Tuesday, March 29, 2016

No, "Marbury" Did not Settle the Garland Issue, Why do You Ask?

[This Post has Been Updated: Details Below]

Jonathan Adler at Volokh Conspiracy thinks the Senate can sit on its hands with respect to President Obama's nomination of judge Garland.  In a recent post he approvingly quotes Seth Barrett Tillman who says that this issue was fully resolved by Marbury v. Madison. "[F]or over two centuries," said Tillman, "the received wisdom—based on the highest legal authorities—has been that ... the Senate has no duty to consider any of the President’s nominees." In fact, said Tillman, this is so clear that he finds it a mystery how anyone could think otherwise.

What Tillman says is twaddle. The mystery is the fact that Jonathan Adler stoops to adopt this argument without comment, and the fact that the Washington Post and the Volokh Conspiracy let him do it.

Tillman is a "lecturer" at Maynooth University (a venerable campus of the National University of Ireland).

He made his "everybody knows this has been settled for 200 years" claim in response to an Op-Ed by the deans of Harvard law School and Pepperdine Law School. The two deans cautioned that a nonpolitical judiciary is central to our American system of justice. The Senate's refusal to even consider the President's nominee to be the next associate justice of the Supreme Court, they suggest, is playing with fire: it threatens the treasure that is our independent judiciary. They also imply that the Senate's refusal violates Article 2, Section 2 of the constitution.

Everybody knows this was all settled by Marbury v. Madison, suggests Tillman:
Deans Minow and Tacha wrote that “President Obama [has a] clear constitutional duty to nominate a successor” to Scalia. This precise issue was addressed by the Supreme Court in Marbury v. Madison. In 1803, Chief Justice Marshall wrote that the President’s nominating a person to an office is “completely voluntary,” not a duty, much less a constitutional duty. In 1999, the United States Department of Justice’s Office of Legal Counsel issued an opinion stating: “The Constitution thus calls for three steps before a presidential appointment is complete: first, the President’s submission of a nomination to the Senate; second, the Senate’s advice and consent; third, the President’s appointment of the officer, evidenced by the signing of the commission. All three of these steps are discretionary.” See Appointment of a Senate-Confirmed Nominee, Vol. 23 Opinions of the Office of Legal Counsel, page 232 (1999) (Koffsky, Acting Deputy Assistant Attorney General). In short, for over two centuries, the received wisdom—based on the highest legal authorities—has been that the President has no duty to nominate anyone to a vacant office, and the Senate has no duty to consider any of the President’s nominees.
Why Deans Minow and Tacha would assert otherwise is a mystery.
Adler adopts the argument without comment.

What was Marbury Really About?

In fact, Marbury did not raise the Garland issue in any way. The Garland issue is: does Article 2 require the Senate to act on a nomination; the Marbury issue was: did the president make an irrevocable appointment.

Marbury involved the lame duck appointment of several justices of the peace for the District of Columbia. Shortly before the end of his term, John Adams, the second president of the United States (in office March 4, 1797 to March 4, 1801), signed a commission for William Marbury to serve as justice of the peace for a five year term. The new president, Thomas Jefferson, didn't care for the Federalist policies of his predecessor and so he refused to deliver the commission to Marbury and appointed someone else in his place.

Chief Justice Marshall noted that the President has absolute political discretion as to whom to nominate for an office, and the Senate has absolute political discretion whether to approve or not approve any nominee presented by the President.  Even after the Senate gives its approval to a nominee, the president retains discretion whether to appoint or not until such time as he physically signs the commission and hands it to the Secretary of State to place his seal upon it, said the court.

In Marbury Chief Justice Marshall concluded that all requisite steps were followed and Marbury was entitled to his commission. But Marbury lost the case because the court, for technical reasons (no right of mandate) could not grant him a remedy.

The reason we remember Marbury, of course, is not for its result, but for the discussion along the way.  Chief Justice Marhsall strongly asserted and established what was not explicit in the constitution: the right and power of the court to review Presidential and Congressional action for consistency with the constitution.
The judicial power of the United States is extended to all cases arising under the Constitution. Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained. In some cases then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?
Marbury, pp. 179-180.

The Chief Justice discussed the difference between political discretionary powers and duties "assigned by law." With respect to discretionary powers he said, the president "is accountable only to his country in his political character and to his own conscience." Marbury p. 166-167.  The exercise of the President's discretionary political power is not reviewable by the courts, said the Chief Justice. And that's also true if those powers are exercised by subordinate officials, and he gave the example of officials carrying out the country's foreign policy.

By contrast, "where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy." Id., at p. 167. In other words where a duty is non-discretionary it is reviewable by the courts.

The question raised by the Garland nomination is whether the Senate has discretion to sit on its hands and do nothing in response to a nomination made by the president?  Marbury tells us that the court has a role to play in interpreting the phrase "the president shall nominate... and with advice and consent of the Senate appoint;" the court gets to decide whether this means the Senate has a duty to act.

And no, Marbury did not address, answer, or settle the question.  When the issue reaches the court it will be an issue of first impression.


This post has been revised. I made some intemperate comments unfairly attacking professor Tillman in the original version yesterday.  Professor Tillman took exception and I have apologized and removed the offending and erroneous material. I reiterate my apology here. 

Professor Tillman has some interesting observations about the historical usage of the words "will" and "shall." See his short article with Nora Tillman HERE.  His three blogposts arguing that Marbury "settled" that the Senate has discretion to ignore a presidential nomination for the Supreme Court and do nothing are HERE (Pt. 1), HERE (Pt. 2), and HERE (the open letter to Deans Minow and Tacha). 

Here is my email to Professor Tillman following up on the substance: 
Hello Professor Tillman:

I like the short piece on “will” and “shall.” As you note, not much definitive comes from this interesting inquiry. You suggest that in the phrase “The President… shall nominate, and by and with the advice and consent of the Senate …. shall appoint judges of the Supreme Court” the “shall” might be read as “will” in terms of our modern usage. Bryan Garner, of course, is a big advocate of using “will” instead of “shall” in drafting contracts. I’m not sure substituting “will” for “shall” in Article 2, cl. 2 would affect the court’s evaluation.

Your March 24 piece quotes from Chief Justice Marshall in Marbury. You do so, however, without discussing the facts, the issue being decided, the holding of the case, or the overall legacy of Marbury as such. I’m sure they teach this stuff the same at Harvard as where I went to school: we take the holding from cases, and all else is dicta to be treated with care. In order to figure out the holding of the case we need to pay close attention to the facts and the context in which the issue arises. The issue in Marbury was pretty narrow and, indeed, “specific” to use your word: did President Adam’s signing the commission and the Secretary of State affixing his seal make the appointment irrevocable for Jefferson? The subsidiary issue, long forgotten, is “was mandamus available in that case?”

As you know, President Adams had nominated William Marbury (and others) for five year terms as justices of the peace. The Senate gave its consent, and the President signed the commissions and the Secretary of State put his seal upon them. The question whether the Senate has a duty to act was not in question in this case, and was not among the issues raised. Anything the court said with respect to the Senate’s nomination, therefore, was dicta. The issue in the case was whether the appointment made by Adams became irrevocable by Jefferson when he assumed office in light of the fact that Marbury was not yet seated on the bench. Agreed so far?

The court held the appointment became irrevocable, but there was no remedy for Marbury.

You quote the Chief Justice as saying the nomination “is the sole act of the President and completely voluntary.” Well, article 2, cl 2 says “The President shall nominate”…. and you offer perhaps this should be read as “The President will nominate.” In light of the language in the constitution, whether it’s “shall” or “will,” the obvious intent (see Marshall’s discussion at p. 167) of the Chief Justices’s language is “the president has discretion whom to appoint,” not “whether to appoint." You read it more broadly: that the the Chief Justice meant the president has absolute discretion whether to appoint anyone at all. And then you elevate this (I think tendentious) meaning to the holding of the case. I’m skeptical that’s what they teach first year law students at Harvard they should be doing.

Chief Justice Marshall, of course said nothing whatsoever about the Senate’s role being “voluntary.” He focused exclusively on the President. Correctly so, since it’s the president’s action that was at issue. You would acknowledge, I presume, that even if the President’s role were discretionary in the broader sense you claim, (i) it’s dicta, and (ii) it would not preclude a reading that the Senate does *not* have similarly broad discretion; i.e. that the Senate’s discretion is limited to the narrower sense of “discretion to reject or approve a particular nominee.” Justice Breyer, I suspect, would say the president can’t exercise his constitutional power (whether you think this mandatory or discretionary) without the cooperation of the Senate, and so the Senate can’t withhold its cooperation. I don’t follow how you get from ambiguous dicta about the president’s role to nominate and appoint, to “this precise issue (meaning can the Senate sit on its hands with respect to a nomination) was addressed by the Supreme Court in Marbury."

The key piece of Marbury that has come down through the ages, of course, is that it is the court who will make that call. Did you read the recent piece by Adam Liptak in the NYT about Chief Justice Roberts frustration with the broken down nomination process. Have you read my post on Marbury and NLRB v. Canning? I’m sure you agree that Justice Breyer is at least as concerned about the functional needs of the nomination process, and respectful of historical practice, as he is about originalist pilpul about “will/shall.” And I assume you agree this issue is an appropriate one for the court to resolve. Seems, e.g. Marbury would be pretty solid precedent that Judge Garland, for example, would have standing to bring a claim. (Not that he would) And I’m sure you’re aware of the low regard Justice Scalia had for this kind of professorial pontificating.

So how would this go in the Supreme Court if someone frames the issue—e.g. the issue framed by you and Adler vs. the issue framed by Mazzone and Kar? [See my Canning piece] You suggest that the issue is so clear of how it would go that it’s not even up for discussion: the dicta in Marbury, which I think you misinterpret, settled it, you say. You think that’s what Breyer would say? Well, I would not bet on that. I wouldn’t bet on Roberts saying that for that matter.

