Legal Fiction

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The Washington Post editorial board, in the middle of an otherwise solid critique of DeLay, added this:

The more difficult question is whether [TRMPAC’s activity] was an illegal end run - or to be more precise, one so blatantly illegal that it that it amounts to a criminal felony rather than a civil violation. . . . If [lawyers approved the activities], the criminal law seems like an awfully blunt instrument to wield against Mr. DeLay.

Not blunt enough, I say. But despite my distaste for Tom DeLay, I’ll concede that it’s a debatable question − and one without an objective answer − whether these acts should be treated civilly or criminally. Just because a law is broken doesn’t necessarily mean that a prosecutor should jump in. After all, there’s a reason we give prosecutors discretion. The precise question then is not so much whether DeLay and TRMPAC broke the law, but whether Earle’s decision to seek criminal penalties is the right call. And despite the Post’s skepticism, I think criminal prosecution is exactly the right call as a matter of policy.

First, you have to understand that the right to vote is “special.” Voting is fundamental in that it’s the source and guardian of all our other rights. It is therefore extremely important that officials in power respect the voting process (a broader concept that includes not just voting itself, but redistricting, registration processes, trustworthy ballot machines, trustworthy election officials, fundraising disclosures, etc.). This broader voting process should be as transparent and as free from official meddling as possible. It should also be governed by clear ex ante rules to ensure legitimacy and accountability.

When you start tampering with this process, it’s not an exaggeration at all to say that you’re tampering with the very foundation of our democratic system. That’s why the voting process must be sacrosanct.

But because of its fundamental importance, the incentives to tamper with the process are overwhelming. And given that men are (like Madison and Burke believed) self-interested creatures who are not necessarily good, we have to take extra steps to eliminate any incentives to corrupt and control the voting process.

When you think of criminal election laws in terms of creating optimal incentives, they make a lot of sense. They deter people (in a way that monetary fines cannot) from tampering with the voting process − which is the source of our rights. In fact, they ensure that people will hesitate to even approach the line that divides legality from illegality.

What makes DeLay’s scheme so particularly foul − and what makes it appropriate for prosecution − was it was entirely about tampering with and subverting rules governing the voting process. He cheated to raise money to elect those who would then illegally gerrymander Texas. The entire enterprise was about ignoring the ex ante rules governing the voting process − rules that (in a two-party state) solve the collective action problem that would otherwise undermine that process.

Granted, there’s nothing inherently better about redistricting every 10 years as opposed to every 2 years. The point is that 10 years was the ex ante rule − and mutually agreed-upon ex ante rules (like in baseball) allow the game to be played. DeLay tossed those rules aside arrogantly and even proudly. In doing so, he initiated a gerrymandering race to the bottom in which every party in power now had incentives to gerrymander districts whenever they had a bare majority. And predictably, the race to the bottom has now spread to other states. And our democracy is the worse for it. [On as aside, this is exact same reason why holding votes open in the House and other nonsense is not just wrong, but fundamentally undermines our democratic system.]

Again, it’s not so much that they illegally funneled $200,000 of corporate cash to Texas candidates. It’s the principle. There’s a slippery slope problem here. If DeLay succeeded in evading this law without any consequences, what would stop him from breaking other laws? What would stop others from doing the same? There’s a broader message that Earle is sending here and that message is leave the democratic process alone. Reward your cronies, get your pork − do all the things that elected officials like to do. But don’t screw with the voting process − that is off-limits.

Criminal penalties are a necessary deterrent to make sure people get this message. For instance, because of Earle making a stand here, I suspect he’ll single-handedly eliminate illegal funneling of corporate money in Texas state races, at least for the near future. High-profile criminal prosecutions have a way of getting people’s attention. Just ask Martha Stewart or any newly famous CEO. Without the proper deterrents (i.e., something more than cash fines), these people simply lack the incentives to play fair. After all, playing fair is not rational. It’s only made rational by the threat of penalties.

Of course, this doesn’t mean that every violation of any election law warrants prosecution. We still have to depend upon prosecutors to use their discretion reasonably, even in this realm. But failing to disclose a fund, or breaking one technical campaign finance rule, is qualitatively different than DeLay’s scheme. His scheme was nothing short of a massive coordinated conspiracy to thwart the structure of our electoral system and to enlist illegal contributions to do it. This violation strikes much deeper at the heart of our system than failing to report a golf outing.

And even if Earle can't finish the job, he has in a sense already won.

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Wash. Post:

New York Times reporter Judith Miller was released from jail late yesterday and is scheduled to testify this morning before a federal grand jury investigating whether any government officials illegally leaked the identity of CIA operative Valerie Plame to the media, according to lawyers involved in the case.

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Being too busy to blog about Christian Tom DeLay is sort of like the Snow Day episode of the Simpsons. For those who haven't seen that one, Bart makes a deal with God that if he'll give him an extra day to study for a test that will keep him from failing, he'll study hard. God complies with a snow day, and Bart is stuck inside watching everyone in the town play. Mayor Quimby rubs salt in the wound by saying: "I hereby declare this day to be Snow Day, the funnest day in the history of Springfield!" That's me, tonight. Watching out the window while Christian Tom DeLay begins his Shakespearian fall. But I do have a few quick thoughts to get out or else I'll explode.

