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left-libertarian blogger, publisher, Marine and civil liberties activist

 

A Role for the People in Judicial Selection
June 25, 2010
William J. Watkins, Jr.
Washington Examiner

Senate hearings on Solicitor General Elena Kagan’s nomination to the Supreme Court are scheduled to begin next week. During the debate, Americans will hear the usual talking heads discussing the need for civility. The system would work so much better, we will be told, if debate participants would follow the Golden Rule.

Although it is true that the nomination process in recent decades has become more heated, it has little to do with a generic decline of civility. It has everything to do with the role claimed by the modern Supreme Court.

At one time the federal courts were neutral umpires ensuring that all sides played by the same rules. Now, the Supreme Court has become the ultimate policymaker in the United States. The nine justices are not umpires, but participants in the legislative process.

As a recent example, in Graham v. Florida, decided just last month, the court held that a juvenile offender cannot be sentenced to life in prison without parole for a crime other than homicide. The court disregarded that young offenders who commit brutal crimes and have lengthy criminal histories are dangerous to society. Unabashedly, the court stated that in its own “independent judgment” such a punishment was excessive for juveniles.

In other words, the court admitted to weighing policy considerations when reviewing the Florida statute. Because the court disagreed with the policy decisions of Florida’s elected lawmakers, it overturned the state’s decision to abolish parole.

So much for Alexander Hamilton’s prediction in Federalist No. 78 that the judiciary would be the “least dangerous” branch of government.

If the court insists on making policy, then the people ought to have a greater voice in the selection of justices. Nomination by the president with the advice and consent of the Senate, while perhaps appropriate in choosing an umpire, is not suited for choosing an official with veto power over rational policy decisions.

I suggest that the Constitution’s current selection method be amended as follows. Upon the existence of a vacancy on the Supreme Court, the president, the House majority leader, and the House minority leader each submit the name of a candidate to fill the vacancy.

The three nominees (it could be two or one depending on the political climate) would be listed on the ballot for the next regularly scheduled federal election (every two years), and the people would vote for one of the nominees to serve on the Supreme Court.

The nominee with a plurality of votes (in cases of three nominees) or a majority of votes (in case of fewer than three nominees) assumes the vacant seat on the High Court.

Typically, this system would result in two names offered to the people as nominees for the open slot. The party controlling the White House will likely submit a single candidate.

Strategically, President Obama and House Majority Leader Steny Hoyer would not want two Democrats on the ballot to compete for votes against a solitary Republican.

However, this system would ensure that if a president is wedded to cronyism (George W. Bush and Harriet Meyers come to mind), his party in the House would have an opportunity to offer the people a better qualified choice to serve on the court.

The end result is that the people would have some say in who wields ultimate federal judicial authority that is scarcely distinguishable from traditional legislative authority. If the court insists on making policy, then its prospective members should appear on the ballot just like the president, senators and representatives.

New from William J. Watkins, Jr.! Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy The history of Anglo-American liberty is, in many respects, a history of great charters and the events leading to their adoption. Consequently, Americans revere documents such as the Declaration of Independence, the Constitution, and the Bill of Rights. However, conspicuously absent from this list of revered charters are Thomas Jefferson’s and James Madison’s Kentucky and Virginia Resolutions. Viewing the Constitution as a procedural document meant to limit government and bring it under the rule of law, the Resolves were for much of the Nineteenth Century considered as a starting point for any discussion of liberty and federal and state relations. Learn More »»

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Zuloaga, A Wanted Man
June 23, 2010
Alvaro Vargas Llosa

WASHINGTON—There is nothing surprising about the arrest warrant in Venezuela for Guillermo Zuloaga, principal shareholder and president of Globovision, the country’s lone independent TV station. What is surprising is that Hugo Chavez has taken this long to make a move that those who follow Globovision’s heroic resistance against the autocrat have long expected.

