(What’s Left of) Our Economy: Why That China Competitiveness Bill Urgently Needs Trade Fixes

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China, competitiveness, consumers, health security, inflation, Robert E. Lighthizer, Section 301, Senate, supply chains, tariffs, technology, Trade, Trade Act of 1974, U.S. Innovation and Competition Act, World Trade Organization, WTO, {What's Left of) Our Economy

Nearly two months ago, I complained here on RealityChek that Congress was working way too slowly on legislation aimed at helping restore the U.S. competitiveness needed to reopen a wide lead over China in the dust in the race for future global technological competitiveness. Now I see that more time to pass the bill is needed after all – because the version approved by the Senate June 8 contains some fatal trade policy flaws that urgently need fixing.

Trade policy, as I’ve explained previously is a vital dimension of beating back the China challenge. But as reported yesterday in a New York Times article by former Trump chief trade official Robert E. Lighthizer, key amendments to the U.S. Innovation and Competition Act

“would harm U.S. interests in three important ways: It would cut tariffs on medical supplies needed in a pandemic; reauthorize the so-called Miscellaneous Tariff Bill to cut tariffs on Chinese and other imports; and amend our enforcement laws in a way that will make it more difficult to battle predatory trade practices by our foreign competitors.”

And if you read the (2,300-page) bill, you see that he’s right. For example, a section titled “Facilitating Trade in Essential Supplies” (beginning on p. 1588) refers to America’s need “to maintain readiness and to surge production of essential supplies in response to an emergency” in national security and public health and safety, or in the security and functioning of “critical infrastructure.”

But consistent with an approach taken to this challenge by President Biden, the act makes clear that achieving these goals includes developing “a whole-of-government strategy to ensure that the United States has reliable access to essential supplies from its trading partners….” In other words, it will be equally fine if the nation remains dependent on imports of such goods. These two objectives clash with each other directly and violently.

If Washington could count on lots of reliable trade partners out there to step in in a pinch and fill supply gaps, this strategy of defining “Made in America” as “Made Overseas, Too” would be defensible (if not, in my view, optimal). But although the legislation directs federal officials to “identify unreliable trading partners,” its authors seem oblivious to just how many foreign governments qualified for this label with their bans and other curbs on vital medical goods during the height of the pandemic. It was 80 according to no less than the World Trade Organization (WTO).

According to Lighthizer, the bill would also undercut American industry’s broader ability to compete with China by renewing a Miscellaneous Tariff Bill that would reduce duties on more than 900 goods produced and exported by the People’s Republic. The list – which also includes hundreds of other goods, begins on p. 1526 and goes on (in tiny type) for thirty pages.

And the text also supports Lighthizer’s claims that the bill would “gut a provision that President Trump used to impose tariffs on Chinese goods in 2018,” and “also effectively surrender sovereignty over our own trade policy to the World Trade Organization by permanently weakening Section 301 unless the United States first wins a multiyear litigation before that body.”

Possibly, the most disturbing feature of the bill’s treatment of these so-called “301 tariffs” (named after the section of the 1974 Trade Act that initially authorized suc measures is the measure that bars the imposition of these duties without an analysis of their impact “on United States entities, particularly small entities, and consumers in the United States” (p. 1607), and additionally of whether they would “unreasonably increase consumer prices for day-to-day items consumed by low- or middle-income families in the United States” (p. 1609).

Although numerous RealityChek posts have documented (see, e.g., here) that none of the 301 tariffs had lasting effects on U.S. retail or wholesale price levels (largely because importers absorbed the higher costs), there’s no guarantee that significant time frames would be examined. In addition, there’s never any shortage of businesses or business organizations in particular ready to predict disastrous price hikes from any tariff increases regardless of the historical record. So the most powerful tool possessed by Washington to enforce trade agreements and combat foreign protectionism could well be neutered unless changes are made.

Finally, Lighthizer’s contention about permanently weakening America’s Section 301 authority appears borne out by pp. 1610-1611, which states that the process for excluding certain goods from that measure’s tariffs “shall not apply” in cases under consideration by the “dispute resolution process under the World Trade Organization [WTO].” In other words, if such U.S. tariffs are challenged at the WTO, they can’t legally be imposed until the WTO decides they’re kosher.

There shouldn’t be any doubt in anyone’s mind that time is not on America’s side as it tries to raise its competitiveness game, both against the Chinese and in general. But it’s also true that haste makes waste — and even worse. And these trade policy flaws in this China competitiveness bill aren’t eliminated, Americans will see a crucial economic and national security opportunity squandered.     

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Im-Politic: The U.S. Still Isn’t Even Running in the Global Semiconductor Supremacy Race

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appropriations, authorization, Chuck Schumer, Congress, Defense Department, House of Representatives, Im-Politic, innovation, Intel, microchips, semiconductors, Senate, subsidies, Taiwan Semiconductor Manufacturing Company, technology, TSMC

In a week, the United States will mark an anniversary that no American should want to celebrate: It was last June 10 and 11 that companion bills were introduced in both the House and Senate to increase greatly the U.S. government’s support for domestic semiconductor manufacturing. Since I’m a strong backer of such efforts, why am I so downbeat? Because despite the importance of strengthening the American footprint in this sector for both national security and future prosperity, and despite seemingly strong bipartisan support for this effort (at least in principle) nearly a year later, not a single penny has been been spent.

It would actually be reasonable to argue that the federal government took way too long to take even that preliminary step. After all, as I documented in this article last October, America’s global leadership in producing (as opposed to designing) the microchips increasingly crucial to so many defense-related and civilian products and services – and indeed, entire industries – had been waning for decades, and was finally lost in 2017. That’s the year when U.S.-owned Intel became unable to keep up with Taiwan’s Taiwan Semiconductor Manufacturing Company in turning out semiconductors featuring the world’s smallest circuit sizes – the main indicator of a chip’s capabilities.

So it’s not terribly impressive that American political leaders took two years to begin responding in a serious way. (And P.S. – the executive branch, under President Trump, clearly wasn’t johnny-on-the-spot, either, in using the bully pulpit to sound the alarm and generate support for action.)