First, the mere fact that DeLay was forced out is not the reason his fall was Shakespearian. The reason is that the characteristics (whether you call them virtues or vices) that led to his ascent are precisely the same characteristics that led to his descent. The ruthlessness, the insatiable drive for power, the willingness to ignore moral (and legal) boundaries - these are all responsible for DeLay's rise to power and his not-unimpressive ironclad control over the House (an institution designed to be chaotic and mob-like). But like other fictional villains before him, the characteristics that got him there necessarily required that he would one day go too far. The fall cannot be separated from the rise. It was the cost of power and success - his deal with the devil; the yang to his yin (or yen). (This may also apply to Christian Karl Rove one day too).

Second, I couldn't agree more with this Ed Kilgore post - the problem is systemic and Democrats should not fetishize DeLay (see my post here on the problems with fetishizing individuals at the expense of identifying more systemic problems). The webs connecting DeLay to Abramoff to Ney to Blunt to Rove to God knows who else are all part of the same system. And I don't mean "system" in the 60s Ken Kesey cliche sense of the word. They were all interconnected - part of the same corporation responsible for taking in money and distributing it to the proper people. And the more you peel back, the more connections you see. That's why I thought this quote by Bill Kristol was a little disingenuous (even though I don't dislike Kristol):

"Even though DeLay has nothing to do with Frist, and Frist has nothing to do with Abramoff, how does it look? Not good," said William Kristol, a key conservative strategist and editor of The Weekly Standard.

Well, no, but Abramoff had a hell of a lot to do with DeLay. Sticking the hapless Frist in the middle of that chain makes it seem like all these operations are independent from each other. But they're not. The truth is that Frist is the outlier. The Rove-DeLay-Norquist-Ney-Abramoff enterprise, however, must be understood as a collective one.

Finally, in light of the Blunt insurgency, it's clear that Ronnie Earle didn't listen to the State Department in deciding to take out Tom DeLay. Surely he knew that the Republican caucus was only stable because it was ruled by a dictator who bribed and punished those who challenged him. The various ethnic groups (Shays-iites and Sensenbrunnis) have a long history of tension and it was to be expected that civil war would break out after the dictator was removed.

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DeLay indicted.

You know, the really interesting question is how many House Republicans are secretly happy that DeLay got indicted. I would love to see a secret ballot vote on that. And I suspect our good friend Representative Pence would vote "Am Happy", especially considering how foolish his fawning, cowardly speech about the House leadership looks today.

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Dana Milbank in the Post:

Pence, chairman of a group of House conservatives called the Republican Study Committee, was complaining to his companions about a Robert Novak column in yesterday's Washington Post saying Pence was subjected to a "closed-door auto-da-fe" from Speaker Dennis Hastert and Majority Leader Tom DeLay for daring to suggest that the profligate House leadership should reconsider its big-spending ways. But Pence got the leadership's message, loud and clear.

Pence's speech was billed by the conservative Young America's Foundation (YAF) as a discussion of "why the conservative leadership in Congress has abandoned its allegiance to the principles of smaller government" and gone on "massive spending splurges." But instead, a chastened congressman delivered unstinting praise for his superiors.

Matthew 4:8-9

Again, the devil taketh him up into an exceeding high mountain, and sheweth him all the kingdoms of the world, and the glory of them;

And saith unto him, All these things will I give thee, if thou wilt fall down and worship me.

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After praising Feingold's political savvy for his timetable for withdrawal, I was confused when I saw that he voted for Roberts. A vote for Roberts is not an act of treason or anything - the guy was good, and he left no paper trail after his cocky days at the Reagan DOJ. There simply wasn't much there to gain traction on. But this is all irrelevant for people positioning themselves for the '08 primary. They have an entirely different set of calculations in casting their votes. And I thought Feingold would definitely vote against him. But he didn't.

At first, I thought he was being politically dumb, or Liebermanish (adj. - tending to have a political tin ear). And I was all ready to write a post about it when I was fortunate enough to read Ed Kilgore:

My favorite take, by Daily Kos diarist LarryInNYC, goes well beyond the "keep your powder dry" theory that Democratic Senators voting "yea" are making sure they have maximum credibility to go after Bush's nominee to replace O'Connor, which will almost certainly change the overall balance of the Court. Actually, suggests Larry, some "yes" voters (presumably Leahy and Feingold) are actually planning to lead a filibuster against said nominee, and thus have signalled by their support for Roberts that they are in truth the shrewd, fighting Dems that disappointed activists had hoped they would be, while some of the "no" voters are probably unprincipled trimmers.

Kilgore is (I'm pretty sure) making fun of LarryInNYC, but the "keep your powder dry" theory makes perfect sense to me. In politics, a good rule to follow is to save your bullets for stuff you can kill. Feingold recognized reality, realized (correctly) that the stakes were lower with Rehnquist's death, and held back in the hopes of looking more credible for the next nominee. So maybe Feingold is still the savvy politician that I thought he was after all. The million-dollar question, of course, is how he would have voted if Rehnquist hadn't died. [And it also would have been interesting to see if people like Lincoln Chafee would have supported Roberts if Rehnquist were still around.]

Another interesting question is whether Bush made a tactical blunder by switching Roberts to Rehnquist's chair. This is Kaus's argument:

If the Bushies have been choreographing the Supreme Court nomination fight, they've blown it--at least if the goal was to move the Court to the right. Why? It's not that John Roberts wasn't charming and bulletproof enough to sail through the Senate despite his conservatism. It's that Roberts was so charming and bulletproof that he's the one conservative nominee who could have sailed through as a replacement for the swing-vote O'Connor. Instead, the White House has wasted him as the replacement for another conservative, William Rehnquist--and now they face a fight over the swing seat replacement.