A brief word on the 1999 Deputy AG Daniel Koffsky opinion regarding whether the President has discretion not to seat a nominee after the nominee has been approved by the Senate. That (not whether the Senate can sit on its hands) is the specific issue raised by Marbury. Koffsky correctly notes that Marbury confirmed the President has discretion whether to appoint a particular individual until the appointment has in fact been made. This is uncontroversial. It adds nothing to the discussion.

I have looked at the Clinton article. I was out of line on what I said about it. I am rewriting the blog post.

In short, what you have presented is arguable dicta about the president’s appointment powers. But I see no argument addressing whether the Senate can elect to do nothing (ever) on presidential nominees. Moreover, reading NLRB v. Canning, it’s doubtful Breyer et al would accept your proposition.

As to Deans Minow and Tacha: to say that your reading of this has been the received wisdom for two centuries and is so clear that it’s a mystery why anyone would assert otherwise, is at the very least calling into question their knowledge and good judgment. They are not alone, of course, in their view that the Senate has a duty to act. And for good reason. Marbury did not raise the issue, and we don’t know what the court would say. To suggest that no one could come up with arguments that might find a receptive ear at the court for the proposition that a) no, Marbury did not address, much less resolve the issue, and b) the Senate may not delegate a sitting president’s appointment powers to a future president 11 months, or three terms removed, as they see fit…. well, that strikes me as lacking of imagination.

Roland Nikles

Monday, March 28, 2016

Does the Senate's Refusal to Give "Advice and Consent" on Garland Raise an Issue for the Courts?

In Marbury v. Madison (1803) the court in a 4-0 decision established the principle that the courts could and would review Congressional and Executive actions for consistency with the constitution. The judicial power of the United States is extended to all cases arising under the constitution, said Justice Marshall. If Congressional or Presidential action implicates the constitution, the courts get to interpret the constitution and decide its meaning.

President Obama has nominated Judge Merrick Garland to replace Justice Scalia.  The Senate, however, has announced that it will not consider or vote on Judge Garland, or any nominee, until after the next President is elected in November.  This deviates from what the Senate has always done.  "The Senate," reports the New York Times, "has never taken more than 125 days to vote on a [Supreme Court nominee] from the time of nomination; on average, a nominee has been confirmed, rejected or withdrawn in 25 days." The practice has not been "put the nomination on the shelf for 11 months until the next president is seated."

Jason Mazzone and Robin Bradley Kar argue that such a unilateral delegation of the President's powers from a sitting president to a future president violates Art. II, Section 2 of the constitution. Jonathan Adler, professor of law at Case Western University in Cleveland, Ohio, argues that the Senate may discharge its "advice and consent" role in any manner it chooses, including doing absolutely nothing until the next president is seated. [See his update HERE.] Who is right? Doesn't  Marbury suggest that this is a question of constitutional interpretation that should be decided by the courts?

In connection with my initial post on the Garland nomination, Lyle Denniston at SCOTUS blog kindly pointed me to NLRB v. Canning for an illustration of the "Senate's awful power to conduct its business as it sees fit." The suggestion is that Canning is an example where the Supreme Court appears to have endorsed the view that the Senate has nearly unfettered control over how it conducts its business and that it may exercise its "advice and consent" power in the way Adler suggests.

I think Canning suggests nothing of the sort. Let's take a look.

The Recess Appointments in NLRB v. Noel Canning (2014)

In Canning a Pepsi Cola distributor unlawfully refused to enter into a collective bargaining agreement with a union. The National Labor Relations Board (NLRB) ordered him to execute the agreement and to make employees whole in accordance with the agreement. Canning sued, challenging the authority of the board to make such an order. Three of the five judges on the NLRB panel, he alleged, were invalid (Obama) recess appointments and hence the board lacked the authority to make any order whatsoever. The U.S. Supreme Court agreed and held these particular recess appointments to be invalid.

But as in Marbury, all the action in Canning happens in the discussion.

Depending on how one viewed the Senate's actions relating to the Canning recess appointments, the Senate was either in recess for five weeks, or it took a series of three day mini-recesses interrupted by pro forma sessions. The Senate adjourned on December 17, 2011 and did not return for regular business until January 23, 2012. However, by unanimous consent, the Senate said that it would hold pro forma sessions every Tuesday and Friday during which no business would be conducted--and, presumably, during which it was understood that most Senators would be absent. The Senate duly marked its pro forma sessions in its records. President Obama appointed the three challenged NLRB judges in a two day window between  pro forma sessions on January 3 and 6, 2012.

The court in Canning refused to look behind the veil of the Senate's pro forma Tuesday and Friday sessions. Specifically, the court would not be drawn into an examination of whether the pro forma sessions were a sham solely intended to thwart the President's ability to make recess appointments. "We have held all matters of method are open to the determination of the Senate," said Justice Breyer, "as long as there is a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained, and the rule does not ignore constitutional constraints or violate fundamental rights."  Canning at p 34. 

The fact that the Court deferred to the Senate's rules and procedures and practices with respect to its pro forma sessions lends support to the argument that the Senate can organize its workings any way it sees fit, and the court will not scrutinize these practices. But in Canning, although the Court deferred to the Senate and its rules regarding setting of sessions and recesses, the Court emphatically did not defer to the Senate in examining the constitutional parameters of the recess appointments clause. In the Garland matter, there is no Senate black box of procedure: the Senate majority leader has announced clear and strong that the Senate will hold no hearings, and will provide no advice and consent regarding the Garland nomination, and intends to defer any consideration of a replacement judge for Scalia until the next president is elected. 

NLRB v. Canning suggests that the Supreme Court would not hesitate to interpret the meaning of Article 2, Section 2 in a manner that it deems consistent with past Senate practice, and the needs of a well functioning government. There is much in Canning that should make Mazzone and Kar optimistic that a challenge to the Senate's attempt to delegate the power to fill a Supreme Court vacancy from a sitting president to a future president would find a receptive audience at the Court. 

The "Advice and Consent" Process is Caught in Partisan Bickering: Court Intervention Could Help.

When the constitution was drafted Congress only met once a year for not very long. It was foreseeable, indeed likely, therefore, that vacancies would occur in the Executive branch, and that the President may need to appoint judges (and others) while Congress was not in session. Therefore, the Founders provided for an exception to the "advice and consent" clause: "The president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." For most of our history this proved uncontroversial. 

But the country has changed. Since the beginning of the 20th century Congress has been in session more or less continuously, with only relatively short recesses and inter-session breaks. Arguably, therefore, there is less need for recess appointments. 

In the past couple of decades, however, the Senate has obstructed the president's primary appointment route for cabinet heads, lower executive branch officers, and judges for partisan political reasons. From 1987 to 2005 the nomination and confirmation of non-cabinet agency heads took an average of 236 days. See NLRB v. Canning at p. 17. As Sandy Levinson has observed, "One can 'starve the beast' almost as easily by refusing to allow the appointment of officials charged with administering the national government as by refusing to fund it."As a result, Presidents began to use recess appointments as a way to fill vacancies in light of the Senate's "advice and consent" obstruction. This raised the fear among some--e.g. Justice Scalia expressed this fear in his dissent in Canning-- that aggressive use of recess appointments by presidents could "nullify the Senate's role in the appointment process."  

Not to worry. Justice Scalia's hyperbole was entirely misplaced in light of Justice Breyer's Canning decision. The decision shares a lot with Marbury: like Marbury it strongly asserts the court's role in interpreting the constitution, and like Marbury it affirmed a right but ultimately refused to grant a remedy.  In Canning, the Court affirmed the president's right to make recess appointments but, in reality, it provided a roadmap for the Senate to block recess appointments. 

An Ambiguous Clause that Needs Interpretation

The court noted that this was the first time it was called upon to interpret the recess appointment clause (Article II, Section 3). The court noted that the clause is ambiguous ("fill up ... vacancies that may happen during the recess of the Senate"). Specifically was this intended to apply to inter-session recesses only, or does it also apply to intra-session recesses? Does this apply only to vacancies that first "happen" during a recess, or does it also apply to vacancies that "happened" while the Senate was in session but continued into a recess? And how long must the recess last for the President to exercise a recess appointment? 

As in Marbury, the Canning court strongly asserted its role and responsibility to resolve these types of ambiguities. Resolution of constitutional ambiguity is not what the court left to the Senate's internal workings. The majority held that 1) the recess appointment power applies to intra-session recesses as well as inter-session recesses; 2) that, although a more natural reading of the "happen during the recess" clause would be that the vacancy must first be created during the recess, a better interpretation in light of the overall purpose of the provision and the needs of government is that it also applies to a vacancy that first "happens" while Congress is in session but continues into the recess; and 3) that in looking at the history of how presidents and the Senate have historically handled recess appointments, the duration must be for a minimum of 10 days.  The court split 5-4 along the usual lines in how to resolve these ambiguities, but all Justices were in agreement that it was absolutely the court's role to interpret the recess appointment clause. 

Does Canning Suggest the Court Would Defer to Mitch McConnell's attempt to Deprive Obama of the Ability to Appoint a New Justice?

I think not. The Court made clear in Canning that its deference, even with respect to the Senate's inner workings, is not absolute. For example, the Court noted that the purpose of the recess appointment clause is for the Federal Government to keep functioning while the Senate is unavailable. "This purpose would count for little were we to treat the Senate as though it were in session even when it lacks the ability to provide its 'advice and consent.'" In other words, if it was apparent that the Senate in fact did not have the capacity to act during its pro forma sessions, the court would ignore the pro forma session (and would consider the recess to be uninterrupted). 

The Senate, of course, knows how to take a hint. It seems clear that from now on, there will be no more recess appointments unless the Senate wants there to be one. 

But this does not mean we should conclude the court would defer to the Senate's internal rules in considering a Senate refusal to exercise its "advice and consent" role with respect to judge Garland, or anyone else the President might suggest. This does not mean the Court would permit the Senate to effectively block the main path for the appointment of judges and delegate the presidential power to appoint a judge from a sitting president to a future president, not to be determined for nine months. 

Nothing about Canning suggests the court would be shy about interpreting the constitution in order to resolve the dispute framed, for example, by Mazzone/Kar and Adler. 

