Quote Of The Day – Extremist Rhetoric
By Justin Gardner | Related entries in Media, Republicans
“This turn toward the extreme right on the part of Fox News is troubling, and will achieve nothing in the long run except further marginalization of the GOP—unless people start behaving like adults instead of angry kids throwing tantrums and ranting about conspiracies and revolution.”
- EngnrMan of Little Green Footballs talking about the “Glenn Beckinizing” of the right wing media.
Populist agitators such as Beck are nothing new, particularly in times of economic instability — and they aren’t restricted to the right. During the Bush years, liberal anger over the administration’s policies bred bizarre conspiracy theories of its own, like accusations that the Sept. 11 attacks were an inside job.However, Beck’s paranoid style is seeping into the discourse of conservative politics, which should be of concern to Republicans. The charge that President Barack Obama is a socialist, first raised in the 2008 campaign, has become a de rigueur epithet heard not only on talk radio but in the halls of Congress. Calls by China to consider replacing the dollar as the global reserve currency have been met by bizarre warnings from congressional Republicans that the Obama administration wants to scrap the greenback for a new global currency. Thirty-four House Republicans have even signed on to a constitutional amendment that would prevent this from occurring, though no such proposal is being considered.
Former House Speaker Newt Gingrich has joined in, decrying the Obama administration’s proposed changes to charitable tax deductions as a “clear†effort to “replace people’s right to worship together with a government-Âdominated system.â€
Here’s the thing…in a time of crisis it’s easy for a guy like Beck to make a mark for himself because people are genuinely scared. And there’s no doubt that Bush’s political bread and butter was fear-based politics. Hell, Cheney still can’t stop himself from trying to scare people into believing that Obama has made us more vulnerable to a terrorist attack. And given the electoral success they had over the past 8 years with these tactics, it’s understandable that they’d continue to use them…if not for Obama’s election.
And that’s what I don’t get. It’s as if last November never happened for the GOP. Far right wingers blame the loss on McCain not being a good candidate, when most objective political observers acknowledge that once McCain slipped into “Be afraid of Obama! He’s friends with terrorists!” mode is when he started to seriously slip in the polls. Sure, his mishandling of the economic crisis definitely crippled him, but he had kneecapped himself before that. In other words, you don’t lose by 9.5 million votes unless your message is seriously out of step with the mood of the electorate.
Also, let’s not forget that we’re less than three months into this presidency, so all of this fear is ringing even more hollow with voters. They simply don’t buy the rhetoric. Well, I should say the independents aren’t buying it. Many folks who still identify as Republicans are knocking back shots of scare as quickly as the GOP can serve ‘em up. But that’s not how Republicans will be able to win. They’re not going to be able to bring enough independents into the fray to win back the White House or cut enough into the Dems majority to make a difference. They have to offer something more. Let’s hope we see that soon.
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April 7th, 2009 at 10:42 pm
Why do you care what the Republicans do to themselves?
Look, we live in a binary universe of actions and equal and opposite reactions, cause and effect. Might it be possible that the “extreme rhetoric” is simply a counter-weight to the, at least perceived, “extreme” government expansion and market invention of the Obama Administration.
April 7th, 2009 at 11:05 pm
Oh, it’s definitely a response to Obama, but the point here is that it’s not helping them. All they’re going to do is the same thing they did in the last election, which was attempt to demonize Obama, paint him as a boogeyman with these extremely “he’s a socialist!” broad strokes and it’ll turn independents off.
As far as caring, I think having a good counterbalance to power is necessary, productive and is what makes this nation great. Sometimes good ideas come out of that balance and sometimes they don’t. There’s no perfect system. But I’d prefer the right wing media be dominated by idea men and women who can actually put together some reasonable ideas than this motley crew of fear mongers. Republicans should be embarrassed, just like Democrats should be embarrassed by folks like Olbermann, Randi Rhodes and Mike Malloy. But you don’t see those folks driving the conversation in left wing political circles like you do the right wingers, and that’s a big problem for them. How you fix it, I don’t know, but I wish it would happen.
April 8th, 2009 at 4:16 am
Well, at least he did better than Mondale.
Yeah, how could anybody call Obama a socialist or a fascist? Hey, has he fired any CEOs this week? Maybe when he gets back.
April 8th, 2009 at 7:33 am
I’ve been embarassed by Randi Rhodes and Mike Malloy but also at times informed but they pale in comparison to the almost universally unbalanced and fractally confused rants of the main Right Wing people. There is nothing on the left to compare with Ann Coulter or Beck or Hannity or Limbaugh. As for Olbermann, I think he is almost always spot on. I’ve never been embarassed by anything he’s said. What has he said that hasn’t been backed up by facts?
April 8th, 2009 at 8:48 am
Eventually, this will fix itself, but I share your sentiment. I am certainly left of center, but the center moved more than I did over the last 30 years. While I supported Obama and have no problem with the Administrative and Legislative branches being controlled by the Dems, I don’t want that to be a permanent majoirty. I’ve been saying for two years that the damage done by the Bush administration could only be fixed by an equally powerful Democratic coalition. I may be wrong on that, but we’ll see.
As for the current state of GOP frothing, the crazed right is being whipped into such a frenzy by the Limbaugh, Beck, Hannity, FauxNews crowd that it will eventually drive the more sane conservatives away.
Limbaugh and that ilk are not idiots–they know that the country is swinging to the center and maybe to the left a little and they have two choices–swing with them or enflame the base to maintain a level of relevence. They have obviously determined they would prefer a passionate yet smaller audience, rather than a more moderate audience with an unknown size.
It is the Karl Rove win with the base strategy applied to the talking head marketplace. Limbaugh and those like him know they can keep selling their snake oil to a crazy few who will always buy it and that will sustain them.
Meanwhile, the rationale conservatives will break off and build anew. Eventually, the new rational right will begin to attract the moderates who lean conservative and offer a counterbalance to the left-leaning moderates and the far left.
Its at that point things will get interesting. Will the moderate conservatives again form an unholy alliance with the radical right to win power or will it continue its course slowly build to a centrist party? If the former, we will be right back to where we were the past 30 years where fiscal conservatives will have to cowtow to the radical fringe; if the latter, the moderate leaning left an moderate leaning right just might get it right this time.
Oh, happy day…
April 8th, 2009 at 8:50 am
btw Justin,
Donklephant is working much better the last week. Pages are loading faster and comments actually post in under 10 minutes and are no longer getting lost in the Internet ether….
April 8th, 2009 at 9:32 am
We saw how Steele got neutered. My sense is that any GOP moderates and grown-ups are wisely keeping their own counsel and keeping their heads down while all the loose cannons fire at will.
It’s sort of a “let them go, they’ll tire themselves out in a few more minutes” perspective. But is that really so? I have my doubts.
For my part, I have viewed Obama as a pragmatist and a utilitarian. Obviously where he has pet ideas, they lean left, because he’s a democrat. But my so far enduring sense is that he is more interested in getting things done than toeing a particular ideological line.
But I am beginning to worry that I have grossly overestimated the ability of one sane intelligent man to lead us effectively when surrounded by partisan douches. Progressives seem to be plowing ahead with blithe triumphalism, unleashing spending for pent-up pet projects that were never very good ideas, and they seem pretty blithe about raising taxes here and there and everywhere, establishing permanent new programs, and finally banning or stigmatizing all sorts of stuff. I seriously underestimated how the thirst for such things could swamp Obama.
And conservatives frankly seem determined to drive Obama into the arms of progressives with their near-unanimity in not voting for anything that includes a single thing that they can win votes by opposing. Those bothering to stick their heads up on the GOP side seem to me to be playing exclusively to the cheap seats.
In other words, compromise does not seem to be part of the vocabulary of either democrats or republicans. At this point, I am convinced that we’d be extremely well served by replacing every single member of the house of representatives with independent candidates who are regular folks, want to fix some things, and would act in good faith without regard to getting repeatedly re-elected. What they lack in acumen they would make up for with far less sheer asshattery.
April 8th, 2009 at 9:44 am
Kevin,
Concerning Olbermann and the left wing commentariat in general, I agree that they deal more in the facts then the right does, and this has much more to do with the idea that the left wing media was a response to the right wing media. So it follows that they’d be trying to debunk what the right wing is saying.
However, the vitriol is what I’m pointing out here. Olbermann may have his facts straight a good majority of the time, but when entire segments of his show is centered around pejoratives he loses credibility in my eyes. As far as an analog on the left to Coulter, I think Rhodes tip-toed towards it, but never fully got into Coulter territory. But, at the end of the day, this is all just a matter of opinion. I certainly think the right is more intellectually dishonest, but I’m not happy with the left’s response to it either.
