Politics

What the Kagan Hearings Do and Don't Tell Us.

I largely agree with Adam 's take on the Kagan hearings so far. Certainly, in terms of appeal she's been nearly flawless. And while this is an extremely low bar, her responses have had more for the grown-ups than those of the previous three nominees. I'm glad that she's explained the problems with John Roberts ' much-praised but entirely vapid "umpires" analogy. And, like Adam, I'm glad she's coherently explained why she doesn't adhere to a grand theory like originalism. After all, as Scalia explicitly reminded us earlier this week (and has implicitly reminded us before), in practice even the Court's "originalists" are pragmatists who don't think that the original meaning of a constitutional provision should always be controlling (not to mention how you'd come to determine the "original" meaning). On the other hand, her performance doesn't really address my central reason for being unsatisfied with the pick: Why pick such an easily confirm-able justice at a peak period of Democratic...

The Feingold Fallacy.

Russ Feingold has a new post up justifying his position and flinging invective at "actors" he doesn't have the courage to name who lack his moral purity. Here's the problem: You won't find the word "filibuster," "cloture," or "procedure" in there at all. I respect Feingold's arguments about critical reforms that won't make it into the bill -- it is far, far from the progressive ideal. I disagree with his argument that this bill isn't worth passing and represents a victory for Wall Street -- it contains a passel of key reforms, many of them underestimated, that would make our financial system much safer and cost Wall Street banks billions in lost profit. Even if you don't agree with me that the bill will make bailouts very unlikely and bring derivatives out of the shadows, the legislation is worth passing simply for the new Consumer Financial Protection Bureau, which has the power to improve the living standards of citizens across the country, especially the working poor. Even so,...

Sprinkle Some Brown on it.

Along with his fellow Republicans, Jeff Sessions spent much of the first day of Elena Kagan 's confirmation hearings weirdly taking aim at the storied judicial career of Thurgood Marshall . Why? Because Marshall was an enemy of originalists, and the senators wanted to portray Kagan, who clerked for him, as cut from the same ideological cloth. Later in the day, though, Sessions compared the Supreme Court's decision in Citizens United , which granted corporations the right to make unlimited political donations, to Brown v. Board of Education , the landmark civil-rights case that declared de jure racial segregation unconstitutional. In the Citizen's United case, he said, the court went back to the principles of the Constitution to apply equal protection of the laws. "Is it treating people equally to say you can go to this school because of the color of your skin and you can't?" Sessions asked rhetorically. "We've now honestly concluded and fairly concluded that it violates the equal...

But Seriously, Folks ...

One of the ways we criticize people on the other side is to say they aren't "serious" about some policy matter, or about policy in general. Even though I've used it myself, it's a problematic thing to say, because what it essentially says is, "There is no need to listen to anything this person says." People who thought it was a bad idea to invade Iraq were derided for lacking seriousness about foreign affairs, for instance, a claim usually made by those who turned out to be spectacularly, embarrassingly wrong about the thing they were claiming such seriousness about. Nevertheless, we are now confronted with an entire army of people running for office who seem rather unserious when it comes to the whole "making laws" thing. They seem to be so intensely ideological that they haven't bothered to think about policy. When you start asking them questions, they very quickly reveal themselves to have a shockingly superficial understanding of things. So after Rand Paul reveals his own...

Gun Rights Don't Address Violence.

After the Supreme Court's ruling that expanded gun rights, striking down Chicago's gun ban, it's pretty clear that nothing involving gun regulation at the state level is settled. In fact, it's decidedly unsettled. The Court's decision was vaguely worded so what exactly constitutes too much regulation is unclear. Gun-rights groups are already preparing to file suit in states with restrictive laws. But the situation is especially dire in Chicago, which had enacted the ban because it has a much higher homicide rate than the country's other two largest cities, New York and Los Angeles, and because most of the murders are gun related. The WSJ has a story today about how Chicago leaders are looking at other ways to regulate guns in light of the law. In addition to strict regulations of gun ownership, Chicago has tried to focus new programs to help young men who might be potential victims of violence. In the wake of the decision, the city's leaders are considering other measures like "...

