James Fallows

James Fallows is a national correspondent for The Atlantic and has written for the magazine since the late 1970s. He has reported extensively from outside the United States and once worked as President Carter's chief speechwriter. His latest book is China Airborne. More

James Fallows is based in Washington as a national correspondent for The Atlantic. He has worked for the magazine for nearly 30 years and in that time has also lived in Seattle, Berkeley, Austin, Tokyo, Kuala Lumpur, Shanghai, and Beijing. He was raised in Redlands, California, received his undergraduate degree in American history and literature from Harvard, and received a graduate degree in economics from Oxford as a Rhodes scholar. In addition to working for The Atlantic, he has spent two years as chief White House speechwriter for Jimmy Carter, two years as the editor of US News & World Report, and six months as a program designer at Microsoft. He is an instrument-rated private pilot. He is also now the chair in U.S. media at the U.S. Studies Centre at the University of Sydney, in Australia.

Fallows has been a finalist for the National Magazine Award five times and has won once; he has also won the American Book Award for nonfiction and a N.Y. Emmy award for the documentary series Doing Business in China. He was the founding chairman of the New America Foundation. His recent books Blind Into Baghdad (2006) and Postcards From Tomorrow Square (2009) are based on his writings for The Atlantic. His latest book is China Airborne. He is married to Deborah Fallows, author of the recent book Dreaming in Chinese. They have two married sons.

Fallows welcomes and frequently quotes from reader mail sent via the "Email" button below. Unless you specify otherwise, we consider any incoming mail available for possible quotation -- but not with the sender's real name unless you explicitly state that it may be used. If you are wondering why Fallows does not use a "Comments" field below his posts, please see previous explanations here and here.

James Fallows: Law

  • Militarization of the Police, Fargo Edition

    We thought North Dakota was too sensible for this.

    Law enforcement team this past winter in Fargo, North Dakota ( Michael Vosburg, Fargo Forum )

    The stormtrooper look by law enforcement in Missouri has usefully brought into focus the long-term trend of police forces morphing into military units. For previous installments and a reading list, see here and here

    Today's photo, courtesy of Michael Vosburg of the Fargo, N.D. Forum, is of a police team six months ago, in the winter. The photo is worth a second look, for details ranging from the vehicle's license plate to the choice of green camouflage in the snow.

    The full story, by Archie Ingersoll, is also worth reading. It points out that the last big public disturbance in the Fargo area was 13 years ago, during the Testicle Festival. (I'll let you look it up.) Oddities like the Testicle Festival are part of the picture we'd like to have of Americana. Combat-dressed cops are not, or shouldn't be. Usefully, the Forum article ends with a sane observation from the police chief of Moorhead, Minnesota, which is Fargo's sister city across the Red River:

    [F]ear is a factor police have to be mindful of when dealing with disorderly crowds, said Moorhead Police Chief David Ebinger. When officers don intimidating riot gear, their appearance alone can stir trouble.

    “If you show up with that gear and you don’t have a riot, you’re inviting one,” he said. “The best weapon we have is our ability to communicate.”

    Let's send Chief Ebinger to Ferguson. Meanwhile on policing, reader Billy Townsend of central Florida says the Ferguson showdown highlights the oddly uneven ways in which we hold public servants "accountable":

    There's a fascinating parallel here between police officers and teachers. Police body cameras and test scores serve the same purpose. They are meant to provide accountability, assessment, and motivation for the core interaction between a public servant and the public served.

    American political power at all levels has determined that a tortured, inaccurate, funhouse mirror statistical approximation of a teacher's interaction with a student is absolutely vital to public well-being and worthy of billions and billions of tax dollars.

    Meanwhile, it is controversial—and maybe too expensive—to provide a precise, direct accounting of the core interaction between a police officer and the public. That is, to be direct, completely nuts. 

    Think about it: in the eyes of American state power, teaching Mike Brown makes the teacher immediately suspect and open to public sanction based on Mike Brown's test scores. Shooting Mike Brown in the street and leaving his body uncovered for four hours makes Mike Brown automatically suspect in the eyes of state power.

    A camera provides for police the holy grail that education reformers seek for teachers—the ultimate evidence of policing quality. How would such evidence have changed what happened in Ferguson?

    More from Townsend on his own site, here.  Thanks to reader JW for the Forum tip.

    Update If you would like an illustration of Townsend's point about the difference that photographic evidence can make, consider this cellphone video of police shooting to death Kajieme Powell yesterday.   

  • Who's the Most Accomplished Republican Strategist of the Day?

    Is it Rove? Ailes? Either of the Koch brothers? Anyone in Congress? Or a statehouse? No, in fact it is...

    If a 15-year term for Supreme Court justices had applied when Roger Taney was appointed in 1836, he would no longer have been chief justice at the time of the Dred Scott case, for which he is now best known. (Matthew Brady via Wikimedia Commons)

    Tomorrow morning, we start in with a big installment of American Futures reports. For now, followup on two previous items, one and two, on what we have learned about the Supreme Court and Chief Justice John Roberts via the latest McCutcheon ruling.

    1) The most consequential Republican. A reader writes:

    I enjoyed  ...  the excellent Emily Bazelon piece that explains how he expertly cloaks his actions, seeming reasonable, judicious, and measured, while pursuing a radical, conservative political agenda.

    If you remember, I wrote you before the ACA case and predicted that Roberts would find a way to uphold it for purely political reasons.  In short, he recognized that throwing out the ACA would have two serious consequences—serious long term political costs to the conservative political cause, and undermining the credibility of the Supreme Court itself.

    When you step back and look at his judicial actions as Chief Justice, you come to one conclusion. Roberts can be properly seen as the most consequential and successful Republican politician of our time.  It may be that, given his overt political agenda, there will be an erosion of the reputation of the Supreme Court, as they continue to move laws in a direction that a majority of Americans (certainly younger Americans)  oppose.  But, in the phrase Krugman used when he criticized W and those around him, Roberts and his colleagues are "serious men", and we are stuck with his effective political activism for many years to come. Oh, well...

    2) John Roberts, John Marshall. From another reader: 

    My reaction at the time of the ACA decision was that Roberts had pulled a trick not unlike the one Marshall pulled with Madison v. Marbury. In the latter, Marshall found in favor of the plaintiff, which was against the interests of the Federalists who had appointed him, while creating the principle of Judicial Review which gave the Court, and himself in particular, ultimate power over Congressional "balls and strikes". In Sebelius, Roberts granted himself the power to define words. Thus "mandate" became "tax" and all was well with the law. What passed unobserved was that this new power to redefine the words in any given law meant that no law is worth the paper upon which it is printed until Roberts has interpreted it.

    Thus, "money" becomes "speech" and "corporations" become "persons".  "Rights" become "Grants", "Birth" becomes "Conception", "Privacy" becomes "License" and/or "Property".

    Of course, I agree with Marshall and I disagree with Roberts, but I have to admit that the sword cuts both ways. In his defense, Marshall was generally wise to create judicial unanimity in his decisions which gave them greater strength when the Court was weakest. On the whole, I would say that the Nation was fortunate to have Marshall on the bench for 35 years acting as a break against the autocrats in Virginia who leveraged their 3/5s electoral advantage in every direction. Had it been left to Jefferson, Dred Scott would have been decided in 1802 and the rest of history would have been very different.

    Today, Roberts has appropriated the dignity granted by Marshall and uses it to forge divisive and cynical rulings when the Court could not be stronger. For the time being, I am satisfied to let Roberts continue to redefine "democracy". I think this is a necessary part of the process. The excesses of the oligarchs will eventually bring their ruin. All I can hope is that it won't take a second Civil War to bring this about.

    3) The humblebrag was the tell. Another reader:

    It seems to me that there is a more obvious lesson from review Mr. Roberts' confirmation hearing: It is appropriate to be suspicious of anyone who brags about his or her humility and modesty. One could expand Mr. Roberts' cynicism by noting that he didn't explicitly say that *he* was humble and modest, only that these were appropriate qualities for a judge, and leading us to believe that he claimed these qualities for himself without actually making the claim. It is less damning if he intended to claim those qualities for himself, rather than intentionally misleading his audience.