April 8th, 2009 at 9:49 am
@gerryf, glad to hear the site is loading. It’s blazing on my end too. Very happy with the performance right now and it handled some massive traffic last week. 40K in one day! Wow!
April 8th, 2009 at 3:11 pm
The Democrats spent most of the last eight years stoking their base with fears about the Bush administration. The charges ran from the rhetorically silly (attacking the legitimacy of the government as if losing an election was equivalent to lacking representation) to the dubious (various charges of illegal activities small and large) to the paranoid (”OMG, the government is watching us! Big Brother!”) to the outright unhinged (9/11 conspiracies; imminent draft; imminent attack on Iran; “the 200x election will never take place and Bush will install himself as a dictator”), but all in service of whipping up fear about what the Bush administration would do. To the extent that either party ran on fear, both did; just because they stoked different fears doesn’t make them any less in pari delicto.
And, come to think of it, one could build a case that the middle followed suit, blathering about the dire need for a third party, the failure of either party to actually represent them, and a million and one other gripes that ultimatly boiled down to stoking fear that the middle might lose its deciding vote if something wasn’t done.
None of which is to imply that fear can’t be a valid reason for voting one way or another. Fortunately, I suspect those who criticize fear as a basis for voting are doing so for pure rhetorical effect rather than actually believing it.
Out of an electorate north of two hundred million eligible voters (207,643,594, according to this)? Why is it that Obama supporters are so desparate to portray a modest margin of victory as some kind of overwhelming knockout punch? Obama won 52.9% to 45.6%. That isn’t the biggest margin of the last fifteen years; indeed, it isn’t even the biggest margin won by one of the last two Democratic Presidents inclusive of the current one. Yet to hear some Obama supporters talking, you’d think this was an historic landslide victory rather than the modest but geographically broad victory that it was.
You may not buy it. Your friends, family, and associates may not buy it. And blogs you read may not buy it. But Pauline Kael didn’t know anyone who voted for Nixon, as the old saw goes, and anecdote is not the singular of data. Do you have any evidence that “voters,” undifferentiated, or “independents” other than yourself and your immediate circle aren’t buying it? A fortiori since the last poll numbers we saw – even though you criticized them – showed Obama’s numbers heading south?
April 8th, 2009 at 3:14 pm
Both sides believe this of the other. Both sides are certain. Ever hear that sufi tale about the blind men:
So long as both sides are sure that they are part of the solution while the other side is part of the problem, we’ll all be stuck groping donklephants.
April 8th, 2009 at 3:16 pm
If people are going to use the word kowtow, I with they’d learn to spell it correctly, instead of using a malapropism that sounds like a kind of bovine torture.
April 8th, 2009 at 3:22 pm
kranky kritter Says:
Do you really not see why this statement is nonsensical? Where do you think his views on what things should be gotten done – and even more tellingly, how they should be done, in broad terms – come from? Suppose we stipulate half the answer: what we want to get done is to get the economy back on its feet. There’s no such thing as “just doing what works” – a person’s analysis of what will work is suffused with intellectual and ideological preconceptions, which is why Barack Obama and Newt Gingrich, for example, disagree on what will “just … work[]” to achieve that goal.
April 8th, 2009 at 3:41 pm
Yeah, I fail to see a substantive difference between past liberal whines about lack of representation and illegal executive action on the one hand and baleful cries about incipient socialism on the other. The stock in trade in both instances is gross exaggeration driven by paranoia and a complete lack of trust. No intellectual charity there.
FWIW Simon, I would argue that there’s a difference of kind and not degree between moderate cries and wing cries. But then I would. :-) Not surprised you’d lump them, given that you’re generally hostile to the notion that centrism has any efficacy.
April 8th, 2009 at 4:02 pm
Simon, must you always traffic in overstatement? Nonsensical? Really? So soon after saying Terence trafficked in pejorative?
My statement makes complete sense unless you believe that all democrats are equal. I don’t. Paul Tsongas was not like Ted Kennedy, for example.
I am happy to acknowledge that Obama’s views are informed by his liberal roots. Let’s stipulate this, and never speak of it again, along with agreeing that informing is different from ruling. That Obama is inevitably informed by this roots (like everyone else BTW) does not mean that as President he is incapable of transcending them. MY sense is that Obama is more a pragmatist than an ideologue, in part because he is smart and open-minded, and in part because its a Presidential imperative.
Obviously from your arch-right perch, it would never look this way. But surely you could do me the intellectual charity of not calling my moderate sense of things nonsensical?
BTW, I am happy to acknowledge that Obama’s pragmatism may in the end yield few outcomes that look bipartisan. Since neither side seems interested in compromise, the GOP’s unanimity of no may drive Obama into the left’s arms. My sense (again MY sense) is that if this is how it unfolded, it didn’t have to be that way. Sort of a bipartisan conspiracy against bipartisanship.
You go ahead (as you must) and stick to your guns that any pragmatic and bipartisan impulses on the part of Obama are mere words backed by no actions. I’ll continue to disagree, becuase without congressional cooperation, it’s pretty hard for a President to get past words. Speaking constitutionally, this is supposed to be a feature. But it sure looks like a bug from time to time.
April 8th, 2009 at 5:00 pm
kranky makes some interesting points and a few that to my eyes are more than charitable. While it is true that “all of us think we are right”, IMO there are some who are willfully ignorant and/or dishonest. I am all for calling them on it regardless of which camp they are from. I think for instance that one could argue for criminal prosecution for the last administration not out of revenge or turnabout but out of a respect for the rule of law. I also think that they would not have been emboldened to be what they were if they were not always (in my lifetime) getting away with everything they tried. That Clinton was impeached and Bush/Cheney were not is simply indefensible logically. I don’t find it necessary to come to that conclusion because I am a liberal or a libertarian. I find it inescapable based on a respect for the law. The old saying that “If you’re not outraged you are not paying attention” leaps to mind. I am outraged at what has been done to this country. That does not mean in any way that I would not be equally outraged if it were Democrats who had done it. Here in Illinois, I didn’t know any Democrats that defended Blago, you don’t see that consistency on the Right. There is an anything goes for my team and the other side is the only one to be held to a standard of honesty and decency that seems to my eyes to be very consistent.
Try ticking off all of the complaints about Clinton and ask yourself if you ever heard them about the people on their team. It just doesn’t happen. Reagan even tried to make it “religious”. Bottom line for me is that there is a large segment of that party that puts party first and country, principles and other Americans a distant second. Of course, it might just be that I value the country most.
April 8th, 2009 at 5:07 pm
KK, when you describe my position as “arch right,” you reveal far more about the location of your perch than mine. The idea that I am somehow a stalwart of the right flank of the GOP is, quite frankly, laughable – all the more so when as recently as yesterday, in these very pages, I urged the GOP to drop an issue dear to the right flank, and that when I drive home this evening I will be listening to NPR not Sean Hannity.
And you have missed the point of my previous reply: the claim that Obama is more pragmatic than ideological is nonsensical not because I disagree with it but because it presupposes that one can be pragmatic rather than ideological. Pragmatism is a route, not a destination, and both the destination one aims for and the alternative routes one is willing to take are inextricably linked to one’s worldview (a less pejorative term for “ideology”).
April 8th, 2009 at 5:50 pm
Thank you Simon, I confess complete ignorance to the spelling, if not the meaning, of kowtow. I appreciate you correction, if not your delivery.
April 8th, 2009 at 7:10 pm
Kevin Jackson Says:
Logic is not a synonym for reason. Given that the matter simply isn’t amenable to discussion in the terms of formal logic, this statement boils down to something far less weighty: you don’t understand (or, more likely, don’t like) that result. And beyond futile attempts to tackle the debate in terms of logic, it is not difficult to frame a reasoned argument for impeaching Clinton but not impeaching Bush.
Perhaps the best place to begin is with Judge Posner’s book on the Clinton impeachment. Impeachment has an unclear periphery, but
Richard Posner, An Affair of State 170-1 (2000). Although Clinton’s perjury was indeed malum prohibitum, as Posner notes, see 18 U.S.C. § 1621 et seq., the history of impeachment on both sides of the atlantic demonstrate that a criminal offense has neither been a prerequisite to or a limit on the scope of impeachment. As the power developed in England, “[t]he House of Commons could impeach anyone in the realm for offenses its own members deemed dangerous to common safety,” Peter Hoffer & N.E.H. Hull, Impeachment in America, 1635-1805 60 (1984); in America, the power was more confined, developing as a more limited animal, “not so much designed to punish an offender, as to secure the state against gross official misdemeanors. It touches neither [the impeached's] person, nor his property; but simply divests him of his political capacity.” 2 Joseph Story, Commentaries on the Constitution of the United States § 801; see Michael Gerhardt, The Federal Impeachment Process 103-4 (1996) (”English practice treated high crimes and misdemeanors as a category of political crimes against the state”).