Ever since Chavez took RCTV, Venezuela’s oldest station, off the open airwaves in 2007, Globovision knew it was next in line. But despite a dizzying array of judicial charges and acts of intimidation, Zuloaga’s media outlet maintained its investigative reporting and commentary. Even when the government falsely accused Zuloaga, who also owns two car dealerships, of hoarding vehicles with the purpose of raising their prices, Globovision’s president kept up the fight. Meanwhile, other critics—mayors, governors, intellectuals, business people—were arrested or forced to flee the country. The latest was Oswaldo Alvarez Paz, former governor of Zulia province, who spent time in jail for saying that his country had become a haven for drug traffickers. But somehow Chavez figured that a definitive move against Zuloaga, whose brief detention last March triggered international protests, was not in his interest.

This has now changed. Zuloaga is a wanted man; the government wants to eliminate the last bastion of freedom in broadcast journalism. There is always something rational about the timing of Chavez’s moves against key opponents. What the Zuloaga arrest warrant reveals is the real extent of the country’s crisis three months before legislative elections that will give the opposition a presence in Congress for the first time in years (it abstained from participation in the last legislative elections).

Corruption scandals reached their apex recently when 30,000 tons of rotting imported food were discovered in the warehouses of various government-owned enterprises. Venezuela, a country that suffers from chronic shortages due to price controls, imports 70 percent of its food. It is a cruel irony that, due to official corruption, the government, which routinely accuses private retailers of hoarding food for speculation, should be denying the most basic products to people dependent on a government aid program. It has cost Chavez, whose popularity has dropped to 48 percent.

Another factor weighing on Chavez is the collapse of law and order. According to a recent study of his first decade in power, conducted by 25 Latin American think tanks under the stewardship of Chile’s Libertad y Desarrollo, 150,000 people have lost their lives due to crime. The deepening of the authoritarian system has paradoxically entailed a gradual descent into widespread gang activity. Former policemen and soldiers are part of organized crime.

Finally, the economic context, already dismal with a 6 percent drop in output in the first quarter of 2010 and 30 percent inflation, threatens the regime. As happened in 2007, when the government responded to an economic downturn with nationalizations in oil, telecommunications, electricity, banking and steel, Chavez has now decided to intervene in 18 food distribution companies, the private Banco Federal (one of whose directors sits on Globovision’s board) and 80 investment banks and brokerage firms. In the last five years, more than 762 private businesses have been expropriated. Every wave of nationalization is justified with the argument that private enterprise is instigating the economic troubles. As a result, the World Economic Forum ranks Venezuela 113th in terms of competitiveness.

No wonder the government is convinced it now needs to obliterate the remnants of free expression. Chavez already controls 72 television stations, 400 radio stations and 18 newspapers, and has inflicted more than 1,000 hours of verbal torture on the people through addresses to the nation that every outlet is obliged to carry. But this is not enough. An independent Globovision, a relatively small outlet that has become a giant in the eyes of millions of Venezuelans, is unacceptable in a state intent on becoming a second Cuba.

A group of foreigners invited to celebrate the 25th anniversary of Cedice, a Venezuelan policy institute, had dinner with Zuloaga last year. We asked him how long he was prepared to fight. “As long as it takes,” he responded. “They will come after me, but that will not stop us. Even if they shut us down, we have arrangements in place to continue broadcasting from overseas. We will never surrender.”

A few days ago, when Zuloaga went into hiding, Chavez called him a coward. The dictator knows very well he is up against an enemy far more courageous than he is.

New from Alvaro Vargas Llosa! LESSONS FROM THE POOR: Triumph of the Entrepreneurial Spirit Half the people in the world live on two dollars or less per day and roughly 600 million live on no more than one dollar per day. With thousands of international relief organizations, strategic government programs, and billions of dollars in foreign aid, why do so many underdeveloped countries remain unable to grow their economies beyond mere survival? Learn More »»

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Why Less Government Spending Would Mean Less Economic Trouble
June 23, 2010
Robert Higgs
Christian Science Monitor

Many economists say deficit spending is crucial to keeping the economy moving. But history tells a different story.

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Though our current economic troubles are complex, many mainstream economists have endorsed the simplistic Keynesian theory that massive government spending will produce jobs and prosperity.

From such Keynesian thinking have flowed the “stimulus” and bailout measures that have increased the size and power of government and added trillions of dollars to the public debt. The federal deficit has jumped from about 3 percent of gross domestic product (GDP) in fiscal 2008 to about 10 percent of GDP in fiscal 2009 and 2010. The government now forecasts deficits in the neighborhood of $1 trillion per year for the next decade.

