Category Archives: Reflections

Airport Security Protests Fizzle and Inspections Continue as They Must

By Marc Seltzer; originally published at care2.com on December 6, 2010. (The original posting received more than 100 comments, often strongly disapproving, which can be seen at the care2.com link.)

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Protests against airline security procedures did not materialize last week despite a media campaign in which a variety of hopeful instigators clamored that the public would not tolerate the invasion of privacy.  While the new procedures — x-ray technology that sees through clothes and pat downs that include private parts — are bound to make people uncomfortable, the vast majority of passengers accept that the threat of attack is serious and the security measures reasonable.

The sniping at the Obama administration and the Transportation Security Administration (TSA) and claims that TSA procedures are unconstitutional on the one hand and misguided on the other don’t hold up to scrutiny.  First of all, flying is optional.  We choose to do it by paying for a ticket and accepting the rules that go with the privilege of flying.  The government, rather than the private airline companies, conduct security operations, but no one is forcing passengers to get in line.  Second, flying is not something you do in the confines of your home, where you would expect the most 4th amendment protection from government search and seizure.  The question of whether it’s reasonable to conduct these admittedly invasive searches in an airport security line depends on the level of protection needed and the availability of other options.

While the U.S. has been lucky that the shoe bomber, underwear bomber and other attempts have failed to bring down a plane, there is a clear threat to aviation security.  The procedures are the best that experts can come up with at this moment.  No doubt less invasive, and more effective, machines are on the drawing board.

Another argument is that the scanners and pat downs can’t stop every conceivable threat.  True, but the new procedures increase the chances of a successful inspection for dangerous materials.  They take more time, they see more, and they make it more difficult to plan and carry out an attack.  That is enough to justify their use, even if something slips through.

The people in aviation security, from front line screeners to administration decision makers, deserve credit for doing a difficult job where a single mistake can cost many lives and the enemy actively tries to exploit errors and weaknesses.

Marc Seltzer is also a contributor to SupremePodcast.com, a weekly U.S. Supreme Court case review podcast.

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What We Wont Learn from the Sotomayor Confirmation Hearings

By Marc Seltzer; originally published on July 9, 2009, at politicsunlocked.com.

(Linda Greenhouse’s New York Times piece about the confirmation hearings for Elena Kagan raised the issue of whether a justice can be forthcoming in their testimony to congress.  Interestingly, Kagan has articulated her belief that the executive brach has largely unfettered authority in the areas of national security, the point that I wrote about in reference to the Sotomayor hearings.  Still, I do not see any reason for Kagan to speak openly in the upcoming confirmation hearings in light of the intense politicization of the process.  My early post is reposted below.)

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If there is one legal question that is profound and topical, the discussion of which would be deeply thought provoking and educational in the Supreme Court nomination hearings of Judge Sonia Sotomayor, it is the constitutional division of power between the different branches of government.

The power struggle between the branches is most notably implicated in the national debate over the Bush administration’s conduct of foreign policy and war.  President Bush and Vice-President Cheney asserted generally exclusive executive branch authority in the conduct of intelligence, detention of prisoners and avoidance of oversight in national security operations after 9/11.

Now that Bush and Cheney are out of power and more information is coming out about their conduct, opponents of such policies are on the attack, calling for investigation.  Only the most recent issue is whether Vice-President Cheney directed that the CIA withhold information from Congress that Congress has by law, demanded that the executive branch provide.  Other red-hot manifestations are whether the use of torture by the administration can be subject to explicit laws banning such activity, and whether the President was in fact required to brief congress regularly on its conduct of foreign policy and military action, as Congress has demanded.

Underlying this and other such conflicts is the question of constitutional authority in the different branches of government.  The President is the Commander-in-Chief.  Does this grant the President sole authority for decisions relating to national security, or is it an authority shared by the peoples’ representatives in Congress?

In the same vein, what are the limits of such Presidential authority?  Can the President authorize torture if he believes it is necessary for national defense?  If Congress requests that the President provide information on on-going military operations, can the President ignore the request if he believes that to follow it will harm the operations?

