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.

Im-Politic: Why the Kavanaugh Solution – at This Point – Needs to be Political

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Brett Kavanaugh, Christine Blasey Ford, Constitution, Im-Politic, Republicans, Senate, sexual assault, Supreme Court, Trump

If you’re not completely depressed by the Brett Kavanaugh mess, you must be a hopeless partisan – either Democratic, because you’re exhilirated by the improved odds of derailing a Supreme Court nomination you opposed from the start, or Republican, because your main reaction is rage that Kavanaugh’s confirmation is now endangered by a shameful smear. Yet here’s a surprise: Despite the torrent of strident partisanship that’s still gushing, the often (rightly) besmirched process of “politics” looks like by far the best solution available, at least at this point in the story.

What’s most depressing, of course, is the likelihood that now each likely outcome of this nomination battle could result in a major injustice – either rewarding a sexual criminal with a lifetime post on the highest court in the land, with all the power that entails, or trashing the reputation of an innocent and possibly destroying his current family life.

Moreover, it’s entirely possible to be legitimately depressed about this situation even if you believe, as I do, that victims of sex crimes often fail to report them right away, or even for many years, for reasons that anyone with any sense of compassion should understand and accept; that for equally valid reasons, their memories of the these incidents can be flawed; that denial is a standard initial response even of the guilty; that the trauma induced by such actions is so powerful that even offenses by the relatively young can’t be soft-pedaled, much less excused; that even one-time assaulters need to be punished; and that in the court of public opinion (as opposed to the legal system), a blanket assumption of innocence shouldn’t always be made.

It’s entirely possible to be legitimately depressed despite these observations because, however compelling they are in general, it’s always less certain whether they apply to an individual case.

As a result, perhaps most frustrating and dispiriting of all, it’s entirely possible that the truth may never be known. There’s a view out there that, given enough time, resources, and energy by journalist or law enforcement officials, the full story will eventually come out. This is what we’ve just been told, for example, by former New York Times Executive Editor Jill Abramson. But with only one other person in the room at the time, according to alleged victim Christine Blasey Ford, and her apparent failure to share her story contemporaneously (and No, that’s not a criticism), this optimism seems excessive.

At the same time, the case for confirming Kavanaugh has merit as well. For example, there’s some evidence that a large percentage of sex offenders are repeat offenders, but no evidence has yet surfaced of a pattern of abusive behavior toward women by Kavanaugh at any stage of his life. (Some researchers, however, have found that most sex offenders are not repeaters.)

Less convincing, but not entirely out of bounds, is the “horseplay” argument – i.e., that the force of Kavanaugh’s alleged advances was not nearly as strong as Ford has indicated. On the one hand, I strongly agree that whenever anyone signals reluctance, an immediate stop in the activity in question is mandatory – even when teens are involved. On the other hand, as observed by Washington Post columnist David von Drehle (who wants Kavanaugh to withdraw his nomination), “adolescent boys and girls often address their awkwardness with alcohol, and sexual inexperience plus inebriation is a time-tested recipe for regrets and misunderstandings.”

So there’s plenty of powerful ammunition available to both sides in the Kavanaugh fight, and possibly towering stakes. What to do? Here’s where politics comes in. The Constitution vests the Senate with the authority to approve or disapprove a President’s Supreme Court (and many other) nominees. Although the Founders were looking for a check on presidential power from a body that they wanted largely shielded from popular pressures (by stipulating Senators’ election by state legislatures), since the advent of direct elections in 1913 (via the 17^th Amendment) these pressures (i.e., standard politics) are now the paramount standard. Here’s the essential background.

As a result, with this set of circumstances, the most legitimate way for the nation to solve this problem is to hold a Senate vote on Kavanaugh (unless he withdraws or President Trump pulls the nomination), and therefore discover what the popular will is. This vote could certainly be preceded by a new investigation that would add to what is already known about Kavanaugh from the several background checks he has gone through during his career in public life. But I would hope that the investigation is short – because of my aforementioned doubt that new evidence can be found.

Senate approval of Kavanaugh would be a clear sign that at least a plurality of Americans is comfortable with him serving on the Court – for whatever reason they choose – and vice versa. Moreover, there’s a useful recent precedent in this regard: President Trump’s election.

