The American Spectator : AmSpecBlog

A Limit for Yoo?

Posted by Steven Rybicki on 1.7.09 @ 7:00AM

Eric Posner (E) has been busy mocking the realignment of political principles of both the Left and Right now that the person possessing the executive power will wear a blue jersey instead of a red one. In December E’s b.s. detector was triggered by the shifting positions of Bush critic David Cole. Now it’s the Right’s turn for a little smacky-face: in a New York Times editorial by Johns Yoo and Bolton, E’s noticed a re-acquired interest in emphasizing limits on executive power.

Some speculate that this is E blasting away at John Yoo for Yoo being inconsistent on the topic of executive power. But that’s a petty summary because E’s lede is, indeed, the lede: "It didn’t take long for conservatives to rediscover limits on executive power. You’d think something—if not philosophical consistency, then at least manners—would cause them to hold off until, say, inauguration day." (Emphasis mine)

E does snipe at Johns Yoo and Bolton’s (partial) defense of the need for a supermajority of votes in the US Senate to ratify a treaty. But what is more valuable about E’s comments is his underlying meta-critical position regarding how day-to-day partisan politics shape and influence the “principles” that ideologically-bound partisans hold. Notably, that the principles are determined by the degree of power those partisans enjoy. A strong, unitary executive is defensible if you’re a GOPer and there’s a POTUS-R (and it’s not so much the case if your preference is a POTUS-D). And now, as January 20, 2009 is at-hand, the inverse will be the case. This change allows us to gauge the extent to which arguments made in favor of or against the Bush Administration’s claims about executive power were grounded in veiled partisanism or in some other, deeper conception of the executive that persists despite the particular partisan affiliation of the current POTUS.

But given E’s post and regardless of the misunderstanding that E has found an “inconsistency,” it is interesting that it is Professor John Yoo who is making this case. Prior to this, in the pages of the New York Times, Yoo has explained, approvingly, of how the executive power has regained the “energy” necessary to act in the post-9/11 age. In the Wall Street Journal he has defended Congress’s explicit legislative reprimand of the judicial branch when the Supreme Court “limited” executive power. And yet E points out that for no articulated reason Professor Yoo has shifted his emphasis when discussing executive power in order to find a limit that he believes exists on executive power. This may not be an inconsistent position in terms of Professor Yoo’s broader vision of executive power, but it is certainly a decisive shift in what Yoo chooses to emphasize when explaining executive power in public (he's speaking of limits instead of prerogative).

Yoo, rightly or wrongly (probably the latter, but I’m a relativist without a JD so what do I know…), is despised in many quarters of the interwebs. Haters consider Yoo a nefarious spectre haunting the W era and a figure viewed as an immanently evil force during the aftermath of 9/11. I won’t presume that I’m the intellectual equal to Professor Yoo and challenge his credentials or actual arguments that he made on behalf of President Bush, but I don’t believe it’s disrespectful to suggest that Yoo is aware of his public image and reputation.

When Professor Yoo ties himself to an op-ed, he is not the writer of a sensitive piece of legal reasoning that intricately works through an argument based on his interpretations of specific statutes and precedents. Instead the action is provocative: he is an influential public figure offering a first draft of arguments regarding a specific issue on which he is treated as an expert. He is legitimizing the terms and tactics that will trickle down and be regarded as “facts” to other less capable pundits and eventually to grass-roots partisans.

So when Professor Yoo goes from being a crucial defender of executive power to pontificating on its limits, it’s kind of a big deal. And without any other statement explaining the impetus for his change of tone, the advantage goes to a Schmittian like E and his cynical theory of the relationship between partisans and their principles.

P.S. In order to read some of Professor Yoo’s academic papers check out his UC Berkeley page (current through 2006).

P.P.S. And way back in 2005: a Posner/Yoo threesome with John Bolton in the middle. Sexy.

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Specter Takes on Holder

Posted by Doug Bandow on 1.7.09 @ 5:58AM

Sen. Arlen Specter (R-PA) is the squishiest of the squishy. But he appears to be growing a backbone when it comes to Attorney General-designate Eric Holder. Reports the New York Times:

Before Tuesday, Mr. Specter had been mildly critical of Mr. Holder's role in President Bill Clinton's pardon of the fugitive financier Marc Rich. He said Tuesday that he would wait until the hearing next week to decide how he would vote, but in the Senate speech he let loose on Mr. Holder, comparing him with Mr. Gonzales in his ability to maintain independence from the president.