In neither country was the purpose of impeachment to punish felonies, and nor was its use limited to felonious conduct. Thus, the Earl of Suffolk – in whose 1386 impeachment the term of art “high crimes and misdemeanors” is first met, see Raoul Berger, Impeachment: the Constitutional Problems 59 (1973) – was impeached not for malum prohibitum, but for using appropriated funds for purposes other than those specified, see id. at 67-9. The classic uses of impeachment, on both sides of the atlantic, fell under categories such as misapplication of funds, abuse of official power, neglect of duty, corruption, maladministration. See id. at 70; see generally Hoffer & Hull, supra.
With the history of impeachment in mind, it is easy to see the authority and argument for for impeaching a perjuring officeholder even if perjury was not illegal in terms of black letter law. A public official who has demonstrated a willingness to lie under oath has demonstrated not only a moral unfitnes for office, but that by this willingness, they pose a threat to the commonweal, the very kind of threat against which impeachment is designed to protect, as Story noted. By contrast, the case against President Bush amounts to a motley collection of half-baked conclusory assertions (”Bush lied”), political greivances and political disputes (precisely the category Posner notes are not valid bases for impeachment), and legal theories ranging from the vague to the specific yet specious for why such and such an action by the administration was not only illegal but attached personal legal culpability to the President.
James Iredell put it well:
4 Elliot’s Debates 125-6. To be sure, there is a blunt realpolitik to Gerald Ford’s remark introducing the impeachment of Justice Douglas: “What … is an impeachable offense? The only honest answer is that an impeachable offense is whatever a majority of he House of Representatives considers it to be at a given moment in history.” 116 Cong. Rec. H3113-4 (1970). The House undeniably has the power to impeach President Bush, but no one should delude themselves into thinking that the act would be anything more than an act of political revenge by that President’s critics.
April 9th, 2009 at 6:43 am
…now you’re just showing off.
You’re arguing a legal case; Kevin is coming from a sense of moral outrage.
Clinton’s situation was a fairly simple one; did he lie in a lawsuit–yes he did.
The Bush Administration is far more complicated, not just because we lack all the facts because the administration hit it and congress was complicit in not wanting to find the facts, but also because as the administration it was making the rules.
Morally and ethically, the Bush Administration was an abomination, but legally I may not have a case. That does not make the Bush administration morally superier to the Clinton one.
April 9th, 2009 at 8:00 am
Simon said in response to this statement:
That Clinton was impeached and Bush/Cheney were not is simply indefensible logically.
Logic is not a synonym for reason.
Well, actually, that is a bit hazier than you may think. The rest of the post while theoretically excusing the travesty by saying we can do whatever we want (essentially very similar to “defining what “is” “is”)is not approaching consistently (something required of logic) any sense of justice.
Impeachment is the first step in the process of determining whether there are grounds for removal from office. If Republicans viewed themselves as Americans first, surely there were things that needed to be looked into. Again, my main beef is that their criteria is logically inconsistent.
I heard repeatedly, “But he lied under oath” when Clinton was being impeached. I still believe this is proof of the fundamental dishonesty of their party and their argument. You are either honest or you are not. Taking an oath to a mythical sky creature does nothing for an honest man. An honest man would not lie because he was not under oath and a dishonest man would still be dishonest. That said did you notice that during the Bush years, they consistently refused to allow anyone to be questioned under oath. (This included their corporate bosses)
Oh and by the way, I didn’t vote for Clinton either time. I didn’t think he was of the character the Presidency deserved. That said he could have taught character lessons to Bush/Cheney. They were the most arrogant haters of this countries principles that have sullied the office in my lifetime. If impeachment causes you concern remember that in their words, they say they respect law and order. Pack them off to the World Court and let the laws we said we would follow be their undoing. Or are laws really only for the poor and Democrats?
Bush/Cheney were despicable on every level.
Finally there were a couple of points that I have to respond to
it is not difficult to frame a reasoned argument for impeaching Clinton but not impeaching Bush.
But not a reasonable and consistent argument.
…it is easy to see the authority and argument for for impeaching a perjuring officeholder even if perjury was not illegal in terms of black letter law. A public official who has demonstrated a willingness to lie under oath has demonstrated not only a moral unfitnes for office, but that by this willingness, they pose a threat to the commonweal
Lie under oath is such BS. It is more about superstition than character. It would be great if EVERYONE who lied in their official capacity could be removed, but then there may be no one left
Then the whopper,
By contrast, the case against President Bush amounts to a motley collection of half-baked conclusory assertions (â€Bush liedâ€), political greivances and political disputes (precisely the category Posner notes are not valid bases for impeachment), and legal theories ranging from the vague to the specific yet specious for why such and such an action by the administration was not only illegal but attached personal legal culpability to the President.
The whole point of impeachment is to assertain the facts and it is insulting to say that there was nothing worth looking in to. It is also insulting to say that the only motive to want justice is for political reasons. It is only political reasoning that prevents and prevented justice for this group of reprobates. Republicans because they love their party more than their country and Democrats sadly for the same reason. No one has put the country’s interest first or that of justice. I predict that a future Republican government will have not learned anything and will seize and abuse as much power as they possibly can. That is the lesson of Nixon/Reagan and Bush. A party that consistently puts itself above the law. The difference is that I would oppose it even if it came from Democrats.
April 9th, 2009 at 8:13 am
On a blog that asks if we are “[t]ired of the rhetoric, bomb-throwing and partisan hackery” and offers a “respectful, honest forum,” and in comments to a post that refers to “extremist rhetoric,” we find Gerry writing that “[m]orally and ethically, the Bush Administration was an abomination” and accusing someone who actually answers a point made with an argument rather than gossamer rhetoric of “showing off.” Does that fall under partisan hackery or bomb-throwing?
April 9th, 2009 at 8:50 am
Simon- seems to be upset that some find that the Bush administration was an abomination. I’ll accept that he doesn’t see things that way but would love to see him define what would be considered an abomination.
As for reasoned legal arguments. look at Bugliosi’s book on whether Bush should have even be in office and the almost universally panned (by legal experts) Supreme Court Decision and John Dean’s view of the Bush administration. I’m sure you can find the antithesis–that’s why we have a justice system.
That said, in fairness you insinuated that no one cared about justice and that it would only be politics. To me those words are just as incendiary. I’d be happy to take it down a notch.
April 9th, 2009 at 10:28 am
Relax Simon, the showing off crack was actually intended as “wink wink” compliment. I was fairly impressed with your post, and if it didn’t come out that way I apologize.
See, now that is an example of respectful and honest.
I’m looking through your posts and I see very little respect for anyone’s opinion but your own. You’re a bright guy, no doubt about it, but it’s a bit hypocritical for you to hide behind a blog “About Us” statement and then show nothing but disdain and arrogance for everyone else.
The Bush Administration was an abomination is an opinion, based on its actions. We’ve got a pre-emptive war based on spurious reasons, it approved torture, it approved obscene budgets despite pretenses to fiscal conservatives, it admittedly bugged telecommunications of US citizens without court approval, it was negligent following up intelligence that could have prevented 9-11, it orchestrated the public outing of an intelligence agent, it used the justice system to peruse political goals–I can go on for hours.
If you wish to defend those actions, knock yourself out, but don’t hide behind a sense of mock outrage and tell me I cannot be appalled by its actions.
April 9th, 2009 at 10:54 am
Simon I know from long experience at SF that you are philosophically arch right. I also know that you are a thoughtful and intelligent person who thinks long and hard about things. You’re generally no RW idiot prone to foaming at the mouth, though you tend to come close to unhinged when it comes to Obama.
You want to drop Ted Stevens because as an issue, he’s a stinker. IOW, you understand why dropping this would be a very good thing for the GOP. We both know that. NPR? You listen to NPR because you can get world news and cultural stuff that’s pretty hard to find elsewhere. If this is not the case, please describe for me what percent of the time you agree with the editorial viewpoint at NPR? IOW, don’t make me laugh.
Kevin, my understanding is that Clinton was impeached for lying under oath, which he undeniably did. That’s his bad. When it comes to calls for Bush’s impeachment, I usually run into vague claims about illegality without description of specific actions for which he ought to have been impeached. On the few occasions where specific claims of illegality are brought out, I have invariably found one thing upon looking into the details. Which is that Bush’s actions were quite arguably and defensibly within the bounds of the powers of the President. Nothing remotely approaching the open and shut case like Clinton’s perjury occurred.