As many no doubt remember, shortly before the November, 2016 vote came the surfacing of the “Access Hollywood” tape, which contained a boast from candidate Trump about behavior that could well qualify as sexual assault. In addition, throughout the campaign, numerous women accused Mr. Trump of just such behavior. These charges, along with the tape, were widely reported. The public had ample opportunity to consider them. Voters ultimately deemed him fit for the highest office in the land nonetheless.

Voters have a chance to tell their Senators what they think of the Kavanaugh nomination, too, and lawmakers can also consult the polls. Is it reasonable to contend that, because Ford’s charges became public so recently, voters need more time to contact their Senators, or that Senators need more time to seek their opinions? Sure. But the resulting delay in the vote, again, should be short.

Skeptics could argue that, since Republicans hold the Senate, this exercise would be a sham. But the GOP members might run significant risk for blowing off their constituents’ opinions, especially given that the party’s ratings from women have been pretty dodgy lately. Moreover, if after any confirmation, important evidence against Kavanaugh came out, he could be impeached.

A reasonably prompt Kavanaugh vote certainly wouldn’t disburse all the clouds currently hanging over his nomination. But it would stamp it with a democratic (small “D”!) seal of approval. What more could the nation reasonably hope for?

Im-Politic: What that Alabama Senate Race Really Means

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2004 presidential election, 2008 presidential election, 2012 presidential election, African Americans, Alabama, Barack Obama, Christine O'Donnell, Doug Jones, establishment Republicans, evangelicals, exit polls, George W. Bush, Hillary Clinton, Im-Politic, independents, Jeb Bush, John McCain, Luther Strange, Mitch McConnell, Mitt Romney, Mo Brooks, moderates, off-year elections, Populism, presidential elections, Republicans, Roy Moore, Senate, Steve Bannon, suburbanites, Todd Akin, Trump, Virginia

Last week’s Alabama Senate race results remain worth studying carefully for two main reasons. First, the bizarro and self-destructive intra-Republican politics that handed victory to a Democrat in this deeply red state keep playing out. And second, reading the tea leaves correctly will be critical to figuring out whether, as is widely claimed, the triumph of former federal prosecutor Doug Jones does indeed herald the demise of the currently Trump-influenced brand of the Republican Party.

My overall conclusion: The fate of Trump-ism post-Alabama is still very much up in the air for most of the same reasons that its fate was up in the air pre-Alabama. Because as suggested above, the President and his main allies and surrogates have done such a lousy job of turning a reasonably coherent populist 2016 presidential campaign message into even a minimally coherent governing program.

And from this overall conclusion flow two follow-on conclusions: First, the conventional wisdom surrounding the Republican defeat in Alabama seems considerably off-base. The totality of the polling data shows that it can be mainly blamed on the deep personal and policy flaws of candidate Roy S. Moore rather than on any serious weakening of Trump-ism in the state. That’s lucky both for the President and for Republicans smart enough to recognize that the party’s continued viability depends on abandoning the orthodox conservative agenda still championed by its Washington/establishment wing but so roundly rejected by the voters.

Second, and much more troubling for Mr. Trump and his supporters: In the Alabama intra-party politicking, they showed no greater ability to get their messaging act – and competence – act together than they have in the national political and policy arenas as a whole. And the most glaring sign of this continuing confusion was the decision of the President and initially of his putative ideological guru, Steven K. Bannon to endorse Moore.

The by-now-standard interpretation of Alabama is that a closely related combination of anti-Moore and anti-Trump sentiments pushed black voter turnout in the state way up, turned off many moderate or independent white suburbanites who had gone for the president in 2016, and tipped the election to Jones. Moreover, these Alabama trends supposedly mirrored developments in the November Virginia gubernatorial race in particular, where a Democrat also prevailed – and look like a promising formula for a Democratic comeback in next year’s off-year Congressional races big enough to flip the House or Senate or both, and for regaining the White House in 2020.

But even without the Moore factor, these claims overlook big differences between Alabama and Virginia. Principally, the latter is steadily becoming reliably Democratic, as voters from more liberal areas of the country have flocked to the Old Dominion’s Washington, D.C. suburbs, attracted by government and government-related jobs. In fact, it’s voted blue in the last three presidential contests after staying in the GOP column every year since 1964.