    Criticism of your assessment calls for an analogy with False Equivalence, in which the scope of discourse has shifted so much that simply identifying something is labeled extreme.  A harsh assessment would be that Roberts, Alito, Thomas and Scalia have almost quit trying to look like anything except partisan hacks. Their decisions are inconsistent with one another as well as with precedent (which they ignore or misrepresent) and with reality. To suggest that Mr. Roberts is cynical is among the most restrained explanations for his conduct.

    4) Meanwhile, the realities.  From a reader in Virginia:

    I do want to make one point, being on the firing line of John Roberts' ACA decision to let states decide whether or not to accept the Medicaid expansion part of ACA. He knew exactly what he was doing, cynical to the core.

    In states where the Medicaid expansion was not approved (trending conservative/Southern), thousands of the poorest still have no healthcare coverage. Example: under $11,550/year income for a single person, no ACA subsidy for low cost insurance. You're on your own, same as before. Free clinics, or if you are too proud, go without, or get care, go bankrupt.

    People are suffering, sad and angry. They feel they were promised affordable healthcare and have been betrayed by Obama. Sometimes I patiently explain why our legislature in Virginia is having a battle over Medicaid right now, and sometimes I am too tired. I volunteered for several enrollment events sponsored by a non-profit organization here called Celebrate Healthcare. [I was recently in a newspaper photo], enrolling a young lady, one of the lucky ones. 

    Many of the rest are deeply disappointed. 

    Thanks, John Roberts, you innocent balls and strikes guy.....

    5) Not cynicism but something else.  A reader objects to my saying that John Roberts must have been either very naive, or simply cynical, in saying nine years ago that his ideal was the non-interventionist, "just call the balls and strikes" judge:

    Those are certainly two valid ways of looking at it. I find it very, very hard, given everything we know about the man, both personally and professionally, before and after his appointment to the Supreme Court, not to suspect he perjured himself. Entirely unprovable, of course. (At least, presumably.) But, honestly, I think in many ways it's the most respectful conclusion, rather than pretending a man of his intellect, training and experience could have been that naive. And if he WERE that naive, that alone makes him unqualified to lead the highest court in the land. 

    6) Life tenure is a problem; there is no solution. If I could rewrite the Constitution, one of my first changes would be shifting the Supreme Court to a set of staggered 15-year terms rather than life tenure. Each president would get at least one pick, probably two; and there would not be such a premium on grim-reaper assessment of candidates, to see how long they're likely to stay active on the bench. A reader talks about life appointments more generally:

    In my view life tenure is a very, very dangerous thing. 

    I say that as someone who was recently granted academic tenure. I see it in academia now that mandatory retirement has been removed (by the Supreme Court in 1991 no less). Given the world I live in I'll take it, but it doesn't fundamentally change the fact that I think it is wrong.

    The upside of tenure is that it gives protection from an administration that can be vindictive when someone does research that is controversial. This is important. It also gives some freedom to try riskier projects that might not pay out for a while, which is very much how basic science is.

    The downside is that senior professors are often expensive and not very productive. The variations of deadwood faculty---the semi-senile senior professor wistfully reminiscing about when he was relevant while keeping a hand on the throat of the department or the embittered associate with the stalled career---are tropes for a reason. One of the reasons the academic job market is as congested and abusive as it is is because administrations can't get high priced senior faculty to retire. Extended contracts after a provisional period? Sure. So something like a contracts that were 3 years, 3 years, 7 years, 7 years, 5 years, 5 years, 3 years, 3 years, etc., would give a lot of its benefits with more flexibility. (In a sense, due to the way that funding works now, tenure isn't what it used to be anyway. At a lot of schools if you don't bring in enough to cover 80% of your salary you are terminated on financial exigency grounds anyway.)

    General officers in the first half of the 20th Century in the US Army are perhaps an even better illustration. John Pershing, was acting as a general officer with a set of captain's bars on his collar in the Philippines due to the strict seniority system. He was promoted to general by an act of Congress at Theodore Roosevelt's urging. When he was chosen as the commander of the AEF in 1917 he had to relieve an extraordinary proportion of general officers who would have been division commanders, many of whom where unable to handle the demands of the job due to being seriously overage. Then, lest we forget, there is the American Caesar: ”The problem with MacArthur was that he had been a general too long. He got his first star in 1918 and that means he’s had almost thirty years as a general. Thirty years of people playing to him and kissing his ass, and doing what he wants. That’s not good for anyone.” - Lieutenant General Joseph "Vinegar Joe" Stilwell, US Army, 1944

    So for the federal bench, something like 10 year appointments [JF: or 15 for the Supreme Court] makes sense to me, with an opportunity for a 5 year reappointment, much like the FBI director's time in office. (Odd numbers were chosen carefully to be out of sync with the American electoral calendar.) It provides substantial insulation from politics, but as you have already indicated, the Court has played politics before. This is nothing new, as Roger Taney's reasoning in the Dred Scott case showed clearly. Having some turnover would help lower the stakes of appointments, too, which might well turn down the heat on the massively overheated confirmation process, while still preserving judicial independence and presidential legacies. 

    My assessment of the chances of this ever happening short of some kind of massive constitutional crisis? Nil. 

    I agree with all parts of this note, including the final paragraph.

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  • Cynicism-in-Public-Life Contest, John Roberts Edition

    Life tenure in any public post is bad public policy, and other implications of the latest Supreme Court rulings

    Wikimedia Commons

    [Update: please see this follow-up item too.] If People magazine were based in D.C., instead of their Sexiest Man Alive specials they might run Most Cynical Person Alive contests. Obviously there are lots of candidates, but at this moment you would have to give the nod to John Roberts. 

    Let us travel back in time all the way to the summer of 2005. Take literally one minute to listen to these famous words from earnest young appeals-court judge John Roberts:

    Humility. Modesty. Restraint. Deference to precedent. "We're just calling balls and strikes."

    That guy sounded so great. Really, watch this minute-long video and think what it would be like to have a person like that on the bench.

    Instead we have a chief justice who:

    • in the "Obamacare" ruling two years ago, apparently decided that the institutional risk to the Court of blatantly coming across as just another branch of party politics outweighed the objections implicit in his prior rulings to the healthcare plan. So he found a way not to overturn the main legislative accomplishment of a president's first term, with all the hubbub that would ensue. As it happens, I was glad that the politics added up that way for him. But ...
    • in this week's McCutcheon ruling, following Citizens United, he made up out of nowhere his own interpretation of how electoral politics and favor-trading works*—trumping that of Congress, composed 100 percent of elected members. Plus he invented his own post-Founders, no-input-from-Congress, precedent-be-damned theory of what "corruption" means. As it happens, I disagree with the results of this one. But the main point is that in their activist political sensibility neither this judgment nor the Obamacare one had the slightest connection to the person who so self-effacingly presented himself for confirmation nine years ago.

    [* This interpretation, from the opinion:

    [T]he only type of corruption Congress may target is quid pro quo corruption. Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties.

    See if anyone who has worked in politics recognizes that bright-line definition of the role of money in affecting politicians' behavior. The elected politicians who passed the campaign-finance laws didn't understand it that way. Then watch that video again. About judicial "modesty."]

    Alito, Thomas, Scalia—not cynical. We know the deal with them. Kennedy—permanently enjoying his status as the man whose deliberations constitute the tie-breaking vote.  

    Roberts was the one who came in talking in such forelock-tugging terms about restraint and precedent, balls and strikes.

    Nearly a decade in, his record is that of one more politician. But—unlike James Byrnes, Fred Vinson, Hugo Black, Earl Warren, and Sandra Day O'Connor—one who didn't have to bother getting the public's votes. 


    For later discussion: Depending on actuarial trends, and the outcome of the next presidential election, whether Ruth Bader Ginsburg and perhaps Stephen Breyer will eventually be seen as having put personal over national interest.

