Scott Horton makes the case, which I think is correct. There’s obviously no question that Mukasey isn’t someone I would prefer to see appointed as AG. But the relevant universe of options here is not “people qualified to be AG,” but “people George Bush would appoint as Attorney General.” Given that last time Bush managed to select someone far worse than John Ashcroft, I think it’s pretty clear that Mukasey as as good as we’re going to get. (The fact that many conservatives aren’t happy with a clearly qualified candidate tends to reinforce this.) I also agree with Horton that with respect to the cabinet — as opposed to lifetime appointments to an independent branch of government — the President is entitled to considerable ideological deference. This doesn’t mean that he shouldn’t be subject to tough questioning at his confirmation hearings, of course, but it seems clear that Mukasey is far better than anyone could reasonably expect of this administration.
Author Page for Scott Lemieux
This has always been a non-issue for me since I subscribe to the dead-trees edition, but for better or for worse most of the Times website is going to be free again. Actually, although we tend to think of the op-ed columnists, the really good news for non-subscribers and bloggers (and teachers) is that the post-1986 archives and the public domain archives are also going free — not only a valuable source of information, but I presume fewer dead links.
Matt points us to this remarkable panel at a think tank often described as “liberal.” Not only does it seem to define Joe Biden as the leftmost acceptable opinion on the Iraq catastrophe, and is it chaired by Brookings scholar and the dead-ender’s dead-ender Michael O’Hanlon, but if features Peter Hoekstra. Yes, that Peter Hoekstra: the guy who did a presser with Dead Senator Walking Rick Santorum — in 2006! — announcing that Iraq really did have scary, scary WMDs. The Peter Hoekstra who claimed that leaks about the administration’s illegal activity may have been “penetrated” by “other nations or organizations.” But whose opposition to leaks is highly selective! That Peter Hoekstra. Truly a credible voice on Iraq, well-situated to share his insights about how national security issues will affect the next election.
Nothing Drake says sheds much light on why it would be reasonable for him to act as he did. Indeed, he only creates greater suspicion that the reasons for the firing were illegal, unethical, and dishonest. He is trying to save his own job by suggesting that there is something wrong with the man he fired, without giving any details or any way for Chemerinsky to defend himself from these unspoken charges.
This is a disgraceful way to treat Erwin Chemerinsky, a very fine legal scholar. It is bad enough that Drake fired him in what can only be described as an act of cowardice. Now he must go on an extended public relations campaign lying about why he did so and further impugning Chemerinsky in the process. One suspects that the next person whose job is on the line will be Drake himself.
This is even worse than Juan Cole’s rejection by Yale, which at least happened before the fact (although after departmental approval.) Needless to say, if what happened to either had happened to a conservative, we would be hearing these anecdotes recycled for decades (and not without reason.)
I’m still inclined to think that Bush wants a fight, but there seems to be some chance that he’ll go for the more confirmable Michael Mukasey. Jeralyn, persuasively, sees him as definitely conservative but better than, say, Ted Olson. For example, consider this radical idea:
Last month, Mr. Mukasey wrote an op-ed article in The Wall Street Journal in which he seemed to embrace a view shared by the administration suggesting “current institutions and statutes are not well suited” to the military effort against terrorism. He recommended that Congress intervene “to fix a strained and mismatched legal system.”
Whoa, whoa, whoa — he thinks Congress actually has the power to regulate Presidential war powers, and that the President doesn’t just have the power to ignore laws he doesn’t care for? Clearly, he must be some sort of free-thinking anarchist…
This is an exciting time for connoisseurs of wingnuttery. Alec “Skips A Generation” Rawls has finally expanded his profound insights concerning the IslamofascistCommieNazi conspiracy behind the 9/11 memorial in Pennsylvania into book format. The race is now on to see whether this or Liberal Fascism will come out first. What a moment for American letters!
Eric Johnston’s op-ed making the “pro-life” argument for Giuliani is awful in many respects. It repeats many plainly erroneous assertions common to Republican opponents of reproductive freedom: most notably, the claims that abortion would “leave abortion to the states” (a particularly ridiculous argument in light of Carhart II) and that “strict constructionism” actually means anything in constitutional interpretation other than “outcomes consistent with the political platform of the Republican Party.” And as my colleague Bean notes, the idea that Giuliani is OK with Roe being overruled is related to his broader commitment to democracy and constitutionalism is utterly risible. And yet, while he makes many bad arguments in its defense, the overall thesis that supporters of forced pregnancy can support Giuliani without short-term sacrifice is actually quite reasonable. The most important thing a President does with respect to legal abortion is to appoint judges, and the kind of statist reactionaries Giuliani would appoint to the Court would obviously be likely to vote to overturn or gut Roe. Nor would Giuliani be likely to veto any abortion regulation that could actually pass Congress during his tenure. And if Giuliani is the most electable candidate — and he probably is — it’s a better risk for anti-choicers than a Democratic President.
