On Monday, the Supreme Court declined to hear a case brought by Maher Arar, a Canadian national who was sent to Syria and tortured after arriving in New York from a vacation.
The court did not comment Monday in ending Syrian-born Maher Arar's quest to sue top U.S. officials, including former Attorney General John Ashcroft. Arar says he was mistaken for a terrorist when he was changing planes in New York on his way home to Canada, a year after the 2001 terrorist attacks. He was instead sent to Syria, where he claims he was tortured.
Lower courts dismissed Arar's lawsuit, which asserts the U.S. purposely sent him to Syria to be tortured. Syria has denied he was tortured.
The Canadian government agreed to pay Arar $10 million and apologized to him for its role in the case.
Yesterday’s New York Times reported that Yahya Wehelie, a US citizen who was on his way home from Yemen, is in custody in Cairo after F.B.I. agents discovered that he was on a no-fly list.
For six weeks, Mr. Wehelie has been in limbo in the Egyptian capital. He and his parents say he has no radical views, despises Al Qaeda and merely wants to get home to complete his education and get a job.
But after many hours of questioning by F.B.I. agents, he remains on the no-fly list. When he offered to fly home handcuffed and flanked by air marshals, Mr. Wehelie said, F.B.I. agents turned him down.
“The lady told me that Columbus sailed the ocean blue a long time ago when there were no planes,” Mr. Wehelie said in a telephone interview from Cairo. “I’m an innocent American in exile, and I have no way to get home.”
The common thread uniting these two situations is silence. By refusing to hear Mr. Arar’s case, the Supreme Court tacitly acknowledges the government’s argument (a carryover from the Bush administration) that any matter which could jeopardize national security does not belong in court. In Mr. Wehelie’s case, the FBI invoked a policy that precludes it from discussing persons on watch lists or no fly lists.
By continuing his predecessor’s policies, President Obama is responding to the pressure placed upon him by recent terrorist threats. But at what cost? Do fundamental rights to due process stop applying as soon as the government decides you aren’t worthy of them?
Yesterday, the Supreme Court declined to hear the case of Maher Arar, a Canadian citizen who the US detained in 2002 and sent to Syria to be imprisoned and tortured for a year—without ever being charged with a crime.
In an article for the New York Review of Books, David Cole, one of Arar’s lawyers, outlines the unconscionable treatment of Arar and the very different responses of the Canadian and US governments when it came to light:
Canada responded to Arar’s case as a nation who has wronged a human being should. It established a blue-ribbon commission to investigate his case, which wrote a 1,100-page report fully exonerating Arar, and faulting Canadian officials for erroneously telling US officials that Arar was the target of an investigation into possible al-Qaeda links. In fact, Arar was merely listed as one of many persons “of interest” to the investigation, because he was thought to know one of the individuals who was targeted. The commission found, however, that Canadian officials did not know that the United States was planning to send Arar to Syria. That decision was made by US officials with the Syrians and not shared with the Canadians.
Canada, in other words, played a relatively small part in Arar’s injuries, as compared to the United States. Yet Canada’s Parliament issued a unanimous apology, and the government paid Arar $10 million (Canadian) for its role in the wrong done to him.
Here in the United States, the response could not have been more different. US officials have never apologized to Arar. They persist in leaving him on a “no-fly” list, despite the fact that Canada has cleared him of any suspicion, much less wrongdoing. And when we filed suit in 2004 to seek damages from the US officials directly responsible for the decision to send Arar to his torturers, lawyers for the Bush administration argued that even assuming that federal officials had intentionally delivered Arar to Syria to be tortured, and blocked him from seeking court protection while he was in their custody, they could not be held liable for his injuries on the grounds that the case implicated secret communications and national security concerns not appropriate for court resolution.
Because the Supreme Court won’t hear Arar’s case, he doesn’t have any more hope of recourse from the courts. As Cole points out, the duty to make amends to Arar lie in the hands of the President and Congress. And, perhaps more importantly, it is their responsibility to make sure what happened to Arar never happens again.