Consider these observations from the majority in Canning:
  • There is a tension between, on the one hand, the President's continuous need for the assistance of subordinates, and Senate practice that might delay appointments on the other hand. Will the Supreme Court look kindly on the Senate holding up the appointment of a replacement justice until the next president...., or perhaps the president after that? I don't think so. 
  • The court noted that it places significant weight on historical practice in interpreting ambiguous provisions.  Will the Court look at Article 2, Section 2 and the fact that the Senate has acted (on average) within 25 days on every appointment, and never delayed longer than 125 days and conclude that Mitch McConnell can tell President Obama to take a hike, we'll provide advice to the next president...., or the one after that? Will the court look at the Senate's own explanation of what it does in this process and ignore it? I don't think so. 
  • In a separation of powers case, as in any other, it is the duty of the judicial department to say what the law is. Will the court say the law is the Senate can willy nilly torpedo the smooth functioning of government? I don't think so. 
  • Justice Breyer quoted from a James Madison letter to Spencer Roane: "It was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms and phrases necessarily used in such a charter... and that it might require a regular course of practice to liquidate and settle the meaning of some of them." Does that sound like a court that will hesitate to tell the Senate what its role is in the nominate-advise/consent-appoint scheme in Article 2?  I don't think so. 
  • Justice Breyer was critical of Theodore Roosevelt's attorney general, who in a memo suggested that the recess appointment power did not extend to intra-session recesses: "Knox all but confessed that this interpretation ran contrary to the basic purpose of the Clause. For it would permit the Senate to adjourn for 'several months' to a fixed date, and thereby seriously curtail the President's power of making recess appointments." Does this sound like a court that will hesitate to tell Mitch McConnell what's what? I don't think so. 
  • The constitution is intended to endure for a long time, noted Justice Breyer. Does this sound like someone who will hesitate to impose a duty on the Senate to "do its job" when necessary to make the constitutional framework endure? I don't think so. 
  • The purpose of the recess appointment clause, said Justice Breyer, is to ensure the continued function of the Federal Government. This purpose would count for little, he said, were we to treat the Senate as though it were in session even when it lacks the ability to provide its "advice and consent." Does this sound like the court would be willing to look at the "advice and consent" clause in Article 2, Section 2 with an eye towards the needs of the continued function of the Federal Government, including the need to have a timely replacement of justices departed from the Supreme Court.  I think so. 
The Canning court emphasized that the recess appointment is a subsidiary, not the primary method of appointing officers of the United States. The Federalist papers make clear that the founders intended the appointment with advice and Consent of the Senate to be the norm. But for appointment with advice and consent of the Senate to be the norm, the system must be functional. 

Over the past 30 years the appointment process has steadily broken down. In Canning we see that the Court did not hesitate to explain and give definition to the recess appointments clause in order to make it workable. The Court gave definition to the type of recess that would give rise to the recess appointment power, to whether a vacancy must happen during a recess, and how long such a recess must be in place before the power can be exercised. 

Similarly, the appointment with "advice and consent" of the Senate clause is ambiguous. How should the Senate exercise its "advice and consent power?" In light of more than two hundred years of practice, how long does the Senate have to act? What happens if the Senate fails to exercise its advise and consent role? 

All of these questions are ripe for the Court to decide in the Garland case. Marbury, Canning, and hundreds of cases in between suggest that the Court would not shy away from its referee role between the President and the Senate.

The question is who has standing to bring such a suit, how should it be framed, and what's the remedy for a violation?

You can follow me on Twitter @RolandNikles.

Friday, March 25, 2016

Is Mitch McConnell Unlawfully Attempting to Delegate the President's Constitutional Powers?

Jason Mazzone and Robin Bradley Kar (professors of law at University of Illinois) have published a complete history of all Supreme Court judicial appointments going back to the drafting of the constitution. You can download their draft article at Balkanization. 

They also make an interesting argument: by refusing to consider President Obama's nominee in order to delegate the power of appointing a new justice to the next president (whoever that may be) the Senate is violating the constitutional scheme. Although the Senate may reject a nominee for political reasons, the Senate may not refuse to act altogether in order to delegate the task of appointing a judge from a sitting president to a future president. 

They point out that: 
Historically, in every one of the 104 prior cases where an elected President has faced a Supreme Court vacancy and has nominated a replacement prior to the popular election of a successor, that President has been able to both nominate and appoint a replacement Justice—by and with the advice and consent of the Senate. Constitutional text, structure and history thus speak in a uniform voice.
This is what we would expect. Elected Presidents who face a Supreme vacancy should be able to nominate a replacement and have the replacement considered by the Senate because that's what the constitution contemplates, even if it may take several tries.

To be sure, the Senate can and should still thoroughly vet any candidate, including Judge Garland, and scrutinize the candidate’s record and suitability for a seat on the Supreme Court. Senators also have wide latitude to vote down particular nominees, and the Senate has broad discretion to determine its procedures for evaluating nominees. However, an outright refusal to do anything at all with respect to nominees is a different matter. There is no precedent for that approach and considerations of constitutional text and structure weigh against it.
What other constitutional arguments can be brought to bear? And who will take this up, and where?

I can't imagine that the justices on the Supreme Court would not be receptive to imposing some order on what is a very broken judicial nomination process if they are provided with an opportunity to interpret Article 2, Section 2 of the constitution ("President shall nominate, .... and with advice and consent of the Senate, shall appoint....")  Heavens knows they've all been put through the ringer.

Wednesday, March 23, 2016

Two Views of Purim; and a Notable Omission

King Ahasuerus welcomes Queen Esther
This evening is the start of the festival of Purim. Here are two very different takes on the holiday.

A Jewish Carnival

It's a holiday of the absurd, says Deena Aaronoff: a Jewish carnival. Social hierarchies are suspended, gender roles get mixed up, power roles are reversed, and adults are supposed to get drunk to the point where we can't tell right from wrong. We exchange food baskets, we give charity to the poor, and, of course, we tell the story of Esther.

Carnival days in medieval Europe suspended all rules and authority in mock celebration, thereby reinforcing the very power structures that are ceremoniously upended for a circumscribed period of time. It reminds us we live in an established order, and that this order is of our own making; it works through compliant behavior.

We celebrate during the day instead of in the evening. It's wacky.

The custom involves wild costumes that break taboos which we observe the rest of the year. Children dress as kings and queens, men dress as women, serious people wear crazy costumes. It reminds us that life is a performance, that ultimately our business suits are also a costume.

And hamantashen. (Did Persian officials really wear triangular hats? Nah!) It's all good; it's Purim.

Values are inverted. We are frivolous, we suspend judgment. What is good is bad, what is up is down. Alcohol helps.

The story of Esther is also a story of reversal of fate. The word comes from the Persian "pur," for lottery. Two courtiers are set to assassinate the king; instead they are found out and hanged. Mordecai is a descendent of Jews brought to Babylon in captivity, yet his adopted daughter becomes queen. Mordecai saves the king, yet he is ignored. He is slated to be killed, yet he triumphs. The whole Jewish people are set to be annihilated, yet they come out on top. "In every generation....;" but not this time.

It raises a Purim paradox, concludes Aaronoff. The story is absurd; it's a Persian sex farce with a jealous king, a manipulating queen, twists and turns and crazy fortunes to rival Shakespeare. God makes no appearance in this story. Does it all unfold to some purpose or end? Is there a plan in the lottery, or are we sunk? Is the whole thing a matter of crazy chance?

A Manifesto of the Jewish People

It's a tale of assimilation, integration, and the assertion of Jewish peoplehood, says Shraga Bar-On, who wrote his PhD thesis on the book of Esther. 

The destruction of the Temple in Jerusalem and the subsequent Babylonian exile of the Jewish elite (597-586 BCE) came as Israel unwisely got caught up in power plays between the Assyrians, the Egyptians, and the Babylonians. The long lived Assyrian empire gave way to the Neo-Babylonian empire, which lasted not quite a century, roughly from 626 BCE to 539 BCE. Cyrus the Great took over Babylon in 539 BCE and this formally ended the Babylonian captivity. Jews were given permission to return to Palestine. But many of them did not. 

Neo-Babylonian Empire 626-539 BCE
In fact, many Jews did quite well in Babylon. The story of Esther, consensus has it, is set in the reign of Xerxes I, who ruled from 486-465 BCE. Mordecai, "the son of Jair, son of Shim'e'i, son of Kish, a Benjaminite" appeared quite comfortable in his life there. He adopted Hadas'sah, the daughter of his deceased uncle, who was a very beautiful girl. The extent of their assimilation in Persian society is marked by the fact that Mordecai assumed a name after a Persian god, and Hadassah changed her name to Esther after a Persian goddess. They did not speak of their Jewishness. 

Esther reached the pinnacle of success in this Persian world when she became the new queen, and Mordecai was now very close to the king's court. Life could not be better.  That is the story of assimilation. 

But fortune changed. Mordecai crossed paths with Haman, the Ag'agite, the son of Hammeda'tha, who was promoted to be the king's chief counselor. It is the position Mordecai coveted. Mordecai would not bow to Haman, and Haman became furious. 

Haman began to incite in classic anti-Semitic fashion and "Haman sought to destroy all the Jews, the people of Mordecai, throughout the whole kingdom of Ahasuerus." 

And as noted, there was a reversal of fortune. It involved Mordecai and Esther embracing their Jewishness. Esther remained queen, Haman and his sons were hanged, and Mordecai became the King's chief counselor. Mordecai, Esther, and all the Jews were out of the closet now as proud Jews. They are proud and successful diaspora Jews; like Jews in America. That is a story of integration.

They are not Zionists, Mordecai and Esther. Notably, they feel no need to return to Israel. They have it good. They have power. Their Judaism is a worldly Judaism of the diaspora. And they have the confidence to fight back against anti-Semitism.

A Notable Omission

I like Bar-On's tale of assimilation and integration and diaspora. 