The ultimate answers to these questions cannot be known until the U.S. Supreme Court decides each issue in the context of specific facts presented in a lawsuit.  But a Supreme Court nominee could give us her reflections and a certain education.  This would be far more meaningful then the competing assertions of power by the administration and congress.  Of no more use are the pundits and professors who weigh in.  Almost universally, commentators take political positions based on desired outcomes, but give no real insight into what the Supreme Court would be likely to do.  The Supreme Court is deeply aware of its profound power and cautious about its legitimacy in asserting its authority over other branches of government – being the unelected branch.   Pundits have none of this real world caution.

Consequently, the Supreme Court tends to go to great lengths to avoid constitutional questions, instead deciding cases on smaller technical matters whenever possible.   There is nothing wrong with this judicial approach, except that it leaves many of us wondering where the bounds of legislative or executive power really are.

I, for one, have no doubt that they are not where the President and Congress say they are.

Stinginess with public dollars

Stinginess with public dollars (comment to US News story April 16, 2010)

I externed for the federal district court judge Harry L. Hupp a few years back. I still remember that when it came time for the annual judicial conference, which took place at the Dana Point Ritz Carleton that year, Judge Hupp disapproved of the extravagance for a government meeting. I do not begrudge such judges anything as they are remarkable high-achievers, accepting far less in salary than they would receive in the private sector, but I will say that his attitude made an impression on me, as does that of Clarence Thomas, reported here.

The public purse is a strange beast, where it is all but impossible for the spenders of it to feel the pain of those who give it through their taxes. It is not just these two judges who exemplify careful stewardship of public funds, but we would be well to have this attitude infect our congressional leaders, rather than the ethic we have now, which is still, The more you bring home the bacon by steering public funds into your district, the more likely you are to get personal support in your re-election campaign.

If Justice Thomas’ ethic were pervasive, the public would feel much better about paying its share of taxes and about the government those taxes fund.

You’ve Got to Hand it to Them: Obama, Pelosi and Reid

By Marc Seltzer; originally published on March 22, 2010, at care2.com

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Watching the proceedings in the House of Representatives tonight, I came away with an appreciation of just how strong the Democratic leadership is.  We all knew that Barack Obama had discipline in the way his presidential campaign never faltered.  He kept his eye on the prize and didn’t sweat the small stuff.  But the first year in office raised questions about how much political capital he had lost because of the economic downturn and the unpopularity of the government’s response.  Republicans refused to break ranks.  Democrats were split.  Then came Scott Brown.  How much would the President be able to accomplish?

Click here for the rest of the story.

President Obama Speaks to His House, King Harry to his Men

By Marc Seltzer; originally published on March 21, 2010, at care2.com

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The President gave a great speech to the Democratic Representatives (excerpts below) on the day before the health care vote in that body.  It reminded me of the glorious speech in Shakespeare’s Henry V made by King Harry to his men the day before battle.  I know it sounds like I am gushing Obama here, but I have taught Henry V to high school students for many years and I know this speech too well not to think of it.  It is one of the great speeches of all time.

Shakespeare’s language can be difficult, but what comes through is the greater pride in fighting a tough battle than an easy one.  Facing battle with France, Harry of England’s men have expressed their doubts and fears about their prospects against the French, who vastly outnumber them.  Would they be better off back home?  Would they be better led away from battle than into the slaughter? Or at least, could they not have more men on their side?

The beloved King responds:

“What’s he that wishes so?
My cousin Westmoreland? No, my fair cousin:
If we are mark’d to die, we are now
To do our country loss; and if to live,
The fewer men, the greater share of honour.
God’s will! I pray thee, wish not one man more.”

“By Jove, I am not covetous for gold,
Nor care I who doth feed upon my cost;
It yearns me not if men my garments wear;
Such outward things dwell not in my desires:
But if it be a sin to covet honour,
I am the most offending soul alive.”

“No, faith, my coz, wish not a man from England:
God’s peace! I would not lose so great an honour
As one man more, methinks, would share from me
For the best hope I have. O, do not wish one more!
Rather proclaim it, Westmoreland, through my host,
That he which hath no stomach to this fight,
Let him depart; his passport shall be made
And crowns for convoy put into his purse:
We would not die in that man’s company
That fears his fellowship to die with us.”