    Life tenure for any public post is bad public policy. Individual justices can't do anything about that—though, who knows, John Roberts might try. They can do something about how long each of them decides to stay. Earl Warren left the Court at age 78, Potter Stewart at 66, Byron White at 76, Sandra Day O'Connor at 76, David Souter at 70. Any of us would like to keep doing satisfying work, and being important, as long as possible. I am sure Bill Clinton still rues the passage of the 22nd Amendment. But only nine of us, in a nation of 300-plus million, occupy positions with such decades-long effect on everyone else, and subject to such vagaries of national politics, as those on the Supreme Court. 

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  • 'I Cannot Figure Out Why This Was Classified to Begin With'

    What the PRISM leaks have in common with the Pentagon Papers

    Blog_Ellsberg.jpg

    Today this note came in from a reader in Florida, about the revelations of NSA phone-surveillance programs:

    In general, I'm partial to ACLU and EFF arguments about privacy and civil liberties in the digital age. But I'm also a pragmatist about national security, and the reality that there are foreign and domestic terrorists who will kill many innocent citizens if they can...

    Now the security damage from these leaks becomes a bit clearer for me. Prior to these revelations, I doubt that Al-Qaeda or domestic terrorist groups (e.g., Aryan Brotherhood) could figure out how they were routinely identified and compromised. They probably assumed an informant betrayed them, or they simply assumed that they were exposed by bad luck. But now, the smarter (therefore more dangerous) terrorists know that their cell phone patterns and networks are likely the problem.

    What to do if you're a terrorist? If it were me, I'd have everyone in my network throw away their cell phone periodically, purchase a new prepaid phone with cash, and distribute new phone numbers via secure means. Maybe I would use clandestine meetings. Or pay phones. Or dead drops. The point is, a very valuable (and top secret) intelligence collection tool has been compromised.
    I wrote back to the reader saying, more politely, Are you kidding? Terrorist or criminal groups would not have to wait for the PRISM revelations to guess that cell phone traffic might give them away. All they would have to do is watch any American movie or TV show produced since about 1985. Half the action in the first few seasons of The Wire involved "burner phones"; think of 24, Breaking Bad, or any other depiction of groups trying to operate outside the authorities' view. Everything now known about Osama bin Laden's final off-the-grid years suggests his scrupulous awareness of the perils of leaving an electronic trail.

    My point is not that crime drama is a perfect representation of reality, nor to set this reader up as a straw man, since he's provided a long stream of otherwise-astute observations. Rather I'm using his message to highlight one of the most striking aspects of the PRISM revelations: the unusual risk/reward balance in this latest large-scale leak.

    The ethics of disclosing classified information can sometimes be a very close call. I don't mean for the government-employee leaker. Those who signed a pledge to protect information are at best breaking their word, and at worst breaking the law and perhaps putting people in danger, when they divulge secrets, even when they believe they are serving a higher cause. I am talking instead about the ethics of the reporter or publisher who receives the leaked info, and the public that absorbs it. If a news story reveals that a certain detail came from inside the North Korean leadership, to choose a recent example -- or from an al Qaeda confidante, or an Iranian scientist -- that disclosure might dry up future information, alert the other group to the presence of a mole, or put that source in mortal danger. Disclosure may still be worth it, but it's not an easy call -- especially when the the very details that would endanger sources would make no difference to most ordinary readers.

    But when it comes to PRISM? At face value, it seems to be one of the most clearly beneficial "security violations" in years. Why?
    • On the plus side, for the general public it is of very significant value to know (rather than suspect) that such a program has been underway. President Obama says that he is "happy to debate" the tradeoff between security and privacy. The truth is that we probably wouldn't be having any such debate, and we certainly couldn't have a fully informed debate, if this program (and others) remained classified. The greatest harm done by the 9/11 attacks was setting the US on a ratchet-track toward "preventive" wars overseas and security-state distortions at home. In withdrawing from Afghanistan and Iraq, Obama has partially redressed the overseas aspect of that equation. (On the other hand: drones.) These leaks, which he denounces, may constitute our hope for redressing the domestic part.

    • And on the minus side, what about the harm of the PRISM revelations? Again at face value, it seems minimal. American citizens have learned that all their communications may have been intercepted. Any consequential terrorist or criminal group worth worrying about must have assumed this all along.
    This brings me to Fred Kaplan's interview just now, in Slate, with Brian Jenkins, of RAND. Jenkins is an expert in terrorism whom I have known for decades and have often quoted in our pages -- for instance seven years ago, in my "Declaring Victory" article. Now he tells Fred Kaplan that he worries about the implications of the security-state infrastructure the U.S. has erected. For context: Jenkins was a Special Forces combat veteran in Vietnam and is not a reflexive dove. All of his comments are worth reading, but this about the PRISM revelations really struck me:
    "I cannot figure out why this was classified to begin with. It should have been in the public domain all along. The fact is, terrorists know we're watching their communications. Well, some of them, it seems, are idiots, but if they were all idiots, we wouldn't need a program like this. The sophisticated ones, the ones we're worried about, they know this. There are debates we can have in public without really giving away sensitive collection secrets. It's a risk, but these are issues that affect all of us and our way of life."
    There is a lot more to learn about this program, its reach into public life, its alleged or real benefits, and the possible consequences of its revelation. But at face value, I feel about this news the way I did when the Pentagon Papers were unveiled many decades ago. The public has learned something important about policies carried out in its name, at what seems -- for now -- a modest cost to vulnerable individuals or national safety as a whole.
  • One Author, Two Good Articles

    Robert Kuttner with an appreciation of an influential economist and an exhortation to a serving president

    The author is Robert Kuttner, of The American Prospect. The first item is an appreciation of Albert O. Hirschman, whose death at age 97 I mentioned briefly two days ago. 


    Thumbnail image for HirschmanPhoto.gif

    Kuttner describes the incredible saga of Hirschman's life: his childhood in the Kaiser's Germany, his service as a Resistance soldier -- and secret agent, and forger, and refugee-smuggler --  against the Nazis in World War II, his entry into American academics, his lifelong commitment to remain an intellectual "trespasser" who kept learning about and making major advances in fields that were not strictly "his own." As an example of Hirschman's approach, Kuttner says this about Hirschman's most celebrated book:
    To the extent that Hirschman is widely known today, it is mainly though a small book with a puzzling title, Exit, Voice, and Loyalty, written in 1970. The book has a huge following among social scientists, mainly outside of Hirschman's own profession of economics. His basic insight is elegant, simple, and original. Citizens and consumers have two basic ways of responding when they find anything from a product, politician, neighbor, or nation unsatisfactory. They can vote with their feet (exit) or stick around and provide constructive feedback (voice).

    Though orthodox economics emphasizes exit--consumers shopping around, shareholders selling stocks, workers pursuing different jobs, emigrants seeking new shores, Hirschman was partial to Voice. It was Voice that made possible civil society, Voice that made business enterprises more than a collection of spot transactions, Voice that offered useful information. And to complete the trilogy of his title, it was voice that engendered reciprocity and Loyalty.

    The small book virtually revived the field of political economy.... 

    I can't resist one more quote. See if you can guess why I found this part cautionary / instructive:

    When I [Kuttner] first visited him at his office at Princeton's Institute for Advanced Studies, Hirschman was already in his seventies. He gestured to piles and piles of letters, papers, manuscripts and books that had been sent by students, colleagues and admirers. "I could spend the rest of my life," he said plaintively, "administering my past life." But he found time both to engage with his public and to keep producing new, important work.

    There is lots more in this elegant appreciation, which very much more reading. Also, I've learned of a full-scale biography of Hirschman coming from the Princeton University Press early next year. It's by Jeremy Adelman, it's called Worldly Philosopher, and its cover is shown above. 