Still, the bipartisan nature of the legislative effort – at a time of heated partisanship on virtually every other national issue – seemed cause for encouragement. Even better: Just a month later, the House and Senate passed their respective semiconductor bills.

Since then, however, progress has been sluggish. The Representatives and Senators didn’t manage to get their acts together before that session of Congress ended in order to draft and pass the consensus bill needed to go to the President’s desk for signing. Therefore, the measures died, and work needed to begin all over again this past January, when the new Congress convened.

Semiconductor work was proceeding along another track in late 2020, and resulted in key provisions of the expired bill being incorporated into legislation authorizing the Defense Department’s levels and kinds of spending for this fiscal year. That bill became law this New Year’s Day (over a Trump veto for unrelated reasons), but according to Congress’ procedures, authorizing bills can’t trigger any spending. That requires an appropriations bill – which also must be passed in identical form by both chambers before enactment.

Six months later, there’s still no money flowing. The story is excrutiatingly difficult to follow, but it appears that Senate Majority Leader Chuck Schumer of New York tried to speed up the process in May with an emergency funding measure. Passage seemed likely at month’s end, before the Senate’s scheduled Memorial Day recess, but was stymied at the last minute by a sadly typical array of political shenanigans from both the minority Republicans (whose support was needed because of the Senate’s filibuster provision requiring super-majorities to pass most legislation) and Democrats. (See here and here for good accounts.)

Passage of a similar measure by the House looks to be easier, because of the Democrats’ slightly bigger majority. But there the process is less advanced, since the House Democrats’ own technological competitiveness proposals were only introduced in committee May 25.

It’s not like the U.S. private sector has been standing still. Intel, most significantly, seems determined to reemphasize manufacturing again, and has committed to put lots of money where it’s mouth is. But without a major helping hand from Washington, this campaign is sure to be swamped by the massive amounts of foreign government subsidies for promoting advanced semiconductor manufacturing that have been announced lately. (Here’s a useful summary.)

I’m generally a fan of the cautious approach to policymaking fostered by the U.S. Constitution’s separation of powers and checks and balances principles. And I wouldn’t be so fast, like so many Democrats, to junk the Senate’s filibuster rule (which is not found in the Constitution). Yet time is not America’s friend when it comes to regaining lost ground in a fast-moving industry like semiconductors, and if Washington continues its business-as-usual approach on this issue, history will likely conclude that the American political system failed a big test.

Full disclosure:  I own a not-trivial number of shares of TSMC common stock.

Im-Politic: Trump-ism Without Trump for America as a Whole?

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"Defund the Police", allies, CCP Virus, China, climate change, coronavirus, court packing, COVID 19, Democrats, election 2020, enforcement, Executive Orders, filibuster, Green New Deal, Huawei, human rights, Im-Politic, Immigration, Joe Biden, judiciary, lockdowns, mask mandate, masks, metals, multilateralism, Muslim ban, Phase One, progressives, Republicans, sanctions, Senate, shutdowns, stimulus, Supreme Court, tariffs, taxes, Trade, trade wars, Trump, unions, Wuhan virus

Since election day, I’ve spent some time and space here and on the air speculating about the future of what I called Trump-ism without Donald Trump in conservative and Republican Party political ranks. Just this weekend, my attention turned to another subject and possibility: Trump-ism without Mr. Trump more broadly speaking, as a shaper – and indeed a decisive shaper – of national public policy during a Joe Biden presidency. Maybe surprisingly, the chances look pretty good.

That is, it’s entirely possible that a Biden administration won’t be able to undo many of President Trump’s signature domestic and foreign policies, at least for years, and it even looks likely if the Senate remains Republican. Think about it issue-by-issue.

With the Senate in Republican hands, there’s simply no prospect at least during the first two Biden years for Democratic progressives’ proposals to pack the Supreme Court, to eliminate the Senate filibuster, or to recast the economy along the lines of the Green New Deal, or grant statehood Democratic strongholds Puerto Rico and the District of Columbia. A big tax increase on corporations and on the Biden definition of the super-rich looks off the table as well.

If the Senate does flip, the filibuster might be history. But big Democratic losses in the House, and the claims by many veterans of and newcomers to their caucus that those other progressive ambitions, along with Defunding the Police, were to blame, could also gut or greatly water down much of the rest of the far Left’s agenda, too.

CCP Virus policy could be substantially unchanged, too. For all the Biden talk of a national mask mandate, ordering one is almost surely beyond a President’s constitutional powers. Moreover, his pandemic advisors are making clear that, at least for the time being, a sweeping national economic lockdown isn’t what they have in mind. I suspect that some virus economic relief measures willl be signed into law sometime this spring or even earlier, but they won’t carry the total $2 trillion price tag on which Democratic House Speaker Nancy Pelosi seems to have insisted for months. In fact, I wouldn’t rule out the possibility of relief being provided a la carte, as Congressional Republicans have suggested – e.g., including popular provisions like some form of unemployment payment bonus extension and stimulus checks, and excluding less popular measures like stimulus aid for illegal aliens.

My strong sense is that Biden is itching to declare an end to President Trump’s trade wars, and as noted previously, here he could well find common cause with the many Senate Republicans from the party’s establishment wing who have never been comfortable bucking the wishes of an Offshoring Lobby whose campaign contributions it’s long raked in.

Yet the former Vice President has promised his labor union supporters that until the trade problems caused by China’s massive steel overproduction were (somehow) solved, he wouldn’t lift the Trump metals tariffs on allies (which help prevent transshipment and block these third countries from exporting their own China steel trade problems to the United States) – even though they’re the levies that have drawn the most fire from foreign policy globalists and other trade and globalization zealots.

As for the China tariffs themselves, the latest from the Biden team is that they’ll be reviewed. So even though he’s slammed them as wildly counterproductive, they’re obviously not going anywhere soon. (See here for the specifics.) 