Maaaaybe, but I'm not so sure. I mean, I'd love to say that Bush screwed up, but I don't think he did. First, I do think it's clear that Rehnquist's death lowered the stakes for the Roberts nomination. And I agree that from a coldly rational perspective, conservatives would have been better-positioned to shift the Court to the right if Rehnquist had held on for a couple of months until after Roberts had been confirmed.

But once Rehnquist died, none of this mattered anymore. Once you have two empty seats, they stop "belonging" to any one individual. And so, it wouldn't have made a lick of difference whether Roberts took Rehnquist's spot or O'Connor's. If Bush kept with the plan and put Roberts in "O'Connor's" seat, the fight would have merely shifted to "Rehnquist's" seat. When you're talking about two open seats, it's a bit silly to think that those seats "belong" to any one Justice. I've never been back there, but I'm pretty sure the chairs around the bench don't have special instructions attached to the back about what kind of person can sit there. And if Roberts had taken O'Connor's seat, it's seem odd that liberals and centrists would cede ground merely because that seat was "Rehnquist's."

In short, conservative hopes to shift the Court to the right weren't undermined by Bush, but by Rehnquist's death.

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As the Medium Lobster explained in his own Medium Lobster way, gay marriage is spreading and neither the family nor the world has been destroyed in the places where it is now legal. As time goes on, and as families and marriage continue to exist in places like Spain and Massachusetts, I think the continued stability will put anti-marriage forces in a theoretical bind. That’s because anti-marriage forces – at least publicly – usually rely on consequentialist arguments to defend their positions.

“Consequentialism” is one of the main theories within ethics – the branch of philosophy dealing with the rightness and wrongness of human action. To be grossly general, consequentialism stands for the idea that the relative goodness or badness of an action depends upon the consequences that action produces (thus the name). The opposite of consequentialism is deontologism. Under this theory (again, generally speaking), consequences are irrelevant to the rightness or wrongness of a given act.

The problem that anti-marriage forces have is that their arguments generally rely upon the consequences that gay marriage will have. Gay marriage will, we are told, undermine the family, threaten marriage, and even destroy the Earth. These are all consequentialist arguments because they are justified by the consequences that will allegedly result from gay marriage.

But the thing about consequentialist arguments is that they are completely undermined if the negative consequences don’t materialize. If your argument is “X is bad, because X will lead to Y,” then you’ve got a problem if Y never happens. In fact, you’ve got more than a problem, you’ve got a failed argument. And the more that marriage spreads, and the more that people see that it creates families, the harder it’s going to be to rely on these consequentialist arguments.

This is the bind that anti-marriage forces face. If the consequentialist arguments fail because the predicted consequences never happen, then one alternative is deontological arguments (i.e., gay marriage is inherently bad, independent of the consequences). The problem, however, is that these arguments are not very politically appealing. To base national policy on the argument that “I think that the Bible outlaws it” or “because my God says so” is probably a bit medieval (or Sharia) even for religious Americans. And yet, those arguments – even with all their obvious flaws – are probably the most palatable ones that can be raised publicly. The alternative – some variation of “because-gays-are-wicked-and-they-make-me-sick” – would probably sell even worse.

So what is to be done? Will social conservatives realize the failures of their logic and change sides? If not, will they at least abandon their consequentialist arguments? I doubt it. Instead, we’ll see them do what too many modern conservatives do – ignore consequences. More precisely, these people will continue making arguments that were originally justified consequentially, but they’ll stop caring about whether those consequences actually materialize. I suppose you could call it deontological consequentialism®.

And we’ve seen this tactic before, especially in the realm of tax cuts and supply-side theory more generally. Supply-side is a perfect example of a consequentialist policy that no longer relies on consequences. The original justification for implementing supply-side policies was that they would result in specific consequences that were good – the wealthy would re-invest the money, which would spur job growth and lead to even greater tax revenues. The problem, though, it that there simply isn’t any empirical evidence that cutting tax revenues for wealthier people will eventually result in greater revenue (remember that Reagan raised taxes repeatedly after his initial cuts and still couldn't eliminate his deficit).

But that reality no longer matters because consequences no longer matter. Cutting taxes is now a good in-and-of-itself, regardless of consequences. Just look at the governor’s race in Virginia. Kilgore’s big issue is the tax increase (the other is immigrant-bashing). But Virginia’s targeted tax increase – like Clinton’s – has had enormously beneficial consequences. Virginia’s budget is back in order, the state has money for education, services are funded, and so on. But Kilgore is railing against it, not on consequentialist grounds, but on deontological grounds. It was a tax hike and tax hikes are bad. Consequences are irrelevant. It doesn’t matter that Virginia’s economy is now flourishing and its budget is in order. Those are consequences and consequences don’t matter.

Gay marriage arguments are the same. The consequentialist arguments will never go away. They just won’t require consequences any more. Social conservatives will keep on saying that marriage will be undermined and families will be threatened even if absolutely zero evidence ever materializes.

And all of this, I suppose, points to a much bigger problem – and one that is probably hard-wired into our brains. Most of us (and I certainly include myself in the indictment) don’t really justify our opinions based on logic. Generally, it’s based upon childhood and community norms, and various psychological emotions and motivations that were likely the products of life in the woods. [On an aside, this is why college or travel usually alters one's views. It transplants people into new communities that have different norms and morals than the communities they come from. Even if they don't adopt those norms, they at least see the contingency of their own more clearly.]