Waxman and Stupak also said BP apparently rejected advice of a subcontractor, Halliburton Inc., in preparing for a cementing job to close up the well. BP rejected Halliburton's recommendation to use 21 "centralizers" to make sure the casing ran down the center of the well bore, they said. Instead, BP used six centralizers.
In an e-mail on April 16, a BP official involved in the decision explained: "It will take 10 hours to install them. I do not like this." Later that day, another official recognized the risks of proceeding with insufficient centralizers but commented: "who cares, it's done, end of story, will probably be fine."
In spite of the well's difficulties, "BP appears to have made multiple decisions for economic reasons that increased the danger of a catastrophic well failure," Waxman and Stupak said.
Last week at the America’s Future Now! Conference, People For’s Marge Baker participated in a panel called "Changing Citizens United and Fixing the Supreme Court." The panelists explained the negative impact of the Roberts Court’s corporate bias, the Citizens United decision, and the influence of big businesses on our elections. But don’t worry, they also outlined all the things we can do about it: legislate change, fix the courts, and, most importantly, work towards amending the Constitution.
Dawn Johnsen, the law professor who was forced in April to withdraw her nomination to head the DOJ’s Office of Legal Counsel, has written a forceful op-ed in today’s Washington Post. Johnsen, an exceedingly qualified candidate who was the victim of a fifteen month Republican obstruction effort, writes that the President and Senate need to quickly install a new OLC head—and to pick someone who will lead the office in an honest and nonpartisan way:
In 2004, the leak of a controversial memo on the use of torture catapulted the Justice Department's Office of Legal Counsel into the spotlight. Fallout and debate continue, including in the context of my nomination -- withdrawn this spring -- to head this office. While attention understandably is focused on confirming the president's Supreme Court nominee, the OLC remains, after six years, without a confirmed leader.
It is long past time to halt the damage caused by the "torture memo" by settling on a bipartisan understanding of the proper role of this critical office and confirming an assistant attorney general committed to that understanding.
There is no simple answer to why my nomination failed. But I have no doubt that the OLC torture memo -- and my profoundly negative reaction to it -- was a critical factor behind the substantial Republican opposition that sustained a filibuster threat. Paradoxically, prominent Republicans earlier had offered criticisms strikingly similar to my own. A bipartisan acceptance of those criticisms is key to moving forward. The Senate should not confirm anyone who defends that memo as acceptable legal advice.
Johnsen is right that the OLC should be led by a fierce advocate of the rule of law—someone like Johnsen herself. We hope that the debate over the next OLC nominee will, unlike the last debate, reflect the importance of this qualification.
Two California ballot measures funded by corporations are still too close to call after Tuesday’s elections. A utility company spent $46 million on a measure to make it harder for municipalities to set up their own utility companies; a car insurance company spent $16 million on a measure making it easier to hike fees on some drivers.
Jamie Court, president of Consumer Watch, said he was heartened that those propositions were so close despite tens of millions spent by companies that would benefit.
"I think it says the electorate isn't as stupid as the corporations think it is," Court said.
Yes, it’s encouraging that these measures might not pass, but the fact that they’re this close shows that millions of dollars in corporate spending is no joke. We’ll post an update when the results are in.
In a new piece for the Huffington Post, People For’s Michael B. Keegan argues that the confirmation process for Elena Kagan provides progressives with the perfect opportunity to take back a debate that the Right has dominated for far too long:
As Slate's Dahlia Lithwick has pointed out, the Republican message machine has managed to convince America at large that only two kinds of Justices exist: rigorous conservatives who scrupulously apply the original intent of the Constitution, and carefree liberals who flaunt the law to rule for whichever party their big, soft hearts prefer. It's a myth, but it didn't spring up from nowhere. It's the direct result of a concerted effort pushed by conservative ideologues like Ed Meese and supported by Ronald Reagan, George Bush, and eventually the entire GOP machine.