Later? Biden’s going to be hard-pressed to lift the levies unless one or both of the following developments take place: first, the allied support he’s touted as the key to combating Beijing’s trade and other economic abuses actually materializes in very convincing ways; second, the Biden administration receives major Chinese concessions in return. Since even if such concessions (e.g., China’s agreement to eliminate or scale back various mercantile practices) were enforceable (they won’t be unless Biden follows the Trump Phase One deal’s approach), they’ll surely require lengthy negotiations. Ditto for Trump administration sanctions on China tech entities like the telecommunications giant Huawei. So expect the Trump-ian China status quo to long outlast Mr. Trump.

Two scenarios that could see at least some of the tariffs or tech sanctions lifted? First, the Chinese make some promises to improve their climate change policies that will be completely phony, but will appeal greatly to the Green New Deal-pushing progressives who will wield much more power if the Senate changes hands, and who have demonstrated virtually no interest in China economic issues. Second, Beijing pledges to ease up on its human rights crackdowns on Hong Kong and the Muslims of Xinjiang province. These promises would be easier to monitor and enforce, but the Chinese regime views such issues as utterly non-negotiable because they’re matters of sovereignty. So China’s repressive practices won’t even be on the official agenda of any talks. Unofficial understandings might be reached under which Beijing would take modest positive steps or suspend further contemplated repression. But I wouldn’t count on such an outcome.

Two areas where Biden supposedly could make big decisions unilaterally whatever happens in the Senate, are immigration and climate change. Executive orders would be the tools, and apparently that’s indeed the game plan. But as Mr. Trump discovered, what Executive Orders and even more routine adminstrative actions can do, a single federal judge responding to a special interest group’s request can delay for months. And these judicial decisions can interfere with presidential authority even on subjects that for decades has been recognized as wide-ranging – notably making immigration enforcement decisions when border crossings impact national security, as with the so-called Trump “Muslim ban.”

I know much less about climate change, but a recently retired attorney friend with long experience litigating on these issues told me that even before Trump appointee Amy Coney Barrett joined the Supreme Court, the Justices collectively looked askance on efforts to create new policy initiatives without legislating. Another “originalist” on the Court should leave even less scope for ignoring Congress.

The bottom line is especially curious given the almost universal expectations that this presidential election would be the most important in recent U.S. history: A deeply divided electorate could well have produced a mandate for more of the same – at least until the 2022 midterms.

Im-Politic: Aftershocks

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abortion, African Americans, America First, CCP Virus, China, climate change, coronavirus, COVID 19, Democrats, election 2020, election 2022, election interference, establishment Republicans, Green New Deal, Hispanics, Hong Kong, House of Representatives, human rights, Im-Politic, Immigration, Joe Biden, mail-in ballots, mail-in voting, Mainstream Media, nationalism, polls, Populism, recession, redistricting, regulations, Republicans, Senate, social issues, state legislatures, tariffs, Trade, traditional values, Trump, Uighurs, women, Wuhan virus

I’m calling this post “aftershocks” because, like those geological events, it’s still not clear whether the kind of political upheaval Americans are likely to see in the near future are simply the death rattles of the initial quake or signs of worse to come.

All the same, at the time of this writing, assuming that the final results of Election 2020 will see Democratic nominee Joe Biden win the Presidency, the Republicans keep the Senate, and the Democrats retain control of the House, the following observations and predictions seem reasonable.

First, whatever the outcome, President Trump’s campaign performance and likely vote percentages were still remarkable. In the middle of a re-spreading pandemic, a deep CCP Virus-led economic slump that’s left unemployment at still punishing levels, and, as mentioned before, unremitting hostility from the very beginning on the part of most and possibly all powerful private sector institutions in this country as well as much of Washington’s permanent government, he gave his opponents a monumental scare. If not for the virus, the President could well have won in a near landslide. And will be made clear below, this isn’t just “moral victory” talk.

Second, at the same time, the kinds of needlessly self-inflicted wounds I’ve also discussed seem to have cost him many important advantages of incumbency by combining with pandemic effects to alienate many independents and moderate Republicans who backed him four years ago.

Third, the stronger-than-generally expected Trump showing means that, all else equal, the prospects for a nationalist populist presidential candidate in 2024 look bright. After all, how difficult is it going to be for the Republican Party (whence this candidate is most likely to come) to find a standard-bearer (or six) who champions the basics of the Trump synthesis – major curbs on trade and immigration, low taxes and regulations but more a more generous economic and social safety net, a genuine America First-type foreign policy emphasizing amassing of national power in all its dimensions but using it very cautiously, and a fundamentally commonsense view on social issues (e.g., recognizing the broad support of substantial abortion rights but strongly resisting identify politics) – without regular involvement in Twitter fights with the likes of Rosie O’Donnell?

Fourth, these prospects that what might be called Trump-ism will outlast Mr. Trump means that any hopes for the establishment wing to recapture the Republican Party are worse than dead. Ironically, an outsized nail-in-the-coffin could be produced by the gains the President appears to have made with African Americans and especially Hispanics. After Utah Senator Mitt Romney’s defeat at the hands of Barack Obama in the 2012 presidential election, the Republican conventional wisdom seemed to be that the party needed to adopt markedly more tolerant positions on social issues like gay rights (less so on abortion), and on immigration to become competitive with major elements of the former President’s winning coalition – notably younger voters, women, and Hispanics. The main rationale was that these constituencies were becoming dominant in the U.S. population.

The establishment Republicans pushing this transformation got the raw demographics right – although the short run political impact of these changes was exaggerated, as the Trump victory in 2016 should have made clear. But it looks like they’ve gotten some of the political responses wrong, with immigration the outstanding example. However many Hispanic Americans overall may sympathize with more lenient stances toward newcomers, a notable percentage apparently valued Mr. Trump’s so-called traditional values and pro-business and pro free enterprise positions more highly.

