necessarily reliable on the issues they care about. Could we see a repeat of the Harriett Miers confirmation, which was beaten back by conservative Republicans?

12:54 Sarah Binder: That is an interesting possibility, but I suspect it is unlikely to happen. Surely liberal activists will have these debates, but I can't see such views having much weight with Democratic senators. Also, my sense is that Harriet Miers' nomination was sunk by conservative legal elites because she was not from among that wide circle of conservative elites. Kagan is certainly embraced (Harvard, Princeton, SG) as coming from that circle on the Democratic side.

12:54 [Comment From Sally: ] Much is being made of her record of hiring at Harvard, which seems strange to me. Aren't there better ways to tell if she'll be a fair and impartial judge?

12:56 Sarah Binder: I have to admit that-- like you-- I'm not terribly impressed by the argument that her ability to lead and manage the Harvard Law School is a signal of her ability to build court coalitions. Lots of funding for hires at Harvard empowered Kagan to hire widely across the ideological spectrum. ( I doubt that's in the cards at cash-strapped Harvard today!) Speaking as a political science professor, I have no doubt that the free lunches for faculty went a long way as well!

12:56 [Comment From Tom: ] What are the odds that a Senator will try to filibuster this nomination?

12:59 Sarah Binder: There could well be a concerted pocket of opposition to Kagan from Republican ranks. But a filibuster won't succeed, given that Democrats’ sticking together would only need to secure 1 GOP vote (Collins? Snowe?) to confirm Kagan.

Also, it's worthwhile noting that GOP senators are on record from 2005 opposing judicial filibusters. But senators usually practice a good deal of situational ethics when it comes to filibusters-- where you stand depends on where you sit. If GOP senators thought it was politically wise to filibuster, I suppose they might push for a cloture vote. But, all that said, I don't see that arising this time around.

12:59 [Comment From Tom: ] And as a follow up: why have confirmation hearings become so partisan? Is is simply that activists on both sides like the opportunity to raise money and inflame passions on both sides? Or something else?

1:02 Sarah Binder: Great question. Judicial nominations have been polarized along partisan lines for over a decade, in fact reaching back at least to the early 1980s. I tend to think that interest groups reflect--rather than drive-- party divisions over nominees. I'd attribute the partisanship over nominees since the 1980s to two key issues: 1) the rise in polarization more generally between the parties and 2) the centrality of the court since that time on pivotal issues (abortion, civil rights, etc). As the courts become more important on social and other issues and as the parties have polarized over those issues, no surprise that such partisanship spills over to Court nominations. And we see that conflict at all levels of the federal courts now, even the trial courts.

1:02 [Comment From Nicole: ] Is it unusual for a president to have the opportunity to nominate two justices in such a short period of time?

1:04 [Comment From Lisa: ] I read that only 7 Republicans backed her when she was confirmed as SG in 2009. What's changed since then that makes more Republican support likely?

1:05 Sarah Binder: Unusual, not really. President Bush had two vacancies in a short period-- nominating Roberts and Alito. Keep in mind that the court under Rehnquist served together for a long time. As the justices age, it's probably no coincidence that vacancies come in quick succession.

1:06 Sarah Binder: Not much has changed since Kagan's confirmation vote as SG last year. So, no, I don't really expect the GOP to rally around Kagan. My hunch is that the vote should look quite a bit like Sotomayor's.

1:07 [Comment From Nicole: ] Are there any other expected retirements of justices in the near future?

1:07 Sarah Binder: I would not be surprised to see Justice Ginsberg retire while President Obama is in office.

1:08 [Comment From Leo: ] Considering the greater party polarization you mentioned, is there much political pressure to select younger nominees?

1:09 Sarah Binder: I think the pressure to select younger nominees is independent of the polarization we see. Presidents want to make a lasting impact on the court, and the most direct route in terms of selecting a nominee is to find someone who will be there a good long time!

1:09 [Comment From Greg Greg: ] Do Republicans not support her just because she is Obama's choice? From what I read, her views seem to fall to the right of Justice Stevens'.

1:12 Sarah Binder: Subject to the caveat that we don't really know which GOP will support or oppose Kagan, there is some truth to the observation that party lines develop even in the absence of ideology. Why do the parties line up on opposite sides over campaign finance? Over ethics in government? Over many other non-ideological issues? There's a good amount of "team play" in the Senate. And as you suggest, this often leads the opposition party to oppose the president's position because it is the other party's position. But again, we don't actually know how Republicans will vote on Kagan's confirmation.

1:13 Sarah Binder: I would add that we don't *really* know where Kagan's views fall on a wide number of issues. I think we can assume she will be a reliable vote with the liberal side of the bench on most issues, but not every issue before the court divides left-right.