    Robert Kuttner's second article is a long analysis, also in the Prospect, of one of the Obama administration's most notable and puzzling sins of omission. That is the president's lack of urgency about getting people chosen, nominated, and confirmed for service on the federal bench. Sample / precis of Kuttner's case:
    [S]purred by the tailwind of a re-election victory and the realization that public opinion is on his side, President Obama has displayed a new toughness in his budget battle. He has declared that he won't negotiate against himself, and the strategy is working. But the White House is still stuck in don't-make-trouble mode on the crucial issue of judicial appointments, where the pace of nominations is only now catching up with that of Obama's predecessors and the strategy for avoiding partisan confrontation gives Republicans something close to a veto over who is nominated.

    The slow pace of nominations combined with Republican obstruction to create a huge backlog. There are now more than 100 vacancies on the federal bench, out of some 856 federal district and appellate judges, far more than on the day Obama took office. The flagship Court of Appeals for the DC Circuit has 3 vacancies out of 11 judges, leaving that court with a Republican majority. During Obama's first term, total judicial vacancies increased by 51 percent. During the first terms of Clinton and Bush, they declined by 65 and 34 percent respectively.

    This also is worth reading, and I very much hope that the audience includes people in the White House.

  • But What If Obama Loses the Popular Vote?

    A silver lining: the beginning of a bipartisan effort to get rid of the outdated and destructive Electoral College system

    As another thought experiment for our one-day-only, day-long Festival of Election Eve Dispatches™, here is a proposal for what Barack Obama should say tomorrow night if the Electoral College projections hold up and he gets more than 270 votes -- but Mitt Romney rolls up big enough margins elsewhere to win the popular vote.

    I am a charter member of the "let's get rid of the Electoral College" movement, in keeping with the rationale laid out in loving detail at this National Popular Vote site. There are many reasons to wish that 60 or 70 thousand votes had gone the other way in Ohio in 2004, but among them is that it would have made resistance to the Electoral College a potentially bi-partisan issue. In 2000, the Electoral College (along with a lot of other factors) was rigged against Al Gore and the Democrats; in 2004, a shift in Ohio would have left George W. Bush with the popular-vote lead, but made John Kerry the president.

    If it happened again this time? A reader tells us about that scenario:

    If Obama loses the popular vote but wins the Electoral College (as seems at least somewhat probable), conservatives will predictably howl that his is an illegitimate presidency, bereft of mandate (as a friend of mine said, they didn't even think he was legitimate when he won with 53% of the popular vote).

    But here's how the President could turn that consternation on its head:  On the first day after a split-vote re-election, he could call a press conference and say (essentially) "Look, we all played by the same rules, and I won fair and square.  However, I also think the Electoral College is well past its due date.  It's an archaic relic of an era when leaders weren't sure if people could handle self-government by themselves.  I think we know better now.  So, tomorrow I am calling on the Congress to immediately take up a constitutional amendment to abolish the Electoral College."

    This would do three things:
    1. It would neutralize the "he didn't really win" argument.  If conservatives are so upset about losing the Electoral College vote, they can stop whining and do something.
    2. If such an amendment passed, it would move the elections from carry-the-state, winner-takes-all affairs in a handful of key states to campaigns to maximize votes in people-dense cities and suburbs nationwide.  Democrats would start campaigning in places like Austin, TX and my hometown of Louisville, KY; Republicans would go to Orange County, CA and Dallas, TX.  Overall, I think, a more urban electorate would tend to benefit Democrats. 
    3. Taking the election national might do a lot to increase voter turnout.  If the campaigns have to make a play for voters in population centers everywhere, people who thought their votes didn't matter might be more likely to get to the polls.
    My guess is that for these very reasons, Republicans would be loath to abolish the Electoral College.  And if they don't act to pass a Popular Vote amendment, President Obama will have called their bluff.

    Meta-point: a truly remarkable aspect of this campaign is that neither side has spent any time dealing with the procedural issues whose importance we've been reminded of through the past four years. The Supreme Court (four of whose members are in their seventies). The %*%$&(* recent abuse of the filibuster. Gerrymandering and obstructionism in general -- and the overall breakdown of our machinery of democracy. This item is a reminder of the kind of thing we might talk about, if we were talking about this kind of thing.

    More ahead. (The Festival™ runs until around the time the Dixville Notch votes start coming in.)

  • An Interview with Chen Guangcheng: 'Be Confident and Speak Out'

    China's best-known activist for civil liberties and rule of law, now exiled in the United States, explains why he is optimistic about China's "inevitable" emergence as a democracy that respects its people's rights.

    chen.jpg

    Our new issue is on the newsstands and in mailboxes. It is full of interesting articles, plus some new design touches. And so ... subscribe!

    I have two short items in this November issue, before a long story in December. One is a tech column q-and-a with David Allen, the creator of the Getting Things Done, or GTD, approach to modern life. The magazine article is here; some outtakes from our interview are here; and some other GTD news is here.

    In this issue I also have a brief appreciation of Chen Guangcheng, the civil-liberties activist from China who sought asylum in the U.S. Embassy in Beijing earlier this year and whom we have recognized as one of our Brave Thinkers of the year.

    While researching that essay, I had a chance last month to interview Chen Guangcheng about the motivation for and significance of his work, and about his long-term aspirations for China. We spoke by telephone for about half an hour. I asked questions in English, and he answered in Chinese; an interpreter sitting with him in New York, at his new base at New York University, rendered each side's words into the other's language. The explanations in brackets below, [like this], are insertions by me where I thought extra background might be needed.
     
    Mr. Chen made clear ahead of time that he would not discuss personal details of his detention by provincial authorities or ultimate escape from China. He will go into these in depth in a forthcoming book. But he did discuss the overall prospect for political reform in China, and why in the face of great adversity he remains optimistic. On a day when the New York Times has published David Barboza's revelatory front-page piece about the family-business empire that surrounds even the most "kindly" and "socially aware" of China's political leaders, Chen's assessments are particularly timely. (For another view on the NYT expose, see China Daily Show.)

    ___
    Telephone interview with Chen Guangcheng, September 4, 2012.

    Q. As you think about the overall situation for the rule of law, and development of civil society and individual liberties in China, would you say that things are on the whole getting better? Or getting worse?

    Chen Guangcheng:
        My answer is two-fold. First, from the perspective of civil society, I would say that we have been witnessing a rising awareness by the Chinese people of the rule of law, of their rights, of rights-consciousness. All of those are on the rise, and it is an accelerating process.

        This is an inevitable trend of history. There is nothing that can stand in its way. With the help of advanced technology, and the experience of Chinese people, this rise in rights-consciousness is something that must happen, and will happen.

        In the past, people might hear only about themselves and their situations. Now this has been transformed into a situation where people do not care only about themselves but also about others, and they help each other.

        In the past, people largely relied on government officials to achieve the goal of justice. But now people have more and more relied on themselves to achieve this goal.

        I also have to say that from the legislative perspective, there has been a lot of improvement. A lot of progress has been made. The basic structure of the legal system has been established, in terms of having laws governing every aspect of the society. Nonetheless, most of the time those laws are just empty words in the eyes of the rulers.

        So Chinese people have come to realize that in order to realize their rights, and to have their rights protected, they have to go to the root of the problem, instead of just focusing on individual cases.

        It is becoming apparent that Chinese people who used to focus only on their individual cases, have now been paying more attention to the institutional changes that are called for by their rising rights-consciousness. For example, a call for the abolition of the notorious re-education through labor system. [JF this is a reference to prison-work camps.]

        In the face of these calls by the public, the rulers -- they just ignore those calls. They ignore the problems. They refuse to right the wrongs. They try to cover mistakes with even more mistakes.

        So the conclusion I would draw, from all of the above, is that in terms of the role the law plays in the society, the rule of law is absolutely sliding back. Even to the age of the Cultural Revolution.

        I think China has taken the first step, which is to make sure that there are rules and regulations and laws that govern the society. China is not doing a great job of the second step, which is to make sure that those rules are implemented and complied with in practice. Law enforcement generally speaking cannot function in today's Chinese society. That is what has given rise to all these numerous cases in which the government ignores the rules that they themselves have set up. For instance, the case of my nephew [Chen Kegui, arrested after Chen's departure], and my own case. These are all examples of the government's blatant ignorance of the law.  The government acts contrary to the law, tortures people, 'disappears' them, does all sorts of things to the innocent people without any legal basis,


    Q. You say that the evolution of individual rights, and rights-consciousness, in China is "inevitable." If that is so, do you think this transformation of China will be a natural, relatively calm process? Or do you expect it to be difficult, even violent?