If the current election returns hold, the results will put the GOP – and right-of-center politics in America as a whole – in a completely weird position. Because the party’s establishment wing still figures prominently in its Senate ranks, a wide, deep disconnect seems plausible between the only branch of the federal government still controlled by Republicans on the one hand, and the party’s Trumpist/populist base on the other – at least until the 2022 mid-term vote.

Fifth, as a result, predictions of divided government stemming from Election 2020’s results need some major qualifications. These establishment Senate Republicans could well have the numbers and the backbone to block a Biden administration’s ambitious plans on taxing and spending (including on climate change).

But will they continue supporting Trumpist/populist lines on trade and immigration? That’s much less certain, especially on the former front. Indeed, it’s all too easy to imagine many Senate Republicans acquiescing in the Democratic claims that, notably, the United States needs to “stand up to China,” but that the best strategy is to act in concert with allies – which, as I’ve explained repeatedly, is a recipe for paralysis and even backsliding, given how conflicted economically so many of these allies are. As suggested above, the reactions of the overwhelmingly Trumpist Republican base will be vital to follow.

One reason for optimism (from a populist standpoint) on China in particular – Senate Republican opposition to anything smacking of the Green New Deal should put the kibosh on any Biden/Democratic notions of granting China trade concessions in exchange for promises on climate change that would likely be completely phony. Similar (and similarly dubious) quid pro quos involving China’s repression of Hong Kong and its Uighur Muslim minority could well be off the table, too.

Sixth, their failure to flip the Senate, their apparently small losses in the House, and disappointments at the state level (where they seem likely to wind up remaining a minority party) means that the Democrats’ hoped for Blue Wave was a genuine mirage – and looks more doubtful in future national contests as well. For state governments are the ones that control the process of redrawing Congressional district lines in (very rough) accordance with the results of the latest national Census — like the one that’s winding up. So this is a huge lost opportunity for the Democrats, and a major source of relief for Republicans.

Meanwhile, on a symbolic but nonethless important level, the aforementioned better-than-anyone-had-a-right-to-expect Trump showing means that the desire of many Democrats, most progessives, and other establishmentarians to crush the President (and other Republicans), and therefore consign his brand of politics and policy to oblivion, have been sort of crushed themselves. So it’s an open question as to whether they’ll respond with even more vilification of the President and his supporters, or whether they’ll finally display some ability to learn and seriously address legitimate Trumper grievances.

Seventh, as for Trump Nation and its reaction to defeat, the (so far) closeness of the presidential vote is already aggravating the nation’s continued polarization for one particularly troubling reason: A Biden victory aided by the widespread use of mail-in voting inevitably will raise charges of tampering by Democratic state governments in places like Michigan, Wisconsin, and Pennsylvania. Call it domestic election interference, and the allegations will be just as angry as those of foreign interference that dogged the previous presidential election. As a result, I hope that all Americans of good will agree that, once the pandemic passes, maximizing in-person voting at a polling place needs to return as the norm.

Finally, for now – those polls. What a near-complete botch! And the general consensus that Biden held a strong national lead throughout, and comparable edges in key battleground states may indeed have depressed some Republican turnout. Just as important – a nation that genuinely values accountability will demand convincing explanations from the polling outfits concerned, and ignore their products until their methodologies are totally overhauled. Ditto for a Mainstream Media that put so much stock in their data, in part because so many big news organizations had teamed up with so many pollsters. P.S. – if some of these companies are fired outright, and/or heads roll (including those of some political reporters), so much the better.

Glad I Didn’t Say That! Civic Grace is Selective for Senate Democrats

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Amy Coney Barrett, Chuck Schumer, Cory Booker, Democrats, Dianne Feinstein, Glad I Didn't Say That!, Robin Givhan, Senate, The Washington Post

“’The only thing that heals this body is what I call a revival of civic grace,’ [Democratic Senator Cory] Booker said….He was asking his Republican colleagues to be big. To be benevolent. To extend grace” on the Amy Coney Barrett Supreme Court nomination.”

–The Washington Post, October 20, 2020

“’I’ve had a long and serious talk with Senator Feinstein. That’s all I’m going to say about it right now’,” [Senate Democratc leader Chuck] Schumer told reporters” after “Feinstein credited Republicans for holding a hearing with decorum and even hugged Sen. Lindsey O. Graham (R-S.C.), the chair….”

–The Washington Post, October 20, 2020

(Sources: “Republicans have the power to vote in Barrett. Sen. Booker implored them to have grace,” by Robin Givhan, The Washington Post, October 20, 2020, .https://www.washingtonpost.com/nation/2020/10/20/republicans-have-power-vote-barrett-sen-booker-implored-them-have-grace/ & “Schumer says he had ‘serious talk’ with Feinstein, sidesteps questions about Judiciary Committee post,” by Paul Kane, Ibid., October 20, 2020, https://www.washingtonpost.com/politics/senate-democrats-feinstein-court/2020/10/20/11cae500-1311-11eb-bc10-40b25382f1be_story.html)

Im-Politic: The Supreme Court Mess II

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Antonin Scalia, Constitution, diversity, Federal Reserve, identity politics, Im-Politic, Joe Biden, Robert Bork, Ruth Bader Ginsburg, Senate, Supreme Court, term limits, Trump

Since the Supreme Court Mess that I analyzed yesterday really is a Supreme Court Mess and not simply a Ruth Bader Ginsburg Mess, today let’s dive right into problems with how Americans deal with the top of the federal government’s judiciary branch other than the means of picking the late Justice’s replacement.

First and maybe most obvious comes an inconsistency in the position of the Democrats and especially of their presidential nominee this year, former Vice President Joe Biden. From that party and candidate comes the insistence that it’s wrong for President Trump to choose a new Justice so close to the November election because it could strap the country with a new Justice and Court line-up that flout the popular will that would be revealed by a Biden win on major policy issues (like abortion or the future of Obamacare).