With the Moore factor, the Alabama conventional wisdom looks even weaker, at least if you take the exit polls seriously. (Unless otherwise indicated, the following soundings come from the official exit polls for Alabama from the 2004, 2008, and 2012 presidential general elections, for the 2016 Republican primary in the state, and for last week’s Senate election.)

It’s true that black turnout was impressive – especially for an off-year election. At 29 percent, it even exceeded the African-American vote in 2012 (a presidential year, when all turnout tends to rise, and when black Americans obviously found Barack Obama a more compelling choice than 2016 nominee Hillary Clinton). It’s also true that because President Trump is reviled in the black community (with approval ratings in the mid-single digits), his endorsement of Moore prompted many Alabama African-Americans to “send him a message.” At the same time, in the 2004 presidential race (the last pre-Obama campaign), Republican president George W. Bush attracted only six percent of their vote (with somewhat lower – 25 percent – turnout). So it’s quite possible that whatever image problems Alabama blacks have with Republicans started well before the Trump era.

There’s also considerable polling evidence for the view that overlapping blocs of moderates, independents, and suburbanites, which gave Trump such noteworthy support in 2016, displayed some buyer’s remorse last week. For example, Moore did win the burbs – but only by a 51 percent to 47 percent margin. That’s much smaller than Mitt Romney’s 66 percent to 33 percent performance. And although there were no Alabama exit polls conducted for the 2016 presidential election, the primary polls report Trump winning fully half of Republican suburbanites – more than twice the share garnered by the next most successful GOP candidate (in a large field), Texas Senator Ted Cruz.

What about the self-described political moderates? In 2012, 52 percent supported Romney – much more than Moore’s 25 percent. Moore’s appeal to these voters also looks paltry compared with Trump’s last year. The president was backed by 40 percent of these voters – many more than supported the runner-up in this category, Florida Senator Marco Rubio.

And the same picture is created by self-described independent voters. Fully three quarters pulled a Romney lever in 2012 – three times the share won by Moore. (The 2016 exit poll lacked any data on this question.)

Yet I find more compelling the evidence that Alabama is sui generis. For starters, although by 53 percent to 42 percent, the state’s voters said that the sexual misconduct allegations against Moore were not “an important factor” in their vote, by 60 percent to 35 percent, they described them as “a factor.”

Let’s drill down a little further. Jones won 49.9 percent of the total vote, and slightly more Alabama voters (51 percent) expressed a favorable opinion of him. Moore won 48.4 percent of the total, but 56 percent of the state’s voters viewed him unfavorably. In addition, whereas 65 percent of Jones’ supporters favored him “strongly,” that was the case for only 41 percent of Moore supporters.

These Moore favorable ratings indicate that he suffered from a distinct enthusiasm gap among his core evangelical backers, and several exit poll indicators support this supposition. Evangelical turnout was slightly lower in 2017 (44 percent of the electorate) than in 2012 or 2008 (47 percent). Moreover, although Moore captured 81 percent of this vote, that share was down from Romney’s 90 percent in 2012, Senator John McCain’s 92 percent in 2008, and George W. Bush’s 88 percent.

And although the size of the 2016 primary field makes comparisons with last year difficult, evangelicals made up 77 percent of the Republican vote (a little lower than last week), and 43 percent went for Trump – nearly twice as many (22 percent) as those who voted for Cruz, the next best performer.

Among the signs that Moore dismay was evident among other voting blocs? He lost parents with children by 56 percent to 42 percent, and mothers with children by a much wider 66 percent to 32 percent. But although losing women overall by 57 percent to 41 percent, Moore won white women by 63 percent to 34 percent.

As for the impact on the President himself? Clearly negative. Mr. Trump remains significantly more popular in Alabama (48 percent approve of his performance as president) than nationwide (just under 38 percent approval according to the RealClearPolitics.com average of the latest soundings). But he won the state by a 62.9 percent to 34.6 percent margin over Clinton, so that’s a huge drop off.