Given the way we are all wired, I don’t think logic usually changes people’s mind – generally, emotion does. It takes having a friend or family member to come out of the closet for people to change the way they think about homosexuality. Similarly, I think to convince someone to change their mind politically, you really have to get at their first principles – or the foundation upon which their logical arguments are constructed (or are the "superstructure"). And that foundation is usually an emotional one. That’s why people never abandoned Bush in 2004 – the emotional bond forged after 9/11 was too strong for any logic to penetrate. That also may be why Katrina will finally undo him – the hurricane may have finally made the emotional argument that Kerry and many progressives were simply unable to make.

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Phone rings. I answer it.

ME: Hello.

NEW YORK TIMES OPERATOR: Hello Sir or Madam--

ME: Sir.

NYT: Hello Sir. I’m calling about a new service from the New York Times called TimesSelect. Would you be interested?

ME: Probably not.

NYT: With TimesSelect, you can get access to the New York Times’ award-winning op-ed writers.

ME: Probably not.

NYT: You can get Paul Krugman and Bob Herbert and Frank Rich.

ME: I have columns from them from 2003 – I think they just change the title each week.

NYT: You can get the perceptive wit of Maureen Dowd, the anecdotally-justified pro-war liberalism of Tom Friedman, and the always-astute John Tierney.

ME: I can already get that.

NYT: No, they are no longer accessible without TimesSelect.

ME: Well, probably not then. But how much are we talking about?

NYT: It’s $7.95 a month, or $49.95 a year.

ME: That seems a little low.

NYT: I’m sorry?

ME: How about $20 a month, or $100 a year.

NYT: The price is just $7.95 or $49.95. That's a great value for the type of quality you will--

ME: I heard you. I’m just saying that’s too low.

NYT: You want to pay more to read them?

ME: Whoa-hoe-hoe there Jonny Operator. I’m not paying anything.

NYT: You just said you wanted to pay $20 a month, or $100 a year.

ME: I thought you were offering to pay me to read them.

NYT: No, that’s not how this works.

Click.

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Bush's Second Inaugural:

From the day of our Founding, we have proclaimed that every man and woman on this earth has rights, and dignity, and matchless value, because they bear the image of the Maker of Heaven and earth.

Pattern of Abuse, Time Magazine (via Andrew Sullivan):

The U.S. Army has launched a criminal investigation into new allegations of serious prisoner abuse in Iraq and Afghanistan made by a decorated former Captain in the Army's 82nd Airborne Division, an Army spokesman has confirmed to TIME. . . . The new allegations center around systematic abuse of Iraqi detainees by men of the 82nd Airborne at Camp Mercury, a forward operating base located near Fallujah[.]

Bush:

Freedom, by its nature, must be chosen, and defended by citizens, and sustained by the rule of law and the protection of minorities.

Time:

The Human Rights Watch report—as well as accounts given to Senate staff—describe officers as aware of the abuse but routinely ignoring or covering it up, amid chronic confusion over U.S. military detention policies and whether or not the Geneva Convention applied.

Bush:

We will persistently clarify the choice before every ruler and every nation: The moral choice between oppression, which is always wrong, and freedom, which is eternally right. America will not pretend that jailed dissidents prefer their chains, or that women welcome humiliation and servitude, or that any human being aspires to live at the mercy of bullies.

Time:

The Captain is quoted in the report describing how military intelligence personnel at Camp Mercury directed enlisted men to conduct daily beatings of prisoners prior to questioning; to subject detainees to strenuous forced exercises to the point of unconsciousness; and to expose them to extremes of heat and cold—all methods designed to produce greater cooperation with interrogators.

Bush:

By our efforts, we have lit a fire as well - a fire in the minds of men. It warms those who feel its power, it burns those who fight its progress, and one day this untamed fire of freedom will reach the darkest corners of our world.

Time:

Specific instances of abuse described in the Human Rights Watch report include severe beatings, including one incident when a soldier allegedly broke a detainee's leg with a metal bat. Others include prisoners being stacked in human pyramids (unlike the human pyramids at Abu Ghraib, the prisoners at Camp Mercury were clothed); soldiers administering blows to the face, chest and extremities of prisoners; and detainees having their faces and eyes exposed to burning chemicals, being forced into stress positions for long periods leading to unconsciousness and having their water and food withheld.

Bush:

America's belief in human dignity will guide our policies.

Time:

Prisoners were designated as PUCs (pronounced "pucks")—or "persons under control." A regular pastime at Camp Mercury, the report says, involved off-duty soldiers gathering at PUC tents, where prisoners were held, and working off their frustrations in activities known as "F____a PUC" (beating the prisoner) and "Smoke a PUC" (forced physical exertion, sometimes to the point of collapse). Broken limbs and similar painful injuries would be treated with analgesics, the soldiers claim, as medical staff would fill out paperwork stating the injuries occurred during capture.

Bush:

Today, America speaks anew to the peoples of the world: All who live in tyranny and hopelessness can know: the United States will not ignore your oppression, or excuse your oppressors.

Time:

"To 'F____ a PUC' means to beat him up. We would give them blows to the head, chest, legs, and stomach, pull them down, kick dirt on them. This happened every day. To 'smoke' someone is to put them in stress positions until they get muscle fatigue and pass out. That happened every day. Some days we would just get bored so we would have everyone sit in a corner and then make them get in a pyramid. This was before Abu Ghraib but just like it. We did that for amusement."