Economic Uncertainty Is a Political Problem.

Given that most of Alan Meltzer 's column this morning consists of rote repetition of conservative talking points -- are you aware that permanent tax cuts solve all problems? -- it's not really worth engaging, except for this relatively salient point: The president asks for cap and trade. That's more cost and more uncertainty. Who will be forced to pay? What will it do to costs here compared to foreign producers? We should not expect businesses to invest in new, export-led growth when uncertainty about future costs is so large. Indeed, it's hard to imagine businesses will invest in an uncertain future, but Meltzer doesn't appear to be curious about the source of this uncertainty. I am! The problem here is Congress, and the Senate Republicans who obstruct everything on the president's agenda. You may remember that the House of Representatives passed a comprehensive energy-reform bill around this time last year, and if Republicans hadn't filibustered, oh, just about everything (three...

What Can Brown Do for Banks?

Yesterday's financial-reform vote-counting drama culminated in a dramatic reopening of the conference committee at 5 p.m., with one purpose: To get rid of a tax on banks opposed by Senate Republicans. While the loss of Sen. Robert Byrd gained a lot of attention, the real problem in getting the bill over the line was wishy-washy GOPers, led by Sen. Scott Brown . In their defense, the provision they opposed -- a $19 billion tax on the largest banks to cover the costs of regulatory reform -- was not in the Senate bill that Brown, Olympia Snow , Susan Collins , and Chuck Grassley previously voted for; it was a last-minute addition to the bill in conference. On the other hand, the replacement they asked for is also a tax on banks, just a roundabout one. Rather than assess banks directly, the conference committee voted to end the much-derided TARP program early to cover the costs of the bill. (Democrats still intend to pursue a $90 billion tax on banks to recoup TARP expenses). The reopened...

Diving Into Energy Legislation.

Politico is reporting that senators from both sides of the aisle wrapped up their energy-and-climate-legislation powwow today with President Obama , who apparently reiterated his desire for a price on carbon and told everyone present to "aim high." With an energy and climate bill already out of the House, this places the burden squarely on Harry Reid and the Democrats to come up with legislation that can pass the Senate before the end of the congressional session. To that end, here are the various bills Reid will be drawing on to construct the package: The American Power Act (Formerly the Clean Energy Jobs Act). This bill was crafted by Sen. John Kerry and Sen. Joe Lieberman , as well as Sen. Lindsey Graham , who, as we all know, has since pulled back his support. The bill would institute cap-and-trade across all carbon-emitting portions of the economy, initially giving most carbon permits away but then transitioning to an auction system. But it contains a large number of offsets --...

The Little Picture: Petraeus, Front and Center.

Gen. David H. Petraeus before the Senate Armed Services Committee today reassuring lawmakers in the wake of Gen. Stanley McChrystal's departure that the military is still on track and that the July 2011 withdrawal date would merely be "the beginning of a process." (Flickr/ jonphillipsheridan )

Don't Trust the Feds to Be Better Than Arizona.

Arizona has been in the news since the state passed its crazy immigration-enforcement bill, SB 1070, which criminalizes undocumented presence and gives police the power to stop people for looking "illegal." The Obama administration recently announced it would sue the state for usurping the federal government's constitutional power to regulate immigration, and it may not have to wait long for a decision. Yesterday, the Supreme Court agreed to hear a case involving a strikingly similar law in -- you guessed it -- Arizona. The Justices granted cert to Chamber of Commerce v. Candelaria , a challenge to an Arizona law that penalizes employers for hiring undocumented workers and requires them to use the E-Verify system to check immigration status. The central question -- whether the state is stepping on the federal government's toes -- is nearly identical to the issue raised in most of the lawsuits that have been filed against SB 1070; how the Justices rule in Candelaria will almost...

The Battle to Define Heller.