Yet although the president’s nationwide ratings are quite low compared with those of his most recent predecessors at this point in their terms, it’s nothing unusual for them to take a dive after a year in office. Further, 51 percent of Alabama voters told the exit pollsters that Mr. Trump was “not a factor” in their decisions. In fact, the president’s approval ratings among Alabamians are higher than those of the Republican (43 percent) and Democratic (47 percent) parties overall. They’re also higher than those of Senate Majority Leader Mitch McConnell of Kentucky (46 percent), whose support of incumbent fill-in Alabama GOP Senator Luther Strange (appointed to replace now Attorney General Jeff Sessions) was deeply resented by many Republicans in the state.

All the same, as the end of his first year in office approaches, the President obviously is less popular than at the start of his term, and it’s easy to see why from simply considering the ideologically scrambled squabbling among Republicans that marked the process of choosing their Alabama Senate nominee. Given his party’s painful experiences with fringe-y candidates in previous campaigns – like Todd Akin of Missouri and Christine O’Donnell of Delaware – it was understandable that McConnell and the rest of the party’s establishment wanted someone far safer to run against Moore. But Strange lacked any ability to connect with the populism and broader voter anger that remains white hot throughout Alabama and nationwide. Even less explicable, a third candidate in the Republican Senate primary – Congressman Mo Brooks – appeared to have combined populist fire with a record that raised no Moore-like questions whatever. Why was McConnell so uninterested in him?

Much more mysteriously, why did Bannon opt for Moore over Brooks – who shared all of his economic nationalist and small-government impulses? His choice is all the more baffling given his acknowledgment last week that “Judge Moore has never been, really, an economics guy. If Mo Brooks had been running here, immigration and trade would’ve been at the top of the agenda — and bringing jobs back to Alabama.” And how come Bannon with all his contacts in the state couldn’t uncover the information about Moore’s sexual past that was reported by Washington Post journalists in the state on temporary assignment? The White House, of course, flunked this basic test, too. 

The president’s endorsement of Strange makes some sense, however, at least according to narrow political criteria. He supported McConnell’s choice because, as I’ve written, he believes he needs to maintain the backing of the Republican Party’s Washington-Congressional wing to survive any possible impeachment proceedings. In other words, at least some of the blame for the contradictions that have been hampering Mr. Trump on both substance and politicking lies with the Democrats. But of course, the president and his aides have given their opponents plenty of Russia-gate ammunition. And whoever or whatever is mainly at fault, the chief problem created by this bind is a powerful one. For the Republican establishment’s agenda remains as unpopular this year as it was last – which is largely why the Obamacare repeals have failed and why the Republican tax bill remains so unpopular with the public.

In other words, the kind of chaos (and yes, I’ve deliberately used former 2016 GOP presidential hopeful Jeb Bush’s description of the Trump campaign and personality) on display in this Alabama scrum surely reminded voters there about everything that’s always made them uneasy about the president. Although ready to roll the dice with him as a candidate, it’s easy to see why they find his presidency far more troubling – and why these doubts could easily spread further nation-wide, and take deeper root, unless Mr. Trump finds a way to squelch them.

(What’s Left of) Our Economy: The Republican Tax Plans’ Biggest Flaw

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Alan Greenspan, Barack Obama, Bill Clinton, budget deficits, business spending, capital gains, corporate taxes, dividends, Federal Reserve, fiscal policy, George W. Bush, House, income taxes, monetary policy, multinationals, non-residential fixed investment, Paul Volcker, repatriation, Republican tax bills, Ronald Reagan, Senate, tax cuts, taxes, {What's Left of) Our Economy

The tax bills passed by the Republican-controlled House and Senate and strongly supported by President Trump (despite some important differences between them) can be fairly criticized for any number of big reasons: the mess of a drafting process in the Senate, the impact on already bloated federal budget deficits and the national debt, the cavalier treatment of healthcare reform, the seemingly cruel hits to graduate students and to teachers who buy some of their students’ school supplies.