Politicians, who are always looking for plausible rationales for their insatiable spending, borrowing, and power-grabbing, had never abandoned Keynesianism, so they have been elated to find economic “experts” again confirming their self-interested inclinations. Indeed, several prominent economists, such as New York Times columnist Paul Krugman, are urging Washington to spend even more, lest the economy slow.

But what does history teach?

History teaches that temporary surges in government spending give people money that, for the most part, they save or use to reduce debt, rather than setting in motion an upward spiral of income, expenditure, real output, and employment, as envisioned by John Maynard Keynes, the British economist whose theory spurred massive government interventions in the economy from the 1930s onward.

History also teaches that government “emergency” spending tends to fatten the coffers of the politically connected. Thus, much of the so-called stimulus spending has served only to increase the pay and benefits of government employees, transferring income from the private sector to the government sector, and to reward groups, such as the United Auto Workers and low-income home buyers, for their support of the Obama administration.

One aspect of the current crisis that has come as anything but a surprise to students of history is that the politicians (in the words of President Obama’s chief of staff, Rahm Emanuel) have not allowed this crisis “to go to waste.” The past two years have witnessed one power-grab or institutional takeover after another, including AIG, Fannie Mae, Freddie Mac, General Motors, and Chrysler.

Under the Troubled Assets Relief Program, the Treasury has taken ownership positions in hundreds of large banks by purchasing preferred shares and warrants. Virtually all residential mortgage lending now ultimately springs from the secondary market and guarantees provided by Fannie, Freddie, Ginnie Mae, the Federal Housing Administration, and Veterans Affairs.

This aspect of the government’s power-grab has been especially important because by continuing to pump funds into dodgy mortgages, the government is preventing the necessary restructuring of the housing-construction industry and the mortgage-credit sector, propping up unqualified and underwater borrowers and ill-managed and even insolvent lenders. These short-sighted actions create great potential for a second round of the housing crisis.

Since the early 20th century, periods of national emergency—real and imagined—have triggered sharp increases in government power, scope, and cost.

The first five episodes were World War I, the Great Depression, World War II, the upheavals associated with the civil-rights revolution and the Vietnam War, and the post-9/11 events associated with the war on terror and U.S. engagements in Afghanistan and Iraq.

We are now in another such critical period, springing from the housing bust, financial debacle, and recession.

In their embrace of Keynesianism, many economists have concluded that even though the New Deal’s hodgepodge of policies never brought about full recovery, World War II did, as the economy expanded to produce munitions and enlarge the armed forces. Huge, deficit-financed government spending, they argue, finally wiped out the lingering mass unemployment.

The truth, however, is really quite simple. In 1940, after eight years of New Deal pump priming, the unemployment rate remained about 10 percent even if, unlike the Bureau of Labor Statistics, we count people enrolled in federal emergency work-relief programs as employed. The gigantic buildup of the armed forces, primarily by conscription, then pulled the equivalent of 22 percent of the prewar labor force into the military. Voilà, unemployment disappeared, as it was bound to do regardless of any wartime Keynesian fiscal policies.

Looking to the World War II model of how to deal with today’s economic crisis is nonsense. Whatever else the war might have accomplished, it did not produce conditions that we may properly describe as genuine prosperity.

Government spending—whether on our current armed forces and their more than 800 foreign bases or on “green” energy and other government-favored projects—does not produce prosperity. It only diverts resources, as it always has in the past, from the genuinely productive private economy and bulks up an already bloated government.

New from Robert Higgs! NEITHER LIBERTY NOR SAFETY: Fear, Ideology, and the Growth of Government Economist and historian Robert Higgs illustrates the false trade-off between freedom and security by showing how the U.S. government’s economic and military interventions have reduced the liberty, prosperity, and genuine security of all Americans. Learn More »»

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Taliban’s Time Horizon Longer Than America’s
June 23, 2010
Ivan Eland

In contrast to World War II and Desert Storm—which had clear goals, even though those of the latter were limited—the war in Afghanistan resembles the Spanish-American War and the Vietnam War. In the former, the goal changed from defeating the Spanish in a conventional war to subduing Philippine guerrillas in order to imperially conquer the archipelago. In the latter, contrary to popular belief, Lyndon Johnson’s goal was never to win, but to alter the conditions on the battlefield to compel the enemy to negotiate.