Over the long-term, though, I’m not so sure. One thing he doesn’t mention is that overturning Roe is extremely unpopular, and it’s not obvious why the leadership of one national party has to almost uniformly support a minority position (particularly one that, one suspects, is not a strong priority of most elite Republicans.) If Giuliani can win the nomination and then the election as a pro-choice Republican, this could undermine the power of the anti-choice lobby in the national GOP over the long haul.
I have a new article up at TAP about how the collective action problems surrounding attempts to “reform” the distribution of California’s electoral votes to help the GOP is an outgrowth of the foolish (or at least anachronistic) decision to leave most of the standards for federal elections up to state legislatures:
The California case illustrates the central problem with America’s severely deficient electoral system: the fact that the administration of federal elections was largely left to the states. The Electoral College is an anachronism that distorts electoral outcomes (most recently, and with disastrous consequences for not only the country but the world, in 2000) and overrepresents small-state minorities that are already overrepresented throughout American political institutions. (As Yale law professor Akhil Reed Amar has pointed out, “the electoral college was designed to and did in fact advantage Southern white male propertied slaveholders in the antebellum era. And in election 2000, it again ended up working against women, blacks, and the poor, who voted overwhelmingly for Gore.”
But privileging “states’ rights” over people’s rights not only constitutes a primary problem with the Electoral College but makes it nearly impossible to change. It produces the kind of collective action problems we can see in the California case (the states that act first will disadvantage their state’s citizens) and gives small states a vested interest in maintaining the less democratic system. This is particularly irksome because, in a modern democracy, the decentralized administration of federal elections is “local control” fetishism at its least defensible.
The value of decentralized power in some contexts is that it can allow for experimentation and policies more attuned with local values. But such experimentation, while logical for a time period in which giving the franchise even to propertied white males was a fairly radical idea, could not be more inappropriate for a modern democracy. It should no longer be acceptable, of course, for states to “experiment” with which adults should get the franchise.
Much more over at TAP.
Ben Wittes points out, correctly, that although Jack Goldsmith has been critical of some aspects of the Bush administration he remains a statist conservative. (“Jack Goldsmith is no human-rights lawyer,” says Wittes; he means this as a compliment.) But while I certainly agree that expanding executive power via Congress is preferable to the Yoo strategy of just making farcical arguments about the Constitution granting unlimited arbitrary war-making authority to the executive, it hardly follows from this that all expansions of executive power are desirable. I haven’t received the Goldsmith book yet, so I can’t judge the quality of his arguments, but Wittes seems, as he has before, to simply assume that expansions of executive authority enhance national security. For example, he continues to misconstrue the criticism of the recent Democratic capitulation on FISA:
The idea that the president ought to have a fairly free hand in the war on terrorism, but that the source of his freedom should be congressional permission for bold action, rather than broad claims of inherent presidential power, lacks much of a constituency today. The ire directed at Democrats who supported the recent temporary FISA amendment is one dispiriting indication of that.
Except, of course, that most of this ire was not based on some principle that congressional expansions of presidential power are inherently wrong. To repeat, the Senate leadership and the administration hammered out a deal that would expand power in some ways, but retaining clear definitions and meaningful oversight. Unless “fairly free hand” means “virtually unconstrained arbitrary power,” there’s no necessary contradiction here.
And this is related to the overall problem with the assumption that expansions of executive power — especially those that remove any oversight — improve national security. But this assumption is false. As Stephen Holmes argues in his recent book:
Would weakening the constitutional system of checks and balances, for example, help the executive become more focused and less reckless? This is unlikely. Indeed, the Administration’s desire to circumvent traditional checks and balances patently weakened its capacity for critical thought and self-correction, preparing the way for its gratuitous invasion to invade Iraq. To defend ourselves against our most dangerous enemies, we do not need unrestricted government, We need intelligent government. And no Administration that shields itself compulsively from criticism has a prayer of being even sporadically intelligent.
While Congressional delegation of unconstrained power to the executive may be more legally defensible, it doesn’t solve the underlying problems that caused the framers to place constitutional constraints on executive warmaking power in the first place. Particularly relevant here is that under the FISA bill that was passed Congress has no effective way of knowing in many cases whether the policy is working or not. Not only is this bad for civil liberties, it’s bad for national security, unless you believe that it’s sound policy to place blind faith in the competence and judgment of an administration whose competence and judgment have repeatedly proven to be catastrophically bad.
Wheeler and Marshall on the role of Bush crony Ray “Son of Howard” Hunt in the collapse of the Iraq oil deal, which would seem to ensure that nothing remotely resembling a viable Iraqi state is on the horizon. The frightening thing about Iraq has always been that it would be enormously difficult to construct a functioning (let alone democratic) Iraqi state out of no civil society and longstanding sectarian conflict if the leadership of the country that razed the previous state had any idea what it was doing.