2005 - %3, July

Roberts Malaise

Thu Jul. 28, 2005 3:28 PM EDT

Over at Salon, Michael Scherer discusses why all the left-leaning groups that promised to come to fisticuffs over Bush's Supreme Court Nominee have thus far kept quiet. It seems like Grover Norquist has a pretty good explanation, or at least one that credits the opposition with some strategic thinking: people are saving up their bile (and credibility) for either the September hearings, or else for whomever Bush might nominate next.

But the most important factor may be that John Roberts doesn't present a lot to throw mud at. Sure, he's argued the conservative line on abortion and tons of corporate issues, but since he was just fronting for clients the assumption is that those cases don't really tell us what he thinks. The senior counsel at the liberal Alliance for Justice, which spent all spring gearing up for a fight, runs the numbers on Robert's brief months on the D.C. Circuit Court:

"As a judge he has sat on 400 cases," says Shah. "He has only written 44 of those. And only five of them are cases in which one of the judges disagreed."

Clearly not a lot to go on.

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Gun Liability Shields

| Thu Jul. 28, 2005 3:10 PM EDT

From a political standpoint, I'm fairly convinced that the Democratic Party should steer far, far away from its gun control stance: frankly, it's a losing issue and it costs them too many votes that could be used to forward far more important progressive goals. From a personal standpoint, I'm all for letting people have guns, but every now and again I read a story about the whiners who head up the NRA and some primal part of me just wants to regulate the gun industry right out of existence, purely for spite. The assault weapons ban, granted, is frivolous and mostly useless, and the NRA was right to oppose it. Nevertheless, there's no reason that the gun industry shouldn't be treated like the auto industry—universal registration of firearms, granting gun owners licenses based on skills and knowledge of gun law, a liability insurance requirement, letting the Consumer Product Safety Commission test and rule on guns—and perhaps a modest limit on gun purchases (one per month, maybe).

Now it may be that the NRA opposes these common-sense measures because they fear that sensible regulation would just amount to one giant slide down the slippery slope to total gun confiscation—and admittedly, that fear has some basis in fact, since lots of liberals really do want to ban all guns—but by itself, the opposition to these sensible regulations is pretty much without merit.

Anyway, that's all by way of saying that I have mixed feelings about this liability shield for gun manufacturers that's coming up for a vote in the Senate. Some might argue that lawsuits against gun manufacturers as a result of misuse of a firearm are just frivolous, and will never succeed anyway. (After all, should alcohol makers face lawsuits for "foreseeable misuse" of their products too?) The first point seems true—strictly speaking, holding a gun manufacturer liable for the "criminal or unlawful misuse of a [gun]" by a third party seems idiotic.

But then again, say a gun manufacturer starts selling far more guns in states with weak-gun control laws, more than the people living there could possibly buy, and the excess guns end up in, say, the hands of criminals in a state with tight gun-control laws like New York? Should third parties be allowed to sue for "negligent marketing"? These aren't hypotheticals, of course; the courts have thrown out these exact cases—even supposedly anti-gun activist judges like U.S. District Judge Jack Weinstein have ruled against the plaintiffs—although that trend could change over time, as legal thinking "evolves." (Surely the gun industry isn't just worried about frivolous lawsuits—they're worried they might start to lose these suits.) Meanwhile, negligent marketing does seem like a problem and not at all something in the spirit of the Second Amendment, or freedom to bear arms, or anything of the sort. We can all see what's at issue here—manufacturers are getting rich by circumventing laws meant to reduce gun crime. And when legislatures at the state and national level can't or won't do anything about it, then litigation can often step in and force an industry to account for its negligent product marketing and/or design, as it did to the tobacco industry in the 1990s.

Then again, it may be unwise to rely on activist courts to fight these sorts of battles. So there just might not be any answer to gun manufacturers running amok, at least barring a shift in popular sentiment at the national level. (And given that rural states are disproportionately represented in the Senate, that seems unlikely; unless, of course, the filibuster were to be abolished.) Now as it happens, I'm not convinced that guns are even among the top 10 biggest problems facing America today, so I don't lose a whole lot of sleep over this, but it still seems like a difficult issue.