Mr. Specter raised questions about Mr. Holder's role as deputy attorney general on a range of issues that included an investigation into the 1993 federal siege in Waco, Tex., that left David Koresh and about 80 of his Branch Davidian followers dead, and an espionage investigation involving a nuclear scientist, Wen Ho Lee.

But he saved his sharpest criticism for Mr. Holder's role as deputy attorney general in three controversies in Mr. Clinton's second term: Mr. Clinton's pardon of Mr. Rich in 2001, the president's decision in 1999 to grant clemency to 16 members of a Puerto Rican militant nationalist group, and the Justice Department's rejection in 1997 of an independent counsel to examine accusations of campaign finance abuse by Vice President Al Gore and the White House. In each case, Mr. Specter said, Mr. Holder appeared to go against the advice of career professionals at the Justice Department.

"Further inquiry is warranted on the issue of Mr. Holder's independence to follow the facts without respect to political bias," Mr. Specter said in his prepared statement.

It could be all talk, of course. But Sen. Specter has pointed to reasons for fighting the Holder nomination. A return to the bad old Clinton Justice Department surely isn't "change that we can believe in."

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Re: RNC Rumble

Posted by John Tabin on 1.6.09 @ 7:42PM

My laptop died yesterday afternoon, and with it went a post about the RNC debate yesterday. That's okay, though; all I really have to add to what Phil and Stacy have already reported is an observation about the peculiar nature of the Steele for Chairman campaign. Because Michael Steele is from Maryland, Washington is convenient for his supporters, and they were handing out Steele signs and stickers an hour before the event. Unfortunately for Steele, the Steele paraphenalia was mostly confined to the sides of the auditorium; the Committee members who actually vote for the chairmanship were seated in the middle of the auditorium behind the press tables. After the debate Steele was mobbed by well-wishers at the front of the room, while his rivals, like Mike Duncan and Ken Blackwell, slipped behind the press tables and started actually glad-handing the Committee members, which is to say securing votes. I did think that Steele came off as the most charismatic of the candidates on the stage (not that that's saying a whole lot), and weird things can happen in a six-way race with 168 voters, but for now it seems like Steele is basically making a big show of losing.

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About Those House Rule Changes

Posted by W. James Antle, III on 1.6.09 @ 5:28PM

House Majority Leader Steny Hoyer offered his own spin on Democratic rules changes to end term limits for committee chairmen and make it more difficult for Republicans to debate or affect legislative outcomes:

Second, the rules will no longer set term limits for Committee chairs. I understand that our Republican colleagues once wrote term limits into the rules in an effort against entrenched power. But it is now clear that that effort fell victim to what conservatives like to call the law of unintended consequences: With chairmanships up for grabs so frequently, fundraising ability became one of the most important job qualifications, and legislative skill was sacrificed to political considerations.

Third, these rules limit the abuse of motions to recommit. We invite good-faith efforts to improve legislation—and in these hard times, we need the Republican Party to be a constructive partner in policy making. But we all understand which motions are not offered in good faith: Those are the motions that attempt to kill bills through parliamentary tricks and waste our constituents’ time on 'gotcha' politics.

Let's not waste our constituents' time while wasting their money too! Some motions are offered in good faith; others the Democrats disagree with.

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Shadow Senator Burris?

Posted by W. James Antle, III on 1.6.09 @ 5:20PM

The Washington Post's Chris Cillizza has floated a possible compromise between Harry Reid and Roland Burris I hadn't heard: Allow Burris to serve as a shadow senator. For the remaining two years of Obama's term, Burris could serve on comittees, attend hearings, walk around on the Senate floor, and maybe even introduce legislation. But he'd have no vote.

I have to say it sounds like a nonstarter to me. Nonvoting "shadow" status isn't good enough for many residents of Washington, D.C. Why would it be acceptable to people who live in an actual state?

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No Jeb, How About Jack?

Posted by Quin Hillyer on 1.6.09 @ 5:04PM

Our friend Dave Weigel reminds us, just now, of an unsuccessful senatorial draft campaign I ran here about three years ago. Somehow, I don't think my idea of a replacement for Jeb Bush in the Senate race in Florida is quite as good now as it was then (when it was suggested as an emergency replacement for the flawed Katharine Harris), but even when I took it out for a test, uh, drive a few years back, I knew it wasn't a gimme. Meanwhile, I am disappointed in Jeb's decision. I am no fan of the Bush family in general, but this Bush was a very solid conservative governor and would have been a near shoo-in for election to the Senate. Unlike Caroline Kennedy, he would have EARNED his spot by election from constituents who have already seen how he performs in office.