For decades, this campaign has paid enormous dividends to the Right, with ultra conservative judges frustrating progressive goals and allowing elected conservatives to trample our Constitution. But over the last few years, a series of decisions by the Roberts Court have exposed its flaws and given progressives an opening to take back the conversation.
In his commencement address at Harvard last week, former Supreme Court Justice David Souter offered up an eloquent and thorough debunking of the popular conservative delusion of constitutional “originalism.”
At issue is "originalism," an approach to reading the Constitution whose seeming precision has given conservatives a polemical advantage over the liberals' "Living Constitution" idea that appears to let judges say our founding document means whatever they want it to mean.
Justice Antonin Scalia, the court's leading orginalist, summarized his opponents' attitude toward the Constitution with four words: "You know, it morphs."
Now, thanks to Souter's commencement address at Harvard last week, Scalia's critics have fighting words of their own. Souter, who did not mention Scalia by name, underscored "how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments."
The problem is not only that "constitutions have a lot of general language in them in order to be useful as constitutions," but also that the U.S. Constitution "contains values that may very well exist in tension with each other, not in harmony."
This means that "hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another."
Souter focused on the example of Brown v. Board of Education, the 1954 decision that declared segregated schools unconstitutional. "For those whose exclusive norm of constitutional judging is merely fair reading of language applied to facts objectively viewed,” he said, “Brown must either be flat-out wrong or a very mystifying decision.”
Carl Pope, chairman of the Sierra Club, has written an account of the efforts of the business lobby and Republican Senators to keep Rhode Island environmental lawyer John McConnell off the federal bench.
McConnell’s offense? Representing the State of Rhode Island in a lawsuit to get a lead paint manufacturer to clean up the damage caused by its toxic product. (A jury awarded the state $2.4 billion in cleanup costs; the Rhode Island Supreme Court threw out the verdict).
Whatever you think of the verdict, McConnell was a lawyer representing a client, the State of Rhode Island. He argued on behalf of his client, which is what lawyers are supposed to do. Litigators are not supposed to behave like judges (until and unless they actually become one).
That distinction was lost on Senators Kyl and Sessions. Sessions actually argued:
"Being passionate and zealous is a good quality for a litigator. But I do think those qualities are somewhat different in the cloistered halls of a courtroom, where you're reading briefs and trying to be objective. Those emotions might again start running, and you might say that 'There's a wrong there that I need to right.'"
The two Republican senators were echoing the arguments of the Chamber of Commerce, which had warned Congress against McConnell:
"His apparent bias against the business community and questionable judicial philosophy raise serious reservations about his fitness to serve a lifetime appointment to the federal bench," said Lisa Rickard, president of the U.S. Chamber's Institute for Legal Reform. "McConnell's elevation to the federal judiciary could create a 'magnet' jurisdiction that would encourage additional meritless, plaintiffs' lawyer-driven lawsuits."
The U.S. Chamber spends more on lobbying Congress than any other organization. It is not a coincidence that it has made itself a powerful—if not always logical— voice in the shaping of federal courts.
Matt Coles at the ACLU has written an interesting blog post outlining some major reasons why the repeal of Don’t Ask Don’t Tell is so important. One of his points especially resonated after last week’s firestorm around Republican Senatorial Candidate Rand Paul:
Second, we need to get rid of DADT because it is a blot on the Constitution. DADT enshrines in federal law a principle which had been rejected in most other contexts: that discrimination could be justified by the prejudice of others. In the 60s, businesses in the South said that the prejudice their customers had against black people ought to give them an exemption from discrimination laws. Congress and the courts disagreed. In the 80s, government agencies actually defended discrimination on the basis that neighbors (or others) had strong negative feelings about disabled people, "hippies" and even older people (in Miami of all places). Again, the courts disagreed. But in the Congress that passed it, the single justification for Don't Ask, Don't Tell was not that gay members of the Armed Forces couldn't do their jobs. It was rather that heterosexual service members would be so unnerved by the mere presence of gay people that they would be unable to perform theirs. As long as DADT endures, the idea that your rights can't be taken away just because someone else doesn't like you is hardly secure.
