Impossible Scissors

After weeks of guessing, President Obama laid out his Supreme Court appointment as Sonia Sotomayor. While the appointment is historic as the first Hispanic woman nominated to the nation's highest court, it's also an important test of the Obama judicial philosophy.

It's important to note how the court's nomination hearings have historically proceeded. In recent history, there's been a tendency for many members of the opposition party to show deference to the president and give him the person he appointed to the nation's highest court (with Robert Bork being the exception of a nominee who was scuttled by the opposition party.) The questioning of nominees has avoided questions on how specific issues would be decided by the court, but it has become a forum for determining the temperament and judicial philosophy of the judges.

The most important recent change to the judicial approval process during recent memory was the use of filibusters by Senate Democrats against Bush-appointed judges, leading up to the so-called "nuclear option" and the "Gang of Ten" during Summer 2005. The use of filibusters against judicial candidates had never been exercised before, and it eventually caused leading Republican Senators to consider a change to the chamber's filibuster rules. Eventually cooler heads prevailed, and Senate Democrats agreed that they'd only filibuster in "extreme" cases. President Bush got his judicial nominees, John Roberts and Samuel Alito, approved over the "nay" votes of senators like Barack Obama and Hillary Clinton.

While some Senate Republicans have been talking of a judicial filibuster long before the new appointee was announced, they clearly don't have the votes to pull it off unless Judge Sotomayor is so radical that she makes a few Democrats balk as well.

And this is where the Obama judicial philosophy comes into play. President Obama believes that "empathy" and "social justice" need to be factored in along with the rule of law by federal judges. In other words, he wholeheartedly believes in an activist, interventionist court that legislates from the bench. And truth be told, no judge is above letting personal biases influence their interpretation of the law (reference Harry Blackmun's statements regarding Roe v. Wade being 'a necessary step towards the liberation of women.') But President Obama is bold enough to admit that he supports judicial activism, the rewriting of agreed-upon laws by an appointed court rather than legislators selected by the voters. The question facing the US Senate is whether Sonia Sotomayor shares in President Obama's radical beliefs. The onus is on the US Senate to find out. Sonia Sotomayor may well be a qualified judge, but the Senate owes the American people a hearing that is neither a Democrat rubber-stamp nor a partisan Republican attempt to curb the tide of Obama-mania.

The title of my post is tongue-in-cheek, but I did want to look at two recent Obama policy decisions which seem to validate that maybe George Bush wasn't as dumb or malicious as his detractors made him out to be.

First we have the issue of detainee abuse photos taken in Iraq and Afghanistan. The ACLU has been seeking these photos for years, and a federal judge ordered their release. "Not so fast," the White House is saying. The president asserts that they will only seek to inflame anti-American sentiment among the world's Muslims. and I agree with him 100%. At a time when Iraq's wounds are finally starting to heal, is there anything to be gained by digging at old scars? The photos don't help anybody, and only serve to reinforce Muslim perceptions that US gleefully tortures and humiliates their people.

Even more controversially, the Obama Administration plans on restarting the military tribunals for captured terrorists that were proposed by the Bush Administration and approved by congress. For years, liberals decried the tribunals as unconstitutional, while ignoring the similar tribunals that arch-liberal Franklin Roosevelt authorized for Nazi saboteurs during World War II. While the Obama tribunals will afford the defendants with more protections than the Bush implementation did, they're still an acknowledgment that certain terrorists captured on the battlefield cannot be tried under US law, but they must be imprisoned indefinitely for the safety of decent people around the world.

Is it ironic that Senator Obama criticized the anti-terror policies (such as military tribunals) that he now supports? It's easy to be critical when you're a Senator from the opposition party. But viewing the world through the eyes of commander-in-chief certainly changes one's perspective.

I disagree with the president on a lot of issues, but on these two I think he's acting strongly and responsibly in his role as commander-in-chief. I hope this is a good sign for his overall strategy for keeping our nation safe, and I support him 100% in this regard.

When I was reading this MSNBC article about President Obama and congressional Democrats debating plans for healthcare "reform," I was amused to see the phrase "President Barack Obama and many Democrats say a government option would serve as a check to keep the private insurance industry honest."