We must note, however, that this story does not end happily for Haman and his people. The story does not end with justice. Mordecai and Esther obtain a decree from the king that "allowed the Jews who were in every city to gather and defend their lives, to destroy, to slay, and to annihilate any armed force of any people or province that might attack them, with their children and women, and to plunder their goods...." See Esther 8:9-14. But when the appointed day came, this 14th day of Adar, there was nobody to rise up against the Jews because the Jews were strong. Nevertheless, even though they were not attacked, "the Jews smote all their enemies with the sword, slaughtering, and destroying them, and did as they pleased to those who hated them. In Susa the capital itself the Jews slew and destroyed five hundred men,"  Esther 9:5-10. 

In the provinces the Jews slew 75,000 of those who hated them. And then they made a feast.

Haman's hatred of the Jews is offered as justification for the slaughter. In the video presentation (link above), Bar-On mentions Haman--and the audience begins to boo. That is their appointed role in this make-believe world of Purim. School kids act out this role everywhere with gusto and rattles. Haman is despised. He is the villain who has everything coming to him. He and his people. He is the symbol for "In every generation there will arise one who wants to smite the Jews..." Woe is us. 

For Netanyahu last year it was the Iranians and their nuclear program. This year it's knife wielding teenage girls at checkpoints and Israeli peace activists like Breaking the Silence. For Ari Shavit, in his My Promised Land, it was the Iranians and the nuclear bomb, and Arabs surrounding Israel on all sides. They hate us; they will always hate us. "In every generation...." It is used to justify the occupation, now 50 years long. 

"What is Mordecai's problem?" asks Bar-On rhetorically at 18:55 of the video. Mordecai was jealous of Haman, he suggests. He wanted to be the king's counselor. And this is true as far as it goes. "But Haman, Haman is taking Mordecai to a larger context," Bar-On continues. It is a context of age-old anti-semitism. "Haman .... is a paradigm for anti-Semitic claims," says Bar-On. 

"This is the story of anti-Semites. You can try as best as you can to assimilate, but they see you as separate!" That is how Bar-On defines the problem presented by Haman, by anti-Semites. Mordecai and Esther are a minority in the Persian environment. What should they do? Assert their Jewishness, stand their ground, and fight off the anti-Semitism, that's what they should do.

I think that is right. The danger is that in asserting a "muscular Judaism," by fighting back too much we become blind to justice. 

What Bar-On notably omits from his talk is that Haman has reason to hate the Jews. He is a descendent of king Agag of the Amalekites. And part of the story is that when the Jews first conquered Palestine, back in the days of king Saul, they did it with genocide and ethnic cleansing. With the help of God, to be sure. But it doesn't make it any nicer; it doesn't take away from the fact that the Agagites have reason to be antagonistic with the Jews in this story. 

Here is the relevant section from Samuel 1:15:
"And Samuel said to Saul, 'The Lord sent me to anoint you king of his people Israel; now therefore hearken to the words of the Lord. Thus says the Lord of hosts, 'I will punish what Am'alek did to Israel in opposing them on the way, when they came up out of Egypt. Now go and smite Am'alek, and utterly destroy all that they have; do not spare them, but kill both man and woman, infant and suckling, ox and sheep, camel and ass.'
"So Saul summoned the people and ... lay in wait in the valley. ... And he took Agag the king of the Amal'ekites alive, and utterly destroyed all the people with the edge of the sword. But Saul and the people spared Agag, and the best of the sheep and of the oxen and of the failings, and the lambs, and all that was good, and would not utterly destroy them; all that was despised and worthless they utterly destroyed."
And there are those in Israel today who look at these words and think, we came in 1885--and the Palestinians "opposed us on the way, when we came up out of the diaspora;" and they think the Palestinians "opposed us as we pushed into the West Bank and Gaza in 1967." And they think "the Palestinians still oppose us." And so they think "We will utterly destroy them, and we will not spare them." In a recent Pew survey 48 percent of respondents said that they favor expelling Arabs from the land. Bar-On knows these things and said nothing in his talk on Haman. It's a notable omission.

Yes, there has been a reversal of fortune. But life is absurd. We live in an order of our own making, as Deena Aronoff suggests. We look at Haman and he was ultimately a loyal subject to his king. He had a wife. Normal domestic relations. His enmity was grounded in bitter experience.

It's Purim. It's a topsy turvey world. It reminds us that right wing government is not ordained. And it is not forever.

Happy Purim to all.

Monday, March 21, 2016

The GOP has Lost its Mojo, and That's Bad

Speaker of the House Paul Ryan/AP
Brad DeLong has written two important posts on how today's Republican party has lost its mojo. Historically, he says, the Republican party has been the party held together by an ideology of wealth, innovation, hard work, and enterprise, and dominated by those who are making it. That party embraced individual industry, innovation, hard work, responsibility, and creative destruction. That party had the confidence to be technocratic and to compromise. That party was good for the economy and good for the country. However, this positive GOP has lost its way and that's bad. Bad for the GOP and bad for the country.

Here is DeLong from his first post, What are the Essential Principles of America's Political Parties
Gradually, between the political end of Nixon in 1974 and the ascent of Gingrich in 1990, the Republican Party transformed itself from the party of those confident ... they have a lot to gain into the party of those scared, who feel that they had something to lose. Whether they fear civil rights that would take their race privilege and assorted economic advantages, feminism that would take their gender privilege and assorted economic advantages, social democracy with its progressive taxes that would eat away at their wealth, new technologies, new people, or simply change itself [that] would in some way disrupt ... what they had, even if what they had was not much--they all fear, and they all ally together.
The GOP has gone from a party able to compromise because it had confidence in its abilities and the strength of the country, to a party that obstructs because it is fearful and looks over its shoulder.
The Eisenhower-Acheson-generation Republicans--and also the Hoover-Coolidge-generation Republicans--worshipped at twin altars: that of equality of theoretical opportunity, and that of accomplished wealth which was the due and proper reward of enterprise and hard work. The Gingrich-Trump Republicans fear even equality of theoretical opportunity. The big trouble with America, they feel, on the economic side is that some hungrier, cleverer immigrant or minority member might outcompete you; and on the cultural side [it's] "political correctness"--[the notion] that there might actually be some social-cultural blowback: that one might be judged a loser for saying racist or sexist things. 
The GOP has changed from "the party of those who like property and feel that they have everything to gain from enterprise, innovation, and change" to the party of "those who like property but fear that they have everything to lose from enterprise and change."
America can, I think, make good use of a party of enterprise and creative destruction—and of the property wealth that that generates. But what need does America have for and what use might it make of a party of fear and stasis—and of property wealth that is above all else scared that somebody might take it away.
And DeLong expands on this in a post today--The Rumpublican's Dilemma
[T]he Republican Party ... [has undergone] a very long term transformation from the party of those who wanted to carry on and grow the nation’s business to the party of those who wanted to protect really-existing property. And this second party is, I think, quite useless and detrimental to the world and the nation....
The transformation of the Republican Party from a party of winners engaged in enterprise to a party of, well, as Trump would say, “losers” trying to protect their property has also been accompanied by another transformation: from a party that regards its opposition as a legitimate opposition, a loyal opposition, to a party that does not—that regards the Democratic Party as an existential threat to America. 
The GOP has lost its inner confidence and it needs to get its mojo back.
Barack Obama promised his supporters that he would run a government not for Blue States or Red States but for the United States. And to that end Obama has attempted to adopt: (1) John McCain's global-warming policy, (2) Mitt Romney's healthcare policy, (3) George H.W. Bush's foreign policy, (4) Bill Clinton's tax policy, (5) Ben Bernanke's preferred fiscal policy--and (6) kept Ben Bernanke on at the Fed to run monetary policy--while (7) continuing the George W. Bush/Henry Paulson banking- and housing-crisis policy. Thoroughly centrist governance. Thoroughly technocratic governance.
The GOP needs to recover its ability to engage with such centrist technocratic governance in a way that is not fearful of losing entrenched interests, in a way that is good for the country. The GOP needs to get its mojo back so that it can again embrace creative destruction and compromise with the confidence that this is good for the country.

DeLong offers some advice for Paul Ryan, but as even Ross Douthat has noticed, Paul Ryan is paralyzed; he's not listening and he cannot act.
What [the GOP] should do, I think, is join the Democrats and try to make technocratic arguments to shift Democratic policy positions away from stupid leftist shibboleths, and perhaps to add some right-wing ideas that make actual technocratic win-win sense to the Democratic policy mix. But they are not going to do that. And I have no idea what they will do…
Brad's two posts include a historic overview with contributions from Dean Acheson's little red book and from current commentators.  I recommend you read both posts in full.

You can follow me on Twitter @RolandNikles 

Saturday, March 19, 2016

No, The Constitution Doesn't Contemplate Stonewalling as Part of the Nomination Process, Why do You Ask?

Merrick B. Garland/AP photo-Evan Vucci
So Mitch McConnell is telling President  Obama (and I'm paraphrasing): "Take a hike, we won't consider your nominee for the Supreme Court."

Our Broken Nominations Process

Justice Scalia, the firebrand strict constructionist Supreme Court justice, who served the institution for nearly 30 years, died in his sleep on John Poindexter's ranch on February 13, 2016. Donald Trump promptly fanned a nutty conspiracy theory about his death. Within an hour of the announcement of Saclia's death, Senate Majority leader Mitch McConnell made his own announcement: "This vacancy should not be filled until we have a new president," he said. He vowed not to meet with or grant a hearing to anyone nominated by president Obama. McConnell was soon egged on by Senators Ted Cruz and Marco Rubio. “Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement,” Cruz said on Twitter.

Mitch McConnell, Senate Majority Leader/AP photo
The Face of Obstruction
A lot has changed in the judicial nomination process since Scalia, at age 50, was unanimously approved by the Senate on September 26, 1986. The judicial nomination process is broken and it needs to be fixed. If Obama is successful to appoint Garland after a prolonged political fight he will have done nothing towards fixing the larger problem.