Last week, Rand Paul struggled to defend his view that the government should allow private enterprises to discriminate against people based on race, gender, or sexual orientation. He was forced to backtrack on his position after his statements were shot down by civil rights groups, the media, and members of his own party. His reasoning essentially amounted to the idea that the government has more of a duty to protect the right to discriminate than to protect those who are discriminated against. Sound familiar?
That’s a false and outdated interpretation of the Constitution—one that didn’t hold water in 1964, and doesn’t today.
(And, as a sidenote, check out the American Prospect’s takedown of another one of Paul’s perversions of the Constitution).
As BP begins a risky attempt to stem its still-leaking oil rig in the Gulf of Mexico, and oil starts to lap against the shores of the Gulf Coast, lawsuits against the oil giant have begun. The devastating oil spill has already surpassed the size of the 1989 Exxon Valdez disaster, and the litigation that follows it is sure to be just as contentious and lengthy. Two years ago, 19 years after the Valdez spill, the tens of thousands of victims of the disaster saw their case end up before the Supreme Court…and the Court gave Exxon Mobil a huge handout. While the facts this time are different and the legal issues won’t be exactly the same, if their case ends up before the high court, victims of the BP spill will have a legitimate reason to worry –the Roberts Court has displayed a clear willingness to go out of its way to keep individual citizens from holding big oil accountable.
In 1989, an Exxon oil tanker carrying over a million barrels of crude oil crashed off the coast of Alaska, spilling at least ten million gallons of oil into the Prince William Sound. The spill destroyed wildlife habitats and the livelihoods of fishermen up and down the Northwest coast. Those affected by the spill entered into years of litigation to try to recover from Exxon some of what they had lost. In 1994, a jury awarded the 32,677 plaintiffs in the case $5 billion in punitive damages. An appeals court judge halved the amount to $2.5 billion.
[E]ven this pared-down judgment was way too much for Justices Roberts, Kennedy, Thomas, Souter and Scalia. In 2008, this bloc reduced the punitive damage award from $2.5 billion to $507.5 million. Indeed, the only thing that stopped them from deleting the award altogether was that they were one vote short of being able to find that a corporation is not responsible for the reckless acts of its own managers acting in the scope of their employment.
What the 5-justice majority found, over the objections of dissenting liberal justices who accused them of legislating from the bench, was that it would impose in maritime tort cases a 1-1 ratio between compensatory and punitive damages—a formula found nowhere in the statute and essentially pulled out of a hat made by a big corporation. In dissent, Justice Stevens chastised the majority for interpreting the "congressional choice not to limit the availability of punitive damages under maritime law" as "an invitation to make policy judgments on the basis of evidence in the public domain that Congress is better able to evaluate than is this Court."
But Exxon, which amazingly ended up making money on the spill because of the resulting increase in oil prices, got its way with a corporate-leaning Court and ended up paying punitive damages equal to a day or two of company profits.
Not surprisingly, the lawsuits from those who are losing their livelihoods have begun. As of May 21, more than 130 had been filed.
Lawsuits against BP will no doubt involve millions, and probably billions of dollars in both compensatory and punitive damages. While compensatory damages are essential to helping victims recover from a disaster of this size, punitive damages serve to dissuade the company and others like it from acting recklessly in the future. The Roberts Court’s willingness to invent a rule capping punitive damages against Exxon doesn’t bode well for anyone hoping to hold BP accountable for this disaster and to make sure it doesn’t happen again.
The Court has a responsibility to ensure that ordinary people get treated fairly, even when pitted against big corporations—but the current Supreme Court has made it clear that we can’t always count on that.
This disaster is a tragic reminder of why we need Justices who won’t favor the interests of the powerful over the rights of ordinary citizens.
Today, the DC Circuit Court of Appeals ruled against three detainees held by the U.S. on a military base in Bagram, Afghanistan, holding that the federal courts do not have jurisdiction to review their habeas petitions. People For the American Way Foundation filed an amicus brief in support of the detainees’ position that the federal courts do have such jurisdiction.