Let's take that previous statement to its logical conclusion and say that every private industry needs competition from the government to "keep it honest." So we'll get the government providing health insurance, operating banks, generating electricity, and producing automobiles to ensure that the insurance, banking, power and auto industries are "honest" and giving consumers the best product they can. (I hope the irony behind my last statement isn't lost.)

There's a very fundamental problem with this idea. The private sector can never compete with the government. After all, the government doesn't need to charge fair market value for the goods and services it offers. Just leave it up to the taxpayers and the Chinese bankers to eat the shortfall from the operating losses. The corporations at least know that if they mismanage their company or if they're not competitive, the company will go bankrupt and get liquidated (unless you're too big to fail, in which case the White House will shovel a few billion dollars your way and strong-arm your creditors.)

Plenty of room exists for reforming our healthcare system and expanding access for lower-income Americans. But most Americans are satisfied with their health coverage, and the government should avoid any "reforms" which put existing healthcare beneficiaries in jeopardy. A public plan would represent a grave threat to many existing health insurers, and Republicans would be wise to fight it. They probably won't have the votes to filibuster, but they can at least put up a fight that they can run on during future elections.

President Obama unleashed a new plan to close corporate tax loopholes this past week. A key provision would end overseas tax shelters that corporations currently use to avoid the tax-man. In effect, this would amount to a corporate tax increase.

In one sense, I agree with the president's moves in the direction of "simplifying" the tax code. I favor a flat-rate tax with no write-offs or deductions. But the president and I differ in that I favor a low flat rate, while the president wants a high flat rate on corporations.

It's important to ask why corporations go through the trouble of creating the overseas tax shelters to begin with. If the corporate tax rate in the US was reasonable, the tax havens wouldn't be worth their time. But with the corporate income tax close to 40%, it's easy to see why corporations exploit every loophole and deduction they can.

President Obama is well-aware of the reasons why corporations exploit loopholes in the tax code. The problem is that he views corporations as his cash-cows for defraying costs associated with healthcare and other ambitious spending plans. If the president isn't careful, his milking of corporate cash-cows will quickly become the slaying of the golden goose.

Self-flagellation seems to be a uniquely American trait. President Obama has it in spades, using his first hundred days to apologize to the nation and the world for what he views as the mistakes of his predecessor. Nowhere is this more apparent than his condemnation of “torture” against enemy combatants at Gitmo and elsewhere. The focus has been placed on waterboarding, a practice used against three high-ranking al Qaeda leaders to make them believe they were drowning and coerce them into divulging info. Furthermore, the Obama Administration is treading a dangerous line by threatening to prosecute Bush Administration attorneys who approved the “enhanced” interrogation techniques.

As Americans, we must ask ourselves three questions. First, is waterboarding a form of torture? If that is true, we must then ask whether torture is ever justified. Finally, if we are going to resort to torture as a means of interrogation, is waterboarding the most effective method? International laws on torture do not name specific practices, so the definition is by its very nature subjective. Yet I think most Americans could reasonably call waterboarding a form of torture.

The much thornier issue is whether torture is ever justified. President Obama, having gained great insight into interrogation during his years as a lawyer, legislator and community organizer, assures us that we can get good intel from interrogations without resorting to torture. (That last line was sarcasm, folks.) This has prompted Dick Cheney to call for the release of memos which dispute the assertion, claiming that Khalid Sheik Mohammed only divulged details of the 9/11 follow-on plot after being waterboarded. Former CIA director George Tenet has also defended the intelligence value of the practice. Even a liberal civil rights attorney like Alan Dershowitz has argued that, in cases where a terrorist attack is imminent, interrogators should be able to secure presidential permission to use a regulated form of torture to extract information.

A vast majority of Americans aren’t afraid to resort to torture if they have reason to believe it will prevent an imminent terrorist attack. Heuristic evidence of this runs on our televisions every Monday night. Jack Bauer is not afraid to use torture if it’s the only way to protect his country. It may not be the main reason why Americans are so fascinated with “24,” but it’s a big part of who Jack Bauer is. He ignores the bureaucrats and the politicians to get the job done and defend America.

So if Americans really believe that torture is justified to prevent an imminent terrorist attack, is waterboarding the best solution to the problem? I am not an expert, and I'm agnostic on the question. Neither is President Obama and expert, and I doubt he's asked for the opinions of a wide variety of psychiatrists to get their professional opinion. The White House and Congress have a duty to investigate this by seeking multiple professional opinions, and to exercise oversight over the FBI, CIA and other government agencies to ensure that only the most effective interrogation methods are used.

