Introducing ColoradoProgressive.com

Great news! I'm now blogging at coloradoprogressive.com. Same great insights, new name and location. Come check it out!

Belkin: Don't Like DADT? Blame Falls at the Top

Think President Obama ought to address Don't Ask, Don't Tell policy regarding gays in the military in a hurry? Then this will really get you fired up.

What I like most about Belkin's assessment is that the Pentagon and Congress can't protect the commander-in-chief from ultimate responsibility for the dismissal of capable, talented, and driven men and women from America's armed forces. Belkin cites a study--due out shortly, we're told--from a group of "experts in military law" who have determined that the president does indeed wield the power of the pen on the issue of gays in the military. If that's true, then Obama won't have to "spend his precious political capital trying to ram a repeal bill through Congress."

If political capital translates as media exposure, then at this point, if the administration feels wary about picking battles, I'd favor a quiet, Friday afternoon repeal versus a whole lot of public fanfare. Whatever it takes so long as guys like Dan Choi can continue to serve this country.

Why Wood and Sotomayer Won't be Activist Enough . . . for the Right

Should the Supreme Court ban a repeat pedophile from city parks on the basis of the individual's thoughts? Slate's Emily Bazelon takes a look at this very question as it pertains to Diane Wood, a Clinton appointee to the 7th Circuit U.S. Court of Appeals and potential nominee to the Supreme Court.

To be clear, the case is not before the Supreme Court, nor is it scheduled to be. But in Doe v. City of Lafayette, in 2004, Wood joined a dissent that may mark her for targeting should she get the nod from Obama. Basically, Wood declared the banning of John Doe from city parks an infringement on Doe's First Amendment rights, since he was banned based on his thoughts, rather than his actions. (Doe's thoughts were made public after he caught himself wanting to molest a child, but he turned around and called his therapist instead. The therapist, concerned about the possibility of criminal behavior, called the authorities.)

Wood's dissent, along with Judge Ann Williams, who wrote the minority opinion, did not prevail. The ban was upheld. The article points out, in the end, that had the case been about dangerousness, then there likely would not have been a dissent. John Doe appears as a high risk to public safety.

[I]n other settings, the law does allow for punishment based on future dangerousness. In 2000 and 2002, the Supreme Court twice upheld a Kansas law that provides for the civil commitment of a convicted sex offender, after he has finished serving his criminal sentence, if a court finds that he "cannot control his dangerous behavior." The majority opinion in the Doe case relied on those Supreme Court rulings. When I called Yale law professor Robert Post, a First Amendment scholar, he brought up the Kansas law, too. "If you can be kept in jail because of future dangerousness, why couldn't you be kept out of a park?" Post said. "It's a mischaracterization to say this has anything to do with this man's thoughts. The case should be decided on the basis of his dangerousness."

Emphasis mine. That's how the case was decided, but Wood's position suggests that it actually shouldn't have been. Because Doe was brought as a First Amendment challenge, Wood's dissent suggests that the court had an obligation to treat the case as such. "By way of comparison, courts would not sanction criminal punishment of an individual with a criminal history of bank robbery (a crime, like child molestation, with a high rate of recidivism …) simply because she or he stood in the parking lot of a bank and thought about robbing it."

Bazelon's point is not to determine whether Wood's dissent was the right opinion to air, but to cast Wood as an excellent candidate who could cause the White House considerable angst were she nominated, precisely because she chose not to extend the role--and rule--of government from the bench. By dissenting, Wood refused to support the judicial activism that had played out at the state level.

One of the things I find most interesting about the discussion, however, is not about the thorny nature of the Doe case at all. There seems to be a narrative pattern emerging--albeit prematurely, given the absence of a nominee--that the right will target judges who don't take activist stances on particular issues, even though the right is screaming already about the risk of activist judges. Matt Yglesias makes the observation about short-lister Sonia Sotomayor, too. Yglesias points to Richard Cohen and others who say Sotomayer should have intervened from the bench when the issue at hand was affirmative action in Ricci v. DeStefano, in 2008. Instead, she sided with the majority to let the state decision stand. That case went to the Supreme Court and was heard last month.

In these two instances, Bazelon and Yglesias make the point that, really, there are some issues for which the right advocates for judicial activism. In other words, if Obama nominates a so-called activist judge, he'll get reamed. And if he doesn't nominate an activist (when he should, according to the right), he'll get reamed. Nice trick, huh?

Michigan's Granholm for Supreme Court?

Matt Yglesias makes an interesting suggestion. I have no opinion, but thought it worth passing along for consideration. Her name does come up in more than one place as a short list contender. Granholm, FWIW, was Biden's sparring partner in the run-up to the VP debate. Rumor has it she cut a mean Palin:

Many parallels have been drawn between the two governors as being attractive ex-beauty queen sports moms, although Granholm's educational qualifications and political experience dwarf Palin's.