1:14 [Comment From Tim: ] In light of procedural decorum, how would the Senate Judiciary Committee best go about ascertaining Kagan's views without her resorting to Roberts' umpire argument?

1:15 Sarah Binder: Well, that's the problem. Nominees have a long history of avoiding revealing their views. And senators have limited tools to extract their views. I do think Roberts' "I'm just an umpire calling balls and strikes" has been tarnished a bit in cases (like Citizens United) that reversed precedent. But I have no doubt Kagan and subsequent nominees will come up with their own (evasive) formulations!

1:15 David Mark: One aspect of the Kagan nomination that has received less attention is that she would be the third female justice on the court now (and the fourth in history.) Does this give President Obama cover to name another male if, say, Justice Ginsburg were depart while he is in office?

1:17 Sarah Binder: That scenario is certainly plausible. Appointing two women in a row takes some of the pressure off Obama to replace Justice Ginsberg with a woman. That would "free him" in a sense to look for other avenues of diversifying the bench.

1:17 [Comment From Joe: ] What justice had the toughest confirmation hearings?

1:18 Sarah Binder: Of course he didn't make it to "justice," but Judge Robert Bork had a pretty tough going before the Senate. As did Clarence Thomas, who, of course, was ultimately confirmed.

1:18 [Comment From Jim: ] Where are you on all this nonsense about Kagan's sexual orientation? Why are people making such a big deal about this? It's quite a distraction from the real issues at hand.

1:19 Sarah Binder: Kagan's sexual identity does not strike me as relevant to the debate over whether she should be confirmed. I would just say that it's difficult to move an issue off of the blogosphere.

1:20 [Comment From James: ] What about the fact that Kagan, if confirmed, would make 9/9 justices with law degrees from either Harvard or Yale. Is this bad, in your view? Do you think the President will try to look outside those 2 alumni associations in filling the next vacancy, if any?

1:22 Sarah Binder: I grew up on New Haven pizza, so I retain a certain fondness for the place. But, diversity on all dimensions of qualifications and attributes strikes me as important. That said, this doesn't seem disqualifying to me, and from what's been reported about the selection process, this doesn't seem to be troubling to Obama. Supreme Court justices are elites, regardless of which law school they went to.

1:22 [Comment From Greg: ] It seems unlikely that Republicans will cause any real trouble for Kagan during the hearings, though. Right?

1:23 Sarah Binder: I suspect that if there was a corollary to the "wise Latina" comment from Sotomayor that it would have been unearthed already. So no, I don't really expect much trouble per se for Kagan during her hearings.

1:23 [Comment From Sally: ] Overall do you have a sense of how long the hearings will last and when she will be confirmed?

1:25 Sarah Binder: The trend for advice and consent over the past 2-3 decades is to take longer and longer. This applies to all levels of the federal bench, but particularly the appellate courts and the Supreme Court. My hunch is that the confirmation vote will be held before the Senate breaks for its August recess. Republicans will want time to scour her record, and that will push off the hearings for several weeks.

1:26 David Mark: Thanks for joining us. Enjoy the afternoon.

1:26 Sarah Binder: Thanks for having me!

Authors

Sarah A. Binder

The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking

Rabea Benhalim, Robert M. Chesney and Benjamin Wittes — Fri, 22 Jan 2010 00:00:00 -0500

Executive Summary

President Obama’s decision not to seek additional legislative authority for detentions at Guantánamo Bay, Cuba—combined with Congress’s lack of interest in the task—means that, for good or for ill, judges must write the rules governing military detention of terrorist suspects. As the United States reaches the president’s self-imposed January 22, 2010 deadline for Guantanamo’s closure with the base still holding nearly 200 detainees, the common-law process of litigating their habeas corpus lawsuits has emerged as the chief legislative mechanism for doing so.

It is hard to overstate the resulting significance of these cases. They are more than a means to decide the fate of the individuals in question. They are also the vehicle for an unprecedented wartime law-making exercise with broad implications for the future. The law established in these cases will in all likelihood govern not merely the Guantánamo detentions themselves but any other detentions around the world over which American courts acquire habeas jurisdiction. What’s more, to the extent that these cases establish substantive and procedural rules governing the application of law-of-war detention powers in general, they could end up impacting detentions far beyond those immediately supervised by the federal courts. They might, in fact, impact superficially-unrelated military activities, such as the planning of operations, the selection of interrogation methods, or even the decision to target individuals with lethal force.