Miguel Estrada and Benjamin Wittes have pointed out in a Washington Post article that the GOP's refusal to meet with or grant a hearing to Garland is but the latest disgrace in a judicial nomination process that has been broken for some time. For decades now, both parties have held up judicial nominations in committee for very long periods of time, and both parties have obstructed  nominees from receiving an up or down vote (e.g. by filibustering). As a result there are currently  83 vacancies across the federal judiciary (about 2.5%). In other words, the Supreme Court is the least of our worries.

Here are Estrada and Wittes:
We have both argued for a world in which judicial nominees receive prompt hearings and up-and-down votes based solely on their objective qualifications — education, experience and temperament. But that has not been our world for at least two decades. The savvy citizen should ... heavily discount anyone who speaks in the language of principle about the rules or norms that do or should govern the treatment of either a judicial nominee or the president who sends that nominee to the Senate. As recent history demonstrates, the only rule that governs the confirmation process is the law of the jungle: There are no rules.... 
Both [parties] have chosen, in increments of one-upmanship, to replace a common law of judicial nominations that was based on certain norms with one based on power politics alone.
Estrada and Wittes incorrectly suggest that both parties are equally guilty and that this GOP stonewalling of the Garland nomination may be another escalation, but that it is not different in kind.  I disagree. Up until now what we've seen is delays in the judiciary committee, and filibusters by individual senators aimed at preventing an up or down vote. In other words, we've seen procedural maneuvers that have prevented the Senate from acting. But what we have with the GOP's current refusal to consider anyone the president might nominate is truly new. The GOP's present obstruction is not a procedural delay, rather it is a decision by the Senate not to exercise its advise and consent role.

Statistically, obstruction has been raised to unprecedented levels during president Obama's term.

The Nomination of Judge Garland

The president has a duty to nominate and appoint judges to the Supreme Court. Article 2, Section 2 of the constitution says "The President shall... nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court." There is no "except in the last year of the president's term" clause.

This week President Obama nominated judge Merrick B. Garland to fill the vacancy created by the death of Justice Antonin Scalia. There is widespread consensus in Congress, across both parties, that judge Garland is a moderate and excellent judge. He received strong support from Republicans when he was affirmed to the Court of Appeals for the District of Columbia Circuit in 1997, and again when he was appointment as chief justice of that court in 2013. There is a widespread consensus that if granted a hearing, Judge Garland would be approved.  But, as noted, the Senate Majority Leader, Mitch McConnell has vowed that the Senate will not meet with, grant a hearing to, or vote on the nomination of judge Garland.

How Does a "Nominate-Advise & Consent-Appoint" Mechanism Work Anyway?

Some have suggested that "The Senate may withhold its consent by voting down a nominee, but it may also withhold its consent by refusing to act, or otherwise failing to confirm a nominee." I think that is incorrect. A nominate-advise & consent-appoint mechanism is not workable if the party that is supposed to advise and consent goes AWOL.

To be sexist for a minute, if we enter into a pre-nuptial agreement which says "Food purchases will be made by the wife, with advice and consent of the husband, and then the wife shall cook the meals...." and the husband says "don't bother me, I'm at work!" we know what happens next.  The wife will do her food shopping, and cook the meal, and the husband had better not complain about the choices made.

Imagine Hillary Clinton as president through 2024--sorry if this makes you shudder--and a continued GOP majority in the Senate. Are people seriously suggesting that the Republicans in the Senate, consistent with the constitution, could stonewall any Supreme Court appointment through 2024? This is not just about the balance of the Obama term. Obviously Republicans would prefer a 4-4 split on the court indefinitely rather than a 5-4 liberal split. Why would they act to approve a new Supreme court judge under president Clinton?  And remember those 83 vacancies. Are people really suggesting that the Senate could continue to degrade the federal judiciary by allowing that vacancy rate to climb to 5%, 10%? Is that really what the constitution contemplates?  I don't think so.

What's Next?

This is going to go by the way of politics. Obama has formed a political team headed by Stephanie Cutter to fight for the Garland nomination. Cutter was an Obama deputy campaign manager from the 2012 election. There are already some cracks forming on the Republican side. Republican leaders have spoken with Garland by phone, and senators Grassley, Ayotte, Johnson, and Portman (all up for election this year) have said they will meet with Garland--even if they refuse to formally consider the nomination. Republican Senators Collins and Inhofe also have indicated they will consider meeting with the candidate. Presumably McConnell will be able to head them off, but if Hillary Clinton is elected president in November--which seems likely--chances are Garland will be confirmed before she takes office.

But if there is ever an opportunity for the courts to weigh in to fix the current disfunction in the nomination process for judges and executive offices, it seems this is it. The current fact pattern is as favorable as the president could hope for to have the courts impose some order on the nomination process. It is surprising to me, therefore, that there is not more consideration given in public discussion to the possibility of involving the courts. I will examine the possibility for a legal option in a separate post.

Friday, March 18, 2016

Samantha Bee is Perplexed, and So are We.

With every passing Trump ragefest, it gets harder and harder to treat his supporters like actual adults—but Samantha gives it a shot.
Posted by Full Frontal with Samantha Bee on Wednesday, March 16, 2016

Saturday, March 12, 2016

What's Wrong With White Working Class Nostalgia?

Everybody is still trying to figure out that Trump phenomenon. David Roberts at Vox.com does his bit by trying to find the positive side of white working class nostalgia in the song, above. And maybe science can help, he suggests. I think he misses the boat on the redeeming value of white working class racism, and I'm skeptical that science can help.

David Roberts grew up in a small Southern town. You know, a town like the laid back place Marion Morrison/aka John Wayne talked about in The Good Things back in 1973. Roberts looks back at his childhood and tries to capture that White Working Class Nostalgia, that feeling of community, togetherness, sense of order, where men love their wives in an Ozzie and Harriet kind of way, where white dads go fishin' with their white and straight sons, spending their working days with white co-workers just wishin' to make things better; where firemen have no troubles worse than climbing a tree to set a kitten free, and white policemen have nothing better to do than help you across the avenue; where your white neighbor offers you a ride when your American made car is broken down, and you spring two cents for the white kid trying to buy a soda pop from the white shopkeeper; where all Sunday mornings are sunny mornings, and the Christian church bells ring loud and clear, and you climb into the family car and drive to church, where all the men are white and love their wives in that Ozzie & Harriet sort of way; and where all know the future of this land of ours is strong and bright as long as we have love, faith, hope, and God above. That place.

"For me," says Roberts, that song "represents the flip side of White resentment..., white nostalgia, a yearning for something lost." Even though subaltern groups (i.e. blacks, Latinos, gays, the disabled, poor new immigrants, and non-conformists of all stripes) were excluded from this idyll, the picture, he says, represents a primal urge that is "worth understanding, and honoring."
"For many people" [and here, I suppose, we must read 'conformists to this 1950's white idyll'] "those social bonds, that Us, is constitutive of identity, and when such communities are degraded by economic and demographic forces, those people can feel as though they are being erased." .... 
Over the past few decades, the US [read white] middle class has shrunk. Wages have stagnated, manufacturing jobs have left, unions have all but vanished. The white working class has lost pensions and health care benefits it once took for granted. Depression, suicide, and prescription drug abuse are on the rise among middle-aged white Americans. Almost all jobs created since the recovery have gone to college graduates.
White working-class Americans are getting married less and report having fewer close friends. Their social capital is draining away, along with their jobs, their savings, and their dignity. ... Meanwhile ...  The share of the US population that is foreign-born is four times what it was in 1970, having risen from 4.7 percent then to 13.1 percent in 2013.
In a little over a generation, right-leaning, working-class whites went from defining America — being the standard, the base model, the hard-working, self-reliant American dream made flesh, about which kitschy songs are written — to being, in their view, an embattled minority. 
Their social values are mocked and rejected by mainstream pop culture, and they are condescended to and dismissed by elites. Rightly or not, they've come to view immigrants, other ethnicities, and often liberals as competitors in a zero-sum fight.
They are pissed off and panicky about it, and while we need not accept the uglier forms the backlash takes, we should still acknowledge the unique angst that results when the communities that most value order are struck by the most dislocation.
The Ozzie and Harriet idyll has been disrupted, the white middle class is under economic pressures. So what's to be done?
[W]hite working-class Americans (like all Americans) should be offered some shelter from those changes, some sense that they will be okay, that they are still part of the American Us, no matter what. They deserve that. They are not hicks or proto-fascists for wanting it. And if they don't get it, Trump happens.
The article overlays this with a veneer of psychological studies and "science" to explain Trumpism. The parties have separated themselves into psychological types, reports Roberts, with authoritarians gravitating to the Republican Party. "Authoritarians" want order, a settled world, obedience from their kids. And authoritarians can be identified by social scientists. They respond more vehemently to "negative stimuli," to "threats." They may have larger amygdalae! Hence Trump??? Yeah, yeah, yeah.  That part is interesting, but I wouldn't jump to any conclusions. Also, isn't this all a bit condescending to those white authoritarians under the microscope?

The problem, it seems to me, is there is NOTHING worth honoring about the Ozzie and Harriet idyll. The white working class nostalgia of The Good Things is not the positive flip side of white racism: it is the embodiment of white racism. It is the definition of white racism. It is the manifestation of white bigotry. And note, I'd rather be called a bigot than portrayed as a rat in a maze.

Sure enough, the white working class is under pressure and they should be offered shelter from the storm, like all Americans. Just like Roberts says. But as the saying goes, God helps those who help themselves. The white working class are trying to help themselves by voting for Trump. They think he is offering a helping hand. I think they'd be better off feeling the Bern and getting rid of every Republican in sight. "If you can't beat 'em, join 'em." They should try that. But by rejecting Cruz, Kasich, Rubio, the dozen clowns who have departed the stage, and the Republican establishment (from Paul Ryan to Mitch McConnell to Reince Priebus and "the superpac billionaires" as Bernie would have it) who is to say they are making a mistake? Cruz, Kasich, and Rubio all want to attack, if not do away with social security; Trump at least wants to leave social security as it is.

Best to vote Democratic come Fall.

Another link to Robert's piece is HERE, and if you go for that social science stuff, there are lots of links to follow there.