Meanwhile, I did hear a request among Republicans Democrats that Supreme Court judges should have more to show than a lifetime in black robes. In other words, get somebody with some real-world experience (i.e. political experience) on the court. But watch out for the setup to the inevitable complaint--no matter who Obama nominates--about "activist" judges. A fine line, to be sure, and one which Repubs will certainly use to try and trip up both the president and his agenda.

While we're on the subject, this Granholm thing is not new. Speculation was rife as early as October, 2008.

Challenging Specter

So Arlen Specter switched parties. Have Democrats been too quick to get behind their newest senator?

Steve Benen offers some key insights as to why Specter might not be the team player Dems hoped to recruit. Which begs the question: Should the DNC and the DSCC necessarily rally behind the incumbent Specter?

It bears noting that, while Specter's switch certainly doesn't hurt the Democratic Party, it may not actually help the party all that much either. In the end, Specter's switch is determined from pure political survivalism. In other words, Senator Specter (D-PA) is good for Senator Specter. You don't get to be 79-years-old and one of the most senior members of the Senate by counting on others to have your best interests at stake, y'know?

With all that in mind, Nate Silver looks at Joe Sestak, Specter's most likely challenger (as of today) in a 2010 Dem primary. Progressives will be disappointed, because Sestak sounds like a candidate for the newly minted "ConservaDem" party. But still, there are some distinct advantages to not giving Arlen Specter a free ride. A little heat, Silver points out, could force the incumbent senator to vote with the president's agenda a little more often than Specter feels inclined to, so far.

Where's DADT on the White House Web Site?

Is revision of "Don't Ask, Don't Tell" policy off the agenda? Via Benen, Greg Sargent catches a discouraging omission.

If it's About the Supreme Court, Then Specter Matters

I've been reading all week about whether or not the Specter switch is that big of a deal. Matthew Yglesias suggests that, in regard to the Souter announcement, Specter as Democrat really is a big deal because the switch covers a lot of ground on the partisan hackometer. See, if Specter has to run against a hardcore conservative challenger in the 2010 GOP primary, then the senator will come out against anybody Obama nominates. But since the switch, Specter is actually in danger of inviting a Democratic primary challenger if he doesn't toe the party line on this one. Pretty interesting math.

Jindal Watch

Think Progress looks into the budget wizardry of Louisiana's Bobby Jindal: NFL's Saints up $85 million, state health care and education down $1.6 billion.

GOP Lawmakers Contend U.S. Prisons Weak

Am I reading this the wrong way, or is it unseemly for grown politicians to beg the government not to house notorious criminals in . . . maximum security prisons?

Members of Congress were already pleading with Gates on Thursday not to send the detainees to their states. "Please not at Leavenworth," said Sen. Sam Brownback, R-Kan.

Really, Senator? Because if I were a constituent in Kansas, I'd strongly prefer to hear my state voice in the Capitol argue that the maximum security prison near me succeeds at what it is designed to do, house and secure dangerous people away from the law-abiding public. The only way I can read Brownback's request is as a vote of no confidence in his state's most visible prison.

Relocating Guantanamo detainees is a tricky business, and it's not my goal to try and solve the problem here. But I don't think it serves the public interest to undermine the fundamental role of ultra high security prisons, such as Leavenworth and Colorado's Supermax, in the name of a little bit of politicking. I'm much more in favor of this response, tested in January by Colorado's Bill Ritter:

One of the sites under consideration is Supermax, located in Florence about 90 miles south of Denver. Inmates already at Supermax include Zacarias Moussaoui, a Sept. 11 conspirator; Ramzi Yousef, mastermind of the 1993 World Trade Center attack; and Richard Reid, who tried to blow up a trans-Atlantic jetliner with a shoe bomb.

Ritter wouldn't oppose transferring the Guantanamo Bay detainees to Supermax because it was built for just that type of high-risk inmate, Ritter spokesman Evan Dreyer said today.

"If Supermax is chosen, there's no reason to take a 'not in my backyard' approach," Dreyer said.

Moussaoui, Yousef, and Reid, known terrorists, right here in my backyard, and I never even noticed. That's good, right?

Understaffing the New Administration

I'm not sure which is more striking: that 100 days into the new administration more than two thirds of senior offices in every cabinet department are still vacant, or that, apparently, that's the norm.

A look inside the numbers paints an even bleaker picture. Only 48 of 349 positions have cleared the final hurdle to begin work, Senate confirmation. It's been pointed out before, especially in relation to the staffing woes at Treasury during an economic crisis, but is there really any reason for the Senate to confirm 349 positions? Now more than ever, can we not make the case that the Assistant Secretary for Vocational and Adult Education at the Department of Education is not a remarkable or contentious position (at least not until the nomination goes to the Senate!)? See here for a full list.

Here's Gary Andres of Dutko Worldwide, a large consulting and lobbying firm, in a panel discussion last month at the Wilson Center:

It used to be that senators did not oppose presidential nominations on policy grounds because Members believed the president was entitled to have his own people carrying out his policies. The senators’ job was to determine whether the nominee was professionally qualified and ethically fit for the job. But all that has changed as senators and interest groups began grinding their political and policy axes at confirmation hearings.