Leaving aside the (clear un-) Constitutionality of this position, it’s not entirely unreasonable. But it would become much stronger substantively, and much less vulnerable to charges of hypocrisy and pure partisanship, if Biden enabled voters to assess their actual Supreme Court-related choices at least as clearly as Mr. Trump has with the list of Ginsburg replacement possibilities he’s released. Biden has promised that he’d put forward an African American woman (though maybe not this time?). But which ones is he considering (if it is this time)? He hasn’t told us. So the criterion of fairness should oblige him to release his own list ASAP, to permit voters to weigh the alternatives fully. After all, even if they don’t like any of the Trump candidates (which the President has subsequently announced will be restricted to women), Americans might like Biden’s choices even less.

The second problem, though, has precisely to do with the identity politics of Supreme Court nominations that both Biden and the President are practicing. Not that I have any inherent objection to another female Justice or the first African American female Justice. But these announcements raise any number of divisive questions that Americans could do without in these divisive times. Just a few examples:

>During the Obama years, there was much talk that the Court needed an Asian-American Justice. (Full disclosure: Denny Chin, the federal appeals court judge mentioned here, is a college friend.) So many valid reasons were cited (e.g., they’re “the fastest growing population of color in the country, with a voting electorate expected to double in the next 25 years”). Exactly when, therefore, did this proposal become obsolete? And why?

>Regarding the Biden pledge to nominate an African American woman, that would move the Court’s makeup closer to the gender composition of the entire U.S. population, so this promise can be justified by the goal of making the Court “look like America.” (So would the President’s promise to choose a woman whose race or ethnic background he hasn’t specified.) But an African American woman would bring the number of African Americans on the Court to two (along with Clarence Thomas). Since they amount to only some 13 percent of all Americans, they’d be way over-represented.

>The same outcome would result from if Mr. Trump picks Cuban-American federal appeals court judge Barbara Lagoa from Florida. She’d be the second Latino woman on the Court (along with Sonia Sotomayor). But that decision would create another over-representation situation (though not one as sizable as those for African Americans, at least in the early part of a Biden administration). And what about Latino men? They’d remain completely shut out. How come?

Again, I agree broadly with the idea that the leadership ranks of major American institutions, especially public, but also private, should be diverse enough in terms of all the major population categories to make sure that the widely varying experiences of these groups contribute to decision-making. In my view, that’s a major plus, since the idea of objectively optimal policies or practices is impossibly naive, and because the choices made by public institutions are bound to affect different groups differently.

But although all these stakeholders deserve a say, when diversity – and especially specific diversity formulas – become explicit, you unfortunately enter a world in which the kinds of potentially ugly identity politics-related questions just mentioned tend to come to the fore, and vital issues of merit tend to move to the rear.

As a result, though doing so is somewhat hypocritical, certain kinds of fictions do serve important purposes. So I hope that from now on, diversity promises for public appointments at least become less explicit, and the results become the product of informal political pressures and other considerations. (Privately owned institutions should be able to do whatever they want within the bounds of anti-discrimination laws. Even so, diversity can benefit them, too, since especially in the case of businesses, they’re trying to win and keep customers, and diverse leadership ranks are likely to provide important insights into appealing to various population groups.)

The third big part of the Supreme Court Mess: The American political system clearly has moved way too far away from the crucial idea that, since elections matter, Presidents have the right to appoint whoever they wish to fill positions the Constitution entitles them to fill unless their choices are flagrantly incompetent, or utterly dismissive of Constitutional and ther legal standards, or ethically or criminally compromised. If Senators simply don’t agree with nominees on legitimate Constitutional and legal controversies – too bad.

Thankfully, this idea isn’t completely dead. For example, three Democrats did vote to approve Trump Supreme Court nominee Neil M. Gorsuch in April, 2017. At the same time, three isn’t much. Vastly more encouraging: In August, 1993, Ginsburg was confirmed by a 96 to 3 vote (one Senator abstained), which means that plenty of Republicans supported here even though she surely wasn’t their legal and Constitutional cup of tea.

At the same time, Republicans controlled the Senate when Gorsuch was considered, and Democrats enjoyed a majority when Ginsburg came up. So a better example of this ideal would be the 1990 vote in favor of David H. Souter. He was a George H.W. Bush nominee, yet won the nod of a Democratic Senate – in a 90-9 landslide. (This time, one Senator didn’t vote.) 

Or was it? After all, Souter arguably received this margin precisely because his views on major subjects were so unknown – largely because his lower court opinions and other legal writings were so plain vanilla or so scarce or both. As widely (and convincingly) supposed, Souter (and his supporters) had learned the big lesson of the failed nomination of Robert Bork: Don’t leave a conspicuous “paper trail.”

Bork, whose bid for the Court failed in 1987, was rejected by a Democratic-controlled Senate largely because his prodigious writings were so controversial. His reputation as a Watergate-era villain surely didn’t help, either.

But were Bork’s views so out of the mainstream, as his opponents charged? Just a year earlier, another doctrinaire judicial conservative nominated by President Ronald Reagan – Antonin Scalia – was elevated to the Court. And he won unanimously. (Two Senators didn’t vote.)  But that year, Republicans ran the upper chamber.

As a result, it’s easy to conclude that the tradition of “Borking” is very much alive, and that overly political Supreme Court nomination fights will continue for the time being.

The final big aspect of the Supreme Court mess: This drift away from the respect for legitimate presidential prerogatives no doubt results from both the prominent role the Court has played in deciding issues (like Obamacare) that elected politicians should be figuring out, and this prominence, and the towering stakes thereby created, in turn stem from the lifetime nature of Court terms. In other words, once a Justice is confirmed, he or she can serve literally for decades, and for just as long decisively influence policy decisions that shouldn’t be legalized.

Therefore, although I’m super-hesitant to support Constitutional changes in response to developments that are probably transient, I fear that the too often vicious and hyper-partisan nature of American politics is here to stay for the foreseeable future.  Therefore, I’d support at least considering an amendment that would limit the Justices’ terms.  One possible model: the Federal Reserve, another government body that’s supposed to be shielded from politics, and whose seven Board members serve for fourteen years, and whose Chair and Vice Chair are limited to four (although this curb doesn’t count against their Board service).