This peculiar delegation of a major legislative project to the federal courts arose because of the Supreme Court’s 2008 decision that the courts have jurisdiction to hear Guantánamo habeas cases. While the justices insisted on a role for the courts, they expressly refused to define the contours of either the government’s detention authority or the procedures associated with the challenges it authorized. All of these questions they left to the lower courts to address in the first instance. Combined with the passivity of the political branches in the wake of the high court’s decision, this move placed an astonishing raft of difficult questions in the hands of the federal district court judges in Washington and the appellate judges who review their work.

Yet despite the scope of its mandate and the project’s manifest importance, the courts’ actual work product over the past year has received relatively little attention. While the press has kept a running scorecard of government and detainee wins and losses, it has devoted almost no attention to the rules the courts—in their capacity as default legislators—are writing for the military and for the nation as a whole. Our purpose in this report is to describe in detail and analyze the courts’ work to date—and thus map the contours of the nascent law of military detention that is emerging from it.

Generally speaking, the law remains altogether unsettled. While in some areas judges have developed a strong consensus, in many other areas they have disagreed profoundly. They disagree about what the government needs to prove for a court to sign off on a detention, about what evidence it may employ in doing so, and about how deeply a court should probe material collected and processed for intelligence purposes, not litigation. Indeed, the judges of the federal District Court and D.C. Circuit Court of Appeals have, in the public opinions we reviewed, articulated differing approaches to or failed to authoritatively answer such elemental matters as:

The substantive scope of the government’s detention authority—that is, what sort of person falls within the category of individuals the government may lock up under its power to wage war against Al Qaeda and the Taliban. Does this class include only members of enemy forces or also their supporters? Can one even distinguish between the two? If the government is allowed to detain supporters, will any support qualify a person for detention or does it have to be substantial support? And even if the government can prove that a person has the requisite connection to the enemy, must it also prove that he is likely to commit a dangerous act of some description if released?
Whether and when a detainee can sever his relationship with enemy forces such that his detention is no longer a legal option. If a detainee once joined Al Qaeda, does he always count as Al Qaeda for legal purposes? Can he leave the group after some period of membership or association and thus no longer qualify for detention? Can he break with the group after capture by cooperating with authorities and thereby qualify no longer for continued detention? If a detainee can sever his relationship to the enemy, who has the burden of showing that he either did or didn’t do so? Does the detainee have to prove vitiation of the relationship or does the government have to prove its ongoing vitality?
What presumptions the courts should make regarding government evidence. Should the rough and tumble of warfare make them more forgiving or more skeptical of evidence whose provenance may be inexact? Should they grant either a presumption of authenticity or a presumption of accuracy to government evidence?
How to handle hearsay evidence that courts in normal cases would eschew. How should the courts handle intelligence reports whose sources the government may not identify? How should they handle statements by a detainee’s fellow prisoners in interrogations years ago when these witnesses may have long since left Guantánamo? And how should they handle interrogation statements by the detainees themselves?
How to handle detainee or witness statements alleged to have been extracted involuntarily or through abuse. Who bears the burden of proving that a statement either was or was not given voluntarily? What level of coercion suffices to render a statement unusable in these proceedings? And where coercion has taken place, how long does the taint of it last and under what circumstances does it lift?

The judges have struggled with other foundational questions as well, questions on which they have either found common ground or in which their disagreements remain latent: Who bears the burden of proof in these cases and by what standard of evidence? How should the courts treat “mosaics” of relatively weak data—mosaics which routinely inform intelligence analysis but are quite alien to federal court proceedings? And to what extent, if any, does the showing required of the government escalate over time?

So fundamentally do the judges disagree on the basic design elements of American detention law that their differences are almost certainly affecting the bottom-line outcomes in at least some instances. That is, some detainees freed by certain district judges would likely have had the lawfulness of their detentions affirmed had other judges—who have articulated different standards—heard their cases. And some detainees whose incarceration these other judges have approved would likely have had habeas writs granted had the first group of judges heard their cases.

The current degree of disagreement among the judges may be reduced over time, as several of the cases are currently on appeal to the U.S. Court of Appeals for the D.C. Circuit and could easily head from there to the Supreme Court. These appeals should collectively go a long way towards narrowing the range of possible answers to the questions with which the lower court judges are now struggling. Or at least they may do so eventually. For the moment, the appeals are in various stages of development, with only one decided so far.