“This day is called the feast of Crispian:
He that outlives this day, and comes safe home,
Will stand a tip-toe when the day is named,
And rouse him at the name of Crispian.
He that shall live this day, and see old age,
Will yearly on the vigil feast his neighbours,
And say ‘To-morrow is Saint Crispian:'”

“Then will he strip his sleeve and show his scars.
And say ‘These wounds I had on Crispin’s day.’
Old men forget: yet all shall be forgot,
But he’ll remember with advantages
What feats he did that day: then shall our names.
Familiar in his mouth as household words
Harry the king, Bedford and Exeter,
Warwick and Talbot, Salisbury and Gloucester,
Be in their flowing cups freshly remember’d.
This story shall the good man teach his son;
And Crispin Crispian shall ne’er go by,
From this day to the ending of the world,
But we in it shall be remember’d
;”

“We few, we happy few, we band of brothers;
For he to-day that sheds his blood with me
Shall be my brother; be he ne’er so vile,
This day shall gentle his condition:
And gentlemen in England now a-bed
Shall think themselves accursed they were not here,
And hold their manhoods cheap whiles any speaks
That fought with us upon Saint Crispin’s day.” (Henry V, Act 4.3, spacing added)

President Obama has something entirely different to say.  He is recognizing that Democratic congresspersons are making a vote that appears politically challenging.   But he calls on them to understand the importance of this moment in their lives as leaders, in the historic context of votes on Social Security, Medicare and Civil Rights, as well as in the needs of the American people for help with health care reforms.

President Obama:

“. . . Now, I can’t guarantee that this is good politics.  Every one of you know your districts better than I do.  You talk to folks.  You’re under enormous pressure.  You’re getting robocalls.  You’re getting e-mails that are tying up the communications system.  I know the pressure you’re under.  I get a few comments made about me.  I don’t know if you’ve noticed.  (Laughter.)  I’ve been in your shoes.  I know what it’s like to take a tough vote.

But what did Lincoln say?  “I am not bound to win, but I am bound to be true.”  Two generations ago, folks who were sitting in your position, they made a decision — we are going to make sure that seniors and the poor have health care coverage that they can count on.  And they did the right thing.

And I’m sure at the time they were making that vote, they weren’t sure how the politics were either, any more than the people who made the decision to make sure that Social Security was in place knew how the politics would play out, or folks who passed the civil rights acts knew how the politics were going to play out.  They were not bound to win, but they were bound to be true.

And now we’ve got middle class Americans, don’t have Medicare, don’t have Medicaid, watching the employer-based system fray along the edges or being caught in terrible situations.  And the question is, are we going to be true to them?

Sometimes I think about how I got involved in politics.  I didn’t think of myself as a potential politician when I get out of college.  I went to work in neighborhoods, working with Catholic churches in poor neighborhoods in Chicago, trying to figure out how people could get a little bit of help.  And I was skeptical about politics and politicians, just like a lot of Americans are skeptical about politics and politicians are right now.  Because my working assumption was when push comes to shove, all too often folks in elected office, they’re looking for themselves and not looking out for the folks who put them there; that there are too many compromises; that the special interests have too much power; they just got too much clout; there’s too much big money washing around.

And I decided finally to get involved because I realized if I wasn’t willing to step up and be true to the things I believe in, then the system wouldn’t change.  Every single one of you had that same kind of moment at the beginning of your careers.  Maybe it was just listening to stories in your neighborhood about what was happening to people who’d been laid off of work.  Maybe it was your own family experience, somebody got sick and didn’t have health care and you said something should change.

Something inspired you to get involved, and something inspired you to be a Democrat instead of running as a Republican.  Because somewhere deep in your heart you said to yourself, I believe in an America in which we don’t just look out for ourselves, that we don’t just tell people you’re on your own, that we are proud of our individualism, we are proud of our liberty, but we also have a sense of neighborliness and a sense of community — (applause) — and we are willing to look out for one another and help people who are vulnerable and help people who are down on their luck and give them a pathway to success and give them a ladder into the middle class.  That’s why you decided to run.

And now a lot of us have been here a while and everybody here has taken their lumps and their bruises.  And it turns out people have had to make compromises, and you’ve been away from families for a long time and you’ve missed special events for your kids sometimes.  And maybe there have been times where you asked yourself, why did I ever get involved in politics in the first place?  And maybe things can’t change after all.  And when you do something courageous, it turns out sometimes you may be attacked.  And sometimes the very people you thought you were trying to help may be angry at you and shout at you.  And you say to yourself, maybe that thing that I started with has been lost.