The war was in fact enacted according to the usual mechanisms. Signing statements are well within the bounds of Presidential authority. So the claim that Bush used them more than other Presidents does not have any substantive legal meaning. Wiretapping? On a reading of the relevelant law, it’s clear to me that the government can intercept international communications without warrant. Period. Torture? There is no evidence that when it occurred it was done by the order of the President or with his direct knowledge. That means that it is what it is, unprosecutable.
That about covers it, to my knowledge. I have little doubt that if democrats had anything like a slam-dunk impeachment case, they’d have brought it forward with glee and haste. That they did not do so is extremely good evidence that, despite how upset progressives were about the things I described, democratic legislators knew that the dog wouldn’t hunt. Personally, I am quite glad that our time was not wasted on such matters, even though I don’t credit the democrats with forebearance, only an understanding of how legally weak these positions were.
April 9th, 2009 at 11:00 am
Kevin, I do hope you aren’t deluding yourself into thinking that you’re a moderate or a centrist. That would be terribly unfortunate; there’s nothing wrong with being a viscious partisan, per se, but it isn’t conducive to civilized discussion. Let’s take a look at your reply, which at every turn demonstrates a level of fevered partisan bile, contempt bordering on hatred of one’s political opponents (both present and remote), and a presumptuous assignment of bad motives to any decision you would not have made yourself.
Implication: Republicans do not view themselves as Americans first, and some other group – those who think “there were things that needed to be looked into” do. (The same comment later makes this point explicitly.) Which is not only false, but also precisely the kind of “rhetoric, bomb-throwing and partisan hackery” that Donklephant purports to abjure.
You undercut the credibility of your substantive argument when you demonstrate careless, inattention to detail; the reader infers that under the hood of sloppy writing is the engine of sloppy reasoning. First, “criteria” is a plural noun, so you must mean that their criteria are logically inconsistent (asserting that their criterion is logically inconsistent would be grammatically correct but, without a follow-on clause, substantively incoherent: one thing can’t be inconsistent with itself). And second, as I mentioned above, the question at issue can’t even be phrased in terms of formal logic, still less evaluated or answered. Again: “logic” is not a synonym for “reason.”
(1) Your prejudice, contempt, and beliefs are not sound bases for evaluating the sincerity of someone else’s beliefs. Whether you believe or understand something is irrelevant to whether someone else sincerely believes it. (2) I do hope that if you are ever placed under oath, your disclaimer of taking it seriously will be presented to the jury so that they can evaluate your testimony accordingly. My advice would be to avoid taking the stand.
More “rhetoric, bomb-throwing and partisan hackery” (to say nothing of writing errors) requiring no response but worth noting for purposes of evaluting the credibility of your argument. In a Title VII case, an employer may claim and adduce all manner of facts to show that the dismissal wasn’t based on race, but once we know that he’s a paid-up member of the klan, his arguments are seen in a quite different light.
That’s a response, but only in the sense that sticking out your tongue and saying “so’s your face” is a response. Merely asserting that my argument is not reasonable or consistent is a very poor stand-in for a counterargument refuting it. As it stands, your “response” amounts to little more than “nuh uh!”
Clever framing, but not very durable. The phrasing implies that “justice” is at issue, and who could disagree that it would be wrong for me to oppose justice? Of course, no such thing is at issue. Impeachment is; the reasons for that impeachment have nothing to do with justice and everything to do with the factors I mentioned above.
Ironically enough, your own President has (so far, at least), by resisting the calls from people like you for transforming the changing of the guard into Nuremberg.
April 9th, 2009 at 11:35 am
Kevin Jackson Says:
“Upset”? Boy, did you ever misread the point! I wasn’t upset, I am amused at the inconsistency in how I suspect Justin would like to view the comment section here and the reality of it.
Bugliosi is a kook and a crank (readers should know that this is the guy who argued that Bush should be prosecuted for murder – his grasp of law should be evaluated in light of this bizarre theory), and John Dean has spent most of the last few decades in post-traumatic catatonia (as one will see reading his decreasingly lucid books and increasingly alegal columns at findlaw.com). Putting words together in a froth of self-righteous passion is not a legal argument, even if you throw in a few citations for good measure. That approach is all icing and no cake, and it’s valueless. (Some might accuse Justice Scalia of using too much icing, to be sure, but few who are familiar with his jurisprudence and who actually know what they’re talking about deny that there’s cake under it.)
It is also worth pointing out that while most in the academy panned Bush v. Gore’s reasoning and result, the overwhelming majority of the academy were passionately opposed to Bush and voted for Gore. The best – most balanced, interesting, and intellectually honest – academic discussions of the case are far more ambivalent about it, for one reason or another. See Richard Posner, Breaking the Deadlock: The 2000 Election and the Courts (2001) (didn’t vote); Ann Althouse, The Authoritative Lawsaying Power of the State Supreme Court and the United States Supreme Court: Conflicts of Judicial Orthodoxy in the Bush-Gore Litigation, 61 Md. L. Rev. 508 (2002) (voted for Gore). That academics’ response to the case were shaped by their politics is hard to deny; Kennedy’s opinion is precisely the sort of vapid, vaporous, broad and extrapolative interpretation of the equal protection clause that the academy routinely urges judges to engage in to support liberal causes. What caused consternation in the academy was the litigant the analysis was employed in favor of, not the analysis itself. And the intellectual blind spots of those critics are obvious, too: to give only two examples, in criticizing the five for effectively voting against type against “states’ rights” (a straw man in any event), they ignore that the four effectively voted against type for it, and in criticizing the five for supporting a legal result that handed victory to the candidate they presumably voted for in the election, they ignore that the same could be said of the four.
(I should pause to note that I agree with the critics that the per curiam is specious – I would have joined the Chief Justice’s concurrence.)
April 9th, 2009 at 12:06 pm
kranky kritter Says:
The point is not that I agree with it. Quite the contrary: the point is that I prefer to listen to a station with whose views and reporting (to the extent the two are separable) I do not agree. With all due respect to my Limbaugh-listening arch-conservative friends, that is simply not arch-conservative behavior. It would be unusual to find an arch-liberal who listens to Hannity; it would be unusual to find an arch-conservative who listens to Randi Rhodes. Most people meriting the “arch-” prefix prefer to listen to people with whom they already agree.
With all respect, that is sad to read, because it means that either you don’t know any conservatives who might really merit that prefix (or anything much about them), or you really haven’t been paying any attention to what I’ve written at SF. I am not offended by that suggestion, to be sure, but it is so far wide of the mark that I find it baffling.
I don’t mind telling you that I’m fairly conservative, both politically and in terms of gut sensibility; I wouldn’t call myself a centrist although I don’t bridle at being called a moderate. My self image in vacuo hardly matters, however. We all believe in revealed preference here, one hopes, so the best measure of where I sit on the scale is not where I might think, but where what I’ve written at SF and in other canonical writings would most fairly place me. And frankly, I think it would be very difficult to read SF and conclude, with any intellectual honesty, that my contributions are the work of an “arch conservative.” Indeed, your willingness to use that term really makes one wonder what on earth you understand that term to mean, and how the people so categorized are different from moderate conservatives, mainline conservatives, and so forth?
If you really can’t see the difference between what I’ve written at SF and, say, Malkin, LGF, RedState and so forth, all of whom are way further out to the right than I am, then I think that’s very unfortunate. You might want to consider what perspective – two objects that are in fact far apart appear to move closer together as you get further away from them – says about the location of your perch. One would have to be pretty far out on the right to call Ben Nelson an arch-liberal. Think about that.
April 9th, 2009 at 12:33 pm
Simon –
Impressive vocabulary, when time affords, I will attempt to answer. Since you are against ad hominem attacks I thought I’d point out that the word is vicious.
Vicious, by the way, seems to be all the things you say you are against –barbarous, evil, condemnable and poisonous. Although I will say that they all apply to the government of the last eight years that approved torture and treated anyone in this country or out that did not agree with it with contempt. I’ll try not to lower this to their standards.
Again- I do ask for clarification though. What would be an abominable government? Has there been one in your lifetime? And what made them so?
Kevin
April 9th, 2009 at 12:40 pm
Simon
Obviously you like to write. However, I haven’t actually read anything you have written on this site that isn’t directly aimed at correcting the individual commenters opinions or bashing this site and the moderator. I haven’t seen any comments of yours directly pertaining to the various blog posts you are commenting on unless they feed off another comment. Why don’t you find a particularly interesting subject to you, relevant to a political blog and write an entry for Donklephant. Send it to Justin, I’m sure he would post it. It wouldn’t offfend your sensibilities to author an entry on a moderate site would it?
April 9th, 2009 at 1:01 pm
Kevin Jackson Says:
Ah! That’s a typo, but well spotted, and thanks.
