Monday, November 14, 2016

The Reichstag Fire

If history is any guide, here is how it will happen. There will be some kind of incident, maybe a terrorist attack here or abroad, maybe some act of urban violence. Just as happened after 9/11, this incident will be used to justify the imposition of emergency powers: Restrictions on civil liberties, restrictions on press freedoms or use of the internet, expanded surveillance of Americans, stricter immigration controls; unfettered arrest and detention. Donald Trump has already expressed support for curtailing freedom of the press, and shutting down parts of the internet. He has already called for "registering" Muslims and curtailing their entrance into this country; for torturing prisoners; for tearing up treaties. If he follows through, we are on the road to a different form of government.

We could always hope that Trump won't actually implement these proposals. Maybe his bark during the campaign was worse than his bite. Maybe, as many have said, he doesn't really want this job, didn't expect to get it, and will just enjoy being president the way a reality show contestant enjoys winning the contest, without showing much interest in actually governing the country. I would not count on this outcome. The reality of power is too intoxicating. Given the opportunity, few shy away from exercising it, especially if they are as enamored of themselves as Donald Trump appears to be. We should therefore fully expect that Trump will try to do most of the things that he has repeatedly promised he will do. As I am suggesting, Trump may wait for a suitable pretext to get public opinion on his side before implementing some of his more dangerous ideas, and by that time it may be too late for the political system to resist.

The government's expanded powers might not seem unacceptable at first. Most people will probably support them. We will get used to showing our papers and alerting the authorities to suspicious behavior. And mass protests probably won't be effective in preventing these expansions of executive power; instead protests will probably be used to justify even more curtailment of freedoms.

Unlike the expansion of police powers that we allowed after 9/11, when the government paid some attention to avoiding profiling, and President Bush went out of his way to assure Americans that Muslims were not being targeted, I would not expect the same degree of care in the next expansion of power. Candidate Trump has already been explicit about his desire to engage in profiling and targeting of various minority groups.

I would also expect that crackdowns against allegedly dangerous elements in the country will start to take on a more political cast, and that Trump will not hesitate to paint his political opponents as terrorist sympathizers, or coddlers of disparaged groups, thus making opposition seem illegitimate.

Given the prospect that a more authoritarian form of government will emerge from a Trump administration, and that by the time it happens, it will be too late to resist, it is understandable that demonstrations and other forms of resistance are already occurring only a few days after the election. My fear is that these demonstrations may end up being counter-productive. First because it is offensive to our electoral process to protest the results of a fair election. Second because demonstrations will themselves be used as a justification for new security measures in the name of law and order.

If mass protests won't protect us from the gradual accumulation of executive power, the expansion of legalized discrimination, and increased restrictions on freedom of expression, what will? I draw some comfort from my faith in the federal judiciary, and our country's strong commitment to the rule of law. Donald Trump can be expected to press the courts to recognize expanded executive powers. In keeping with past behavior, he may try to intimidate judges at all levels. He is no stranger to litigation, and would probably relish a fight in that forum. We have to have some confidence that the third branch of government will rein in any excesses, as it was designed to do. People are worried about who the next president will appoint to the Supreme Court. It's an important issue, but even more important is whether judges of integrity, from the district court level up to the Supreme Court, remain free to halt unlawful expansions of governmental power, and whether their orders will be respected.

Many of the concerns being expressed about the next administration revolve around policy issues: health care, women's rights, environmental regulation, education, etc. Of course these issues are important, but we have to respect the right of those who win elections to affect policy. And we ought to work together with political adversaries to find common ground. To focus only on policy issues, however, is to treat this election as a normal transfer of power from one party to the other, and perhaps to lose sight of serious looming threats to the rule of law, to our democratic process, and to the protection of Constitutional rights and liberties. These are the values that define our nation, and that we must protect vigilantly above all else.

Wednesday, September 7, 2016


Thursday, July 14, 2016



Thursday, June 30, 2016


Monday, March 21, 2016


Friday, March 18, 2016

Why Garland?

From the Senate Republicans' point of view, the Garland appointment is clearly the best deal they could possibly hope to get, assuming that they have to accept an appointment by a Democratic President. He is the Chief Judge of the most prestigious court in the country next to the Supreme Court, a man with unimpeachable credentials, and a political moderate. Garland is also 63 years old, meaning his tenure on the Supreme Court will be limited. Their only better alternative is to elect a Republican President in November, a prospect that has to be regarded as somewhat less than a certainty, and also an outcome of which not all of them are so enamored, given that the Republicans' leading candidate has been emphatically denounced by both the last two Republican presidential candidates, and that he is likely to transform their party in ways they might not find so comfortable. The implicit threat is that if they don't confirm Garland, President Hillary Clinton will put forward a new nominee much less to their liking.