Bush:

In America's ideal of freedom, the public interest depends on private character - on integrity, and tolerance toward others, and the rule of conscience in our own lives. Self-government relies, in the end, on the governing of the self. That edifice of character is built in families, supported by communities with standards, and sustained in our national life by the truths of Sinai, the Sermon on the Mount, the words of the Koran, and the varied faiths of our people.

Time:

"Everyone in camp knew if you wanted to work out your frustration you show up at the PUC tent. In a way it was sport. The cooks were all U.S. soldiers. One day a sergeant shows up and tells a PUC to grab a pole. He told him to bend over and broke the guy's leg with a mini Louisville Slugger that was a metal bat. He was the cook."

Bush:

The rulers of outlaw regimes can know that we still believe as Abraham Lincoln did: "Those who deny freedom to others deserve it not for themselves; and, under the rule of a just God, cannot long retain it."

Thomas Jefferson:

I tremble for my country when I reflect that God is just; that his justice cannot sleep forever.

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Far be it from me to question to political savvy of the Bush political wing, but this seems like playing with matches when you’re already soaked in gas:

White House political strategist Karl Rove is offering lawmakers new details of an administration-backed guest worker program that would temporarily legalize the status of millions of illegal workers, according to Republicans who have attended the meetings.

. . .

Concerned that increasingly strident anti-immigrant voices within the party were undermining the administration's efforts to reach out to Hispanic voters, the administration formed a coalition of business groups and immigration advocates during the summer to lobby for the sort of comprehensive reform plan Bush has advocated since early in his presidency.

If administration thinks anti-immigrant voices are too loud now, just wait until Bush rolls out the guest worker proposal. This issue, more than other, has the potential to tear open a nasty rift in the GOP – especially in the House. The Steve Sailer/Tancredo cavalry will go absolutely nuts. I think the administration doesn’t understand the depths of anti-immigrant fervor in the House and in Red America more generally. But they will.

Before I get into the potential political costs and benefits, let’s start with a look at the proposal from a policy perspective. The thrust of the bill is that illegal workers could apply for a three-year work visa. On the good side, it means they would be more willing to obtain health care, get drivers’ licenses, report crime, etc. Their employers also couldn’t hold their illegal status over their heads and would have to extend federal labor and safety protections to them. Finally, their wages would increase, which could make them less of a competitive threat to American workers by creating a more level playing field.

On the other hand, these benefits may not be enough for the workers to risk coming out in the open and risking deportation in three years. Also, this policy would certainly encourage a flood of illegal immigration and would reward those who have broken the rules. In short, even if the bill consisted only of the three-year visa, it’s not clear that it would work. But there’s more:

At recent presentations led by Rove, administration officials are telling small groups of lawmakers that under Bush's plan, any worker who is here illegally would first have to pay a substantial fine before being granted a temporary work visa. The fine is seen as a gesture to critics who have said any legalization of illegal workers amounts to granting them amnesty for breaking the law.

That pretty much ensures that the law will be useless. As I said, the three-year visa faces an uphill battle as it is – when you add in a fine (and a substantial one at that), you pretty much ensure that no one is going to sign up. If employers pay this fine, then maybe. But if employees pay it, no way.

That’s why it’s seems like such a bad idea from a political perspective. Rove has managed to find the sweet spot that combines maximum alienation of the conservative base with complete policy ineffectiveness. In other words, Rove will piss off the base for no policy benefit.

Of course, Rove is seeking a political benefit. And the calculation that Rove is making isn’t a crazy one. For all his flaws, he understands demographic realities and long-term demographic trends. Anyone who can do basic addition (which excludes certain House Republicans) can understand why Latinos are becoming an increasingly powerful political bloc. Gaining their support now will pay off huge in the decades to come. If the Democrats could maintain their current levels of support, it will be very tough for the current Southern-based GOP coalition to survive. Rove understands this.

But what Rove may not understand is the offsetting costs that would result from the guest worker proposal. For one, he will lose a big chunk of the George Wallace Republicans. Latinos and the Tancredo wing simply can’t fit under the same tent. For another, the hysterical xenophobia that is sure to follow will have the same effect on Latinos nationally that Proposition 187 had on California Latinos – it will make them lifelong Democrats.

[On an aside, one benefit of the Southern/Reagan Democrat realignment is that even though Democrats have lost seats, they don’t have to worry so much about placating the Tancredo/Wallace wing anymore. Most of those people have long since defected to the GOP.]

But leaving politics aside, we do need immigration reform. Instead of, or perhaps in addition to, the guest worker program, I think the first step should be a vastly increased border presence and improved border patrol. Second, I think we should shorten the times that family members outside the country have to wait to join permanent residents and new citizens petitioning for their admission. Third, I would vastly increase the number of professional/research/student visas. Fourth, I would get rid of some of the absurd, punitive drug laws and other penalties that aliens have to be aware of every day. These measures don’t really address the existing illegals, but maybe there’s really nothing that can be done about that, but ignore it and try to keep it from expanding. Legalization or amnesty would create horribly perverse incentives, though it would be nice to extend wage and labor protections to the workers as well – they are real people, not statistics.

If anyone knows of any white papers or good non-hackish policy proposals on these issues, I would appreciate your comments below.

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I’m still busy with work this week, but as I’ve been traveling, I’ve been thinking more about Brownie as a symbol of a much larger problem – and one that others have written eloquently about. And that much larger problem is that the Bush administration (in its general disregard for policy) has appointed a slew of cronies to very important posts who have no experience in the relevant field.