In apparent concern about opening the door to habeas cases from detainees held on U.S. military bases all over the world, the three-judge panel distinguished the United States’ control and sovereignty over the Bagram military base from the de facto sovereignty over Guantanamo Bay - a determinative factor in the Supreme Court’s decision in Rasul v. Bush (2004) which held that Guantanamo detainees could seek habeas relief in U.S. courts. The panel pointed out that the U.S. has exercised its leasehold interest in Guantanamo Bay for over 100 years, while its leasehold interest in Bagram is only a few years old.
More interestingly, the court also accepted the government’s “practical obstacles” arguments on appeal that allowing these cases to proceed in our federal courts would overly burden a military that is engaged in active hostilities in Afghanistan. PFAW Foundation wrote about this very issue, urging the court to take notice of the orderly and unobtrusive manner in which the Guantanamo habeas cases have been disposed since the Supreme Court’s decision in Boumediene in 2008. Those cases are particularly instructive given that 30 of the 38 detainees whose cases were brought before the D.C. district courts by the time of filing were found to have insufficient evidence to support their detentions, belying the notion that those detained as enemy combatants are the worst of the worst. In fact, many are not and worse still, some may even be innocent.
But, as the Washington Post’s Ruth Marcus points out, there was a time not long ago when Republican Senators were faced with someone with views very similar to Paul’s–and, instead of distancing themselves from him, tried to put him on the Supreme Court.
Rand Paul and Robert Bork, Marcus writes, “are ideological soul mates.” For those whose perspective on the rejected Bork nomination is that it was such a skewed pummeling that it led to the creation of a new verb -- Borking -- here’s a reminder. Writing in The New Republic in 1963 about the proposed civil rights act, Bork inveighed against a principle of "unsurpassed ugliness” -- not of racism, mind you, but of the notion of compelling private property owners to stop discriminating. Sound familiar? The next year, Bork lit into the proposed bans on discrimination in both employment and public accommodations, saying they would “compel association where it is not desired,” and citing “serious constitutional problems” with the measure.
Bork renounced those views publicly in 1973, during his nomination for solicitor general. Paul’s about-face took less than 24 hours.
It might seem unfair to bring up a 23-year-old nomination battle in the debate over today’s policies, but some in the Republican Party have done just that, using Bork’s Senate defeat as a recurring Supreme Court talking point.
In a vote that surprised absolutely no one, Republicans on the Senate Judiciary Committee voted unanimously against the confirmation of Goodwin Liu, President Obama’s nominee for a seat on the Ninth Circuit Court of appeals. Nevertheless, he passed out of committee by a vote of 12 to 7.
Since even Liu’s critics concede that he’s brilliant, the GOP decided to attack him as “outside the mainstream” and for lacking judicial experience.
By now it’s well established that the Senate GOP will attack anyone as outside the mainstream, so that attack merits little more than a hearty yawn.
But lacking judicial experience? That’s relatively new for Senate Republicans. They sure didn’t mention it when they were voting for 24 courts of appeals judges nominated by President George W. Bush without any judicial experience, or when they were praising former Chief Justice of the Supreme Court William Rehnquist who went to the high court without ever having been a judge. And maybe they didn’t notice that the American Bar Association declared Liu “well qualified,” its highest possible endorsement.
Then again, Senate Republicans have never been shy about applying a double standard when it comes to judicial nominations.
The day Justice John Paul Stevens announced his retirement, Senate Republican leadership vowed to obstruct the confirmation of whoever was nominated to replace him. Today, Republican Senators who had previously praised nominee Elena Kagan’s intellect and qualifications have become strikingly lesssupportive.
And now we have evidence that the obstruction of Obama’s Supreme Court pick, as a way of delaying progress on policy initiatives like climate change regulation and immigration reform, has been the GOP’s explicit strategy all along.