    Chen Guangcheng:
        First, I think the shift of the Chinese society to democracy and rule of law, and of constitutional operation - all of that is definitely the trend, and there is nothing that can change this trend.

        As for how China will achieve this shift, it depends on a rich combination of factors. There are lots of things to take into account here. These include the approach taken by the leadership [in the Chinese government], the role played by human rights activists and by other people in Chinese society, and the attention the international society pays to these issues. And what kind of assistance the international society is willing and able to provide. For now, the leadership has shown no willingness to take this approach to make the shift happen. If that is the case, I believe that there will be more and more cases like Wang Lijun appearing in the near future. [Wang Lijun is the Chongqing police chief, previously allied with Bo Xilai, who broke with him and attempted to defect to British and American authorities.]

        I personally think that international society has not been ready for this shift in Chinese society. If that is really the case, it can make things worse.

        So given all those possibilities that we are facing, I think that if China remains the way it is now, that it is possible that a lot of good things will develop. But it is also possible that things will be getting worse.  But I think that this kind of uncertainty is itself exactly the sign of this coming trend and shift. It is what we would expect given what the Chinese government has been doing in terms of its lawlessness and blatant crackdown on civil society.

        Other issues that will face China in terms of how it manages its transformation include the following three: The public's loss of faith in the government. Also the loss of credibility, or lack of credibility, by the government. And the third is what has happened because of the internet censorship that China has launched with the great firewall. This has blocked information that could have gotten into China and could have affected the transformation.  What is really critical for the transformation, which will eventually determine whether the shift will be gradual and peaceful or difficulty and violent, is whether Chinese society can get itself back onto the right track.

    Q. I know that there are limits to what anyone outside China - individuals, organizations, or governments - can do to affect this process. In some circumstances outside pressure or "interference" can even make things worse. What do you think outside individuals or organizations who support China's evolution to a rule-of-law society can most usefully do?

    Chen Guangcheng:
        I think that for the United States - and not just the United States but also other democracies in the world -- there are a couple of things they could be doing.

        They should be aware of the coming shift in the Chinese society. And they should get ready for it. For instance, we have seen more and more mass "incidents" [demonstrations and protests, sometimes suppressed with violence] happening in China. What if the government had another massacre like the one 20 years ago [at Tiananmen Square]. What if this kind of thing happened again? What would be the international society's reaction to it? This needs to be considered.

        The Chinese government has not been performing its obligation to maintain the fairness and justice of Chinese society. The power is basically in the hands of the elite, and it has been manipulated by them. The least the international society could be doing is to exert more pressure on the Chinese government to make them deliver on whatever promises they have made to their people. The fundamental principles of fairness and justice- they don't have boundaries. They should be universal.

    In May this year, the Chinese government openly promised, not only to me but a promise made to the whole world, that they would launch an open investigation into my case and make sure to bring to justice those perpetrators. [The local authorities who had arrested and abused Chen and his family.] But so far there has been no sign whatsoever of any progress on that front. This kind of blatant ignoring of one's own promise is something we should pay attention to.

        In the face of all these kinds of violation of universal values and social justice, I think that countries, including the US should, not worry about "offending" the perpetrators [in the Chinese government] if they take action. They [Westerners] should make their stance clear. They should stand behind the principles they claim they believe in. They should not ignore or turn a blind eye to the obvious social injustice, with its cost for humanity and for universal values. That is something we [Chinese people] don't want to see here. What we want to see here is our hope that the US can, as it always does, take the lead in this case to show its long standing adherence to the universal values and the international norms.

        So, we should do whatever we can to improve China's situation in protecting human dignity, and realizing the rule of law, and achieving social justice and social fairness. We should not do anything or the basis of whether the rulers of China will be pleased with it or not. And anything that runs contrary to the values I have just enumerated, the United States should not do that -even if that is what the Chinese leadership hopes they will do.

        This brings up a very critical point. The government of the United States should ask the U.S. companies that operate in China to realize that they are not only earning money in China. They should also earn the confidence of the Chinese public.

        Take Google as an example. It really has played a model role in this respect, even though its withdrawal from China may put it at a disadvantage in terms of its economics.  So far I believe that Google has earned the confidence of the Chinese people.

        I want to deliver this message to people in any democracy in the world. I want to let them know that every effort they have made in this respect will make a huge difference in China. I urge them to have faith in their ability to make changes in China.   Be confident and speak out.  The sky won't fall just because people speak up on their own opinion.

  • 'The Worst Thing That Has Happened to Our Democratic Election System'

    The under-covered story of this election cycle.

    votersuppression.banner.LCCRUL.jpg
    Map from the Lawyers' Commitee on Civil Rights Under Law. Full-size version here.

    Andrew Cohen has been doing a formidable job of covering what is otherwise a substantially under-covered theme in this election year: the efforts to disenfranchise large numbers of voters, especially in swing states. Here are four sample installments in recent months: last week, earlier this month, in late August, and another just before that. Plus, this interview with voting-rights pioneer Rep. John Lewis. Our Garrett Epps has also been on the case, recently and notably here and here. [Map via PFAW.] [Also see this strong ongoing series from TPM.]

    If you're still not sold, please check out this new essay by Elizabeth Drew, called "Voting Wrongs," for the New York Review of Books. Those familiar with Drew's works over the decades* will know that she is not given to dramatically hyperbolic overstatement. But here is what she says at the end her piece, emphasis added:
    Having covered Watergate and the impeachment of Richard Nixon, and more recently written a biography of Nixon, I believe that the wrongdoing we are seeing in this election is more menacing even than what went on then. [During] Watergate... the president and his aides attempted to interfere with the nominating process of the opposition party. But the current voting rights issue is even more serious: it's a coordinated attempt by a political party to fix the result of a presidential election by restricting the opportunities of members of the opposition party's constituency--most notably blacks--to exercise a Constitutional right.

    This is the worst thing that has happened to our democratic election system since the late nineteenth century, when legislatures in southern states systematically negated the voting rights blacks had won in the Fifteenth Amendment to the Constitution.
    Worth reading the whole thing. Or, there's always Sarah Silverman.**
    __
    * I started reading her Washington coverage when I was in college and she was the Washington Editor of the Atlantic, a role in which she was succeeded by Sanford Ungar and then me. Back in those days, efforts to restrict voting rights were associated with last-gasp outright segregationists in the old South. Everywhere else, maximizing voter turnout and voter participation was assumed to be an unambiguous civic good.

    ** Profanity alert, as you might have guessed.
  • Good for John Roberts

    The Chief Justice comes down on the side of his institution

    During his confirmation hearings seven years ago, John Roberts presented himself as a man who by both temperament and philosophy fully embodied the virtues of restraint. He would deliver rulings when asked but not otherwise intrude his views. As a judge he would observe a traditional deference to legislators on policy matters, intervening only when necessary; as a member of today's court he would recognize the weight (though not unchangeability) of decisions from the past. His most memorable way of making the point was to liken himself to an umpire who would call balls and strikes but not root for the either team.

    In interviews and profiles in the first months after his confirmation, Roberts conveyed his ambition to be a Chief who might pull the squabbling court together, with more large-majority opinions and fewer 5-4 partisan splits. Everyone could draw hope from these sentiments from a brilliant young Chief with a long career ahead of him.

    The problem is that on the bench, from September 29, 2005 until this morning, Roberts gave so little evidence that he would practice what he had preached, and so much that he would instead undertake an activist agenda with a partisan bent. Citizens United was the most dramatic but not the only example of a Chief and his majority who went out of their way to answer questions not posed by a case, and through those answers to undo what had seemed settled law. The sporting analogy, as mentioned before, would be an umpire who calls balls and strikes -- and also yells "pass interference" or "foot fault" about games he sees from the corner of his eye.