But to take a step back, I think Brownie illustrates another larger point as well. And that point is that Americans on the Right and Left have a bad case of “Bush fetishism” that prevents them from perceiving the structural deficiencies running up and down – and all the way through – our executive branch. The executive branch as an institution is essentially a rotting house whose foundations have been overrun by termites – or maybe an organism eaten up with a cancer. Brownie is just a sign that the structural defects (and their consequences) are beginning to reveal themselves – the termites are spilling out into the open air. And Iraq will be next. And the federal budget after that.

Literally speaking, “fetish” refers to the projection of supernatural power upon a natural object. Marx borrowed the word – with its anti-religious dimensions – to critique market capitalism. He railed against “commodity fetishism,” which referred to treating things like the market (the relationship/exchange of goods) as being imbued with almost magical qualities. Markets, for instance, are often perceived as living entities with autonomous characteristics – and not what they truly are (according to Marx), which is merely a manifestation of certain social relations (or power imbalances, etc.) between men. This fetish of a free-living market unmoored from the social and economic realities of human relationships makes it difficult to see the underlying structural realities of what is known as “the market.”

To borrow loosely from that, I think the same thing happens with Bush. All across the political spectrum, his personality traits distract from the underlying realities of the executive branch-as-institution. Conservatives dismiss many extremely troubling characteristics of our government by falling back on Bush’s likeability or his accent or his cowboy boots. Liberals fail to grasp the underlying structural deficiencies of the executive branch by focusing the discussion on their contempt for Bush the man and his personality traits or reading habits.

Don’t get me wrong, he is the president and the president is important. But in another sense, he’s irrelevant. At the least, he distracts from the reality of the massive widespread problems with our administrative agencies, and pretty much everything else the GOP-K Street-industrial complex touches. The truth is that he’s a single man who has almost nothing to do with the day-to-day activities of our executive agencies.

And our executive agencies are a joke and an outrage. These agencies – agencies that play extremely important roles in providing emergency relief and ensuring that mercury isn’t contaminating the brains of our children – are run by political appointees who are either incompetent or lack any experience performing the jobs assigned to them. Yglesias has a good rundown, so I’d encourage you to read his article.

Anyway, the problem is that when you ignore policy completely and put no value on competence or experience, things will eventually come back to bite you. Like it or not, American society (indeed, the stability of the world) depends upon government performing certain types of jobs and performing them well (or at least not horribly). And good government depends upon appointing good, experienced people who take policy seriously. Addressing the nation’s problems is hard enough as it is, but when you’re not even trying – well, you get Katrina.

And that’s what really scares me about Brownie. As much as you may like or dislike Bush, and no matter how much you enjoyed the photo-op of him playing the guitar and all that, he’s really beside the point. The point is that no one is steering this ship. The captain’s crew members are not doing the smaller tasks necessary to keep the boat away from disaster. No one is navigating; no one is watching for icebergs; no one is planning for the future; etc. And this neglect is endemic.

In my opinion, Katrina was merely a high-speed version of one of the many looming catastrophes our nation is risking – sort of like one of those high-speed videos that shows a tree blooming and losing its leaves in a matter of seconds. In a sense, Iraq isn’t any different than Katrina – it’s just going to take longer to see the final effect of appointing cronies and Heritage Foundation interns to administer Iraq while simultaneously ignoring the policy recommendations of experts. The budget is an even slower-motion Katrina. The chances are still pretty small, but the administration – and the GOP leadership – are making a full-blown Argentine meltdown at least possible. At the very least, they’re shifting an enormous amount of taxes to our children and jeopardizing vital programs (there have no been no tax cuts – only tax shifts).

And the list goes on – torture, global warming, energy independence, the FDA’s assault on science, pollution. In all of these important areas, the relevant decisions are being made by incompetents and political hacks who are making no attempt to reconcile their efforts with sound policy. They are not even trying to make progress toward beneficial long-term goals. The long-term consequences may be severe.

Brownie illustrated all too clearly that there’s no one driving this bus. There’s just a video of a leader being shown that the passengers either yell at or cheer for. But without a driver, this bus is eventually going to wreck.

And that leads me to a motto for the Democrats in '06 - "We Can't Be Worse"

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I'm on the road for work tomorrow so posting may be light for the next day or two.

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I’m in a terrible dilemma. On the one hand, I couldn’t be more supportive of Bush’s commitment to rebuild the Gulf Coast. One of the central assumptions of American progressivism is that government intervention can make life better. Rebuilding poverty-stricken New Orleans – whose condition is very much a product of past discrimination, as Bush correctly noted – is a great opportunity to show the public that this assumption is correct. In addition, I think Bush’s commitment shows the moral dimensions of progressive thought, which is a side that Democrats should advertise more. The commitment to remedy both the devastation and the underlying poverty of the Gulf Coast is a noble one – and one completely consistent with moral and religious values. So, I think liberals should think twice before dismissing this initiative. Like No Child Left Behind, the spirit of the initiative is a good one, and is consistent with moral values and progressive priorities.

On the other hand, it’s Bush. And history has shown that this administration is incapable of administering an initiative this big without screwing it up. Based on the past, I have very little zero negative infinity confidence in the ability of the administration to spend funds wisely and to develop good policy. And the appointment of Rove makes me even more skeptical – to the extent one can be “more” skeptical when your level of confidence is already at negative infinity. There’s no reason not to expect the Katrina initiative to descend into an incompetently-run, policy-free, crony-rich, political-spoils operation.