Not that I love the Fed’s degree of autonomy.  But the temperature of national politics clearly needs to be lowered to safer levels, and term limits on the increasingly supremely powerful Supreme Court are the best place to start I can think of.     

Im-Politic: The Supreme Court Mess I

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Antonin Scalia, Barack Obama, Biden Rule, conservatives, Constitution, Democrats, election 2020, elections, Ginsburg, Im-Politic, Joe Biden, lame duck Congress, liberals, Merrick Garland, Mitch McConnell, Republicans, rule of law, Ruth Bader Ginsburg, Senate, Supreme Court, Trump

I call this piece “The Supreme Court Mess I” rather than “The Ginsburg Mess I” because the fix in which the nation finds itself regarding the replacement of the late Supreme Court Justice Ruth Bader Ginsburg reflects a number of much deeper problems America is suffering. These stem from the firestorm-like nature of some recent battles over the roster of this nearly (but not quite paramount) arbiter of the Constitution, which makes it a the nearly last word regarding the entire U.S. legal system and its often decisive, lasting effects on every dimension of American life. (The Roman numeral tells you that there will be another post on this subject coming real soon, probably tomorrow.)

Today we’ll focus on the immediate question at hand: whether the Senate should vote on President Trump’s nominee for a new Justice. To me, the only answer with any merit: Absolutely. Indeed, nothing could be stronger, and more important to affirm, than the conclusion that any President has every right to nominate a new Justice at any time during any of his or her terms in office (i.e, through Inauguration Day, January 20), and that the Senate has every right to vote on his choice during this time. Why? Because it’s what the Constitution says, and neither the Framers nor any American leaders have ever formally tried to change the system since 1789. That is, there are no exceptions made – including for presidential election years, as many Democrats are calling for now.

If you think about it non-hysterically, you can see why. Abandoning this standard opens the door to the kind of bizarrely and indeed laughably convoluted and self-serving case being made now by Republican Senate Majority Leader Mitch McConnell of Kentucky to explain why (a) he’s decided to allow a vote on a Supreme Court nominee this presidential election year, but (b) refused to allow former former President Obama’s appointment of Supreme Court nominee Merrick Garland be considered during the previous presidential election year.

According to McConnell, the governing principle for Court nominations is the result of the latest Senate election. As he wrote right after Ginsburg’s passing:

“In the last midterm election before Justice [Antonin] Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.

“By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, To

To which the only serious reaction has to be “Seriously”? Not only is this position even further from the Constitutional standard than the presidential carve-out position. If it’s followed, it’s easy to see how other unscrupulous politicians could use even more arbitrary maxims like this to completely paralyze the Supreme Court nomination process.

After all, if it’s the Senate’s makeup that counts most of all, then why not bar nominations during the run-up to such elections – which of course take place every two years (when a third of the Senate faces reelection). For by McConnell’s logic, it wouldn’t be possible to know the people’s will on such matters for certain until those Senate results are in. And how would anyone define “run-up”? A month? Two? Six? A full year? On what objective basis could anyone distinguish among these possibilities? The only reasonable answer? None.

Lest you want to blame Republicans alone for this kind of sophistry, keep in mind that its origins lie in the so-called “Biden Rule” – when in 1992, the former Vice President and current Democratic presidential nominee argued that “once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.” And in an example of poetic justice, McConnell and many other Republicans and conservatives cited this reasoning to justify their own Supreme Court positions when former President Barack Obama in March, 2016 nominated senior federal judge Merrick Garland to fill the seat left by Scalia’s death in February.

Three final observations: First, any number of politicians and pundits are citing various supposed historical traditions for justifying their stances on election year Supreme Court votes. (See here for Republicans and conservatives, and here for Democrats and liberals.) To which I can only say, “Tradition, shmadition.” As indicated above, although interpretation is possible and often needed for all laws and many Constitutional provisions, when the latter set out clearcut procedures – as for the nomination and approval of Supreme Court Justices (but not so much for impeachment) – Americans drift away from them at their peril. If you don’t like these procedures, then use the amendment process of the Constitution to change them, rather than pretending that traditions and non-legal precedents and other practices are adequate substitutes.

Second, equally ludicrous and even more dangerous is the claim that the nation’s current divided circumstances justify waiting until after the presidential election to fill the Ginsburg seat. That’s essentially warning that violence may erupt if the President and Senate exercise their Constitutional prerogatives, and in effect supporting a surrender to the threat of mob rule.

It’s absolutely true that practically all decisions made by political leaders – elected and unelected alike – are at least partly political in nature, and can profoundly affect the national interest short term and long term. It’s entirely legitimate, therefore, and even important for President Trump to take into account in his Ginsburg approach non-Constitutional considerations.

But it’s something else entirely, and far more dangerous, to contend that such judgment calls are or should in any way be legally binding. As with federal government personnel choices, Constitutional procedures can be used to protest and overturn presidential or other decisions that are entirely legal but unpopular for whatever reason. They’re called elections, and Americans would do far better to focus on taking all (legal) steps to ensure that their candidates and viewpoints prevail, rather than dreaming up spur-of-the-moment rationalizations for ignoring settled law that may create momentary advantages, but that contain equal backfire potential, and that can only erode the rule of the law to everyone’s ultimate detriment.

Third, my only strong preference in this matter is that a Senate Supreme Court vote not take place during a lame duck session – which would be convened after the presidential election. That’s because a possibly decisive number of Senators who would be considering the nomination would be Senators who have been voted out of office. What an offense to the idea of representative government that would be! At the same time, it’s only my preference. These sessions themselves are entirely legal, and I’m not about to claim that my views should substitute for Constitutional procedures.

Im-Politic: The CCP Virus and…Impeachment??

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Articles of Impeachment, CCP Virus, China, Comptroller General, Congress, coronavirus, COVID 19, Democrats, GAO, Government Accountability Office, House of Representatives, Im-Politic, impeachment, Impoundment Control ct of 1974, Senate, Trump, Ukraine, WHO, World Health Organization, Wuhan virus

I’m actually glad that Congress’ Democrats are accusing the Trump administration of violating the same law in its decision to suspend funding for the World Health Organization (WHO) as it allegedly did in halting military aid to Ukraine – which of course was a central impeachment charge.

