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.

Thursday, July 2, 2015

Supreme Court Roundup

It's no wonder conservatives always seem angry. Because while liberals were out celebrating that people can now marry whomever they choose, that lower income citizens will continue to receive subsidies for their health care, that states can create commissions to prevent partisan gerrymandering, and that new barriers are not being erected to prove housing discrimination, what did conservatives have to celebrate this week?

Are they supposed to dance in the streets the way supporters of LGBT rights did, to cheer the Court's permission to use harmful drugs for lethal injections in death penalty cases? Should they be happy that the EPA will have more trouble keeping the skies clear of air pollution?

Maybe justices like Scalia, Alito and Thomas aren't upset just because they found themselves on the losing side of some important constitutional decisions. Supreme Court Justices can handle losing. They don't mind writing dissents. It could be instead that conservatives are angry about being forced to applaud death and pollution, while at the same time they are forced to try to prevent people from getting health care, or marrying the people they love. Being compelled by ideology to take those hateful positions could make anyone grouchy.

Notice that Justice Roberts did not seem nearly as unhappy as the three conservative justices to his right. In the marriage equality case, he was only a little bit grumpy. Roberts was willing to concede that proponents of marriage equality have something to celebrate, even though he would have preferred that they use the political process to achieve that, instead of the courts. And in the Obamacare case, Justice Roberts went along with the majority's construction of the statute, and therefore avoided being in the difficult position of trying to take away people's access to medical care in order to support a different construction. If Justices Alito, Scalia, and Thomas want to avoid the ill effects that come from all their scowling, sputtering and screaming, maybe they would do well to follow Roberts's example.

Sunday, June 14, 2015


Some thoughts based on my experience with negotiation and mediation in general that may be relevant to the ongoing Congressional fight over passage of fast track authority for the Trans-Pacific Partnership (TPP) trade agreement (which suffered a major setback on Friday)

Critics of the TPP have thrown suspicion onto the deal because many of its terms remain shrouded in secrecy. But confidentiality is something we fight to preserve in mediation and other forms of negotiated conflict resolution. One reason is to allow negotiators freedom to make aggressive offers and demands without fear of being second-guessed by their principals until the deal is completed. Another is to try avoid unnecessarily angering those who have to approve the deal before they fully understand the trade-offs involved in the final agreement.

In addition to maintaining confidentiality, it is helpful to the negotiating process for negotiators to remain open-minded. Even if the other side makes what is considered an unacceptable proposal, that should not be a reason to scuttle the negotiation. Instead, it is more constructive to present a counter-proposal, or to present something the other side may view as equally unacceptable as a condition of acceptance of their outrageous proposal.  I always caution parties to settlement negotiations to try not to react too negatively to the other side's insulting offers or demands. Instead they should be treated as invitations to make counter-proposals. I also caution parties not to rush into an evaluation of the merits of the deal. Wait until the negotiators have made the best deal they think they can get before comparing that potential agreement to the alternative of no agreement.

Particularly with something as complicated as a multi-nation trade negotiation covering a wide range of issues, it is important to step back and look at the bigger picture rather than to pick apart provisions that appear harmful to one side. In general, when barriers to trade are reduced, industries that have trouble competing against foreign suppliers are going to face even greater challenges, while industries that are having success in selling abroad are going to have even greater success. The economy may benefit from lower prices for goods made abroad, as well as from greater revenues for increasing exports. The net positive and negative effects  have to be weighed against each other before the deal as a whole can be deemed harmful. This is why every modern president seeks and usually obtains fast-track authority for trade agreements: so Congress can evaluate the package as a whole, rather than pick apart the pieces and risk the destruction of an agreement whose benefits may outweigh its costs.

Another consideration that risks getting lost in evaluating the merits of a negotiated agreement: Let's not overlook the value of peace itself. Parties often focus on the substance of particular issues being negotiated, and fail to give sufficient consideration to the cost of failing to resolve the issue. They fail to put a high enough price on the cost of continued conflict. These costs and values are particularly dramatic in the context of international trade agreements. Trade can create greater understanding among the peoples of nations engaged in trade, as well as economic benefits. The alternative to free trade is suspicion, distrust, and even war. The first thing that countries suspend when they resort to war is trade. Thus, trade can be seen as one of the most effective deterrents to war, because when the economies of various countries benefit from trade, they are less likely to resort to war.

In the current round of negotiations over this trade deal, we see critics of the deal failing to consider all of the foregoing. They are suspicious rather than protective of the secrecy of the negotiations. They are unduly focused on the merits of particular parts of the deal, and unable to evaluate it in its entirety. And they fail to put a sufficient value on the virtues of making an agreement per se. I'm not arguing for or against the TPP. What I am saying is that there are good reasons for keeping negotiations secret; there are good reasons for the president to seek fast track authority to allow a vote up or down of the agreement as a whole; and there are a great many issues that must be considered in evaluating the benefits and costs of such a deal, including the value of resolving disputes by agreement instead of by more destructive means.

Politically speaking, it is noteworthy that the House managed to find the votes to pass fast track, but potentially derailed the TPP by voting to abandon a program that Democrats have supported for decades, a program that provides assistance to displaced workers. It is troublesome that Democrats, and their union benefactors, were willing to end a significant job training program to protect union members. While the unions do have legitimate fears, Democrats should be wary of being governed by those fears. There are much broader issues at stake. Democrats need to serve broader interests than protectionist unions, if for no other reason than that it would be political suicide for the Democratic Party to fall completely into the pockets of the unions. They must take into account, for example, the interests of consumers and producers who benefit from lower prices, as well as the interests of exporters, who benefit from the removal of trade barriers. The person who is supposed to balance all of the competing interests of the American people is the president, and it seems highly unfortunate that House Democrats chose not to support the president's efforts in this case to do that.