I guess I’m feeling what pro-war, nouveau Bush-skeptics like Andrew Sullivan must feel all the time – enthusiastic support for the vision, and utter dejection about its implementation.

So I have a solution – a compromise proposal for the conservative reality-based community. I propose an oil-spot strategy modeled after Andrew Krepinevich’s (which David Brooks discussed too). The basic idea is that we set up a safe haven for empiricism and reality-based policymaking. Within this Green Zone of empiricism, conservative and liberal policy wonks come together and hash out plans. They would approach the dialogue with fidelity to nothing but reason and empiricism. If a Heritage Foundation plan seems reasonable, it should proceed. If that same proposal has demonstrable flaws, it should not. For once, we should bring the adults together and try to get something right. For once, we should take midterm elections and political spoils out of the equation – not everywhere, just in the oil spot. Maybe even a bipartisan panel with equal members from both parties could be given oversight over the spending and policy development to ensure it doesn’t become a spoils operation and a massive waste of scarce resources.

Once empiricism is shown to create tangible benefits for the Gulf region, empiricism can spread to other oil spots in other urban areas. In time, empiricism and reality-based policy may be able to make a comeback in other fields such as, oh, foreign policy and budget planning.

Seriously though, even though I get tired of the LBJ-Great Society bashing (largely because it was successful in sharply reducing poverty - compare '59 and '75 - and eliminating starvation in America), it is true that merely throwing money at a problem doesn’t work. That’s not to say that not throwing money will work either. The key is not necessarily the “how much” but the “how.” I believe that money does the most good when it’s invested in a way that creates opportunity – i.e., it creates the necessary conditions for success for those willing to work and play by the rules. In this sense, I am an “Opportunity Society” progressive, in the Stanley Greenberg sense. Handouts are merely wastes of money unless they are calculated to create the necessary conditions for individual success.

On this, David Brooks and I aren’t that far apart. In his column this weekend, he’s right on principle, even if I disagree with the merits of some of the proposals he offers.

But gradually and fitfully, Bush has muddled his way toward something important, a positive use of government that is neither big government liberalism nor antigovernment libertarianism. He's been willing to spend heaps of federal dollars, but he wants that spending to go to programs that enhance individual initiative and personal responsibility.

This is no different – no different whatsoever – from Clinton/Blair Third Way progressivism. It recognizes that past big-spending policies had their heart in the right place, but were not always successful (empirically speaking). The trick instead is to spend in a way that creates incentives for success and expands opportunity. Government should help people help themselves – that’s the justification for the GI Bill, federal education loans, federal health care, federally subsidized job training, etc. Unless I’m missing something, that’s why I found this proposal to be sound (from the Brooks column):

Right now the White House is fighting with Louisiana over where to house evacuees. The state wants to put temporary trailer parks on faraway military bases, where there are no jobs and where they will live in "abject dependency," as one senior White House official puts it. The Bush folks want to put temporary housing within a mile of the original neighborhoods so people can become self-sufficient as quickly as possible.

In our domestic oil spot, the question would always be which proposal creates the conditions necessary for success. And better yet, this principle seems to enjoy wide support across the political spectrum.

It’s a historical opportunity that we shouldn’t squander. So I say build a fence around New Orleans to keep Rove out and give real policymaking a try within the oil spot. Or to borrow from John Lennon, let’s give reas’n a chance.

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Sometimes you only need to read the first sentence of a Powerline post to know that there is no reason to continue reading.

In recent years, the Democrats have violated many of the tacit conventions of civility that have enabled our political system to work for more than two centuries.

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So the hearings are finally over – I’m not sure they had any point, but I have a few thoughts on them.

First, I have to say that I’m not all that upset by Roberts’ refusal to answer any question. Why in the world would he? That’s the real question. What possible incentive did he have to answer anything specifically? None. In economic-speak, evasion had no costs.

One of the rationales underlying law – both criminal and civil – is to assign costs to certain behaviors that wouldn’t otherwise have any. For instance, if your company spills chemicals into the drinking supply, there is no cost for that behavior – the costs are externalized to the poor saps drinking the water or eating the fish. Tort law represents society’s effort to force the polluter to internalize that cost, just as criminal law forces a criminal to internalize the cost of crime or rape.

The assumption here is not necessarily that man is inherently bad, but that man is an inherently rational creature – and that what is rational does not always equal what is good. In other words, man will do that which benefits him most of the time, regardless of the morality of that action. In a world without law, there are benefits to killing, stealing, polluting, etc. And if society doesn’t impose real, tangible costs on those behaviors, then those behaviors will continue.

Politics is similar. Politicians will do what it benefits them to do. That’s why it’s foolish and naive to wait or hope for politicians to act morally or get nicer or act for whatever your pet cause happens to be. Politicians act in ways that either get votes or avoid losing votes. If you want to discourage a behavior, you have to punish that behavior at the polls. That’s why the Republicans would be idiots not to return to the 2004 strategy of fear-mongering and gay-baiting – from a coldly rational perspective, there are no costs to this political strategy – not yet.

Anyway, getting back to Roberts, there were no penalties for not answering. Congress did not force him to internalize the costs of evasion. These costs were (or will be) externalized to the American people who know literally nothing about how he will rule on anything, but will nonetheless be subject to his rulings for thirty years. But still, you can’t blame Roberts. He has every incentive in the world to say as little as possible. He’s just being rational in the age of gotcha politics. The true blame lies with Congress – and both parties – for not requiring candidates to discuss these issues.