    That was until today. In making a majority to sustain the mandate / "tax," the Chief Justice gave his first substantial demonstration of loyalty-to-institution outweighing loyalty-to-cause. I am willing to believe that this has been his real intention all along; that he was increasingly concerned that his legacy might be a Court whose legitimacy ebbed as its partisan predictability rose; and that he finally found the way to express his true "institutionalist" nature. To gauge the importance of this move by the Chief Justice, consider the political and legal world we would know today if he had joined the other side to make a 5-4 majority for totally overthrowing the law, perhaps accompanied by a hyperpoliticized Scalia concurrence. I stand by my previous (much objected-to) contention that this would have aggravated a genuine legitimacy crisis for the Supreme Court. [See Jonathan Chait to similar effect: "Roberts peered into the abyss of a world in which he and his colleagues are little more than Senators with lifetime appointments, and he recoiled."]

    I am not equipped to swim into the maelstrom of Supreme Court deepthink underway right now, including analyses of the long-term implications of Roberts's ruling for the Commerce Clause. (Two good starting points, by Epps pere et fils, and this from the NYT). I attach another, from a reader, below.

    The main point is: the observable facts about the Chief Justice's vision and beliefs are very significantly different today from what they were before 10am EDT. The change is all to the good, for the Court and the country.

    Charlie Stevenson, a longtime Senate staffer and academic often quoted here, writes to say:

    I'm not a lawyer, but I have done a lot of research on the writing of the Constitution and its implementation in the early years of the Republic. II also think I know a little about politics.

    While I have no way of knowing whether the Chief Justice in fact holds any of the views I will ascribe to him, I suggest these hypotheses as highly plausible.

    -- Roberts recognized growing criticism of the Court for partisanship and welcomed a way of reducing those attacks.

    -- He was personally opposed to the Affordable Care Act but recognized the weight of judicial precedents in favor of its constitutionality.

    -- He found, and occupied, a clever middle ground that gave both liberals and conservatives much that was pleasing to them.

    -- For the conservatives, he opposed the validity of the individual mandate under the Commerce Clause and opened the door for later challenges to social legislation under it; he also took a more restrictive position on Medicaid and its burdens on the states.

    -- For the liberals, he upheld the basic law under the congressional taxing power.

    -- Cleverly, Roberts got the court to say that, though the law was a tax, it was not subject to the 1867 Anti-Injunction Act preventing judicial review of taxes until they are actually collected.

    Deft work, Mr. Chief Justice.

    Deft work, at many levels.

    Read The Atlantic's full coverage of the Supreme Court's health-care decision.

  • 'The Two Great Classes—Tramps and Millionaires'

    A message from 1892 worth considering today.

    In response to recent items on current partisan politics as a slow-motion coup, here are messages from two readers with extensive first-hand experience in politics. First we have Mike Lofgren, for many decades a Republican Senate staffer, whom I have quoted before and whose book on what has happened to American politics, The Party Is Over, comes out this summer. He writes:

    tramps.jpgOur great-grandparents would have recognized the current Supreme Court and the Citizens United decisions for what they are: the institutions of government in the grip of what they then called the Money Power.

    Witness the 1892 Omaha platform of the People's Party ("the populists"), reacting to court rulings such as that of the 1886 court session, when a court headnote on a case, Santa Clara County v. Southern Pacific Railroad, laid the foundation for "corporate personhood" and established the precedence of corporate prerogatives over citizens' rights. The populists' Omaha Platform called out the high­est court, along with the rest of the political apparatus, as rotted by money:
    "We meet in the midst of a nation brought to the verge of moral, political, and material ruin. Corruption dominates the ballot-box, the Legislatures, the Congress, and touches even the ermine of the bench. The people are demoralized. . . . The newspapers are largely subsidized or muzzled, public opinion silenced, business prostrated, homes covered with mortgages, labor impoverished, and the land concentrating in the hands of capitalists. The urban workmen are denied the right to organize for self-protection, imported pauper­ized labor beats down their wages. . . . The fruits of the toil of millions are boldly stolen to build up colossal fortunes for a few, unprecedented in the history of mankind, and the pos­sessors of these, in turn, despise the Republic and endanger liberty. From the same prolific womb of governmental injus­tice we breed the two great classes - tramps and million­aires."

    That last line commands the admiration of anyone attentive to rhetoric. So does the passage as a whole. "Even the ermine of the bench" !

    Next we have Charles Stevenson, who was for decades a staffer to Democratic senators before becoming a professor at the National War College. He writes:

    - I used to think that increased party polarization was simply the result of the growing ideological unity of each group, a process reinforced by redistricting into safe seats.  Now I think that a better explanation is a combination of a capture of the GOP by a radical fringe and the defeat of congressional institutionalism by partisanship.  Newt Gingrich was the godfather to both movements, starting with his rejection of the bipartisan 1990 budget deal and continuing with his strategy of "destroy[ing] the House in order to save it" by undermining public confidence in the institution....

    - Congressional norms have also changed, most dramatically as you've noted in terms of the abuse of the filibuster. But they've also changed in terms of defending the congressional institutions and their proper Constitutional roles. Few members any longer assert congressional war powers against a President of their own party. Committees - and conference committees --are routinely bypassed by the leadership to avoid messy compromises. Some congressional leaders seem to put partisanship above lawmaking. Bill Frist [R-Tenn] had little Senatorial experience or respect for the institution when he was picked by the Bush administration to be GOP leader. Mitch McConnell openly announced that his goal was defeating Obama in 2012, rather than something like "using the votes we have to limit presidential excesses."

    - Another development that has poisoned our politics is the fact that each of the last 3 presidents has been viewed as fundamentally illegitimate by a large segment of the opposition - Clinton first because of his narrow victory in a three-man contest, then because of his lying under oath about his sexual activities; G.W. Bush because of his minority popular vote and the Supreme Court ruling; and then Obama because of questioning his birth certificate.

    - I don't think we should eliminate the filibuster because I can foresee partisans on both sides wanting to prevent what they consider a radical appointment to the Supreme Court or a narrow majority vote approving use of torture or ending civil liberties in the event of another terrorist attack. I'd be happy with a rule change forbidding filibusters on "motions to proceed" and requiring the opponents to produce 40 live bodies in order to sustain a filibuster each day.

    The "tramps" illustration above comes from the very useful "New Spirits / Tramps and Millionaires site," as does this Charles Dana Gibson illustration of another side of turn-of-the-19th-century American life.

    gibsontable.png

    Forgive me for including this sample message that just came in, as part of the very large harvest of non-supportive response that I find in the inbox on getting off a plane:

    I'd like to know how many of your "knowledgable legal observers" that say Obamacare is constitutional have a connection to an Ivy League school?  I'd wager most of them do.  As such I consider whatever legal opinion they spew forth as hopelessly tainted by an ultra-radical left wing political agenda.

    If the individual mandate was a Republican idea then I tip my hat to the right for putting such a blatantly unconstitutional provision into the bill that would force a majority of SCOTUS to rule it unconstitutional.

    You get the joke if, unlike my correspondent, you know something about the educational background of conservative Justices Roberts, Scalia, Thomas, Alito, and "swingman" Kennedy. This is a fraught time in our national life, so I look for the bright side when I can.

  • SCOTUS Follow-Up: The Perils of Too Many 5-4 Rulings

    What we can guess about the court's ruling on the health-care case, based on what we know about its Arizona-immigration decision

    Background: First, a long post on the dangers of a federal judiciary whose rulings (and expressed rationales) are harder and harder to distinguish from simple Republican/Democratic party positions. Then, a distilled version in a shorter post. Now some updates:

    1) I don't have any disagreement with Ta-Nehisi Coates's examination of whether the "norms" of political life have done as much to buffer extremism as I suggested in the original post. I was talking about right/left interaction among the parties, and I do make the case that in this arena previous norms were different, and that the difference mattered. Main example: the filibuster. Either party could have decided at any point over the years to filibuster just about every appointment and piece of legislation. That didn't actually begin to happen until five years ago. Ta-Nehisi is talking mainly about rights, power, and relations among the races. Of course he is right that "norms" did very little to promote justice there.