So why did President Obama "give in" to Senate Republicans and appoint such an acceptable candidate, instead of trying to make a more bold choice? President Obama's tactic is already encountering a small amount of displeasure from his own base, and runs counter to what some other presidents have done when they spar with the Senate over confirmation of a Supreme Court nominee. Reagan, for example, played to his base by putting forward the very conservative Robert Bork, but when Bork was rejected by the Senate, Reagan backed down and submitted the more moderate Anthony Kennedy. When Nixon's conservative pick Clement Haynesworth was rejected, in a fit of pique he first tried to double down and submit someone even more unacceptable to the Senate, Harrold Carswell, but Nixon eventually relented and appointed Harry Blackmun. President Obama is making the opposite play, giving in to the Senate up front by appointing a moderate, rather than provoking them with a liberal.

Conventional negotiating strategy suggests leading off by demanding even more than you expect the other side to agree to, leaving plenty of room to back down later after the other side's expectations have been set. On the other hand, there is also a time-honored technique sometimes employed in labor negotiations, sometimes in eminent domain negotiations, sometimes in negotiating contracts with athletes or actors, less often in litigation settlement negotiations, for one side to throw out the best offer (from the other side's point of view) that they are ever going to make right up front, to let the other side know that the more they haggle, the worse the deal will get for them. The technique has some serious risks, but it has some real strengths also. It makes sense, for example, when time is limited and appearances are important. It appears to be the game the President is playing here. If he chose a more conventional strategy of nominating a liberal judge, there is always the possibility that Republicans could have still defeated him by raising objections on the merits, holding extensive hearings, and running out the clock. Given that the Republicans had already announced that they would not do that, but would instead simply sit on whatever nomination the president made, it makes much more sense that Obama put forward a name to which the opposition could have no valid objections on the merits. Had he started off with a left equivalent of Bork or Haynesworth, that would only have lent justification to the Republican position.

It already appears that the president's strategy is working, since we are already seeing some backtracking from the Republican side. Maybe, some are saying, we would confirm Merrick Garland in the lame duck session of Congress after the election. Of course that would be inconsistent with the rationale they have been giving for refusing to consider any nominee, which is that it should be up to the president the voters choose in November, but no matter. Allowing a vote in the lame duck would still give Senate Republicans the chance to grab the best deal they can get after finding out whether their alternative looks any better.

So far all we're hearing from the White House is that there is no reason to wait until the lame duck session in December. But I wouldn't be too surprised if President Obama's next negotiating move is to tell Senate Republicans that if they don't confirm this nominee before the election, his name is going to be withdrawn. Deadlines are also a risky tool in negotiations, but they also can be used as a display of strength. I don't usually counsel parties in negotiations to employ deadlines and ultimatums, because too often parties need to back down from them when they are tested. The tactic might work in this case, however, depending on how bad the Republicans' November prospects end up looking this summer. On the other hand, President Obama may feel no need to add additional pressure, and he also probably feels that Merrick Garland would be a great addition to the Supreme Court, even if he has to wait until December for that to happen. 

Monday, December 7, 2015

Friday, November 6, 2015

Friday, October 2, 2015


"This is a political choice that we make to allow this to happen every few months in America. We collectively are answerable to those families who lose their loves ones because of our inaction. When Americans are killed in mine disasters, we work to make mines safer. When Americans are killed in floods and hurricanes, we make communities safer. When roads are unsafe, we fix them to reduce auto fatalities. We have seatbelt laws because we know it saves lives. The notion that gun violence is somehow different—that our freedom and our Constitution prohibits any modest regulation of how we use a deadly weapon, when there are law-abiding gun owners all across the country who could hunt, and protect their families, and do everything they do under such regulations—doesn't make sense." —President Obama on the shooting in Roseburg, Oregon: #UCCShooting

Posted by The White House on Thursday, October 1, 2015

Wednesday, September 2, 2015


Thursday, July 30, 2015

Who should pay for roads and bridges?

Is this any way to run a transportation system? Congress has just cobbled together a stopgap bill to fund highway maintenance and other transportation projects for the next three months, while they try to work out a plan for raising the necessary revenues for a longer term.

It seems obvious, and is pretty much accepted in principle, that those who use and benefit from federal highways ought to pay for their construction and maintenance. We have been operating under that principle at least since the creation of the Interstate Highway system. And the federal gas tax, while not a perfect way of collecting the necessary funds from the users and beneficiaries of those roads, does a pretty fair job of spreading the burden. But the gas tax isn't collecting enough money now. Cars are using less gas. And the tax, because it is still a fixed 18 cents per gallon, is far lower as a percentage of the cost of driving than it used to be. So the obvious solution is to raise the gas tax. And doing that would bring a host of other benefits in addition to making many needed repairs to roads and bridges, such as reducing air pollution, encouraging the use of public transportation, putting construction workers back to work, and generally making the world a more livable place.