You can follow me on Twitter @RolandNikles

Friday, March 11, 2016

Californians: Get Ready to Leave Your Armchairs and Get in the Fray!

Hillary Clinton & Bernie Sanders
It's been a long time since California has been decisive in a presidential primary campaign: it was 1976 on the Republican side (Reagan) and 1972 on the Democratic side (McGovern). Our primary has traditionally been held in June (this year it will be June 7), although there have been exceptions. Front runners tend to emerge early, other candidates run out of money, and the contest is usually decided long before we Californians vote. Nobody wants to campaign in California. We never get to see the commercials. Except for being hounded by fundraisers, in presidential contests we can usually be armchair Democrats and Republicans until November.

Although California experimented with earlier primary elections in February (2008) and March (1996, 2000, and 2004), none of these were decisive because California had moved to a proportional award of delegates in the 1970's. Campaigns haven't bothered with us.

This year promises to be different.

Next up are Florida, Illinois, Ohio, North Carolina, and Missouri this coming Tuesday. The Republican contests in Florida, and Ohio are winner take all affairs; and the winner in Illinois will receive "most" delegates. On the Democratic side delegates will be awarded proportionally. Still, none of these states will be decisive. Here is the present tally...

Republicans (1237 needed to win):

           Trump      458
           Cruz         359
           Rubio       151
           Kasich      54

Democrats (2383 needed to win)

            Clinton    760 (+461 Superdelegates)
            Sanders   546 (+25 Superdelegates)

Superdelegates  are prominent Democratic party members who are free to vote for any candidate. Most Superdelegates have committed for Hillary. There are 88 Superdelegates in Tuesday's contests and this means Hillary is on target to have approximately 1,300 delegates before the voting starts on Tuesday (55% of the total needed). The Sanders folks, however, rightly point out that Bernie trails by only 214 votes among pledged delegates, and he continues to be successful in raising lots of money. He's far from having given up.

There are 620 pledged delegates up for grabs on Tuesday on the Democratic side: Florida (214), Illinois (156), Ohio (143), and North Carolina (107). If Hillary wins next Tuesday as predicted by Project 538, she will win another ~410 pledged delegates; but Bernie will also win ~210. This will bring Hillary's total to somewhere in the 1,170 pledged delegate range, and Bernie in the ~756 pledged delegate range. Even if we add Superdelegates, Clinton will still only have ~71% of the total delegates needed to clinch the nomination.

On the Republican side, Donald Trump is predicted to win Florida (99 winner take all delegates), Illinois (69 winner take most delegates), and North Carolina (72 proportional delegates); John Kasich (is predicted to win Ohio (66 winner take all delegates). If this goes according to prediction, Trump should win another ~187 delegates on Tuesday. This will bring Trump's total to ~645, or 52% of the way to the total needed to secure the contest on the Republican side.

As we look ahead to March 22 (Arizona, Idaho, and Utah) 149 delegates will be awarded on the Democratic side. This will be followed by 172 delegates decided on March 26 (Washington, Hawaii, and Alaska). With delegates awarded proportionally to votes received, it's clear this primary between Bernie and Hillary will drag on for a while.

On the Republican side too, things will slow down after Tuesday. Forty proportionally awarded delegates are up to be awarded in Utah on March 22, then nothing until April 5 (42 winner-take-all delegates awarded in Wisconsin); after that it's New York on April 19, 2016, but New York's 95 delegates will be awarded proportionally.

Therefore, it looks like both contests should still be very much in play on June 7 when 250 winner-take-all delegates are up for grabs on the Republican side (California, Montana, New Jersey) and 758 delegates are up for grabs on the Democratic side.  Clinton and Trump are currently leading in both California and New Jersey.

For us Californians, it looks like we're going to have to leave our armchairs and get in the fray.

Unknown photo/internet stock

Thursday, March 10, 2016

Jeffrey Goldberg on "The Obama Doctrine"

Jeffrey Goldberg and President Obama
Jan. 26, 2016/Ruven Afanador 

As a reporter, Jeffrey Goldberg of The Atlantic has  enjoyed unparalleled access to President Obama regarding foreign policy matters, especially with respect to Mid-East policy. Goldberg has published several in depth pieces on Obama's policies previously. For example, see his articles published in The Atlantic  here.  Over the past four months Goldberg has conducted numerous interviews with President Obama and others, inside and outside of the administration, and the result is a long and excellent essay that assesses Obama 's foreign policy vision, his overall approach to foreign policy, his foreign policy accomplishments, and his failures. It's an early exit interview of sorts.

Goldberg's essay, The Obama Doctrineis long, informative, and thought provoking. Here are some highlights:

About Obama’s decision not to launch missile strikes at Syria after Assad crossed Obama’s putative “red line” not to use chemical weapons (announced in a speech on August 20, 2012), and which resulted in a negotiated removal of chemical weapons from Syria:
I have come to believe that, in Obama’s mind, August 30, 2013 (the date when the decision was made not to launch missiles), was his liberation day, the day he defied not only the foreign-policy establishment and its cruise-missile playbook, but also the demands of America’s frustrating, high-maintenance allies in the Middle East—countries, he complains privately to friends and advisers, that seek to exploit American “muscle” for their own narrow and sectarian ends.

… A widely held sentiment inside the White House is that many of the most prominent foreign-policy think tanks in Washington are doing the bidding of their Arab and pro-Israel funders. ….
Goldberg says that he first took note of Obama's foreign policy acumen during a speech in 2002 at a rally in Chicago, where Obama opposed the run-up to George W. Bush's invasion of Iraq:
This speech had made me curious about its author. I wanted to learn how an Illinois state senator, a part-time law professor who spent his days traveling between Chicago and Springfield, had come to a more prescient understanding of the coming quagmire than the most experienced foreign-policy thinkers of his party, including such figures as Hillary Clinton, Joe Biden, and John Kerry, not to mention, of course, most Republicans and many foreign-policy analysts and writers, including me…..
Obama on a president holding his tongue on criticism unless he is willing to back up what he says with military force:
“Oftentimes when you get critics of our Syria policy, one of the things that they’ll point out is ‘You called for Assad to go, but you didn’t force him to go. You did not invade.’ And the notion is that if you weren’t going to overthrow the regime, you shouldn’t have said anything. That’s a weird argument to me, the notion that if we use our moral authority to say ‘This is a brutal regime, and this is not how a leader should treat his people,’ once you do that, you are obliged to invade the country and install a government you prefer.”…. 
Obama on being an "Internationalist:"
“I am very much the internationalist,” Obama said in a later conversation. “And I am also an idealist insofar as I believe that we should be promoting values, like democracy and human rights and norms and values, because not only do they serve our interests the more people adopt values that we share—in the same way that, economically, if people adopt rule of law and property rights and so forth, that is to our advantage—but because it makes the world a better place. ... 
“Having said that,” he continued, “I also believe that the world is a tough, complicated, messy, mean place, and full of hardship and tragedy. And in order to advance both our security interests and those ideals and values that we care about, we’ve got to be hardheaded at the same time as we’re bighearted, and pick and choose our spots, and recognize that there are going to be times where the best that we can do is to shine a spotlight on something that’s terrible, but not believe that we can automatically solve it. There are going to be times where our security interests conflict with our concerns about human rights. There are going to be times where we can do something about innocent people being killed, but there are going to be times where we can’t.”
On the importance of spurring countries to take action for themselves:
Part of his mission as president, Obama explained, is to spur other countries to take action for themselves, rather than wait for the U.S. to lead. The defense of the liberal international order against jihadist terror, Russian adventurism, and Chinese bullying depends in part, he believes, on the willingness of other nations to share the burden with the U.S…..“We don’t have to always be the ones who are up front,” he told me. ....

The president also seems to believe that sharing leadership with other countries is a way to check America’s more unruly impulses. “One of the reasons I am so focused on taking action multilaterally where our direct interests are not at stake is that multilateralism regulates hubris,” he explained. ....
On the importance of not overextending resources when no direct national security interest is at stake:
I asked Obama about retrenchment. “Almost every great world power has succumbed” to overextension, he said. “What I think is not smart is the idea that every time there is a problem, we send in our military to impose order. We just can’t do that.”

But once he decides that a particular challenge represents a direct national-security threat, he has shown a willingness to act unilaterally. ....  “He applies different standards to direct threats to the U.S.,” Ben Rhodes says. “For instance, despite his misgivings about Syria, he has not had a second thought about drones.” Some critics argue he should have had a few second thoughts about what they see as the overuse of drones. But John Brennan, Obama’s CIA director, told me recently that he and the president “have similar views. One of them is that sometimes you have to take a life to save even more lives. We have a similar view of just-war theory. The president requires near-certainty of no collateral damage. But if he believes it is necessary to act, he doesn’t hesitate.”….
On Obama's willingness to question long standing foreign-policy thinking:
To a remarkable degree, he is willing to question why America’s enemies are its enemies, or why some of its friends are its friends. He overthrew half a century of bipartisan consensus in order to reestablish ties with Cuba. He questioned why the U.S. should avoid sending its forces into Pakistan to kill al-Qaeda leaders, and he privately questions why Pakistan, which he believes is a disastrously dysfunctional country, should be considered an ally of the U.S. at all. According to Leon Panetta, he has questioned why the U.S. should maintain Israel’s so-called qualitative military edge, which grants it access to more sophisticated weapons systems than America’s Arab allies receive; but he has also questioned, often harshly, the role that America’s Sunni Arab allies play in fomenting anti-American terrorism….
On reasons for the Iran deal:
“The Iran deal was never primarily about trying to open a new era of relations between the U.S. and Iran,” Susan Rice told me. “It was far more pragmatic and minimalist. The aim was very simply to make a dangerous country substantially less dangerous. No one had any expectation that Iran would be a more benign actor.”…
On moving from optimism to pessimism on the Middle East and North Africa:
Through the first flush of the Arab Spring, in 2011, Obama continued to speak optimistically about the Middle East’s future, coming as close as he ever would to embracing the so-called freedom agenda of George W. Bush, which was characterized in part by the belief that democratic values could be implanted in the Middle East. He equated protesters in Tunisia and Tahrir Square with Rosa Parks and the “patriots of Boston.” 
“After decades of accepting the world as it is in the region, we have a chance to pursue the world as it should be,” he said in a speech at the time. “The United States supports a set of universal rights. And these rights include free speech, the freedom of peaceful assembly, the freedom of religion, equality for men and women under the rule of law, and the right to choose your own leaders … Our support for these principles is not a secondary interest.” 
But over the next three years, as the Arab Spring gave up its early promise, and brutality and dysfunction overwhelmed the Middle East, the president grew disillusioned. Some of his deepest disappointments concern Middle Eastern leaders themselves…..