But you know what?  Every once in a while, every once in a while a moment comes where you have a chance to vindicate all those best hopes that you had about yourself, about this country, where you have a chance to make good on those promises that you made in all those town meetings and all those constituency breakfasts and all that traveling through the district, all those people who you looked in the eye and you said, you know what, you’re right, the system is not working for you and I’m going to make it a little bit better.

And this is one of those moments.  This is one of those times where you can honestly say to yourself, doggone it, this is exactly why I came here.  This is why I got into politics.  This is why I got into public service.  This is why I’ve made those sacrifices.  Because I believe so deeply in this country and I believe so deeply in this democracy and I’m willing to stand up even when it’s hard, even when it’s tough.

Every single one of you have made that promise not just to your constituents but to yourself.  And this is the time to make true on that promise.  We are not bound to win, but we are bound to be true.  We are not bound to succeed, but we are bound to let whatever light we have shine.  We have been debating health care for decades.  It has now been debated for a year.  It is in your hands.  It is time to pass health care reform for America, and I am confident that you are going to do it tomorrow.”  (Source link below)

President Obama’s Speech to Democratic Representatives March 20, 2010 (video link).

Click here for the transcript of the speech.

Follow the vote live this afternoon on C-Span.  Coverage beginning at 1:00 p.m. Eastern Time and culminating with a vote at 6:00 p.m. (this could change).

Marc Seltzer’s writing and podcasts at https://marcivanseltzer.wordpress.com/

To Protest or Reform — Who’s Messing with Our Minds?

(photo:  Greece’s P.M. Papandreou and France’s Sarkozy in Davos, Switzerland, recently, managing economic turbulence)
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By Marc Seltzer; originally published on March 19, 2010, at care2.com

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There is still a strong undercurrent of anger in the United States about bailouts and stimulus spending.  Republicans, and even Democrats and Progressives, have reacted angrily to President Obama and his financial team.  This is significant because President Obama lost political capital on the economic recovery plan, and has far less power now to push though health care, education and financial reforms than he would have absent these actions.

The common critique from the Right is that Mr. Obama is moving in a socialist direction, while from the Left it is that Geithner, Summers, Romer and Bernanke, the U.S. government’s economic chieftains, are corporatist and beholden to the bankers.

More puzzling than the conservative complaints about the administration’s stewardship of the economy, is the Left’s opposition to it.  A significant part of the Democratic party seems to believe that our current leadership is on the side of the wealthy in a new class struggle, and that the government bailouts have effected a transfer of wealth from the little guy to the fat cats.  To be fair, this antagonism towards saving the financial system is in part a more structural distaste for corporate political and legal power — unrelated to recent U.S. government actions.  None-the-less, Obama is now trying to enact reforms in this across-the-spectrum, anti-government political climate.

To challenge the idea that Obama’s actions were pro-bank, pro-corporate, or designed to bail out the fat cats at the expense of the public, I want to compare the European response to the financial crisis with U.S. actions.  European nations, often called “social democracies,” are respected by the American Left and cited as examples for their stronger safety net of worker protections, health care and liberal benefits.

Jean-Claude Trichet, the head of the European Central Bank, equivalent to our Federal Reserve Bank (Ben Bernanke), said recently about American and European government interventions:

“We had to put on the table on both sides of the Atlantic around 25% of taxpayer risk to avoid the Depression, a major Depression, which would have come had we not been that bold.  When I say we, I mean the governments.  Of course, the central banks also have been very bold, in engaging in non conventional measures — the Fed and us [European Central Bank].”  (Bloomberg on Demand, March 12, 2010, from interview with Tom Keene)

What is insightful here is that European governments and related institutions behaved much as the American government did.  As the New York Times reported in early 2009:

“So far, Europe’s largest economies, France, Germany and Britain, have been spared demonstrations. All three governments have introduced huge stimulus measures aimed at spurring employment and protecting banks.

Regardless of the outcome, the three countries will face large budget deficits and higher state borrowing, which economists say will be passed on to taxpayers. And in the case of France and Germany, the governments could find it more difficult to introduce bold reforms at a time of recession.” (New York Times, January 26, 2009.)