Give the Bums a Raise!

| Thu Jul. 28, 2005 1:44 PM EDT

Public Citizen has a new report out today about the revolving door between Congress and K Street: "Forty-three percent of members of Congress [including fifty percent of all Senators] who left office since 1998 and were eligible to lobby have become lobbyists." Now Public Citizen recommends sticking a foot in the door and enacting a bunch of "tough love" measures—like implementing a "cooling-off period" of two years after a legislator retires—that, while nice, have no chance whatsoever of passing. Members of Congress may have cut their own pay twice during the Great Depression, but they're not about to back away from the goldmine now.

A better compromise would be to raise Congressional salaries to fairly high levels, maybe even boost their pensions, combined with a series of measures to clog up the revolving door, which would make members of Congress less likely to seek out lucrative lobbying jobs. Egad, right? Expand congressional salaries in a time of staggering deficits? Well, it's either that or waste money on lavish government subsidies for big businesses that have hired former Senators to lobby for them. Giving the bums a raise isn't quite as noble as Public Citizen-style austerity measures, but it has a better chance of working, no?

Reform Thyself!

Wed Jul. 27, 2005 9:05 PM EDT

Robert Kuttner has a good piece in the Boston Globe today on the break-up of the AFL-CIO. There's no real new information, but after the obligatory conceit that the split is in part about Andy Stern's ego, Kuttner wisely compares the break-up to other understandable, if risky, efforts by progressive radicals to knock down massive and old-line liberal establishment organizations—i.e. Nader going after the Democrats, and Shellenberger and Nordhaus' iconoclastic missive against the Washington based environmental movement.

Kuttner got me thinking about what other big players in the liberal coalition might need a retooling, and where the initiative might come from. Feminist groups? Civil Rights? Must the tree of liberty must be refreshed from time to time with the blood of whippersnappers and burnt out bureaucrats? A Common Cause employee once told me that the average age of it members were something like 72. She (or my memory) is probably overstating the case, but the signpost seems right. When the reform organizations founded in the 60s and 70s run out of gas be replaced, or will they do something that you'd hope they'd be good at and, you know, reform for a new generation?

Hurry Up Please It's Time

| Wed Jul. 27, 2005 6:36 PM EDT

In a surprise visit to Iraq today, Donald Rumsfeld told the drafters of the new Iraqi constitution to get a move on: "We don't want any delays. They're simply going to have to make the compromises necessary and get on with it." Well, sure, but a constitution needs to be done right or it won't be worth the scrap of paper it's printed on. Reports indicate that former Afghan ambassador Zalmay Khalilzad is now exhorting the Iraqi leaders to draft a decent constitution, something along the lines of what South Africa created in 1994, to end apartheid. Well, fair enough, but let's not overlook the fact that Mandela, de Klerk, and other groups had been negotiating over that constitution as far back as 1991. Hashing all the relevant disagreements out can take time, and it seems unnecessarily foolish to hold the Iraqi framers to an artificial deadline if they're not yet ready. Otherwise, any unsatisfactory compromises now, glossed over in haste, will resurface as armed disputes later on.

Ehrenreich on Labor

| Wed Jul. 27, 2005 5:05 PM EDT

Barbara Ehrenreich has some advice for labor organizers in her latest Progressive column, including this tidbit: "More than once, union organizers have told me that goals like universal health insurance are irrelevant because the union can win health insurance for its members, or at least those who survive the organizing drive." Indeed, that's not just true now, but it's been true historically; as Jill Quadagno writes in One Nation Uninsured, one of the reasons—though not the only reason—why the United States didn't get universal health care in the 1950s while nearly every other Western democracy did was that labor was somewhat divided on the subject. Union leaders like Samuel Gompers and George Meany preferred to negotiate health benefits through collective bargaining agreements rather than go through Congress. (During World War II, the wage freeze meant that labor could only negotiate for better health benefits, so that's the route they took, and then just sort of stuck with it after the war.) In the end, infighting over tactics meant that there was never a strong, unified labor push to get universal health care on the table. Union leaders would be ill-advised to make the same mistake again.