Not in the United States, no, there has not been. To describe any American government in recent times as “abominable” – even the bad ones, even the ones led by Presidents I really dislike and which have persued policies I regard as mistaken, detrimental, or even ruinous – is to engage in a kind of silly hyperbole that misuses and thus devalues the word in a way that is detrimental to precise expression. Beyond these shores, one can certainly think of examples of governments that merit that description. Mugabe’s Zimbabwe, Stalin’s Soviet bloc, Hitler’s Germany, North Korea under Kims Snr and Jr, Hussein’s Iraq — I don’t think that many would dispute that these were abominable regimes, and one could probably mine their common characteristics and extract hallmarks of a government that is truly evil. Nevertheless, I don’t think that it’s wise for me to try to express an all-encompassing definition of an “abominable” government off the cuff, and it certainly isn’t necessary to do so in order to conclude that neither this administration nor the last one meet that definition.
April 9th, 2009 at 1:30 pm
To All–
I do apologize for my offending some folks. I will attempt to more concisely address the issues later.
Republicans as Americans for instance. I realize that I have made some comments that can easily be seen as overblown. I do see it differently or I wouldn’t have said it. I think the proof is in the pudding and I don’t see much let’s work together. Those who do, generally get attacked for not being acceptable to people like Rush. The attitude has been my way or the highway for years. The constant caving of the Left to this has left many frustrated to the point of not wanting to work with the Right on anything because it always seems like I give and I give and you take and you take but it never seems to average out leaving us farther from what we want even when we are in power. Two sides have to want to find common ground and there seems to my eyes to be none of that from the GOP. So it seems that unless you take the position that that approach is always a good one… I remember a time when there were such statesman, I worked for one in a Presidential race. He was the third ranking Republican and voted for Nixon’s impeachment. I just don’t see any consistency on the right. It’s a viewpoint that says the rules matter but only for you. Surely there must have been some things that at least troubled thoughtful Republicans, torture, the signing statements, partisan attacks from the judiciary, hiring lawyers from a University that could barely pass the bar in record numbers, accusing your opponents of helping terrorists and on and on. I don’t remember a single instance of anyone on the right saying enough, this is not good for the country. I don’t see Ann Coulter being disinvited from Party events. There seems to be my team or no team approach. Obama has tried to work with the GOP and has gotten absolutely nowhere. That is a guarantee for future polarization of this country and the last administration got us to the worst spot in that regard I have seen in my lifetime.
One other thing that I find interesting is that we are constantly told not to trust journalists or academia because they are in the tank for the Left. I don’t know many on the Left that don’t worry regularly that so much is not being made clear to the public. Truth be told I think that both sides think the media are in the tank for whichever side is the other one. Assuming it were true, should it not at least make you question that the people with the most information and exposure to it take a side different than your own? Should it make you worry that the groups who so strongly support you are willfully ignorant. (Fox News viewers still think Iraq attacked us on September 11.) I would be questioning my standing if believers in witchcraft and creation were my base.
So in conclusion, I’m willing to be educated on where my facts are incorrect or reasons why my conclusions are wrong. That said it’s hard to take “seriously arguments that come down to only my experts are trustworthy.” You dismiss out of hand the arguments against the 2000 election because of the “bias” of the writers thus refusing to deal with their points and selectively forget that several of the Supreme Court Justices could/should have recused themselves and would have if they were as honorable as I’d like people of either side to be just for the obvious conflict of interest. Enough on the 2000 election though, I doubt that there will be any future movement on that issue :-)
For my part in not bringing the level up, I’ll try to do better.
April 9th, 2009 at 1:38 pm
Since you thanked me. It’s pursued, too.
As to abominable. Definitions help. I would agree that the Bush/Cheney regime were not on a level of Hitler or Mugabe. I don’t think that we need to head there to find things unacceptable, less we get to the stage of defending ourselves with “but I’m no Hitler”. Standards might put him at the extreme end of the curve I would hope.
I do think that questioning the patriotism of your citizens and treating those who disagree with you here and abroad with contempt thus alienating most of the world’s population and pursuing torture is much worse than bad and should not be something we accept, less it happen again.
April 9th, 2009 at 1:44 pm
TerenceC Says:
There’s not much that I like better than reading and writing.
For the same reason that a columnist for the New York Times wouldn’t pen a column and send it to the Washington Post. I write what I want when I want at SF, so why would I need to impose on Justin for an outlet?
I author entries on a moderate – that is, moderately conservative – site routinely, unless you have a very strange perception of where SF lies on the political spectrum.
April 9th, 2009 at 1:54 pm
Simon, cheerfully agreed as to abominable. I think we agree that there is nothing wrong with either’s side’s eagerness to improve the way our government works, even if neither side thinks the other has the remotely correct approach.
But as we criticize our own government’s conduct and polices, we must place our government in context with many others worldwide, many of which are just downright wretched. So I totally support the policy of saving the most hyperbolic adjectives for the sorts of places you mention.
AT the risk of starting a round of CPD in order to strike a conciliatory note with you, I do find in my personal blogging experience that liberals are more prone than conservatives to criticize american conduct without regard to comparison with the sins and faults of other places.
FWIW, I agree that SF taken as a whole is moderately conservative in comparison to places like redstate or lgf. Among the main posters, you are the furthest right at stubborn facts, in my estimation.
April 9th, 2009 at 2:15 pm
I see. I wasn’t aware of that, but even el Rusho is syndicated. Besides, many of your peers have posted entries here in the past – you should consider it.
April 9th, 2009 at 3:12 pm
TerenceC Says:
I’m not opposed to the idea, in appropriate circumstances, but I would probably be more apt to send Justin something and ask him to link to it adding his take. Donklephant is a different ball game to SF.
kranky kritter Says:
That’s probably fair to say. And you kindly didn’t say this, although you could build a credible case for it, but I probably come across as the most partisan of us (although that’s not actually quite the way of it). Still, as you know, that group includes Rafique, who is — and I’m quoting his own blog’s masthead here, I don’t mean to put words in his mouth — a center-left liberal, so being on the right of that group doesn’t mean what it would if the others were pretty far right. There are crowds in which one could accurately say that Rafique would be the furthest right, something that doesn’t mean he’s particularly right wing in the slightest. Again, I don’t want to put words in anyone’s mouth, but I would have said that Pat and I are both in the overlap between moderate and mainline conservatives. Granted, I’d like to cut the federal government down to size, but compared to someone like Richard Epstein, I’m practically a cheerleader for the feds!
April 9th, 2009 at 3:35 pm
Kevin Jackson Says:
I thought the attacks on the bar after the Schiavo business were silly, unhelpful, and substantively erroneous – and said so at the time. As to the bar, you evidently don’t know anyone who’s recently taken the bar. I do, and it’s a tough, tough exam – that’s why such a high percentage of takers fail it first time. And as to signing statements, one thing that’s interesting about the left’s criticism of signing statements is that it’s all dogmatic assertion done in the abstract. There’s never any recognition that signing statements run the gamut between problematic and perfectly unexceptionable depending on their content; never any attempt to identify specific examples of signing statements that are problematic and explain why they’re a problem and why they’re typical of a broader class of problematic signing statements.
No, he hasn’t. He’s showed up to meetings to “listen” to them (which, recall, is all he promised to do), whereafter he and his surrogates have proceeded to to whatever they intended to do anyway.
That would have been a difficult argument to make with a straight face prior to August 30th last year, and has become an impossible argument to take seriously since then, given the media’s behavior after the announcement of Sarah Palin as our veep nominee.
I don’t say that they should be dismissed out of hand, or their points not dealt with. I say that a writer’s biases should be taken into account when evaluating their claims. In the Title VII hypothetical I mentioned above, knowing that someone is a dues-paying klan member doesn’t prove that they fired a black employee because of race – but it sure as hell changes the way that you read their brief.
You’re still trying to walk conclusions through the gate as though they’re facts. There was an article (although I don’t recall if it was scholarly or journalism) written that suggested, I think it was four members of the court should have recused themselves, and by sheer coincidence, what do you know, all four happened to have voted against the litigant the author thought should have won the election. What was more, some of the theories for why Justices should have recused were preposterous – the one that I remember was that Gene Scalia was an associate in the firm representing Bush, and so Justice Scalia ought to have recused himself. Which is ridiculous, of course, but I guess that trying to force Scalia to recuse is a recurring tactic by the left (happily, one that he has usually rejected, and unhappily, one that he gave license to by mistakenly recusing in Newdow).
Actually, Senator Coleman’s appeal to the Supreme Court will invoke Bush v. Gore, and – consistent with what I said above about the left usually loving that kind of broad equal protection theory – the New York Times reported recently that several liberal public interest litigation shops are mulling using Bush v. Gore for their own ends now that its beneficiary is out of office. Justice Kennedy declared the case’s reasoning good for one use only; as Instapundit might say, “heh.”