Emphasis mine. I leave to the reader the possibility that, without all this premium grade political posturing (read "BS"), we could actually have a government system that is mostly staffed and ready to go after 100 days, as opposed to simply being ready to get ready to fight about being ready to serve the citizens of the country.

EPA's Jackson Fumbles Free Enterprise Answer

Somebody get Lisa Jackson a cheat sheet. She did a fine job in her interview on NPR today, until Michele Norris asked about the role of government.

In a discussion about strategies to regulate greenhouse gases from cars (starts at the 2:42 mark on the interview), and about how to tie such regulations to economic viability, Jackson stated that "the president has said, and I couldn't agree more, that what this country needs is one single national road map that tells automakers, who are trying to become solvent again, what kind of car it is they need to be designing and building for the American people."

Whereupon NPR's Norris astutely asked: "Is that the role of the government, though? That doesn't sound like free enterprise."

"Well . . . it-it [exhale] . . . it is free enterprise in a way. Um, uh, y'know . . . first and foremost the free enterprise system has us where we are right this second, and so some would argue that the government has a much larger role than we might have when Henry Ford rolled the first cars off the assembly line."

Jackson went on to invoke the future of the auto industry and larger discussions that the president, Congress, and the EPA are having and will continue to have. So she saved herself, sort of. But I could hear Rush Limbaugh and Bill O'Reilly breathing heavily behind the tape as they get ready to tear into the clip in coming days.

Granted, I don't expect the head of the EPA to be an economic policy wonk. But I do expect her to capably field straightforward and predictable questions regarding the oft-thorny relationship between government regulation and free enterprise, especially when her own argument suggests that greenhouse gas regulation is good economic policy. In this interview, Jackson mentions the president and, for all practical purposes, speaks for the president. The only way to sell "big" government is to make sure policies work and to have your talking points in order and your bases covered. The easy way out would have been to tie government regulation to the government funds those troubled car companies are taking and to evoke a partnership toward progress in which free enterprise, frankly, becomes an afterthought.

Eugene Robinson on the Obama/Chavez Handshake

I generally like Eugene Robinson, and hats off to him for winning that Pulitzer. But yesterday's column advocating for theatrics from a traveling president leaves me dissatisfied. "Theatricality is one of the weapons in any leader's arsenal," Robinson writes, "and a well-timed glower or growl can have more impact than a sheaf of position papers."

When wingers and warmongerers chastise the president for shaking hands with Venezuela's little man, I get it. In a way, it keeps with a natural order we've come to expect in our politics. The predictable rant is that any sign of American openness is weakness. But when a voice of reason advocates a bit of superficial staging, I'm befuddled.

Eugene Robinson gets it just right when he characterizes Chavez and the essential relationship between our two countries.

Any idea that Chávez is some sort of threat to the United States is absurd. It's hard to see his fiery anti-American rhetoric as anything more than performance art, given that he has been scrupulously careful to avoid even the slightest disruption of the U.S.-Venezuela economic relationship.Venezuela owns Citgo, among other concerns, and is a reliable supplier of oil to the thirsty U.S. market.

Or, as Matt Yglesias put it yesterday:

For all the rhetorical heat generated by Chavez’s clashes with the American right, all he really wants from America is for Citgo to sell us oil and gas. And guess what? All we want from Venezuela is the ability to buy oil and gas.

So why would Robinson go on to argue that Obama should have been more rigid? Indeed, why argue that Obama should have recognized the slap Chavez intended--by presenting a tome on U.S. meddling in Latin America--and slap back? Because Robinson thinks he's speaking for moderates who like the new diplomatic worldview that Obama brings but still interpret the diplomatic landscape through the old paradigm, which, no matter how you slice it, hearkens back to the Cold War.

Guess what, folks. Chavez doesn't really intimidate the U.S. Nor should he. On the one side of the aisle, you've got a reactionary right that would seek to replay Cold War pageantry at every little opportunity. On the other side--I thought--you've got a moderate left that understands that Chavez doesn't intimidate the U.S. Why on earth should anyone, lest Eugene Robinson, see Obama's easy way in a crowded room as a faux pas?

Public perception is, largely, what the media molds of it. And if media outlets like the Washington Post and Pulitzer prize winners like Eugene Robinson were to deem Obama's stature in Trinidad as, say, a sign of imperturbable confidence, then that's what a majority of Americans would reliably repeat for the duration of a given spin cycle. Where are the commentators to remind us that America can afford to be big, that our chief diplomat can go ahead and indulge in some hand shaking and shoulder slapping and can accept a gift for the recycle bin without reeling like we've all got an insecurity complex? It could read "Obama didn't give Chavez a thing, not a single hint as to U.S. disposition toward Venezuela. The president smiled, enjoyed some token banter, and moved on."

I don't expect Newt Gingrich or Dick Cheney to play any other role than to make the hackneyed call for strength and force that plays well to the wide right and gets our country into trouble time and again. But I do expect, and desperately hope, that saner voices will also choose milder interpretations when the president makes non-news on the diplomatic front.