I do find him a bit arrogant, to say the least, and I would never want him to run for or be president, but I think he really ought to have run for the Senate. After all his brother did to hurt the Republican and conservative "brands," the least Jeb sould do is to help make up for his brothers' (and fathers') harm by holding a seat conservatives desperately need to hold. Again, then, the Bushes disappoint.

And if Jack wants to run, even at age 70, I'm sure we could do worse....

;)

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In Trouble With Ken Blackwell

Posted by J. Peter Freire on 1.6.09 @ 4:42PM

Yes, I use Twitter, but it would never occur to me to run a campaign based on it. And I probably wouldn't use Twitter to project my quotable self, but then again, it appears our own contributor, Dave Weigel, feels differently. From his report on the RNC debate yesterday:

Blackwell, leaning back in his chair and speaking slowly, was as grim and confident. “When Ken Blackwell speaks,” commented American Spectator managing editor J.P. Freire, “I feel like I’m in trouble for something.” Blackwell framed the GOP’s problems as those of an ossified organization unable to reap the benefits of its good ideas.

Well, that's all in good fun. Then I receive this:

CHILLING, PEOPLE. THIS IS CHILLING. I NEED A MEDIA SHIELD LAW PASSED FORTHWITH.

No wonder Blackwell was so proud of his Facebook friend count. These are people he chides into submission. You haven't heard the last of me, Ken Blackwell.

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Ron Paul Lashes Out at Israel, Predicts "Consequences" to U.S. Support

Posted by Philip Klein on 1.6.09 @ 4:41PM

Via Alarming News and Hot Air, I see this video of Ron Paul condemning Israel's defensive action in Gaza. At no point in the near 7-minute video can he muster any criticism of Hamas terrorists, scoffing that "they have a few small missiles." He blames the crisis solely on Israel and the United States for supporting Israel. Our support, Paul argues, has "antagonized the Muslim/Arab world more than ever before and unfortunately we'll suffer the consequences from this." I wonder what "consequences" he has in mind. Remember that this comes from the man who argued that U.S. bombing of Iraq during the 1990s was the cause of 9/11.

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Jeb Bush

Posted by W. James Antle, III on 1.6.09 @ 3:40PM

The word seems to be that he's not running for Senate in Florida. Not only does that take the strongest Republican candidate off the table in that particular race but it also could dampen recruitment for other races. Being able to attract a big name like Jeb Bush might entice other big names to run as Republicans in 2010. Maybe his dad embarrassed him.

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15 Seconds in Sderot

Posted by Philip Klein on 1.6.09 @ 2:02PM

This video of Israeli children dancing the "Hokey Pokey" one second and sprinting for cover the next, is a haunting example of how the every day lives of southern Israelis are disrupted by regular rocket attacks. Even though Israeli efforts to protect their civilians limit the casualties inflicted by the rockets, they still create terror. American liberals like Josh Marshall have labeled Hamas a "distraction." Try telling that to the children in this video.

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The Anti-Blackwell Brigade

Posted by W. James Antle, III on 1.6.09 @ 1:23PM

Jim Geraghty has been trying to figure out who is behind an anonymous hit on RNC chairman candidate Ken Blackwell and includes Ohio Republicans on his list of suspects. Blackwell has long been hated by members of his state party establishment for the same reasons many conservatives like him. And there are other Republicans, some of them Blackwell admirers, who worry that his strategy for Republican success is too close to what worked in 2004 but failed in 2006, including in his own gubernatorial race. It remains to be seen whether his Conservative Resurgence Plan will allay those concerns or not.

Though while we're on the subject of Blackwell, bloggers, and conservative credentials, I might as well say this: Blackwell's reported 1976 vote for Jimmy Carter is now as far in the past as Ronald Reagan's 1948 vote for Harry Truman was in 1980. A lot of reliable Reagan coalition members, including Pat Robertson and Jerry Falwell, voted Democratic in 1976. I think we can stop holding it against him.

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Free Paul Jacob

Posted by Doug Bandow on 1.6.09 @ 12:38PM

Oklahoma has taken the lead in attempting to criminalize political differences. The state is notoriously difficult for third parties seeking ballot access. Now state Attorney General Drew Edmondson, reputed to be yet another gubernatorial wanna-bee, is trying to use criminal indictments to shut down initiative campaigns. Paul Jacob, a long-time leader in the fight to limit politicians' terms, cut taxes, and reduce spending, and two others have spent more than a year under criminal indictment for having the temerity to ask Oklahoma citizens to sign a petition to place a tax and budget limitation measure on the ballot. He deserves the support of liberals as well as conservatives and libertarians, since what he was engaged in involve both free speech and the right to petition government.