My main concern is different, though. I could see an argument for the main thrust of the bills – even taking into account most of the above flaws – if they boasted the potential to achieve its most important stated aim. In Mr. Trump’s words, “We’re going to lower our tax rate to the very competitive number of 20 percent, as I said. And we’re going to create jobs and factories will be pouring into this country….” Put less Trump-ishly and more precisely, the idea is that by slashing tax rates for corporations and so-called pass-though entities, along with full-expensing of various types of capital investment, American businesses will build more factories, labs, and other productive facilities; buy more equipment, materials and software; hire more workers and increase their pay (since the demand for labor will soar).

Actually, since automation will surely keep steadily reducing the direct hiring generated by all this promised productive investment, let’s focus less on the jobs promise (keeping in mind that manufacturing in particular generates lots of indirect jobs per each direct hire), and more on the business spending that will boost output – since faster growth is the ultimate key to robust employment and wage levels going forward.

Unfortunately, after spending the last few days crunching some relevant numbers, I can’t see the GOP tax plans living up to their billing – which makes their flaws all the more damning.

What I’ve done, essentially, is look at inflation-adjusted business spending during American economic recoveries (to ensure apples-to-apples data by comparing similar stages of the business cycle) going back to the Reagan years of the 1980s, and examine whether or not individual and especially business tax cuts have set off a factory etc building spree. And I didn’t see anything of the kind, except possibly over the very short term. Moreover, even these increases may have had less to do with the tax cuts than with other influences on such investments – like the overall state of the economy and the monetary policies carried out by the Federal Reserve (which help determine the cost of credit).

Let’s start with the expansion that dominated former President Ronald Reagan’s two terms in office – lasting officially from the fourth quarter of 1982 through the second quarter of 1990 (by which time he had been succeeded by George H.W. Bush). The signature Reagan tax cuts, which focused on individuals, went into effect in August, 1981 – when a deep recession was still underway.

Interestingly, business investment kept falling dramatically through the middle of 1983 – when an even stronger rebound kicked in through the end of 1984. Indeed, that year, corporate spending (known officially as private non-residential fixed investment surged by 16.66 percent. But this growth rate then began slowing dramatically – and through 1987 actually dropped in absolute terms.

A major tax reform act was signed into law by the president in October, 1986, and individuals were its focus as well. Two provisions did affect business, but appeared to be at least somewhat offsetting in their effects, in line with the law’s overall aim of eliminating incentives and disincentives for specific kinds of economic activity. They were a reduction in the corporate rate and a repeal of the investment tax credit – whose objective was precisely to foster capital spending. Other provisions had major effects on business but principally by encouraging more companies to change over to so-called pass-through entities, not (at least directly) on investment levels. Business spending recovered, but its peak for the rest of the decade (5.67 percent of real GDP in 1989) never approached the earlier highs.

Arguably, fiscal and monetary policy were much more influential determinants of business spending, along with the recovery’s dynamics. The depth of the early 1980s recession practically ensured that the rebound would be strong, as did the massive swelling of federal budget deficits, which strengthened the economy’s overall demand levels, and their subsequent reduction.

Perhaps most important of all, the Federal Reserve under Chairman Paul Volcker cut interest rates dramatically from the stratospheric levels to which he drove them in order to tame double-digit inflation. And yet for most of 1984, when business spending soared, the federal funds rate (FFR) was rising steeply. Capex also strengthened between 1987 and mid-1989, which also witnessed a scary stock market crash (in October, 1987).

The story of the long 1990s expansion, which mainly unfolded during Bill Clinton’s presidency, was simultaneously simpler and more mysterious from the standpoint of business taxes – and macroeconomic policy. Following a shallow recession, Clinton raised both personal and corporate tax rates while government spending was so restrained that the big budget deficits he inherited actually turned into surpluses by the late-1990s. For good measure, the FFR began rising in late 1993, from 2.86 percent, and between early 1995 and mid-2000, stayed between just under six percent and just under 6.5 percent.

And what happened to capital spending? In late 1993, right after the tax-hiking, spending- cutting, deficit-shrinking Omnibus Budget Reconciliation Act was passed, and the Fed was tightening, businesses went on a capex spending spree began that saw such investment reach annual double-digit growth rates in 1997 and stay in that elevated neighborhood for the next three years.