An even bigger issue is whether the justice department will prosecute officials who approved “enhanced interrogation techniques,” or turn them over to international officials who want to prosecute Americans on torture charges. This is an extremely dangerous precedent, because it represents an unprecedented prosecution of executive branch officials for differences in policy. The American system is built on the belief that revolutions take place peacefully through elections. Prosecuting Bush administration lawyers is tantamount to Che Guevara butchering the supporters of the Batista regime after the Cuban revolution. It will only lead to an unending cycle of reciprocity every time the White House changes from one party to another. Didn't President Obama claim that he wanted to move forward and not dwell on the past?

Ultimately, the prosecution of people who were acting in good faith to protect our nation will have a chilling effect on anybody involved in the frontlines of protecting the United States from terrorism. Few people will act decisively to protect America when the attorney general is threatening to put you on trial, or hand you over to an interventionist judge in Spain.

The Obama position on torture ultimately sends a dangerous message to everybody who seeks to kill Americans and destroy our way of life. The United States will not pursue you to the utmost of its ability, and we will not do everything in our power to ensure that we’re never attacked again. If Americans are slaughtered in terrorist attacks, it will be cold-comfort to tell their grieving families, "Don't worry, at least we didn't torture anybody before your loved ones were murdered."

Amidst the media jubilation over the first 100 days in the Obama presidency, it’s important for all Americans to review their commander-in-chief’s performance and accomplishments. Looking back provides a clearer picture of the direction in which our country is heading. In that regard, a lot of people are going to be disappointed.

During the run-up to the election, many disillusioned conservatives and Republicans threw their support behind Candidate Obama in the belief that he would govern as a centrist in the mold of Bill Clinton. While I never bought this line of reasoning during the election, I started to fall for it during the period of time when the president-elect was picking people for his cabinet. But 100 days into the presidency, it’s clear that President Obama is exactly the same person he said he was during the campaign. Usually it’s good to stay true to your word, but in this case it’s almost scary that he believes in his own vapid campaign rhetoric.

The Obama campaign won a lot of people over with nebulous promises of “hope” and “change.” But astute political observers could hear Candidate Obama speaking about “spreading the wealth” and global warming and big-government solutions on healthcare. People who crunched the numbers could tell that even with tax increases and an Iraq withdrawal, there was no way Obama could balance the budget due to the untold billions he was planning to spend. But rational thought rarely plays a role in presidential politics. Barack Obama was elected, and he’s now expected to deliver on his promises to be “everything to everbody.”

The first 100 days have not been as dramatic as those of Franklin Rooselevelt, but the consequences will nevertheless be felt for generations to come. The stimulus package, budget bill and extension of TARP ensure that it will be a long time before we see a balanced budget again. The announcement of Gitmo’s imminent closure has left Attorney General Eric Holder scrambling around Europe, trying to get our allies to take potentially-dangerous detainees off our hands (nevermind the issue of detainees who still pose a clear and present danger to the United States.)

The next 100 days will bring even more change, although “hope” will be hard to come by. Card-check legislation (effectively ending secret-ballot union elections,) the cap & trade tax, a renewed assault weapons ban, and a government-backed healthcare plan (which will compete with private insurance) are all up for consideration in Congress. The President also gets to pick a new supreme court justice to replace David Souter. All of these votes will resonate across the American political spectrum for decades.

The hope for a centrist Obama was destroyed due to the overwhelming control the Democrats enjoy in the House and Senate. Senate Republicans need to face facts: Olympia Snowe and Susan Collins aren’t reliable votes, and the Republicans effectively have only 38 senators. Without any filibuster power, Republicans can’t do a thing to stop any Obama legislation unless they can raise enough doubt among Senate Democrats to get 41 votes for filibuster. President Obama is intoxicated with the illusion that his electoral victory is a mandate for drastic change. That’s not too different from George W. Bush in early 2005, but the key here is that there’s no practical reason President Obama needs to compromise with Republicans on anything. He can get his bills passed without a single Republican vote. And due to the country’s shifting demographics and political mood, the electoral map still favors a Democrat majority in the Senate after the 2010 elections.

The next four or eight years will certainly be ones of change. But if you’re a supporter of fiscal discipline and constitutional government, hope will be hard to come by.