The point here is not to debate the merits of the WHO action (for the record, I’m strongly in favor) or of the impeachment effort (for the record, I strongly opposed) but to make clear how transparently partisan and Trump-ly deranged inclusion of the Ukraine aid accusation actually was.

Specifically, the Democrats’ allegation that “President Trump is violating the same spending laws that brought about his impeachment” represents a golden opportunity to point out that, legally speaking, jumping to the conclusion that the Ukraine decision was impeachable arguably violated those spending laws, too.

Let’s say that the way the Ukraine aid disbursement delay was carried out did clash with the terms of the Impoundment Control Act of 1974 – signed into law to prevent Presidents from blocking arbitrarily the actual expenditure of public funds as required in approved legislation. The word “arbitrarily” is important here, because the law has always been flexible enough to authorize such blockages and delays. It simply mandates that these actions to meet certain conditions.

But the law also sets out certain procedures for remedying these situations, and guess what? Quickly turning a claimed violation into an Article of Impeachment isn’t one of them. Or even close.

What’s supposed to happen legally is that an arm of Congress, the Government Accountability Office (GAO), determines whether a violation occurred. (It did.) And then the Comptroller General (the GAO’s head) is supposed to “bring a civil action in the United States District Court for the District of Columbia to require such” funds to be spent.

The case was never brought to court, however. And why not? Because the Democratic-controlled House had already impeached President Trump by that time! In fact, the GAO report didn’t come out until scant hours before the Senate impeachment trial began (on January 16).

The impeachment articles contained other charges of course, but the impoundment law allegation deserves emphasis because it was the only claimed legal violation for which a clear procedure for going forward was specified – in the statute itself.

The House unmistakably ignored that procedure. Meaning maybe we need an impeachment proceeding for the House leaders?

Im-Politic: Why the Haters are Wrong About Trump and the Coronavirus

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CDC, Centers for Disease Control and Prevention, coronavirus, Council on Foreign Relations, Im-Politic, impeachment, pandemic, public health, Senate, The New York Times, Think Global Health, Trump, WHO, World Health Organization

President Trump sure is getting slammed for his response to the coronavirus outbreak, both by the Mainstream Media, many Democratic Party politicians, and even some public health specialists. (See here and here.) Their main indictments: He’s been hopelessly behind the curve. Or has it been that he’s been too alarmist? Both charges have been made, making clear that the substance doesn’t matter much to the critics.

One allegation seems justified to me: The President’s latest (fiscal 2021) budget request included a 16 percent cut in outlays for the Centers for Disease Control, the branch of the Cabinet-level federal Department of Health and Human Services in charge of the nation’s health security. The budget document was made public eleven days after the World Health Organization declared the outbreak to be an international public health emergency, and six days after Mr. Trump promised in his State of the Union address to take “all necessary steps” to protect Americans from the disease.

But the main problem with the CDC decision, as I see it, is political. Clearly, the timing was terrible, and was bound to be jumped on by reasonable and unreasonable critics alike. Indeed, all of the President’s budget requests have sought such cuts – which also deserves criticism even though Mr. Trump eventually accepted higher funding in the final budget deals each time.

Substantively, however, it’s inconceivable that had any of the sought cuts been actually made, they would have made a discernible difference in the nation’s early-stage anti-coronavirus efforts at least. After all, how could even more money have enabled the agency to predict or identify the virus once it broke out, since it cught China itself by surprise; and since Beijing still refusedsto let U.S. officials as such into the country to aid its own efforts?

It’s true that last year, the Trump administration ended a program in the U.S. government’s foreign aid agency aimed precisely at improving the detection of corona-type viruses “with pandemic potential.” According to ABC News, the program (called PREDICT) “is credited with identifying nearly a thousand” of these maladies since its creation in 2009. Which sounds great. Except the coronavirus clearly wasn’t one of them.

But as for being slow on the coronavirus uptake (a line of attack that’s – understandably – shown more staying power than the “overreaction” claims), timelines showing milestones in the virus’ identification and spread, and principal Trump administration responses demonstrate nothing of the kind. (My main sources are the Think Global Health initiative of the Council on Foreign Relations, a leading U.S. think tank; and The New York Times.)

They remind us that the first recorded onset of symptoms, in Wuhan, China, came on December 1, that Chinese authorities first told the World Health Organization (WHO) that something was rotten in that city on December, 31, and that Beijing took its own first anti-virus action the following day – closing a seafood market thought to have been the the origin point.

On January 21, the United States confirmed finding the first domestic American case of the virus – in a man who had traveled to Wuhan. By this time, China had reported six virus-related deaths, and several hundred cases.

A day later, WHO convened its first coronavirus meeting, and ultimately decided against declaring the outbreak to be a Public Health Emergency of International Concern. On January 23 came the first Chinese travel restrictions and quarantines.

Between January 24 and 26, Washington identified four more American cases, and on the 27^th, by which time 3,000 victims around the world had contracted the disease and 60 had died, announced screening programs at domestic airports that handled 90 percent of passengers coming from China along with CDC initiatives “to identify potential cases.” In addition, a high level State Department travel advisory had been announced for Wuhan, and President Trump had spoken with Chinese leader Xi Jinping and offered assistance.

On January 28 and 29, the United States began evacuating its nationals from Wuhan – dates which are significant because it wasn’t until the following day that WHO finally decided to declare the virus an official public health emergency. On the 31^st, as The New York Times reported, the administration announced that it “would bar entry by most foreign nationals who had recently visited China and put some American travelers under a quarantine as it declared a rare public health emergency.” At the time, worldwide deaths totaled 213 and cases approached 9,800 (eleven in the United States). Also significant – these actions came a day before the first coronavirus death outside China was reported (in the Philippines).