Talking Points Memo’s Brian Beutler obtained a recording of an April 22 RNC strategy call led by right-wing activist Curt Levey:
The crux of the GOP's strategy is to use Obama's nominee to wedge vulnerable Democratic senators away from the party, and drag the confirmation fight out until the August congressional recess, to eat up precious time Democrats need to round out their agenda.
"[I]t wouldn't take much GOP resistance to push a final vote into early August," Levey advised. "And, look, the closer we could get it to the election, frankly, the better. It would be great if we could push it past the August recess because that forces the red and purple state Democrats to have to go home and face their constituents."
Levey acknowledged that a filibuster likely won't last--that Obama's nominee, now known to be Solicitor General Elana Kagan, will almost certainly be confirmed. But he hammered home the point to Republicans that there's value in mischaracterizing any nominee, and dragging the fight out as long as possible, whether or not Obama's choice is particularly liberal.
This is frustrating, but not surprising, from a party that has recently displayed an unparalleledmastery of the Senate’s rules for delay. If they’re willing to stall the confirmation of one of their own party’s most prominent spokespeople, why would they not draw out the confirmation process for an obviously qualified Supreme Court nominee?
Don’t say he didn’t warn you. Sen. Jeff Sessions has taken issue with several of President Obama’s criteria for picking a Supreme Court nominee, but he’s especially concerned about the stipulation that the new justice have a “keen understanding of how the law affects the daily lives of the American people.”
One has to wonder if Sessions was similarly terrified in 2006, when in his confirmation hearings before Sessions’ committee, now-Justice Samuel Alito made an eloquent speech about his ability to identify with the concerns of immigrants, children, victims of discrimination, and people with disabilities.
But if he sees out-of-touch as the most desirable quality in a Supreme Court justice, Sessions may have found his ideal Justice in John G. Roberts. Roberts has already reassured us that he missed the Internet age entirely. And on Monday, the Chief Justice showed us his lack of concern for low-wage laborers when he belittled the situation of workers forced to sign bad contracts as “economic inequality or whatever.”
If Sessions is looking for a Supreme Court that disregards the lives of ordinary Americans, he’s got it. But maybe it wouldn’t be so dangerous for our newest Justice to understand the difference between “economic inequality” and “whatever.”
In his column yesterday, E.J. Dionne laid out exactly the right prescription for liberals and Democrats in the upcoming confirmation battle over the Supreme Court seat being vacated by Justice John Paul Stevens.
We don't know who the nominee is yet, but we know the dangers posed by the Roberts Court and what the right-wing ideologues are doing to our country via their agenda-driven interpretations and reinterpretations of the law and the Constitution.
Citizens United is an extreme case of a general tendency: Conservative judges are regularly invoking their alleged fealty to the "original" intentions of the Founders as a battering ram against attempts to limit the power of large corporations. Such entities were not even in the imaginations of those who wrote the Constitution. To claim to know what the Founders would have made of Exxon Mobil or Goldman Sachs or PepsiCo is an exercise in arrogance.
What liberals forgot during the years when their side dominated the judiciary is that for much of our history, the courts have played a conservative role. But today's conservatives have not forgotten this legacy. Their goal is to overturn the last 70 years of judicial understandings and bring us back to a time when courts voided minimum-wage laws and all manner of other economic regulations.
Several days earlier, Joe Conason wrote a great piece discussing the politics of Supreme Court confirmation battles and why Democrats and progressives should be eager to have a constitutional debate about the role of the Court and how the Right's definition of "constitutional" really means the dangerous upending of the traditional understanding of the Constitution which has served America well.
What exactly do they mean by "constitutional"? On the increasingly powerful fringes of the Republican right, a category that includes some Tea Party activists, the Constitution is interpreted as prohibiting every social and political advance since before the Civil War. They would outlaw the Federal Reserve System, the progressive income tax, Social Security, Medicare, environmental protection, consumer regulation and every other important federal initiative of the past century.
Targets of the "constitutional conservatives" would certainly include civil rights legislation that guarantees equal protection under law to minorities and women...