It’s true that Clinton and the Republican-controlled Congress passed tax cut legislation in August, 1997, that among other measures lowered the capital gains rate. But the acceleration of business spending began years before that. And although we now know that much of this capital spending went to internet-centered technology hardware for which hardly any demand existed then at all, from a tax policy perspective, the key point is that this category of spending rose strongly – not whether the funds were spent wisely or not.

The expansion of the previous decade casts major doubt on whether any policy moves can significantly juice business spending. Just look at all the stimulative measures put into effect, tax-related and otherwise. The recovery lasted from the end of 2001 to the end of 2007, and during this period, on the tax front, former President George W. Bush in June, 2001 signed a bill featuring big cuts for individuals, and in May, 2003 legislation that sped up the phase-in of those personal cuts and added reductions in capital gains and dividends levies. For good measure, in October, 2004, the “Homeland Investment Act” became law. It aimed to use a tax “holiday” (i.e., a one-time dramatically slashed corporate rate) to bring back (i.e., “repatriate“) to the U.S. economy for productive investment hundreds of billions of dollars in profits earned by American companies from their overseas operations.

In addition, under Bush, the federal budget balance experienced its biggest peacetime deterioration on record, and starting in the fall of 2000, the Federal Reserve under Alan Greenspan cut the FFR to multi-decade peacetime lows, and didn’t begin raising until mid-2004.

The business investment results underwhelmed, to put it mildly. Such expenditures fell significantly throughout 2001 and 2002, and grew in real terms by only 1.88 percent the following year. Thereafter, their growth rate did quicken – to 5.20 percent rate in 2004, 6.98 percent in 2005, and 7.12 percent in 2006. But they never achieved the increases of the 1990s and by 2007, that expansion’s final year, business investment growth had slowed to 5.91 percent.

There’s no doubt that something needs to be done to boost business spending nowadays, which has lagged for most of the current recovery and turned negative last year – even though the federal funds rate remained near zero for most of that time and the Federal Reserve’s resort to unconventional stimulus measures like quantitative easing as well, despite unprecedented budget deficits (though they began shrinking dramatically in 2013), and despite the continuation of all the Bush tax cuts (except the repatriation holiday, and the imposition of a small surcharge on all investment income to help pay for Obamacare). Business investment’s record during the current recovery has been even less impressive considering a Great Recession collapse that was the worst in U.S. history going back to the early 1940s, and that should have generated a robust bounceback.

But if history seems to teach that tax cuts and even other macroeconomic stimulus policies haven’t been the answer, what is? Two possibilities seem well worth exploring. First, place productive investment conditions on any tax cuts and repatriation (the 2004 tax holiday act did contain them) and then actually monitor and enforce them (an imperative the Bush administration neglected). And second, put into effect some measures that can boost incomes in some sustainable way – and thus convince business that new, financially healthy customers will emerge for the new output from their new facilities. To me, that means focusing less on ideas like raising the national minimum wage to $15 per hour (though the rate should, at long last, be linked to inflation), and more on ideas like trade policies that require business to make their products in the United States if they want to sell to Americans, and immigration policies that tighten labor markets and force companies to start competing more vigorously for available workers by offering higher pay.

In that latter vein, the 20 percent excise tax on multinational supply chains contained until recently in the House Republican tax plan could have made a big, positive difference. Sadly, it looks like it’s been watered down to the point of uselessness, and the original has little support in the Senate. The House Republican tax plan also had included a border adjustment tax that would have amounted to an across-the-board tariff on U.S. imports (and a comparable subsidy for American exports), but the provision was removed from the legislation partly due to (puzzling) Trump administration opposition.

Mr. Trump clearly has acted more forcefully to relieve immigration-related wage pressures on the U.S. workforce, but it’s unclear how quickly they’ll translate into faster growing pay.  If such results don’t appear soon, and barring Trump trade breakthroughs, expect opponents of the Republican tax plan to keep insisting that it’s simply a budget-busting giveaway to the rich, and expect these attacks to keep resonating as the off-year 2018 elections approach.   