In the meantime, the lack of clarity regarding such important matters as the scope of the government’s detention power and the circumstances in which an interrogation statement can be used to justify a detention presents problems from the perspectives of both the detainees and the government. Neither can be sure of the rules of the road in the ongoing litigation, and the prospect that allocation of a case to a particular judge may prove dispositive on the merits can cut in either direction. Because it remains unclear how far the courts’ jurisdiction extends, moreover, nobody knows at this stage precisely how many cases these rules will ultimately govern and where else in the world they will have a direct impact. More fundamentally, because the courts in these cases are defining not merely the rules for habeas review but also the substantive law of detention itself, they have implications far beyond the litigation context. The rules the judges craft could have profound implications for decisions in the field concerning whether to initially detain, or even target, a given person, whether to maintain a detention after an initial screening, whether to employ certain lawful but coercive interrogation methods, and so forth.

Downloads

Download Full Paper

Authors

Strengthening United States Fiscal Policy

William A. Galston — Tue, 10 Nov 2009 13:35:00 -0500

Chairman Conrad, Senator Gregg, and members of the Committee, thank you for inviting me to participate in this important hearing. Although I am a senior fellow at the Brookings Institution as well as a member of the bipartisan Fiscal Seminar convened under the auspices of Brookings and the Heritage Foundation, I am here in my personal capacity, and unless otherwise noted, the views I express are mine alone.

I will not spend much time discussing the circumstances that form the backdrop to these proceedings. Regardless of party, ideology, or branch of government, almost no one in possession of the facts believes that our current fiscal course is sustainable. The level of deficits, debt, and borrowing from abroad projected for the next decade threatens not only our economic prosperity but also our currency, our global leadership, and our national independence. As soon as our economy emerges from recession and the job market improves, we must adopt a new fiscal strategy, and the planning needed to craft and implement it should begin without delay.

If these facts are clear, as I believe they are, then why have so many past efforts failed to yield major changes, and why is there so little evidence that we are preparing to make them now? While it is all too easy for partisans to point fingers at one another, it is more useful to examine the deeper problems that have thwarted action. Two are key. First, these issues are difficult, engaging them is risky, and in today’s intensely polarized national politics, no one wants to take the first step. Second, ordinary budget procedures are not well designed to address problems that develop over not years but decades. While we need sharp distance vision, what we mostly have is institutional myopia. For these reasons, business as usual is unlikely to produce better fiscal results in the next decade than it has in the past.

Fortunately, there is an alternative—namely, institutions specifically designed to address the problems of polarization and near-sightedness. In a paper released last June ("The Potential Role of Entitlement or Budget Commissions in Addressing Long-Term Budget Problems"), the bipartisan Fiscal Seminar reviewed the century-long contribution that commissions have made to U.S. policymaking. From the establishment of the Federal Reserve Board and Social Security, from military base restructuring to the struggle against terrorism, the list of accomplishments is impressive. The challenge of developing a sustainable fiscal policy offers the latest opportunity to put this institution to work.

While it is not my purpose this morning to evaluate the relative merits of various commission proposals, I can list the criteria that experience suggests are essential to any commission’s effectiveness.

First, the president and the congressional leaders of both parties must fully support its establishment. If they cannot agree at the beginning that the fiscal problem is too grave and urgent to defer, they are unlikely to support any solution the commission may propose.

Second, its membership must be truly bipartisan, and its rules must ensure that it can take no action without substantial support across party lines. Recommendations reflecting the views of only one party will simply replicate the polarization that has thwarted action up to now.

Third, it must be empowered to discuss the fullest possible range of relevant issues and options, with the fewest possible preconditions. Artificial limitations on the agenda will almost certainly tilt the deliberations toward a particular party or outcome and reduce the incentives of others to participate. No deficit reduction commission can succeed if its purview does not include both spending and revenue. Nor should we focus on social insurance programs to the exclusion of our tax code.

Finally, its recommendations must go before Congress under procedures that require expedited consideration and ensure an up-or-down vote. Rules permitting endless delay or amendments that could destabilize a balanced compromise are a formula for futility.

Beyond these core elements, there is room for legitimate disagreement about the scope of a fiscal commission. Some experts believe that a single commission should address all the major issues and seek to negotiate a “grand bargain.” Others think that breaking the problem up into more focused discrete issues would prove more workable. For example, Social Security and pensions could be in one basket and federal health care programs in another.

There is of course no guarantee that a commission will succeed where ordinary procedures have failed. Because fiscal policy raises issues that go to the heart of partisan and ideological definition in our politics today, a commission could yield yet more gridlock. And there is a possibility that both Congress and the White House could use a commission to evade their own responsibilities and defer a debate that needs to occur. Nonetheless, the potential gains outweigh the possible costs. At the very least, a commission would force both parties to focus on our fiscal challenges and send average Americans—whose concerns about deficits and debt have risen substantially during the past year—a credible signal that their leaders are paying attention.

Authors

William A. Galston

Publication: Senate Budget Committee