Some more evidence of the Senate GOP’s extraordinary efforts on behalf of getting nothing done: trying to put off a vote on Wall Street reform, Senate Republicans are filibustering the motion to proceed to the legislation, adding yet another layer of delay to stall the bill.
The motion to proceed has traditionally been a quick formality, dispatched by unanimous consent in order to start debate on a bill. But recently, Republicans have been embracing it as yet another opportunity to slow down Senate proceedings. NPR reports:
It used to be relatively rare that so-called "motions to proceed," or to bring up a bill, were filibustered.
Before Democrats became the majority in 2007, such filibusters occurred only about eight times a year. Since then, the Republican minority has nearly quadrupled the frequency of such filibusters.
This dilatory tactic is just one of many ways that the GOP has found to impose unprecedenteddelays on Senate business both controversial and mundane. At least they haven’t yet skipped out of work altogether. Oh, wait.
Yesterday’s confirmation of Chris Schroeder to head the Office of Legal Policy was a welcome break in the gridlock that GOP senators have created over President Obama’s Executive Branch nominees. (Though, as has become the pattern, they made sure Schroeder’s confirmation was held up for nearly a year before allowing it to easily pass in a 72-24 vote).
The GOP’s recent unprecedentedabuse of procedural stalling tactics has Senators and observers scrambling for ways to amend filibuster rules to get the Senate working again.
In the Washington Post this morning, Ruth Marcus details her ideas on reforming the filibuster while maintaining the power of the minority to have a strong voice in the Senate, and Ezra Klein outlines the enormous time-wasting potential of the current rules.
And Chuck Schumer, chairman of the Senate Rules Committee, has launched a (sure to be smash hit) series of hearings on filibuster reform. At this morning’s hearing, there was some especially interesting testimony from the Brookings Institution’s Sarah Binder, who debunked the widely held idea that the Founding Fathers meant the Senate to be deliberative to the point of inaction.
The filibuster clearly has worthy uses (as anyone who’s seen Mr. Smith Goes to Washington knows), but it’s clearly wrong to imply that the Senate’s inventors intended the sort of obstruction that we see today.
Stanley Bach, a former legislative specialist at the Congressional Research Service who testified at this morning’s hearing, put it this way: “A useful starting point [to discussions of reform] is to ask whether the usual purpose of filibusters is more balanced legislation or no legislation at all.”
These days, the answer to that seems pretty clear.
John Perr wrote what I consider a must-read post over at Crooks and Liars about how Republicans, when in power, fail miserably at governing and seem to do their best art destroying our country. The results of their policies -- economic or otherwise -- inevitably force them out of office, but last long enough that they are able to pin the woes on their democratic successors and make "Government" the scapegoat for all the nation's problems, with particular anger being directed at the then-incumbents: Democrats.
That Americans' trust in government has plummeted to near-record lows isn't a surprise. After all, as the Pew Research Center documented, distrust of Washington is an American tradition, one which tends to rise and fall inversely with the economy. But the spike in anger towards the federal government, a fury which doubled to 21% since 2000, points to a potential midterm bonanza for the GOP. All of which suggests that the Republican Party whose anti-government rhetoric and incompetence in office helped kill trust in government may now be rewarded for it.
By now, the Republican recipe for badmouthing government into power should be all too familiar. First is to endlessly insist that, as Ronald Reagan famously said, "Government is the problem." Second is the self-fulfilling prophecy of bad government under Republican leadership, as the Bush recessions of 1991 and 2007, the Hurricane Katrina response, the Iraq catastrophe and the transfer of federal oversight powers to the industries being regulated all showed. Third, when the backlash from the American people inevitably comes as it did in 1992 and 2008, attack the very legitimacy of the new Democratic president they elected. Fourth, turn to the filibuster and other obstructionist tactics to block the Democratic agenda, inaction for which the incumbent majoirty will be blamed. Last, target the institutions and programs (Social Security, Medicare, the IRS) which form the underpinnings of progressive government.