The unraveling of the Arab Spring darkened the president’s view of what the U.S. could achieve in the Middle East, and made him realize how much the chaos there was distracting from other priorities. ...
But what sealed Obama’s fatalistic view was the failure of his administration’s intervention in Libya, in 2011. That intervention was meant to prevent the country’s then-dictator, Muammar Qaddafi, from slaughtering the people of Benghazi, as he was threatening to do. Obama did not want to join the fight; he was counseled by Joe Biden and his first-term secretary of defense Robert Gates, among others, to steer clear. But a strong faction within the national-security team—Secretary of State Hillary Clinton and Susan Rice, who was then the ambassador to the United Nations, along with Samantha Power, Ben Rhodes, and Antony Blinken, who was then Biden’s national-security adviser—lobbied hard to protect Benghazi, and prevailed. (Biden, who is acerbic about Clinton’s foreign-policy judgment, has said privately, “Hillary just wants to be Golda Meir.”) American bombs fell, the people of Benghazi were spared from what may or may not have been a massacre, and Qaddafi was captured and executed.

But Obama says today of the intervention, “It didn’t work.” The U.S., he believes, planned the Libya operation carefully—and yet the country is still a disaster.
On the rationale for the Libyan intervention:
Why, given what seems to be the president’s natural reticence toward getting militarily ensnarled where American national security is not directly at stake, did he accept the recommendation of his more activist advisers to intervene? 
“The social order in Libya has broken down,” Obama said, explaining his thinking at the time. “You have massive protests against Qaddafi. You’ve got tribal divisions inside of Libya. Benghazi is a focal point for the opposition regime. And Qaddafi is marching his army toward Benghazi, and he has said, ‘We will kill them like rats.’ 
“Now, option one would be to do nothing, and there were some in my administration who said, as tragic as the Libyan situation may be, it’s not our problem. The way I looked at it was that it would be our problem if, in fact, complete chaos and civil war broke out in Libya. But this is not so at the core of U.S. interests that it makes sense for us to unilaterally strike against the Qaddafi regime. At that point, you’ve got Europe and a number of Gulf countries who despise Qaddafi, or are concerned on a humanitarian basis, who are calling for action. But what has been a habit over the last several decades in these circumstances is people pushing us to act but then showing an unwillingness to put any skin in the game.” 
“Free riders?,” I interjected
“Free riders,” he said, and continued. “So what I said at that point was, we should act as part of an international coalition. But because this is not at the core of our interests, we need to get a UN mandate; we need Europeans and Gulf countries to be actively involved in the coalition; we will apply the military capabilities that are unique to us, but we expect others to carry their weight. And we worked with our defense teams to ensure that we could execute a strategy without putting boots on the ground and without a long-term military commitment in Libya. 
“So we actually executed this plan as well as I could have expected: We got a UN mandate, we built a coalition, it cost us $1 billion—which, when it comes to military operations, is very cheap. We averted large-scale civilian casualties, we prevented what almost surely would have been a prolonged and bloody civil conflict. And despite all that, Libya is a mess.”
On the destructive force of tribalism:
[Obama believes that the operation in Libya failed] in part because it’s subsequently become an ISIS haven—one that he has already targeted with air strikes. It became a shit show, Obama believes, for reasons that had less to do with American incompetence than with the passivity of America’s allies and with the obdurate power of tribalism.... He noted that Nicolas Sarkozy, the French president, lost his job the following year. And he said that British Prime Minister David Cameron soon stopped paying attention, becoming “distracted by a range of other things.” ... Obama also blamed internal Libyan dynamics. “The degree of tribal division in Libya was greater than our analysts had expected. And our ability to have any kind of structure there that we could interact with and start training and start providing resources broke down very quickly.”
Libya proved to him that the Middle East was best avoided. “There is no way we should commit to governing the Middle East and North Africa,” he recently told a former colleague from the Senate. “That would be a basic, fundamental mistake.”….
On the dangers of not engaging with the world in a positive manner:
“If we’re not talking to them,” he said, referring to young Asians and Africans and Latin Americans, “because the only thing we’re doing is figuring out how to destroy or cordon off or control the malicious, nihilistic, violent parts of humanity, then we’re missing the boat.”
Obama’s critics argue that he is ineffective in cordoning off the violent nihilists of radical Islam because he doesn’t understand the threat. He does resist refracting radical Islam through the “clash of civilizations” prism popularized by the late political scientist Samuel Huntington. But this is because, he and his advisers argue, he does not want to enlarge the ranks of the enemy. “The goal is not to force a Huntington template onto this conflict,” said John Brennan, the CIA director…..
On Obama's skepticism about Saudi Arabia:
Obama’s patience with Saudi Arabia has always been limited. In his first foreign-policy commentary of note, that 2002 speech at the antiwar rally in Chicago, he said, “You want a fight, President Bush? Let’s fight to make sure our so-called allies in the Middle East—the Saudis and the Egyptians—stop oppressing their own people, and suppressing dissent, and tolerating corruption and inequality.” In the White House these days, one occasionally hears Obama’s National Security Council officials pointedly reminding visitors that the large majority of 9/11 hijackers were not Iranian, but Saudi—and Obama himself rails against Saudi Arabia’s state-sanctioned misogyny, arguing in private that “a country cannot function in the modern world when it is repressing half of its population.” In meetings with foreign leaders, Obama has said, “You can gauge the success of a society by how it treats its women.” 
His frustration with the Saudis informs his analysis of Middle Eastern power politics. At one point I observed to him that he is less likely than previous presidents to axiomatically side with Saudi Arabia in its dispute with its archrival, Iran. He didn’t disagree…..
On the need for the Saudi's to engage with Iran:
“Iran, since 1979, has been an enemy of the United States, and has engaged in state-sponsored terrorism, is a genuine threat to Israel and many of our allies, and engages in all kinds of destructive behavior,” the president said. “And my view has never been that we should throw our traditional allies”—the Saudis—“overboard in favor of Iran.”
But he went on to say that the Saudis need to “share” the Middle East with their Iranian foes. “The competition between the Saudis and the Iranians—which has helped to feed proxy wars and chaos in Syria and Iraq and Yemen—requires us to say to our friends as well as to the Iranians that they need to find an effective way to share the neighborhood and institute some sort of cold peace,” he said. “An approach that said to our friends ‘You are right, Iran is the source of all problems, and we will support you in dealing with Iran’ would essentially mean that as these sectarian conflicts continue to rage and our Gulf partners, our traditional friends, do not have the ability to put out the flames on their own or decisively win on their own, and would mean that we have to start coming in and using our military power to settle scores. And that would be in the interest neither of the United States nor of the Middle East.”
More on tribalism:
One of the most destructive forces in the Middle East, Obama believes, is tribalism—a force no president can neutralize. Tribalism, made manifest in the reversion to sect, creed, clan, and village by the desperate citizens of failing states, is the source of much of the Muslim Middle East’s problems, and it is another source of his fatalism. Obama has deep respect for the destructive resilience of tribalism—part of his memoir, Dreams From My Father, concerns the way in which tribalism in post-colonial Kenya helped ruin his father’s life—which goes some distance in explaining why he is so fastidious about avoiding entanglements in tribal conflicts…..
Obama on human nature:
“Look, I am not of the view that human beings are inherently evil,” he said. “I believe that there’s more good than bad in humanity. And if you look at the trajectory of history, I am optimistic. ... [O]verall, humanity has become less violent, more tolerant, healthier, better fed, more empathetic, more able to manage difference. But it’s hugely uneven. And what has been clear throughout the 20th and 21st centuries is that the progress we make in social order and taming our baser impulses and steadying our fears can be reversed very quickly. Social order starts breaking down if people are under profound stress. Then the default position is tribe—us/them, a hostility toward the unfamiliar or the unknown.”
He continued, “Right now, across the globe, you’re seeing places that are undergoing severe stress because of globalization, because of the collision of cultures brought about by the Internet and social media, because of scarcities... because of population growth. And in those places, the Middle East being Exhibit A, the default position for a lot of folks is to organize tightly in the tribe and to push back or strike out against those who are different. 
“A group like isil is the distillation of every worst impulse along these lines. The notion that we are a small group that defines ourselves primarily by the degree to which we can kill others who are not like us, and attempting to impose a rigid orthodoxy that produces nothing, that celebrates nothing, that really is contrary to every bit of human progress—it indicates the degree to which that kind of mentality can still take root and gain adherents in the 21st century.”….
Obama on what we can and cannot do:
“We have to determine the best tools to roll back those kinds of attitudes,” he said. “There are going to be times where either because it’s not a direct threat to us or because we just don’t have the tools in our toolkit to have a huge impact that, tragically, we have to refrain from jumping in with both feet.” 
I asked Obama whether he would have sent the Marines to Rwanda in 1994 to stop the genocide as it was happening, had he been president at the time. “Given the speed with which the killing took place, and how long it takes to crank up the machinery of the U.S. government, I understand why we did not act fast enough,” he said. “Now, we should learn from that. I actually think that Rwanda is an interesting test case because it’s possible—not guaranteed, but it’s possible—that this was a situation where the quick application of force might have been enough.” 
He related this to Syria: “Ironically, it’s probably easier to make an argument that a relatively small force inserted quickly with international support would have resulted in averting genocide [more successfully in Rwanda] than in Syria right now, where the degree to which the various groups are armed and hardened fighters and are supported by a whole host of external actors with a lot of resources requires a much larger commitment of forces.”….
On the need to avoid being too simplistic:
[F]or America to be successful in leading the world, he continued, “I believe that we have to avoid being simplistic. I think we have to build resilience and make sure that our political debates are grounded in reality. It’s not that I don’t appreciate the value of theater in political communications; it’s that the habits we—the media, politicians—have gotten into, and how we talk about these issues, are so detached so often from what we need to be doing that for me to satisfy the cable news hype-fest would lead to us making worse and worse decisions over time.”….
On the Ebola crisis as a positive example:
“During the couple of months in which everybody was sure Ebola was going to destroy the Earth and there was 24/7 coverage of Ebola, if I had fed the panic or in any way strayed from ‘Here are the facts, here’s what needs to be done, here’s how we’re handling it, the likelihood of you getting Ebola is very slim, and here’s what we need to do both domestically and overseas to stamp out this epidemic,’ ” then “maybe people would have said ‘Obama is taking this as seriously as he needs to be.’ ” But feeding the panic by overreacting could have shut down travel to and from three African countries that were already cripplingly poor, in ways that might have destroyed their economies—which would likely have meant, among other things, a recurrence of Ebola. He added, “It would have also meant that we might have wasted a huge amount of resources in our public-health systems that need to be devoted to flu vaccinations and other things that actually kill people” in large numbers in America…..
On President Vladimir Putin of Russia:
"Putin, in all of our meetings, is scrupulously polite, very frank. Our meetings are very businesslike. He never keeps me waiting two hours like he does a bunch of these other folks.” Obama said that Putin believes his relationship with the U.S. is more important than Americans tend to think. “He’s constantly interested in being seen as our peer and as working with us, because he’s not completely stupid. He understands that Russia’s overall position in the world is significantly diminished. And the fact that he invades Crimea or is trying to prop up Assad doesn’t suddenly make him a player. You don’t see him in any of these meetings out here helping to shape the agenda. For that matter, there’s not a G20 meeting where the Russians set the agenda around any of the issues that are important.” 
Russia’s invasion of Crimea in early 2014, and its decision to use force to buttress the rule of its client Bashar al-Assad, have been cited by Obama’s critics as proof that the post-red-line world no longer fears America. So when I talked with the president in the Oval Office in late January, I again raised this question of deterrent credibility. “The argument is made,” I said, “that Vladimir Putin watched you in Syria and thought, He’s too logical, he’s too rational, he’s too into retrenchment. I’m going to push him a little bit further in Ukraine.” 
Obama didn’t much like my line of inquiry. “Look, this theory is so easily disposed of that I’m always puzzled by how people make the argument. I don’t think anybody thought that George W. Bush was overly rational or cautious in his use of military force. And as I recall, because apparently nobody in this town does, Putin went into Georgia on Bush’s watch, right smack dab in the middle of us having over 100,000 troops deployed in Iraq.” ...“Putin acted in Ukraine in response to a client state that was about to slip out of his grasp. And he improvised in a way to hang on to his control there,” he said. “He’s done the exact same thing in Syria, at enormous cost to the well-being of his own country. And the notion that somehow Russia is in a stronger position now, in Syria or in Ukraine, than they were before they invaded Ukraine or before he had to deploy military forces to Syria is to fundamentally misunderstand the nature of power in foreign affairs or in the world generally. Real power means you can get what you want without having to exert violence. Russia was much more powerful when Ukraine looked like an independent country but was a kleptocracy that he could pull the strings on.”
Obama’s theory here is simple: Ukraine is a core Russian interest but not an American one, so Russia will always be able to maintain escalatory dominance there. “The fact is that Ukraine, which is a non-nato country, is going to be vulnerable to military domination by Russia no matter what we do,” he said.... "[T]his is an example of where we have to be very clear about what our core interests are and what we are willing to go to war for. And at the end of the day, there’s always going to be some ambiguity.” 
On the usefulness (not) of being "unpredictable" and the "madman" theory of deterrence:
“[L]et’s examine the Nixon theory,” he said. “So we dropped more ordnance on Cambodia and Laos than on Europe in World War II, and yet, ultimately, Nixon withdrew, Kissinger went to Paris, and all we left behind was chaos, slaughter, and authoritarian governments that finally, over time, have emerged from that hell. When I go to visit those countries, I’m going to be trying to figure out how we can, today, help them remove bombs that are still blowing off the legs of little kids. In what way did that strategy promote our interests?”  
But what if Putin were threatening to move against, say, Moldova—another vulnerable post-Soviet state? Wouldn’t it be helpful for Putin to believe that Obama might get angry and irrational about that?