To be sure, European nations have faced public protests over the past year, including demonstrations in recent weeks against the Socialist government in Greece.  And modern European nations are a mix of strong state intervention in industry and free markets.  But despite their more left-leaning perspectives, European government actions to save banks and support their nations’ economies with emergency stimulus spending, resemble US approaches.

The underlying reason for this is plain: Healthy economies require healthy banking systems.  The only other option for lawmakers in 2009 would have been to nationalize, through government takeover, the major banks and investment companies.  This would not only have been too radical for a young American President in the first days of his Presidency, but was not favored by European nations, which, despite more Socialist political visions, prefer to keep most individual businesses in the hands of private owners.

It is as much of a stretch to believe that Barack Obama, community-organizer-turned-politician, attained the Presidency in order to embrace the rich and powerful over the little guy, as it is to draw the conclusion that the Socialist and left-leaning governments of Europe transformed in 2009 into standard bearers for corporate and special interests across the Continent.

Why the American Left should find itself so opposed to the positions of both European and American governments requires little guesswork.  The greed, irresponsibility and power in the financial system made the public angry.  The Republicans, with little post-election political power and prospects, turned anti-corporate anger into anti-government anger with some clever “grass roots” anti-Democrat marketing messages.

Now, instead of joining the administration and embracing reforms, many a Democrat flirts with anti-government energy, which is really just self-serving partisan manipulation pushed by the Republican party.

Democratic Congressman Dennis Kucinich, in discussing his last-minute decision to vote for the President’s health care reform, acknowledged the tension between pressing for progressive reform and falling into a trap laid by the opposition:

“With three years left in the Obama Presidency we have to continue to encourage him, but we’ve got to be careful that we don’t play into those who want to destroy his presidency and say, you know, the birthers and others who say he should never have been President to begin with.  There is a tension that exists. . . .  we have to be very careful about how much we attack this president even as we disagree with him because we may play into those who just want to destroy his presidency.”  (Democracy Now!, March 18, 2010 (radio interview with Amy Goodman))

Careful indeed!  It’s about time.

Obama Nobel Prize for Multilateralism

By Marc Seltzer; originally published on October 9, 2009, at care2.com

President Obama’s winning of the 2009 Nobel Peace Prize recognizes his multilateral emphasis in resolving international conflicts.  Critics, who wonder what he has done, are overlooking the importance of this cooperative approach to the rest of the world.

During the first decade of the 21st Century, President Bush rattled Europe with his willingness to take unilateral action and use force to achieve America’s international goals. The U.S. is more willing to go this route in part becauses it has not been scarred by international wars on its home soil.  The attacks on Pearl Harbor, New York and Washington D.C. were painful, but Europe lost far more than fifty million lives, many of them civilians, during World War II.

President Obama struck a chord with the Nobel committee and people of all nations when he spoke of working in cooperation with the international community.  With the benefit of hindsight, President Obama recognizes that problems such as Middle-East conflicts and totalitarian regimes are not so easily fixable by the United States, despite great diplomatic and military power.

It is worth noting that many European nations were still monarchies in the 20th century.  Even as those monarchies were replaced by democracies, Europe plunged into two destructive wars and needed help from the United States to free itself, first of Nazi aggression, and then of Soviet oppression.

In many ways immitating the U.S. and Canadian models, European nations have now solidly pursued a democratic vision and free markets, trade and immigration among member states.  These policies have led to prosperity, stability and increased international leadership.

Since the Second World War, Europe gradually built a stable community of nations using organizations such as European Union and NATO and determined, constructive, diplomatic efforts.  European nations have used negotiation to form a union.

The current U.S. concerns over nuclear proliferation, totalitarian regimes, and violent extreamists may or may not resolve through diplomatic efforts.  But President Obama’s multilateral approach is the best option for peaceful resolution of conflicts.  Finding common ground with China, Russia and the European Community can bring tremendous power to our efforts to diffuse dangers abroad.  There is no magic wand that guarantees peaceful solutions, but the President is both realistic and savvy about how to ally the greatest force against enemies of democracy and peace.

In this light, the Nobel prize is a high honor for Barack Obama, a recogotion of a new attitude in U.S. foreign policy, and a confirmation that there is great desire in the world for 21st century international cooperation.

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