 

Im-Politic: Biden’s Trade Views are Big Nomination Obstacles

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2016 elections, Bernie Sanders, China, Congress, Democrats, fast track, Hillary Clinton, House of Representatives, Im-Politic, Joe Biden, MFN, Most Favored Nation, NAFTA, Obama, Permanent Normal Trade Relations, PNTR, polls, Senate, TPP, Trade, Trans-Pacific Partnership, Uruguay Round, World Trade Organization, WTO

When, as now expected, Vice President Joe Biden finally enters the presidential race, one of his top challenges will be winning the lion’s share of endorsements from organized labor over main Democratic nomination rivals – former Secretary of State Hillary Clinton and Vermont Senator Bernie Sanders. And if, as expected, trade policy records are a big part of most unions’ litmus tests, he’ll have a hard time convincing labor that he’s dedicated to making trade agreements and related decisions more worker-friendly.

The unions’ role in Democratic politics is hardly limited to campaign contributions, though money of course matters. But labor also is the dominant player in the party’s ground game, being the only constituency that can mobilize armies of campaign workers to knock on doors and get out the vote. Don’t, moreover, forget the enthusiasm factor. If union members and their families are excited about Democratic candidates, they’ll help the party win the turnout war. If they’re discouraged about the nominee and too many stay home in November, the Democrats’ chances of victory plummet. Moreover, union apathy and its costs can trickle down to state and local-level elections as well – where the Democrat’s recent performance has been abysmal.

The Vice President’s real views on trade policy are hard to discern for several reasons. First, he’s been anything but a model of consistency, supporting some deals and opposing others seemingly with no rhyme of reason. Moreover, there’s often much less to trade votes in the Senate – where he served in Congress – than meets the eye. For decades, after all, large bipartisan Senate majorities have strongly supported the main thrust of American trade policy; the only real opportunities for mandating course changes have been in the House. As a result, Senators who favor politically unpopular trade deals but who fear antagonizing wealthy donors can often have their cake and eat it, too. They can cast No votes and assure their offshoring lobby backers that their favored policies will be approved anyway.

Nonetheless, two clear patterns emerge from reviewing Biden’s trade record since Delaware voters first elected him to the Senate in 1972. (My source is the Cato Institute’s indispensable Congress trade votes database.) He’s been much likelier to oppose the trade policy status quo when Republicans have occupied the White House than under Democratic presidents. And second, not only has he never been a leader in this area. He’s expressed almost no interest in it whatever. That tells me that nothing has been easier for him than to accept the bipartisan inside-the-Beltway consensus that the longer America stays the current, offshoring-friendly trade policy course, the better.

Biden did oppose some high profile trade agreements as a Senator – notably the Central America-Dominican Republic deal of 2005. He also joined most of his colleagues that year in backing unilateral sanctions on China to fight its currency manipulation. In 2007, he supported continuing to ban trucks from Mexico from driving on American highways. And in 2003, over the objections of key American trade partners, he voted to strengthen U.S. requirements that labels on certain food products reveal the country in which they were grown and raised.

But all of those votes took place when George W. Bush was president. And many fell into that aforementioned category of “free votes.” Under his Democratic predecessor, Bill Clinton, Biden’s positions seemed very different. He twice voted to approved extension of Most Favored Nation trade status for China, and in 2000 favored making normal trade treatment for China permanent – which paved the way for Beijing to join the World Trade Organization and triggered a flood of job-, wage-, and growth-destroying Chinese exports (many illegally subsidized) into the U.S. market. Biden also backed the North American Free Trade Agreement (NAFTA) in 1993, the Uruguay Round multilateral trade agreement of 1994 that created the World Trade Organization, and fast track negotiating authority for Clinton in 1998.

Biden and his camp could argue that the Vice President has learned and evolved. But the trade policy decisions he endorsed in the 1990s were much more important than those he opposed in the following decade. Moreover, this past spring, he helped the president he serves secure Congressional passage of fast track negotiating authority. That’s bound to boost the odds of TPP’s approval on Capitol Hill.  And he remains a strong supporter of the actual deal even though it suffers most of the main weaknesses of its predecessors. 

Interestingly, Biden’s trade positions might not be a total loser in Democratic primaries, or in the general election if he makes it that far. Several recent polls indicate that Democratic voters have become stronger supporters of current trade policies than the Republican electorate. But Clinton and Sanders aren’t working overtime for union support – and in the former’s case, flip-flopping on the TPP – for nothing. If Biden’s loyalty to President Obama and his own beliefs lead him to champion TPP on the hustings, his best chance for the nomination could boil down to Clinton’s vulnerability to any legal charges stemming from her questionable handling of sensitive national security material on her private email system.