April 10th, 2009 at 9:48 am
Simon said
I thought the attacks on the bar after the Schiavo business were silly, unhelpful, and substantively erroneous – and said so at the time.
That is the eternal challenge when your base is post rational. I was recently in Missouri on business and saw a car with a “They Murdered Terri†bumper sticker. Your base at work.
On lawyers I was talking about the Monica Goodling – ization of the Justice Department. —60 percent of the class of 1999 — Goodling’s class — failed the bar exam on the first attempt— and yet 150 members of Regent University found their way to jobs in the Bush administration. Are they really the best people to oversee the people’s business? Could it be that their main allegiance is to “god’s chosen president?†Shouldn’t everyone be concerned about that? (Not to mention the politicization of the Justice Department)
Signing Statements
I would have hoped that this was an area for common ground. Regardless of what they are, I would think that saying you are outside of the jurisdiction of law AND more importantly a review of your justification for that position is a horribly dangerous and flawed position. They have been exceptions in the past and Bush made them almost the rule with his zeal for “but it doesn’t apply to usâ€. I’d like to see every single one reviewed for him and anyone else who ever takes office. I would think that anyone who comes from a party that prides itself on protecting America from the evils of government would want all government employees to be under the control of the people’s representatives and the Constitution.
You then said
“signing statements run the gamut between problematic and perfectly unexceptionableâ€
I think they are always problematic. “the American Bar Association stated that the use of signing statements to modify the meaning of duly enacted laws serves to “undermine the rule of law and our constitutional system of separation of powers”. I would say that about sums up my concern. It is almost like saying that the President always has the final say which is a lot more like a monarch than a representative form of government.
On Working Together
We won’t see eye to eye on this one but talking and listening is more than Bush ever did.
On Bias
You said
That would have been a difficult argument to make with a straight face prior to August 30th last year,
I’d say you aren’t paying attention then. The Chicago Tribune is routinely lumped in with the liberal press by people in my area. Let’s see the evidence. Jim Ryan, a Republican ran for Governor and was endorsed by the Trib only a few years after his part in attempting to convict people of a murder in my hometown that they did not commit. He was so slimey that the Trib said he should never again be in a position of public trust and then a few years later they endorsed him for Governor. Obama is the first Democrat for President EVER to be endorsed by the Trib, but in the land of say it enough and everyone will buy it, the Trib is a liberal paper. PLEASE
Then Sarah Palin
Really? A woman in 2009 who believes in the powers of WITCHCRAFT – centuries after most of the planet has grown out of that nutty belief. Is there a level of batshit crazy that crosses the line or is the sky the limit if you say it’s a “religious belief”? A woman who has been vetted less than the french fry cook at McDonalds by the McCain campaign and has so embarrassed herself repeatedly that the conservative press even retreats from her. She is your proof? She got served up softballs and whiffed repeatedly. She was an embarrassingly poor pick to appeal to the hypochristian base and even McCain has backed away from her. Your party should be ashamed of putting someone so woefully inadequate so close to power. The GOP used to have statesmen like John Anderson and Edward Brooke, what has happened to it? They are now a party run by the extreme. The more thoughtful members have even admitted as such. I don’t know alot about Olympia Snow but comes across as thoughtful and intelligent person. She’d have zero chance of leadership in your power. Do you truly believe that thoughful and intelligent even in the most remote of ways are descriptive of Palin? Do you really believe that?
On the Supreme Court.
The 2000 election in it’s totality was not what many in the world saw as a legitimate election. If the same criteria were shown for an election in a fictional country you would likely swear it couldn’t be true. Certainly not in the “greatest country on earth†From the Decider being the co chair of the campaign, to 10s of thousands of systematically disenfranchised voters, to the goons sent down to disrupt the recount, to the errors of the voters, to the Supreme Court who took their previous “states rights today, tomorrow, forever stance†and turned it upside down. They should have counted ALL the votes. At the end let the chips fall where they would. The Supreme Court was in a rush to appoint their guy because they had the numbers. Florida was disenfranchised, the US was and so was the World since they had to live with the aftermath. Bush never should have been President. As to the rush, where are all the Republicans calling for ex-Senator Coleman to drop out. Shouldn’t they be sending their mobs in again? One of my favorite political lines ever was when they asked John Anderson if he felt like a spoiler in the 1980 election. His response, “What’s to spoil?†There was no rush. The majority of voters didn’t want Gore or Bush.
Scalia
Scalia is ethically challenged and should have recused himself when his animal killing buddy came before the court. (By the way, since I come from farm country originally and have gone hunting many times, no self respecting hunter would call shooting animals let loose to be killed for their amusement hunting) 28 U.S.C. § 455 (a) states, “Any justice, judge, or magistrate [magistrate judge] of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.†Scalia’s response was basically, “I’m impartial, trust me, shut up.â€
And finally? Your views on Newdow are?… Or were you just upset he recused himself?
April 10th, 2009 at 11:56 am
Simon or Mark or someone, can you straighten me out?What can some of the lawyers out there tell us about signing statements as to Kevin’s claim that the President is modifying the law by making them?
Because that does not match my layman’s understanding. My understanding is that a signing statement is no more than a description of how the President understands the law. It’s an argument that describes how the President in good faith thinks it is going to be enforced.
So suppose a law about to be signed into effect said “people can’t do x.” Suppose the president signed this into law along with a memo which said “my understanding is that as President I can sometimes do x.” Suppose later on the President does x, and is prosecuted for doing x under the law he signed along with the memo of understanding.
My understanding is that at this point it’s up to the court to decide how the law applies. In other words, a signing statement by the President is actually a legal argument, not something that creates legal force by Presidential declaration.
Can someone straighten me out on this?
April 10th, 2009 at 12:22 pm
http://www.pbs.org/wgbh/pages/frontline/cheney/themes/statements.html
might help
Kevin
April 10th, 2009 at 1:47 pm
What’s there seems to support my viewpoint. One guys calls them a declaration, another suggests they exist to possibly “provide a clue” for courts later on, should the necessity arise.
The question I’ve put forth is whether these signing statement have legal force or whether it is still up to a court to decide what the given law means, based first on its own language, and then if necessary, in consultation with related documents from ALL the crafters.
As previously stated, my understanding is that when a President issues these signing statements, he decidely is NOT legislating or changing the actual meaning of the bill. He doesn’t have that power. It seems to me that the only power in these signing statements is whatever persuasive power exists in the words. So in the hypothetical I described, the President would be free to use everything in his signing statement as the basis of a legal defense, but the sum total of the force is, again the persuasive power of the reasoning and nothing else.
So #1 I just don’t see what the big deal is, and #2, I think the rhetoric of progressives on this practice i feels hyperbolic, overheated, and downright inaccurate to me. The President can SAY that black is white, but by declaring it he does not have the power to make it so.
That’s the bottom line to me, that these signing statements (again, apparently) are not the exercise of a power or the creation of a new power.
I’ll cheerfully grant that the increased volume of such statements under Bush bespeaks of paranoia. But given how skilled many progressives seem to be at manufacturing potentially litigatable (is that even a word?) issues, I am reminded of the dictum that just because you are paranoid doesn’t mean they aren’t out to get you.
As more and more political actions and battles become subject to partisan-crafted litigation, it seems likely to me that signing statements may become the rule and not the exception. Should that come to be so, we’ll have reaped what was sown.
April 10th, 2009 at 8:43 pm
I guess it goes back to what you asked for earlier. What is the legal understanding of the issue and the ABA seems squarely against it. The others who say it is no big deal were part of it so they seem to have had a dog in the fight. Bruce Fein is to my understanding a legal scholar who was once part of the Reagan administration so his coming out against them seems to make his the voice that is unexpected.
Here’s what he said if you missed it
What does it tell us about the way that the president views the legislative process?
That he has a great disdain for it. I think that history shows that if he was serious about defending his constitutional views, he’d veto the bills and say, “You have to delete X, Y, Z, they’re unconstitutional, and then send me back the correct bill.” That’s the way it ought to be done.
My view
The veto is the principled stand, the signing statement if not actually tested is a bit like the cowardly way we no longer declare war. Why can’t we just get everyone of both parties to take a stand on the record? Shouldn’t we all expect that?
April 11th, 2009 at 6:37 pm
Apologies for the delayed reply, we took a two-day vacation to Dayton to look at paintings and planes. Apologies in advance for any typos, I’m trying to get this out of the door quickly.