To follow up on Pema 's important post below, it's important to note that absolutely nothing in the Heller decision -- whose reading of the Second Amendment was applied to the states by the Supreme Court yesterday -- suggests that laws preventing persons convicted of domestic-abuse offenses from owning handguns is unconstitutional. Scalia 's opinion strongly suggested that people convicted of felony domestic abuse could be disqualified from gun ownership and was silent on the question of how misdemeanor convictions could affect Second Amendment rights. In general, the Second Amendment rights laid down in the opinion were quite narrow and left substantial scope for reasonable restrictions on the right to bear arms. But it is not inevitable that such regulations will be upheld. As Pema says, defining the scope of Heller will be an important ongoing struggle. Which means that liberal groups (including feminist groups) need to work hard when cases arise, and also that President Obama and...

Feingold and the Financial-Reform Vote Hunt.

There are a lot nervous-making rumors about who will vote for financial reform and why and when, which are summed up pretty well in this story . While passage is more difficult now than anyone had anticipated, it's not time to panic. The current situation reminds me of Washington right after Scott Brown -- also at the center of our current drama -- was elected and everyone despaired of health-care reform's chances to become law. We saw how that went. Indeed, if you think going back to conference to fix a few issues is too much of a hassle, don't forget the complex logistics of passing health-care reform through both houses. Look at the fundamentals of the legislation: The financial-reform bill is popular , majorities have already voted for it, and there will soon be another Democrat from West Virginia in the Senate. Even the wavering Republicans haven't really ruled out voting yes. They're just playing coy to see what else they can get, which is why you're hearing a lot of "I need to...

Creeping Norms.

For an example of how institutional norms can twist language in the most Orwellian ways, just check out this New York Times story on the political implications of Sen. Robert Byrd 's passing, " Death of Byrd Weakens Democrats’ Frail Majority ." But the Democrats' majority only counts as frail if you consider a "majority" 60 votes as the article does. In fact, the 58 Democrats in the Senate constitute a strong majority relative to many other Congresses since the passage of the 17th Amendment. However, we've established an institutional norm whereby you need 60 votes to get a bill passed. It's a new phenomenon, as this well-worth-your-time Brookings paper points out , noting that "the evidence seems to confirm the majority party complaint that they faced record levels of obstructionism ... [and] certainly supports the claim that the Senate has reached a new plateau in the exploitation of procedural prerogatives." To be clear: 60 votes is a super majority, and requiring a supermajority...

The Little Picture: Sen. Daniel Inouye.

With the passing of Sen. Robert Byrd this morning, Democrat Daniel Inouye from Hawaii is now the Senate's longest-serving member. Sen. Inouye has represented Hawaii since it gained statehood in 1959, beginning in the House of Representatives before being elected to the Senate in 1963. He is a veteran, a recipient of the Congressional Medal of Honor, and the first Japanese-American to serve in Congress. Mr. Inouye replaces Mr. Byrd as the president pro tempore of the Senate , making him third in line to succeed the president, after the vice president and the speaker of the House. (Flickr/ kepanok )

A Last-Minute Scramble for Votes on Financial Reform.

With the passing of Sen. Robert Byrd and flip-flopping from Sen. Scott Brown -- who obtained a loophole for banks with hedge funds but opposes a last-minute tax on financial institutions -- the financial-reform bill looks to be missing two key votes in the upper chamber. When the bill originally passed the Senate, it did so with no votes to spare -- and two Democrats, Maria Cantwell and Russ Feingold , voted no because they felt the bill was not strong enough. Now, things get tighter, and it looks like the Senate will not meet the July 4 deadline for passing the bill. Congressional staff are still sorting through the issues, but barring pressure on Brown from home-state constituents, or a sudden willingness on the part of the GOP not to filibuster the conference report, this bill will require Cantwell's and Feingold's support to get it over the top; it will require at least one of the two to switch their cloture vote and help kill the inevitable filibuster. How does this happen? Both...

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