 

 

 

Our So-Called Foreign Policy: Both Iran Deal Backers and Critics Have a Lot to Answer For

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allies, Big Business, Democrats, Harry Reid, Iran, Iran deal, multilateral sanctions, Obama, Our So-Called Foreign Policy, Republicans, sanctions, Senate, unilateral sanctions

It’s a good thing for both supporters and opponents that the fate of President Obama’s deal to deny Iran a nuclear weapon won’t depend on intellectual honesty. For the last few weeks of debate and political machinations show that neither group can rightly claim any.

The sleaze factor is only most obvious among the deal’s supporters. A few weeks ago, I thought the big question surrounding the eventual Congressional vote(s) would be whether the president and his fellow Democrats would be comfortable with an agreement supported exclusively, or nearly so, by their party. Such a result would contrast sharply with the post-World War II American tradition, honored often in the breach to be sure, of politics stopping at the water’s edge. More practically, it would greatly increase the odds of the deal being overturned if Republicans won the White House next year, with all the unpredictable fallout that might be generated.

Now, however, it’s clear that the big Capitol Hill-related question surrounding the deal is whether the White House and Congressional Democrats want a vote at all. Senate Democratic leader Harry Reid of Nevada and the White House reportedly favor a Senate filibuster, which if successful would bring victory for the administration without any toll call. Using this distinctive Senate rule could, as backers argue, show that opposition to the deal wasn’t even strong enough to force a vote. (Although I personally find this line of argument completely weird, given common knowledge that numerical majorities in both chambers could well vote “No.”)

What’s not legitimately disputable is that preventing a vote would enable many Senators and Congressmen to avoid letting their constituents know their ultimate views of this highly controversial agreement – and possibly save their electoral skins.  Does this tell you that Democrats – and even Mr. Obama himself – are genuinely proud of their Iran record?        

The opponents’ sleaze factor is less obvious but just as troubling. For weeks I’ve argued that the strongest, and indeed the decisive, reason to support the deal is that almost none of the rest of the world is willing to postpone resuming business with Iran in order to press for tougher terms. In these circumstances, rejecting the agreement would leave the United States as practically the only country whose businesses couldn’t make money in Iran, and Iran with no restraints on its nuclear weapons ambitions.

Many opponents insist that more vigorous American leadership could prevent this counterproductive outcome, and in some ways I’m sympathetic to this position. Certainly I agree with the view that even Russia and especially China, much less America’s allies, need to do business with the United States much more than they need to do business with Iran. So if push comes to shove, other countries might indeed cave. I also agree that President Obama had little interest in using America’s leverage in Iran diplomacy. The big question, though, is “Would any Republicans?”

Some of the GOP’s insurgent candidates might – but for precisely the reason that their more establishment-oriented competitors, for all their outrage about the deal, would surely demur: The insurgents – especially Donald Trump – aren’t beholden to Corporate America. The establishment candidates are. Big Business could not be clearer on its staunch opposition to unilateral sanctions as a foreign policy tool. Even multilateral sanctions are sometimes seen as too disruptive to revenue and profit streams.

Whether their arguments make sense or not (on purely trade-related controversies, Big Business has no unilateral sanctions case, given the importance of the U.S. market in a world whose other major powers need exports to grow; on foreign policy sanctions, opposition to going-it-alone can’t be dismissed out of hand), the notion that Jeb Bush or Marco Rubio or Scott Walker or Carly Fiorina or Chris Christie – to name those who still seem competitive – would defy their corporate funders is completely delusional. (For some reason I can’t adequately explain yet, I feel less sure about John Kasich.)

Meanwhile, the most disturbing U.S. foreign policy weaknesses revealed by the deeply flawed Iran deal continue to be completely neglected: After decades of coddling allies, and letting them shirk anything like their appropriate share of global security burdens, America has precious few reliable partners left on the world stage. And neither Iran deal supporters or critics have presented a strategy to boost the nation’s ability to secure its interests through its own devices more effectively.