But we are told that obvious solution is politically impossible because so many Congressmen have been spreading the idea that we must never raise taxes, even to pay for essential public works projects that everyone agrees we need. So they have been trying to find a way to take money from the poor to subsidize drivers. Because poor people have too much money already, I guess. What ever happened to the good old American values of self-reliance and personal responsibility?

Why aren't more people outraged by this? Congress's behavior on this issue is disgraceful, but Congress would probably get its act together if people cared enough to demand that they fix the problem. So why are we not mailing in petitions and marching in the crumbling streets to demand an immediate increase in the gas tax? Granted there are a lot of other pressing problems out there, but this problem is important too, and it is also easily solvable. It doesn't reflect well on ourselves to be so selfish as to be unwilling to pay for the roads we use every day.

Saturday, July 18, 2015

Black lives matter.

The organizers of this year's Netroots Nation conference, in part because of its location in Phoenix, chose to focus on the issue of immigration. That meant that other current issues, such as police killings of African-Americans, were given less attention. That careful plan was thrown aside today when a candidate forum featuring Democratic contenders Martin O'Malley and Bernie Sanders, was interrupted by a group of Black Lives Matter demonstrators, chanting the names of victims of police killings and preventing Governor O'Malley from speaking. At past Netroots conferences, I have seen Senator Harry Reid challenged, Leader Nancy Pelosi heckled, and President Obama's spokesman Dan Pfeiffer subjected to hostile questioning. Hillary Clinton was also reportedly booed at the 2007 event. (That might have been why she did not show up at the candidate forum today.) So this sort of thing is not only tolerated, but almost expected at this annual unruly gathering of progressive voices.

But I'm a believer in civil discourse and in listening to and trying to understand a variety of viewpoints. And a lot of that happens at Netroots conferences also. So I was initally annoyed when today's protesters would not stop chanting and would not give the candidate much of a chance to respond. They did not come to listen. They came to demand that attention be paid to a serious problem that has been ignored for much too long. And they proved their point when, sadly, both candidates revealed a somewhat dismissive and condescending attitude--O'Malley by making the dumb remark that white lives matter too, and Sanders by launching back into discussion of his economic proposals instead of acknowledging that racism as well as economic disadvantage plays a role in oppressing the black community--that made white members of the audience uncomfortable and defensive. The whole incident prompted a lot of interesting and important conversations (and tweets) for the rest of the day.

So the protesters beautifully fulfilled their purpose. And attendees got a much more revealing look at the candidates than we would have obtained from hearing out their campaign platforms.

Wednesday, July 15, 2015


The ink is barely dry on the breakthrough agreement reached this week with Iran, requiring that country to eliminate most of its nuclear weapons capacity in exchange for the lifting of economic sanctions, and many critics are already out in full force decrying the agreement. It seems remarkable that they could be so sure of their opposition without having had much time to read or study the text, or consider carefully whether this deal is better than the alternative of continued conflict. (In previous posts--here and here--on this topic, I outlined the way in which I think any negotiated agreement should be evaluated, not by comparing it to the outcome each side would have preferred, but instead by comparing it to the alternative of no agreement.)

But maybe it's not so remarkable that the critics have not even bothered to make what I think is the only relevant comparison. Maybe it would be a futile effort to try to walk them through the text, because their opposition springs from more fundamental concerns than the terms that have been negotiated. They would probably object to any deal that Iran would agree to, because any deal that lifts sanctions will make Iran a more powerful, and therefore dangerous influence in the region. Any deal that allows Iran any weapons development capability at all can be viewed as an attempt to appease a dictatorial regime. Any deal that puts the world on better terms with Iran leads the world into a false sense of security.

It should be acknowledged that the critics have legitimate concerns, and that their arguments cannot be refuted by logic or reason. That is not to say that any of these arguments are right. I happen to think they are all wrong, or at least they are outweighed by the tangible benefits of making peace, and that the alternative of failing to reach agreement is far more dangerous. Still I don't think it's possible to persuade the implacable foes of Iran--or President Obama--of that. They can still respond with cries of appeasement, or with fears of the dangers posed by the Islamic Republic. They can't be proven wrong except by time. I have dealt with parties in conflict enough to know that they usually can't be persuaded by a mathematical demonstration of the benefits of the deal on the table vs. the costs and uncertainties of continued conflict. Instead they must in some other way reach a point where they feel that they can let go of the conflict and accept the deal.

Signing on to a deal with a partner that has attacked or betrayed you in the past always requires a leap of faith, no matter how airtight are the verification procedures for the deal's strictures. Peace always represents a leap of faith. And the arguments in favor of maintaining conflict, and distrusting one's adversaries are usually powerful. That must be why humanity so often resorts to war at the drop of a hat, while establishing peace is a fraught and difficult process.