    2) In light of the current controversy, it's worth reading Jeffrey Rosen's interview with Chief Justice John Roberts, which the Atlantic ran five and a half years ago. The subhead gives the idea:
     
    RobertsRosen.jpg

    And as Rosen put it:

    In Roberts's view, the most successful chief justices help their colleagues speak with one voice. Unanimous, or nearly unanimous, decisions are hard to overturn and contribute to the stability of the law and the continuity of the Court; by contrast, closely divided, 5-4 decisions make it harder for the public to respect the Court as an impartial institution that transcends partisan politics.
    Good point.

    3) To the same effect, it is worth recalling former Justice John Paul Stevens's dissent from the infamous 5-4 ruling in Bush v. Gore.
    It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.
    4) From a reader just now, on the implications of today's Arizona immigration decision for the health-care ruling later this week:
    Roberts joined the AZ majority today to give a 5-3 ruling (Kagan recused). Only a 4-4 ruling was needed to uphold an earlier decision to overturn the law. He joined a politically polarized decision, possibly extracting a compromise to save debate on stop-and-check for another day in return. Perhaps this was the price for being picked to write a 6-3 majority opinion on Obamacare with a similar compromise to make the bill more conservative (e.g. the Roberts Obamacare opinion might establish a commerce-clause limit that stops somewhere between health-insurance and broccoli mandates).

    That would be two consecutive decisions on politically polarized issues in which Roberts crosses sides to (1) provide a larger than needed majority and (2) moderate the result to be more conservative. I imagine that this would instantly reverse a lot of negative opinion about the Roberts court in the legal community, which would give him much more room to make really sweeping, conservative change in other areas that'll be up for debate soon -- ending voting rights enforcement, requiring all union members to opt in on dues, eliminating personal campaign contribution limits, ending affirmative action, upholding the latest abortion restrictions, a broader ruling against firearms restrictions, etc. If you take the view that nationalized healthcare is inevitable and will probably go into effect while Roberts is still Chief Justice, it makes more sense to build up support for other priorities.

    Or maybe I'm way too optimistic and these two rulings have nothing to do with each other or Roberts joining the AZ ruling was Kennedy's price for helping to overturn Obamacare.

    I recognize that all this hypothesizing is, yes, hypothetical as we wait to see what the Court does, and what reasoning it offers. Will weigh in again on this topic after that. 

  • 5 Signs of a Radical Change in U.S. Politics

    The pattern of events in American politics should worry us all.

    (Midnight update: This item went up three hours ago with a more blunt-instrument headline than it should ever have had: "5 Signs the United States is Undergoing a Coup." I used the word "coup" in a particular way in the longer item this was drawn from. Using it in the headline implies things I don't mean. Through the past decade, there has been a radical shift in the "by any means necessary" rules of political combat, as I describe. Previous conservative administrations have nominated previous conservative Justices -- but not radical partisans, happy to overthrow precedent to get to the party-politics result they want. That is the case I mean to make. And I hope the upcoming health care ruling ends up being evidence on the other side.)

    This is distilled from a longer item earlier today, at the suggestion of my colleagues. It's a simple game you can try at home. Pick a country and describe a sequence in which:

    • First, a presidential election is decided by five people, who don't even try to explain their choice in normal legal terms.
    • Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology.
    • Once on the bench, for life, those two actively second-guess and re-do existing law, to advance the interests of the party that appointed them.
    • Meanwhile their party's representatives in the Senate abuse procedural rules to an extent never previously seen to block legislation -- and appointments, especially to the courts.
    • And, when a major piece of legislation gets through, the party's majority on the Supreme Court prepares to negate it -- even though the details of the plan were originally Republican proposals and even though the party's presidential nominee endorsed these concepts only a few years ago.

    How would you describe a democracy where power was being shifted that way?

    ___

    Underscoring the point, a Bloomberg poll of 21 constitutional scholars found that 19 of them believe the individual mandate is constitutional, but only eight said they expected the Supreme Court to rule that way. The headline nicely conveys the reality of the current Court: "Obama Health Law Seen Valid, Scholars Expect Rejection."

    How would you characterize a legal system that knowledgeable observers assume will not follow the law and instead will advance a particular party-faction agenda? That's how we used to talk about the Chinese courts when I was living there. Now it's how law professors are describing the Supreme Court of the John Roberts era.

  • SCOTUS Update: La Loi, C'est Moi

    The norms that govern political action are changing, perhaps most of all on the Supreme Court.

    Thumbnail image for SCHSalito.jpgI am not enough of a Supreme Court buff to have any confident idea of what the majority will rule on the Obama health care plan.

    But confidence in the very idea that the Roberts majority will approach this as a "normal" legal matter, rather than as one more Bush v. Gore front in the political wars, grows ever harder to maintain, especially after the latest labor-rights ruling. It is worth reading carefully this lead editorial in yesterday's New York Times. In short, the same five conservative Justices who in their pre-appointment phase had inveighed against "judicial activism" and "legislating from the bench," while promising to live the gospel of judicial "humility" if confirmed, went out of their way, in a ruling written by Samuel Alito, to decree new law contrary to what Congress had ordered and other courts had long approved.*

    Normally I shy away from apocalyptic readings of the American predicament. We're a big, messy country; we've been through a lot -- perhaps even more than we thought, what with Abraham Lincoln and the vampires. We'll probably muddle through this and be very worried about something else ten years from now. But when you look at the sequence from Bush v. Gore, through Citizens United, to what seems to be coming on the health-care front; and you combine it with ongoing efforts in Florida and elsewhere to prevent voting from presumably Democratic blocs; and add that to the simply unprecedented abuse of the filibuster in the years since the Democrats won control of the Senate and then took the White House, you have what we'd identify as a kind of long-term coup if we saw it happening anywhere else.**
     
    Abraham-Lincoln-Vampire-Hunter.jpgLiberal democracies like ours depend on rules but also on norms -- on the assumption that you'll go so far, but no further, to advance your political ends. The norms imply some loyalty to the system as a whole that outweighs your immediate partisan interest. Not red states, nor blue states, but the United States of America. It was out of loyalty to the system that Al Gore stepped aside after Bush v. Gore. Norms have given the Supreme Court its unquestioned legitimacy. The Roberts majority is barreling ahead without regard for the norms, and it is taking the court's legitimacy with it.

    Three items for extra reading.

    1) On how Democrats in general should react if the Court, as seems likely, announces a plainly partisan ruling about the health care law, see Michael Tomasky's argument.

    2) If you want some bitter amusement, look back at Dahlia Lithwick's excellent real-time reports on how Samuel Alito and John Roberts presented themselves, back when they were trying out for their current lifetime roles:

    At his hearings, Roberts sounded the notes of "humility" and "modesty" repeatedly. Over and over, he emphasized the need for judicial deference--to precedent, to the other branches of government, and also to his colleagues on the court. He declined to answer dozens more questions than did Alito. But his casting of himself as a modest cog in a vast and complicated machine afforded real comfort even to those of us concerned about his substantive views.

    At first blush, Alito's approach appears simply to be a different flavor of judicial modesty: Where Roberts spoke repeatedly of deference to other institutions, Alito persistently defers to the legal process itself. He tells us, over and over again, that he approaches cases with an "open mind." He says he would start analyzing any issue by closely scrutinizing the relevant statute. He insists--time and again--that he hasn't yet fully studied the issue at hand and cannot therefore offer an opinion.

    There's a lot more, and all in the same mode that in retrospect was quite plainly 100% cynical.

    3) Reflecting the change in norms leading to a change in reality brought by routine abuse of the filibuster, a Congressional reporter tells us that a recent proposal failed in the Senate, because "Sixty votes were needed to pass."