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Ralph Nader Agrees

| Wed Jul. 27, 2005 2:28 PM EDT

Anne Appelbaum suggests a few changes to the United States' public diplomacy towards the Islamic world: "[W]e need to monitor the intellectual and theological struggle for the soul of Islam, and we need to help the moderates win. This means making sure that counter-arguments are heard whenever and wherever [radical] Muslim clerics and intellectuals are talking, despite the impact of Saudi money." Huh. Nothing clever to add, except that change a few adjectives here and you'd have a grand little argument in favor of publicly-financed election campaigns, the sort of thing lefty groups like Common Cause and Public Citizen have been championing for years. Suffice to say, it's a good idea.

CAFTA at Midnight

| Wed Jul. 27, 2005 1:31 PM EDT

This certainly isn't good news—Mark Goldberg of the American Prospect reports that the House leadership plans to ram CAFTA through the House late tonight, despite the fact that a majority of the chamber opposes to the treaty. That squares with what Reuters is reporting: "[House Majority Leader Tom] DeLay said Republicans would gavel the CAFTA vote to a close "when we get 218," the number of votes needed for approval."

Now DeLay can certainly do what he wants, even if this is a bit thuggish—Lyndon Johnson once showed that some good can come of thuggery, after all—but what's troublesome is that he'll probably get the votes he needs to pass CAFTA by including all manner of pork, protectionism, and industry giveaways that will bog down a treaty already bogged down by pork, protectionism, and industry giveaways. (A longer critique of CAFTA's bogged-down-ness can be found here.) But that seems to be the natural outcome of a party less concerned with crafting good trade policy and more with getting some sort of industry handout passed, with as few Democratic votes as possible, so as to deprive the opposition party of corporate donations. (After all the GOP could have included a few worker protections and won over enough free-trade Democrats to get CAFTA passed without all that craven and harmful pandering to the sugar industry.) If it seems petty, it is.

The Roberts Effect

| Tue Jul. 26, 2005 7:48 PM EDT

A few days ago, Yale's Jack Balkin wrote an important Newsday op-ed on why having someone like John G. Roberts on the Supreme Court could severely curtail abortion rights, even if the Court still wouldn't be enough votes to overturn Roe v. Wade: "Courts now enjoin new abortion laws as soon as they are passed if they burden some women's right to abortion. But next term the court will decide whether to change that rule. If it does, states could pass stringent restrictions on abortion; these could remain on the books for years until lawsuits knock away the most blatantly unconstitutional features. That is not the same as overturning Roe v. Wade, but its practical effect is very similar."

Leak Away

| Tue Jul. 26, 2005 6:30 PM EDT

Christopher Hitchens gets it right on in Slate today: The Intelligence Identities Protection Act needs to go. Sadly, it's Hitchens, and for some reason the voices inside his head forced him to end the essay by insisting that Iraq actually did have a deal to buy uranium from Niger. Er, whatever. It's Hitchens. About the IIPA, though, he's absolutely right. The CIA, given its sordid history, shouldn't be exempt from the sunlight of public perception, and that means that both journalists and virtuous government officials should be allowed to expose covert agents. Reading the law itself, it seems that journalists are exempt from prosecution unless they start uncovering agents with a mind to "impair or impede the foreign intelligence activities of the United States." Okay, but again, one doesn't have to think very hard to come up with intelligence activities of the United States in the past that should have been impaired or impeded.

At any rate, the main issue in this Plame case is that, in this case, the Bush administration was wrong about Iraq's WMD capabilities, and when those errors were exposed, Karl Rove and others decided to wreak havoc on the very agency that had been pushing back against the march to war. What matters is why he was leaking Valerie Plame's name—if it was Rove, of course—and not the fact that agents' names were leaked. It's nice and very convenient that the Plame leak triggered Patrick Fitzgerald's investigation, but as a general principle, less rather than more government secrecy is always a good idea.