Official U.S. actions by no means stopped then. On February 5, all Peace Corps volunteers were evacuated from China and the CDC starting sending diagnostic kits to more than one hundred laboratories in the United States. (The Food & Drug Administration authorized the tests to be conducted by the kits the day before.) Two days later, on the seventh, the administration pledged $100 million to the global coronavirus fight.

The last week of January, incidentally, was kind of interesting for another reason: President Trump was being tried in the Senate on two articles of impeachment – which themselves represented the culmination of what I’m sure we’ll all agree was a great deal of work by Democrats in the House and Senate, as well as voluminous reporting by the national media. The journalism of course, included the publication of scoops of any number of supposed bombshell revelations about the President’s misdeeds, and even though acquittal seemed certain to most, they clearly sent the President and his top aides scrambling on an ongoing basis and surely occupied a great deal of their time.

Moreover, the trial didn’t end (with the acquittal vote) until February 5 – the date that the Peace Corps volunteers were being evacuated and the CDC diagnostic kits were being issued.

I fully accept that Presidents need to be able to walk and chew gum at the same time, and that indeed, the ability to manage crises successfully, and during the worst of circumstances, is the most important qualification for the job. It’s also possible that the administration has already lost crucial time in the anti-coronavirus fight, and that consequently it will never catch up.

But the above timelines reveal to me, anyway, that the American record so far measures up well versus that of any other national government, and especially well versus that of WHO, which is supposed to be the tip of the spear here. Moreover, the Trump administration response seems all the more alert upon remembering that, as the virus was breaking out, the President was, if not literally fighting for his own life, relentlessly besieged by adversaries both inside and outside his government.  I suspect that posterity, as a result, will need to struggle to judge his initial coronavirus policy decisions as failures.

Im-Politic: On Kavanaugh, Ford, and Fairness

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Brett Kavanaugh, Christine Blasey Ford, feminism, gender politics, Im-Politic, jurisprudence, law, presumption of innocence, Senate, Senate Judiciary Committee, sex crimes, Victorian era

The Brett Kavanaugh mess slogs on, and I’m still detecting some major misconceptions surrounding the federal judge’s nomination for a Supreme Court seat. Herewith my effort to clear up perhaps the biggest: that the Senate Judiciary Committee and full Senate should apply the same standards of evidence and presumption of innocence when considering the charges against Kavanaugh as these bodies would if he were facing criminal or even civil charges.

There’s no doubt that Kavanaugh deserves fair treatment, and that, all else equal, accusations alone shouldn’t be enough to derail his confirmation. But Kavanaugh is not on trial; so far he faces no punishment, either in the form of jail time or fines. His reputation has indeed been wounded, perhaps mortally so, and that’s far from nothing. Kavanaugh’s family in particular deserves everyone’s deep sympathy. Yet no one can overlook the distinct possibility that his reputation deserves to have been wounded, and that if so, the responsibility for his family’s sufferings would rest on his shoulders. 

More important, this issue of course brings us to the central challenge of defining fairness – both in and out of court – and in connection with sex offenses, especially when allegedly committed by men against women, and even in the absence of corroborating evidence. In a world, or country, in which men and women enjoyed full equality not only legally, but in terms of political and economic power, and expected social and cultural standards, Kavanaugh and other “defendants” would certainly merit the longstanding presumption of innocence (especially in court).

But for all the stunning progress made by women in America in recent decades, we still don’t live in that world or country, especially on the political and economic power and expected norms front. In this respect, those who insist that Christine Blasey Ford’s charges specifically pass the main legal tests developed over the past several centuries of Anglo-American jurisprudence overlook how thoroughly this jurisprudence has been developed from a male vantage point; how strongly this jurisprudence in turn has been shaped by equally long centuries of legally mandated subordinate status for women, along with assumptions of their biological and even moral inferiority (remember Eve?); and by the related and never-to-be-underestimated emotional and psychological need to rationalize this unequal treatment continually.

One crucial result that’s directly relevant to sexual assault cases is the longstanding stigmatization of women who come forward – as, e.g., actively responsible, passively complicit, irrationally or jealously misandrous (the male version of misogyny) – that has created towering barriers to any type of reporting, and equally towering incentives to keep silent, and even to try actively to forget. These barriers and incentives themselves have reflected beliefs in women needing to know their place and – as inherited especially from the Victorian era – to represent (male-created) ideals of purity and virtue. And the unjustified shame implanted in female sex offenses victims by these lingering Victorian prejudices must inevitably and greatly worsen the feelings of humiliation and pain and generalized fear that play their own immense and distinct role in both inhibiting prompt reporting and clouding memories.

The feminist movement directly challenges all these beliefs and practices. All movements seeking mass change on so many levels, and in such sensitive realms of life, will inevitably produce excesses. And surely because feminism (which of course has emerged in many different forms) has challenged the most fundamental element of any individual’s identity, and therefore has created such unusual tumult in our private as well as public lives, its excesses may have been, or at least seem, comparably unusual (especially from a male vantage point).

But the demand that the modern handling (legally and even politically) of sex offenses rigidly follow all or even most of the standards of fairness rightly prized for so long in other situations completely ignores all of these past inequities – as well as their ongoing legacy.

This doesn’t mean that women should always be automatically believed, or that the presumption of innocence should be abandoned wholesale, especially in legal proceedings. And it certainly doesn’t mean that all men are at least passive predators, much less that they require man-shaming – least of all in high school or college (where I’ve been told directly it’s become widespread in humanities and social sciences courses).

It does, however, mean that the nation recognize that the needed gender-related social and related cultural and social transformations that gained critical mass in the 1960s and 1970s are now, because of the #MeToo movement, proceeding at record speed – and that this acceleration is needed, too. Addressing sex offenses, as a result, has inevitably been thrown into a state of flux. Everyone, and every institution, is feeling their or its way – or at least should be. Given all the uncertainty created, mistakes and injustices will be unavoidable. But while ways should constantly be sought to prevent and minimize them, no one should pretend that in dealing with sex offenses, simply sticking to even America’s core notions of fairness and justice is entirely fair or just any more.