Kevin says:
And did the bumper sticker define “they”? If “they” refers to the people who pulled the plug, that’s just an expression of the driver’s opinion on the issue, and doesn’t raise any particular problem. (I have no opinion on the underlying issues.) If “they” are the federal judges who (quite correctly) refused to intervene in a state law issue — there is no “this has turned into a real mess, get me out of here!” federal jurisdiction — that’s more problematic. Any basis for choosing between the two other than guesswork?
Yes, and do you know what percentage of all first-time takers fail the bar? You might want to look it up. Before reciting this talking point again. As I said above, the bar is a tough exam. (That’s why I defended Hillary a couple of years back when some on my side and some Obama fans thought that her failing the D.C. bar would be a viable cudgel against her.)
The politicization of DoJ is largely a liberal codephrase for the firing of the U.S. Attorneys, an issue that was transformed into a scandal despite it being absolutely, undeniably legal. To the extent it isn’t code, I suspect that it’s supposed to invoke hiring decisions that skirted the line in civil service hiring laws that I think ought to go. (That certainly wouldn’t excuse breaking those laws, but it does make me less willing to condemn conduct that skirted the outside edge of them.) And to the extent “politicization” is neither of those things, I agree with Dahlia Lithwick – no conservative she – who made mincemeat of this politicization idea two years ago.
I think everyone would agree that the President can’t proclaim that he’s acting beyond the jurisdiction of law, but that has absolutely nothing to do with signing statements outside of the imaginations and massed strawmen of the Daily Kos crowd. It is also quite telling that you admit that your position on signing statements is antecedent to determining what they are.
I’d like to see critics frame their criticisms in terms of any single one, or better yet a few, as I mentioned above. How many signing statements have you personally read and evaluated in light of the statute and the underlying law?
The Bush administration’s view of signing statements is in no tension with your concern. What you evidently fail to appreciate is that in saying this, you are assuming that “the people’s representatives” do not include the President. That is incorrect. Indeed, Chevron deference is predicated on completely the opposite view, see Chevron v. National Resource Defense Council, 467 U.S. 837, 865-6 (1984).
You should know that the views of the American Bar Association are not going to carry much weight. ABA is, fundamentally, a liberal association, and one with a personal axe to grind with the Bush administration (they were told publically that their services were no longer required in evaluating judicial nominees). One does not usually go to the ex-wife for an unbiased opinion of the former mistress.
Another strawman with no resemblance to the actual practice of signing statements by the Bush administration. Unlike Adam Savage, you can’t reject our reality and substitute your own; to criticize the actual practice of signing statements is one thing, but to make up an entirely fictitious practice, call it the same thing, and then pass off criticisms of the fictitious practice as criticisms of the real practice is… Well, we know what that is.
The lie-filled rant about Palin warrants no response, except to point out once again that the lie about Palin not having been vetted is a lie, a poor cousin to the lie that she “came from nowhere,” and to repeat it conspires yourself in a lie.
The election took place. Legal questions arose. And courts decide legal questions when two parties disagree on the answers. That you don’t like the result doesn’t make it illegitimate (I hate the result of last November, but that doesn’t make it illegitimate) and the bare fact that a court became involved doesn’t make it any less so. If the only opinion in the case had been Kennedy’s per curiam opinion, I might agree with you, but it was not.
Inflammatory, insubstantial, rhetorical nonsense.
Several liberal news organizations did just that after the fact, and were forced into the humiliating admission that Bush did in fact win Florida.
That’s cute, but you had your chance to vote against him, you used it, and the country decided to go a different way. I don’t think Obama should ever have been President, but the country decided to go another way. Welcome to the United States; this is how we do it. Every four years, there’s a Presidential election, and a significant percentage of the country fee;l really unhappy about the result.
Dick Cheney wasn’t before the court, the Vice President of the United States – an office held at that time by Cheney – was. You may not appreciate the difference, but as Scalia explained in his memo, there is a vast difference between being a de facto defendant because one holds a public office named as a defendant, on the one hand, and being a defendant oneself; that is why, for example, Rule 25 provides for the automatic substitution of defendants if an officer sued in their official capacity ceases to hold that position and is replaced. See Fed. R. Civ. P. 25(d)(1). The case follows the office not the person, and it would be absurd to pretend otherwise. To see why, one need only consider a practical example: Afzal v. Holder, decided last month by the Seventh Circuit will suffice. The titular Holder is Eric Holder, the Attorney General, but when the appeal was filed, and when the case was argued last September, the appellee was Michael Mukasey; per Rule 25, Holder was substituted as appellee when he became AG. Suppose Judges Wood and Posner are personal friends of Holder: should they immediately recuse themselves, causing the case to be reargued? Unless you’re willing to look foolish by pretending the answer would be yes, you’re stuck conceding Scalia’s point. Neither Holder nor Mukasey were the defendants in Afzal; the Attorney General was. Likewise in Cheney’s case.
So it does, and so what? Scalia’s impartiality could not reasonably be questioned, for reasons given above. That word “reasonably” does have operative effect; it precludes any idiot with an opinion bringing the wheels of justice to a standstill.
My views on Newdow and other cases brought by Michael Newdow are irrelevant. What is very much relevant is that Scalia allowed himself to be duped into recusing himself from that case on the flim-flam grounds that he gave a speech in which he said nothing that he had not already said in Lee v. Weisman. Anyone who didn’t already know what Scalia said about his views in that speech had no business arguing a first amendment case before the Supreme Court, which made it a cynical tactic to nullify his vote. He should not have fallen for it.
April 11th, 2009 at 7:39 pm
kranky kritter Says:
As I said above, it’s telling that most of the criticism is framed at a very abstract level – it’s never tethered to particular signing statements, still less an argument for why that example is typical. Could a signing statement purport to modify the law? Sure, you could write one that purported to do so, but that’s not the issue; the issue is whether a signing statement, in abstracto, by its very nature, do that? Of course not.
Most signing statements are purely rhetorical, having no substantive effect at all (President Bush’s signing statements accompanying Pub. L. 107-155, BCRA (basically “I have concerns about the constitutionality of this, but I’m signing it anyway” and Pub. L. 110-81, the Honest Leadership and Open Government Act of 2007 (basically “I like this”) are typical of such). The President is also a player in the legislative process, and it has been argued that these rhetorical signing statements are a species of legislative history, and argued that judges who use legislative history should use signing statements with no more alacrity than they use committee reports. See Steven Calabresi & Daniel Lev, The Legal Significance of Presidential Signing Statements, 4 The Forum No. 2.
Another category could be thought of as the short-cut signing statement; Bush’s signing statement accompanying Pub .L. 108-21, the PROTECT Act, is roughly typical. The President, of course, has the authority to direct his executive branch subordinates, see Myers v. United States, 272 U.S. 52, 135 (1926); if a statute directs a particular executive agency to make a particular decision or undertake a certain action, the President certainly has the authority to direct that actor’s response, typically using an executive order. Why not cut to the chase, if the President’s instruction is simple enough, by stating this directive at the same time as signing the bill? Indeed, one would think that open government fans would appreciate such a practice, as placing the President’s position on public display instead of burying it in the Federal Register, a publication so dry that not even someone as boring and nerdy as me routinely reads it.
Still another category of signing statements are similar to the familiar canon of avoidance. Where a statute is ambiguous, and one interpretation would raise a constitutional question, courts will ordinarily prefer the interpretation that does not. See Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). Likewise, while the President should veto a statute that is plainly unconstitutional, it is not clear to me that a President must veto a statute that could but need not be construed as to raise a Constitutional problem. A signing statement announcing the perceived problem and how the President will direct the executive branch to construe the ambiguity to avoid constitutional problems is sometimes issues.
Where it gets controversial is a signing statement such as that accompanying Pub. L. 107-229, a 2003 continuing resolution. Although he signed the bill, the President observed that one section of it “would require executive branch agencies to procure printing from the Government Printing Office, a legislative branch entity.” President Clinton’s Justice Department had concluded ten years prior that such provisions violated the separation of powers, and Bush adhered to that conclusion, insinuated that his administration would not consider itself bound by that section of the continuing resolution. This kind of signing statement does not assert that the administration can act outside the law, as Kevin and his chums might put it; quite the contrary: it asserts that Congress has acted outside of the law. To call this kind of statement a refusal to abide by the law would be, in effect, to claim that the Constitution is not law, but that idea – the proposition that Congress gets to decide the limits of its own power bit – the dust in Marbury v. Madison. See Marbury, 5 U.S. at 176-9; Frank Easterbrook, Foreign Sources & the American Constitution, 30 Harv. J. of L. & P.P. 223, 226-7 (2006).
All of which is a very long-winded way of saying that my answer is this: be wary of assertions about what “signing statements” in vacuo are or represent. Signing statements can be many things; whether they are problematic or fine depends on the example. So always ask for examples.