“There is no evidence in modern American foreign policy that that’s how people respond. People respond based on what their imperatives are, and if it’s really important to somebody, and it’s not that important to us, they know that, and we know that,” he said. “There are ways to deter, but it requires you to be very clear ahead of time about what is worth going to war for and what is not. Now, if there is somebody in this town that would claim that we would consider going to war with Russia over Crimea and eastern Ukraine, they should speak up and be very clear about it. The idea that talking tough or engaging in some military action that is tangential to that particular area is somehow going to influence the decision making of Russia or China is contrary to all the evidence we have seen over the last 50 years.”
On the mythology of Ronald Reagan's foreign policy:
“If you think about, let’s say, the Iran hostage crisis, there is a narrative that has been promoted today by some of the Republican candidates that the day Reagan was elected, because he looked tough, the Iranians decided, ‘We better turn over these hostages,’ ” he said. “In fact what had happened was that there was a long negotiation with the Iranians and because they so disliked Carter—even though the negotiations had been completed—they held those hostages until the day Reagan got elected. Reagan’s posture, his rhetoric, etc., had nothing to do with their release. When you think of the military actions that Reagan took, you have Grenada—which is hard to argue helped our ability to shape world events, although it was good politics for him back home. You have the Iran-Contra affair, in which we supported right-wing paramilitaries and did nothing to enhance our image in Central America, and it wasn’t successful at all.” He reminded me that Reagan’s great foe, Daniel Ortega, is today the unrepentant president of Nicaragua.
Obama also cited Reagan’s decision to almost immediately pull U.S. forces from Lebanon after 241 servicemen were killed in a Hezbollah attack in 1983. “Apparently all these things really helped us gain credibility with the Russians and the Chinese,” because “that’s the narrative that is told,” he said sarcastically. “Now, I actually think that Ronald Reagan had a great success in foreign policy, which was to recognize the opportunity that Gorbachev presented and to engage in extensive diplomacy—which was roundly criticized by some of the same people who now use Ronald Reagan to promote the notion that we should go around bombing people.”….
On the importance of diplomacy and technocracy:
 “You know, the notion that diplomacy and technocrats and bureaucrats somehow are helping to keep America safe and secure, most people think, Eh, that’s nonsense. But it’s true. And by the way, it’s the element of American power that the rest of the world appreciates unambiguously. When we deploy troops, there’s always a sense on the part of other countries that, even where necessary, sovereignty is being violated.”….
On the constraints of recent history:
If there had been no Iraq, no Afghanistan, and no Libya, Obama told me, he might be more apt to take risks in Syria. “A president does not make decisions in a vacuum. He does not have a blank slate. Any president who was thoughtful, I believe, would recognize that after over a decade of war, with obligations that are still to this day requiring great amounts of resources and attention in Afghanistan, with the experience of Iraq, with the strains that it’s placed on our military—any thoughtful president would hesitate about making a renewed commitment in the exact same region of the world with some of the exact same dynamics and the same probability of an unsatisfactory outcome.”
Obama as a "gambler not a bluffer:"
Derek Chollet, a former National Security Council official, told me: “Obama is a gambler, not a bluffer.” The president has placed some huge bets. Last May, as he was trying to move the Iran nuclear deal through Congress, I told him that the agreement was making me nervous. His response was telling. “Look, 20 years from now, I’m still going to be around, God willing. If Iran has a nuclear weapon, it’s my name on this,” he said. “I think it’s fair to say that in addition to our profound national-security interests, I have a personal interest in locking this down.” 
In the matter of the Syrian regime and its Iranian and Russian sponsors, Obama has bet, and seems prepared to continue betting, that the price of direct U.S. action would be higher than the price of inaction. And he is sanguine enough to live with the perilous ambiguities of his decisions. ... As he comes to the end of his presidency, Obama believes he has done his country a large favor by keeping it out of the maelstrom—and he believes, I suspect, that historians will one day judge him wise for having done so. 
Inside the West Wing, officials say that Obama, as a president who inherited a financial crisis and two active wars from his predecessor, is keen to leave “a clean barn” to whoever succeeds him. This is why the fight against isis, a group he considers to be a direct, though not existential, threat to the U.S., is his most urgent priority for the remainder of his presidency; killing the so-called caliph of the Islamic State, Abu Bakr al-Baghdadi, is one of the top goals of the American national-security apparatus in Obama’s last year…..
Obama on the Middle East as no longer terribly important to America's interests:
Obama has come to a number of dovetailing conclusions about the world, and about America’s role in it. The first is that the Middle East is no longer terribly important to American interests. The second is that even if the Middle East were surpassingly important, there would still be little an American president could do to make it a better place. The third is that the innate American desire to fix the sorts of problems that manifest themselves most drastically in the Middle East inevitably leads to warfare, to the deaths of U.S. soldiers, and to the eventual hemorrhaging of U.S. credibility and power. The fourth is that the world cannot afford to see the diminishment of U.S. power. .... 
Obama believes that history has sides, and that America’s adversaries—and some of its putative allies—have situated themselves on the wrong one, a place where tribalism, fundamentalism, sectarianism, and militarism still flourish. What they don’t understand is that history is bending in his direction. “The central argument is that by keeping America from immersing itself in the crises of the Middle East, the foreign-policy establishment believes that the president is precipitating our decline,” Ben Rhodes told me. “But the president himself takes the opposite view, which is that overextension in the Middle East will ultimately harm our economy, harm our ability to look for other opportunities and to deal with other challenges, and, most important, endanger the lives of American service members for reasons that are not in the direct American national-security interest.”
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