    Of course we students of government know that this answer is incomplete. These days, the actual number of votes needed is 60 -- or five.
    __
    * Again, read the editorial, but it concerns "opt-out" measures for certain union dues and fees. Previous legislation and court rulings had approved the practice of unions withholding dues unless individual members "opted out." This was part of the larger balance of union and corporate power that has been worked out in legislation and court rulings over the past century. Samuel Alito, for the majority, decreed opt-out an unacceptable part of the balance and said that unions must switch to "opt-in."

    ** You can try this at home. Pick a country and describe a sequence in which:

    • First, the presidential election is decided by five people, who don't even try to explain their choice in normal legal terms.
    • Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology.
    • Once on the bench, for life, those two actively second-guess and re-do existing law, to advance the interests of the party that appointed them.
    • Meanwhile their party's representatives in the Senate abuse procedural rules to an extent never previously seen to block legislation -- and appointments, especially to the courts.
    • And, when a major piece of legislation gets through, the party's majority on the Supreme Court prepares to negate it -- even though the details of the plan were originally Republican proposals and even though the party's presidential nominee endorsed these concepts only a few years ago.

    How would you describe a democracy where power was being shifted that way?

    Update Underscoring the point, a Bloomberg poll of 21 constitutional scholars found that 19 of them believe the individual mandate is constitutional, but only eight said they expected the Supreme Court to rule that way. The headline nicely conveys the reality of the current Court: "Obama Health Law Seen Valid, Scholars Expect Rejection."

    Update^2 Richard Nixon also observed the "norms" in stepping aside rather than challenging the hair's-breadth 1960 election results, which many of his supporters were sure had been rigged. Also he deferred to the Supreme Court when they ordered him to hand over his secret White House tapes. But that was, notably, a unanimous Court decision, not the one-vote-margin strictly partisan results we've had in recent controversial cases. [More on the struck-out part later.]

    Also: from opposite ends of the pedantry spectrum, some people have written to ask what this foreign-language nonsense is doing in the title, and others why it's not capitalized the way "real" French would be. To the first: of course this is derived from the famous L'etat, c'est moi, which you can look up. To the second: this is Atlantic "house style." In our web posts all "significant" words in a title are capitalized, excluding "of" and "and" but including all verbs and any word coming after a colon. Now you know.

  • American Dysfunction Watch: State of the Judiciary

    The self-defeat of America, Chapter 12,825

    The Congressional Research Service is a non-partisan arm of the Congress whose purpose is to provide well-researched answers for questions raised by members of the Senate and House. This week it put out a report on another sign of increasing public dysfunction: the mounting number of vacant seats on the Federal judiciary, for both district courts and circuit-court appeals judges. They are vacant mainly because of the increasing difficulty of getting nominations approved by (you guessed it) ... the U.S. Senate.

    Refreshingly, this is not strictly a partisan issue! Senate showdowns over judicial nominees have ramped up under both George W. Bush and Barack Obama. This chart shows the percentage of nominees who were finally approved by "roll call" vote in the Senate. The significance here is that back in the Reagan and first George Bush administrations, virtually all nominations were approved by voice vote -- ie, in an uncontested, pro-forma way.

    JudicialNominees.jpg

    In this chart we see that the current Republican Senate minority, under Obama, has done essentially what the Democratic Senate minority began doing under Bush: forcing nearly all nominations to a contested vote.

    But something has changed under Obama, according to the report. He is the only president in the past few decades (most figures go back to Reagan) to have more seats vacant as he began his re-election year than he inherited when he took office.

    This chart, which covers appeals-courts judges, looks a little confusing, but its main point is: Clinton and George W. Bush ran for re-election with their appointments-and-confirmations staying ahead of deaths, retirements, creation of new posts, etc. They spent their first few years filling more seats than opened up. Clinton inherited 17 vacancies, and had 12 left when he ran. Bush inherited 26, and had 17 left in his re-election year. But Obama inherited 13 open seats -- and at the start of the year had 16.

    Judges2.png


    The report goes into all the details. Obama has been slower than Bush to put nominees forward, and the Senate has been even slower to consider those he does nominate. Charts here, here, and here: a substantial number of "judicial emergencies," without district-court judges to hear cases or circuit-court judges to hear appeals, because of the deliberate bogging-down of the whole process. In some cases the nominations are being held up because of a single Senator's objection.

    I could supply the larger moral here, but .... nah. Check out the report, for details like these:
    • District court vacancies have grown in number over the course of the Obama presidency, from 42 judgeships vacant when President Obama took office to 59 at present...
    • During the Obama presidency thus far, fewer circuit court nominees have been confirmed by the Senate than were confirmed during the first terms of any of the four preceding Presidents (Reagan through G.W. Bush).
    • Likewise, fewer Obama district court nominees have been confirmed by the Senate than were confirmed during the first terms of the four preceding Presidents.
    • President Obama is the only one of the three most recent Presidents to have begun his fourth year in office with more circuit and district court judgeships vacant than when he took office.
  • Obama and Roberts: The View From 2005

    Did a freshman senator understand a future Chief Justice better than the Justice understand himself?

    Here are two quotes from two 40-ish Harvard Law School graduates back in 2005. They make for a very interesting comparison now. First, a few words of set-up:

    220px-Roger_Taney_-_Healy.jpgI mentioned recently, in an item about the possible Roger Taney-ization of Chief Justice John Roberts, the fascinating time-capsule quality of a Washington Post story about the vote on Roberts's confirmation, in 2005. Roberts (who had just turned 50) was approved by a 78-22 margin, with all Republicans voting in favor and the Democrats split evenly, 22 for and 22 against.

    The Post story discussed the motives and rationales of the leading Democrats in the Senate for voting the way they did, and considered the ramifications for the later ambitions of several of them, including Sens. Biden, Bayh, Clinton, etc. It also discussed the views of Sens. Chuck Schumer, Lindsey Graham, Jon Kyl, et al -- but did not even mention one of the Democrats opposed to Roberts. This was of course the 44-year-old freshman senator from Illinois whom Chief Justice Roberts would swear in as president less than three and a half years later. It is one more reminder of the out-of-nowhere quality of Barack Obama's rise. 

    A reader has just sent in a link to a WSJ item from 2009, which quoted Obama's stated reasons in 2005 for opposing the Roberts choice. Given what we know about Roberts from his six-plus years on the Court, and what we have learned about Obama, it makes worthwhile reading now. Here are passages from Obama's 2005 statement of opposition to Roberts, with emphasis supplied by the reader:

    "The problem I face...is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95% of the cases that come before a court... what matters on the Supreme Court is those 5% of cases that are truly difficult.

    In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.

    In those 5% of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision.... In those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

    I talked to Judge Roberts about this. Judge Roberts...did say he doesn't like bullies and has always viewed the law as a way of evening out the playing field between the strong and the weak.

    I was impressed with that statement because I view the law in much the same way. The problem I had is that when I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General's Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In these same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man.

    I want to take Judge Roberts at his word that he doesn't like bullies and he sees the law and the court as a means of evening the playing field between the strong and the weak. But given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.
    JRoberts.jpg

    Now, compare this with what John Roberts said about himself in his opening statement at his confirmation hearings. Here I've added the emphasis:

    My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role.

    Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

    The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

    But it is a limited role. Nobody ever went to a ball game to see the umpire.

    Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

    I leave it to you to judge which of those statements from 2005 stands up better seven years later as a guide to John Roberts's temperament and jurisprudence. I will tip my hand in saying: whether or not you admire his role on the court, it is impossible to see how anyone could describe it as umpire-like or "reflecting a certain humility." In the Citizens United ruling, he and his allies set out to answer questions the case itself did not necessarily raise, so as to overturn precedents they considered incorrect. If you're using the umpire analogy, it would be as if someone behind home plate suddenly yelled "Foot fault!" about a tennis match he saw out of the corner of his eye, with "Pass Interference!" and "Icing" calls thrown in to boot. The potential overturn of the Obama health care law may be desirable or not, according to your own views -- but it is anything but "humble."

    I mention this mainly because of the apposite pairing. We have two men who now sit atop two of the three branches of the government. They both laid down markers seven years ago on how one of those men was likely to perform once in office. One of the predictions seems a lot more prescient than the other.

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