In the Spanish-American War, America was able to take out the adversarial regime relatively easy. The hard part came in getting rid of the guerrillas, who were sure they were promised by the McKinley administration that if they helped the Americans get rid of the Spanish, the Philippines would win its independence. The latter didn’t happen, and it took several years of brutal American counterinsurgency tactics and torture to subdue the local Thomas Jefferson wannabes.

Similarly, in Afghanistan, taking down the Taliban only required 700 U.S. Special Forces and CIA personnel calling in American air strikes to support the ground fighters of the Afghan anti-Taliban Northern Alliance. The hard part has been battling a resurgent Taliban, which uses guerrilla tactics.

In Afghanistan, as in Vietnam, proper skepticism of an outright U.S. military victory abounds, leading to an escalation aimed at gaining military advantage for ultimate negotiations with the Taliban. Yet President Obama has given the escalation only 18 months in which to reach this goal, as well as the equally unrealistic objectives of crippling al-Qaeda and training Afghan security forces to operate on their own. To get the U.S. military to buy into the 18-month period prior to commencement of withdrawal, Obama had to consent to the escalation of an extra 30,000 troops.

The 18-month timetable to begin withdrawal was the standard naïve liberal dogma that this would jolt the Afghan government into becoming a clean, democratic governing force that could effectively battle the Taliban. Instead, Afghan President Hamid Karzai has made clear he doesn’t think the United States can win, is trying to cut deals with the Taliban and their patrons in the Pakistani military (also ostensibly an American ally), and has even threatened to join the Taliban if the United States keeps killing Afghan civilians.

Almost as bad, the troop surge to win military advantage for negotiations with the Taliban has been a bust. Marjah has not been tamed, and the offensive in Kandahar has been significantly delayed. But the very premise that the zealous Taliban would negotiate instead of waiting for the Americans, historically with a limited attention span, to leave resembles the same flawed assumptions the United States made about the North Vietnamese during the war in Southeast Asia. Like the North Vietnamese, the Afghan Taliban want their country back from the foreign occupier and have a longer time horizon than the Americans. Furthermore, Afghans have been accustomed to continuous war for more than 30 years, hate foreigners, and know that their history indicates that would-be foreign rulers can be out-waited—as they have many times before.

These factors illustrate that U.S. neoconservatives are equally naïve to believe that without the 18-month deadline, the U.S. has a prayer of success in historically unforgiving Afghanistan—however that vague term is defined. Eighteen months is not long enough to ramp up a comprehensive counterinsurgency strategy that could win “hearts and minds,” but the aforementioned underlying realities make it unlikely that even an 18-year counterinsurgency strategy would work (the U.S. government has already spent nine years without getting it right).

Finally, the Taliban may be violent and ruthless, but in the eyes of the Pashtun people, the dominant group in Afghanistan, they are the only hope for Pashtuns. Even though Hamid Karzai is a Pashtun, he is regarded among them as a puppet of the United States and rival Uzbek and Tajik groups. Thus is explained the curious support of many Afghans for the brutal Taliban. This major factor is often ignored in overly optimistic forecasts of the potential for U.S. pacification of Afghanistan.

The only solution is to cut the U.S. losses and leave Afghanistan for good. The good news is that removal of U.S. occupation forces from a Muslim land might actually reduce blowback anti-U.S. terrorism around the world.

New from Ivan Eland! THE EMPIRE HAS NO CLOTHES: U.S. Foreign Policy Exposed (Updated Edition) Most Americans don’t think of their government as an empire, but in fact the United States has been steadily expanding its control of overseas territories since the turn of the twentieth century. In The Empire Has No Clothes, Ivan Eland, a leading expert on U.S. defense policy and national security, examines American military interventions around the world from the Spanish-American War to the invasion and occupation of Iraq. Learn More »»

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