The Arkansas Democrat-Gazette recently editorialized:

THE NAME Paul Jacob will be familiar to folks who followed the struggle to get term limits adopted in Arkansas. For he pretty much led it. An Arkansas boy, he went national as head of U.S. Term Limits and now runs an outfit called Citizens in Charge. It seems he's never outgrown his need to put the people, not the politicians, in control of government. One needn't agree with his ideas to admire his commitment-or defend his right to express them.

But anyone so interested in reform was bound to rile an establishment with an overweening sense of entitlement. So when Mr. Jacob and his merry band of reformers showed up in Oklahoma, they naturally attracted the attention of Drew Edmondson, that state's attorney (and zealot) general.

This time Paul Jacob and company were gathering signatures for a proposal that would have limited legislators' power to spend, spend, spend. Their reward for this show of civic interest? Mr. Jacob and his fellow signature-gatherers, Rick Carpenter and Susan Johnson, were indicted.

The charge? Being part of a criminal conspiracy, to wit democracy. Or as General Edmondson phrased it, attempting to defraud the state by hiring folks from outside Oklahoma to help them gather signatures. Even if according to Paul Jacob, they sought signatures only from duly registered Oklahomans.

"The attorney general's office," to quote Mr. Jacob, "is well aware that the people who pursued this petition drive on the ground went to state officials first, asked them what the rules were and followed their advice. And they were told that as long as someone is residing in the state for the duration of the petition drive, that's residency."

No matter. Mr. Jacobs and friends were indicted anyway. Welcome to Oklahoma.

For more information on the case go to Paul's website. Everyone expects the courts to eventually toss out the case, but he needs our support to ensure that happens.

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Israel and Its Own Civilians

Posted by Philip Klein on 1.6.09 @ 12:18PM

As the debate continues to rage about the number of civilian casualties on both sides, one aspect of the story isn't receiving enough attention. Supporters of Israel have rightly noted IDF efforts to avoid civilian casualties in Gaza and pointed out that Hamas leaders purposely hide themselves and their arsenals among civilians, who are used as human shields to give Israel pause, or alternatively, to gain propaganda victories from civilian deaths. Less focus has been given to explaining that one of the main reasons that the death toll is relatively low on the Israeli side is that Israel goes to great lengths to protect its own civilians. Every building in Israel must be equipped with a bomb shelter and they have developed an alert system to warn civilians about incoming rocket fire. The IDF has a Homefront Command branch specifically dedicated to coordinating civil defense and educating the public about what to do in the event of a given attack. Furthermore, if any Israelis are injured, the nation has developed among the best emergency response medical services in the world. So, putting this together, if you have one side that puts its energy into protecting its own civilians and another side that tries to keep its civilians in harm's way -- even putting aside the variable that one party has a more powerful military -- it isn't surprising to see more casualties among the Palestinians than the Israelis.

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No Admission for Burris

Posted by W. James Antle, III on 1.6.09 @ 11:48AM

Roland Burris was denied entry to the Senate floor today as he tried to take the Illinois Senate seat vacated by Barack Obama. If the Republicans tried something similar with a distinguished African-American politician who would be the only black senator, they'd surely be compared to Democrat George Wallace standing in the schoolhouse door. As I write today in my column on the main site, Bobby Rush may make sure Harry Reid doesn't get off any easier.

As Doug notes below, the Democratic leadership has tipped its hand with a possible compromise that's being floated in the press: they might be willing to seat Burris if he agrees not to run in the 2010 election. This suggests that some Democratic senators are more worried that Burris wouldn't be able to hold the seat in two years than about the taint of Rod Blagojevich's appointment. (Not that Illinois Democrats have had any problems voting against Burris in primaries in recent years.) There is also the possibility that they will ask Illinois Lt. Gov. Pat Quinn to endorse the appointment to lessen the taint.

The speculation that the Democrats might allow Burris to serve as a placeholder for two years but not run in the 2010 election comes after reports that Harry Reid lobbied against appointing Congressman Jesse Jackson Jr., Congressman Danny Davis, or State Senate President Emil Jones, who are all black. His preferences were Attorney General Lisa Madigan and former congressional candidate and Iraq war veteran Tammy Duckworth, who are not black.

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