April 11th, 2009 at 7:46 pm
(Another example of the kind of signing statement mentioned in my penultimate paragraph would be that attached to PL 108-130, the 2003 Animal Drug User Fee Act, and a simpler way to put the point of that paragraph is this: don’t confuse the terms “statute” and “law.” Law is ordinarily made of statutes, but the Constitution is the paramount law, and only statutes mde pursuant to it are made “the law of the land” by the Supremacy Clause, U.S. Const., Art. VI, Cl. 2. A statute that is unconstitutional is not law at all, and far from being a declaration that the President is not bound by the law, a refusal to follow a statute because it violates the constitution is precisely to insist on following the law.)
April 11th, 2009 at 9:14 pm
Bottom line seems to be then that since they had in fact been used far more by Bush and his administration than all previous adminstrations combined that you think his administration must have a better grasp of the law and the Constitution than all of the previous administrations.
I’ll defer to the ABA and Fein who seem to know the law and come to the opposite conclusion to yours. Their reasoning seemed sound to me. Of course, they are wrong, they disagree with you.
I don’t have any chums as you might put it. I have concerns about the ethics of the previous administration. I guess we are all wrong.
April 11th, 2009 at 9:48 pm
Kevin Jackson Says:
No, the bottom line is that claims about signing statements have to be made in the context of specific examples. You have so far failed to bring forward a single example of any signing statements, let alone explaining (a) why you think it’s a problem and (b) why it’s typical of a broader class of signing statements. Those are the hallmarks of someone who is regurgitating their talking points inspead of actually engaging with the material.
Even stipulaing your premises, arguendo, your conclusion does not follow. The fact that the Bush administration made aggressive use of signing statements does not imply that previous administrations “ha[d] a better grasp of the law and the Constitution than all of the previous administrations.” That would be one theory that fits the facts, but at least three other obvious contenders spring to mind (that the last administration was simply more solicitous of such concerns than previous administrations; that the Congresses that sat during the last administration simply presented more bills raising concerns than earlier congresses; and that, to whatever extent (which you have made no effort to quantify) the last administration’s signing statements were purely rhetorical, the last administration may simply have been more garrulous), and we could think of more, I have no doubt.
Discussing signing statements in vague generalities when a collection of specific examples is publicly available to be mined ill-serves your case. It implies that the answer to my previous question – how many have you read and evaluated for yourself – is “none, and I don’t intend to start now.” Remember Senator Moynihan’s warning, Kevin: you’re entitled to your own opinion, but not your own facts.
April 11th, 2009 at 9:55 pm
Sorry, stipulating. Long few days, one glass of Maker’s Mark too many.
April 11th, 2009 at 10:47 pm
If I respond again to Simon, please ban me
I had written
I was recently in Missouri on business and saw a car with a “They Murdered Terri†bumper sticker. Your base at work.
Simon replied
And did the bumper sticker define “they�
Well—I’ll apologize, I guessed they meant liberals we are generally the bogeyman in any right wing complaint but the larger point was the attempt to blame anyone when most of her brain was mush. No one killed her.
I also wrote
On lawyers I was talking about the Monica Goodling – ization of the Justice Department. —60 percent of the class of 1999 — Goodling’s class — failed the bar exam on the first attempt….
Simon replied
Yes, and do you know what percentage of all first-time takers fail the bar?
I guess this was like the OJ glove question
http://www.ncbex.org/fileadmin/mediafiles/downloads/Bar_Admissions/1999stats.pdf
Regent was better than only the Northern Marianas and Palau if I understand what you were looking for. It appears Virginia as a whole had 66% passing instead of 60% failing. I think I understand the math there unless there is something else missing. If you truly think Regent University is one of the preeminent legal educations in the country, I doubt we will ever see eye to eye. I get that the bar is a tough exam. I also think that we should have bright people working on the major issues confronting us. It appears to my eyes, that has not been the prime consideration. We’ve seen it before after years of decrying affirmative action we got Sandra Day O’Connor (if I remember right 1/2 years on the bench and Clarence Thomas, best man in the US for the job?)
Simon had no issue with the (and my mistake here) the partisan nature of the firings and handling of DOJ. He told me to read Lithwichk’s article
I read Lithwicks article http://www.ncbex.org/fileadmin/mediafiles/downloads/Bar_Admissions/1999stats.pdf and she seems to say that it was a power grab by the Administration that Senators of both stripes didn’t catch put into the Patriot Act. (I’ve repeatedly said that anyone who did not read the thing had no business voting on it. I know it is routine. That doesn’t make it right) Perhaps it was the constant beat of the drum that if you weren’t with us you were with the terrorists? The fact that something is legal doesn’t make it ethical or moral in my mind. Serving at the discretion of the President is understandable that’s politics. Partisanship would have been a better name for the complaint. The complaint was that he wanted a partisan justice department.
Then on Sarah Palin he called me a liar.
There was no lie in my complaints about Sarah Palin. NONE. You might think she did not whiff on her press interviews. The world differs with your judgement as did an unprecedented number of the non Rush/Hannity/Beck group of conservative commentators. As to the statement on witchcraft, Don’t let your eyes and ears deceive you http://www.youtube.com/watch?v=kj-on3kfWuE or http://www.dailymail.co.uk/news/worldnews/article-1057181/Palin-African-pastor-friend-waged-witch-hunt-woman-believed-caused-car-crashes.html. I haven’t heard her say she disavowed the statements and she must have heard them since she was there and about 10 inches in front of the guy saying them. Hiding under religion’s wraps is partly what got us into this mess. It’s time for belief in the unbelievable to stop getting a pass.
In all the discussions, I’ve ever had though this one takes the case. He quoted himself as an expert backing up his own position on a blog with Support Sarah Palin ads and drivel like MSM? I never even thought to try that one. As Bill Hicks used to say you’d need a wheelbarrow to carry balls that big. (I totally apologize beforehand if I am wrong that you were not the same Simon-I would never slander someone with that kind of charge intentionally) If I take you at your word it’s even more damning. She’s the best you’ve got, she was thoroughly vetted and you really stand by that judgment?
2000 Election
Don’t want to go back there again but you misstated my opinion
and tried to equate it with something off the wall. The count was one of many things wrong, not the only thing. Obama’s election and Bush’s have no correlation whatsoever.
Several liberal news organizations did just that after the fact, and were forced into the humiliating admission that Bush did in fact win Florida.
Not if all the votes were counted. Look again
He then said
That’s cute, but you had your chance to vote against him, you used it, and the country decided to go a different way.
The country didn’t however. The Supreme Court did.
I don’t think Obama should ever have been President, but the country decided to go another way.
And the country rejected you and your thinking.
On Scalia and recusal
Simon said
Dick Cheney wasn’t before the court, the Vice President of the United States – an office held at that time by Cheney – was. You may not appreciate the difference, but as Scalia explained in his memo, there is a vast difference between being a de facto defendant because one holds a public office named as a defendant, on the one hand, and being a defendant oneself; that is why, for example, Rule 25 provides for the automatic substitution of defendants if an officer sued in their official capacity ceases to hold that position and is replaced. See Fed. R. Civ. P. 25(d)(1). The case follows the office not theperson, and it would be absurd to pretend otherwise. To see why, one need only consider a practical example: Afzal v. Holder, decided last month by the Seventh Circuit will suffice. The titular Holder is Eric Holder, the Attorney General, but when the appeal was filed, and when the case was argued last September, the appellee was Michael Mukasey; per Rule 25, Holder was substituted as appellee when he became AG. Suppose Judges Wood and Posner are personal friends of Holder: should they immediately recuse themselves, causing the case to be reargued? Unless you’re willing to look foolish by pretending the answer would be yes, you’re stuck conceding Scalia’s point. Neither Holder nor Mukasey were the defendants in Afzal; the Attorney General was. Likewise in Cheney’s case.
I am no legal expert although since the parties routinely have experts on both sides with opposing views I’ll try to point out the obvious difference In Holder’s case it would be him as AG standing in for the office. In Cheney’s case the office was his decision and it was protecting his decision. Legally that may not be a difference. In reality it is a huge one.
A bold conclusion followed
Scalia’s impartiality could not reasonably be questioned, for reasons given above.
And yet, reasonable people did. The consistent pattern I am seeing in you Simon is that that will always be the case. You can disparage me all that you like, but I am hardly the first or the only one that has made the arguments. You don’t like the press, the universities, the Bar Association and any liberal or conservative source of anything that disagrees with your position. I find now that you do use and trust yourself as a source. So far I have seen no reason to do so. Hell, you didn’t even like Scalia’s reasoning when it differed from your own. :-)
Sorry we have not been able to find anything to agree on. I’ll try not to respond again.