Blaming the Republicans’ is of course easier – they’re the majority party and they were the ones actively complimenting his evasion. The Democrats, however, are also to blame – not because they didn’t ask tough questions. Hell, if the person won’t answer, the strength of the question is irrelevant. The Democrats’ problem was that they don’t really – in their heart of hearts – want to establish a precedent requiring people to lay out their views specifically in these hearings. It’s the mutually-assured-destruction principle. One day, a Democrat will be president and the roles will reverse completely - maybe Barbara Boxer will even cry. If Democrats really really felt strongly about it, they could impose a cost by filibustering. But they don't - and maybe this is the right calculation to make.

It doesn’t have to be this way, though. One can imagine a world where there is a Senate norm that evasion results in rejection. There's nothing in the Constitution that says the Senate has to play second fiddle to the President. And I completely reject the notion that commenting on the correctness of past cases would force a judge to recuse herself. A person can give an opinion, but hedge by saying something like, “I’d be open to hear other arguments, but I currently believe X,” or something like that. But even conceding that some questions would present problems (such as commenting on cases that are docketed), this “nominee privilege" has grown too big for its britches. There is surely some happy medium between 100% responsiveness and Roberts.

Another lesson I took away from the hearings is that in the post-Bork world, the only way to sink a nominee is what you can discover outside the hearing room. The hearings are largely irrelevant. Maybe they always have been and I just don't remember (I was in high school during the last vacancy and was in grade school during Bork). To me, the real fight – and the place to expend the most political capital – is in the fact-gathering stage (the “discovery stage” for my fellow law dawgs out there). The Bolton nomination provides a perfect example of how Democrats – or Republicans for that matter – should go about forcing information public (at least when former government officials are up for nomination). You provide information, or you don’t proceed.

Roberts was more difficult though because he apparently decided he wanted to be a Justice in the early 90s and stopped saying or writing anything controversial for the next 13 years. Even if Democrats got their hands on the 89-92 materials, I doubt it would have mattered. I don’t know if he’ll be a good Justice (I fear the 26-year old Roberts is still lurking in there), but he’s about as perfect of a nominee as you can find.

One final point about the hearings. Obviously, it is disturbing that we don’t know much about Roberts other than he felt comfortable going out on a limb and saying that Plessy was wrong. But if you take a step back, it’s refreshing to know that would-be conservative Justices have to disguise and hide their views to get confirmed. Roberts can’t come right out and say, “I will vote against Roe,” or he won’t get confirmed. He also can’t say “I’m an originalist,” or “I love the Federalist Society” (or even “I’m a member.”). These are all political liabilities that can’t be affirmed in public. I hadn't realized this, maybe because I spend more time on conservative legal blogs than a lot of liberal people and lost sight of where the public's center of gravity was.

All of this supports a point that Kevin Drum made a while back (which I can't find because Google's new search functions have screwed up my search box), which is that liberals have already won all the big wars. Social Security is safe, as is Medicare. The civil rights and environmental statutes aren’t going anywhere. No one believes in limited government really. Even Bush, unlike Reagan, has adopted the rhetoric of liberalism (help the poor) to pass his tax cuts – which is a reflection of the public’s political values. With the end of Social Security “reform,” conservatives seem content to merely nibble at the margins of the Great American Liberal Consensus.

Likewise, on the legal front, what I call Federalist Society jurisprudence is a political liability that is rejected by the American public. And that’s why it has to be hidden in these hearings. And I suspect that, deep down, that annoys some conservatives. Though maybe they are crying all the way to the Supreme Court bench.

On an aside, I’m a big believer in the idea that liberals need to give an olive branch to cultural conservatism on certain issues like public displays of religion and the Pledge, but abortion is not one of them. Politically speaking, abortion is a much bigger wedge issue for Republicans nationally than for Democrats. And Americans overwhelmingly support keeping Roe on the books. That’s why Bush hemmed and hawed in the debate when asked if he would appoint an anti-Roe Justice, and Kerry said flatly that he would not. It’s a big potential liability – promoting an agenda that makes doctors and young girls criminals for their private decisions about something as intimate as childbirth – and I’m not sure why Dems don’t use it as a political sword more often.

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Dahlia Lithwick

Here's a man long accustomed to answering really hard questions from extremely smart people, suddenly faced with the almost-harder task of answering obvious questions from less-smart people. He finds himself standing in a batting cage with the pitching machine set way too slow.

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Damn that Kevin Drum – always stealing my thunder. Like Kevin, I have been avoiding Roberts blogging because I really don’t see much point – and certainly no substance - in these hearings. The first day was especially intolerable – a whole day consisting of nothing but opening statements from Senators, interrupted with periodic tears. But curiosity got the best of me today and I broke down and read the hearing transcript. For a moment I thought I saw something interesting. In fact, I thought Roberts might be signaling that he would uphold Roe. But now I realize I was wrong. The plain truth is that Roberts’ views remain completely opaque. We know next to nothing about Roberts going in, and we will know next to nothing going out – other than he is clearly a smooth operator under fire.

When I first read the transcript, I thought that social conservatives had a real problem on their hands (again). To understand why, you need to understand the connection between Roe and the constitutional right to privacy more generally. As I have explained before, I’ve always thought the constitutional problems with Roe had less to do with Roe itself and more to do with the right to privacy. It is not clear at all that the Constitution includes any such right. The right has essentially been read into the Constitution by judges. The textualist in me has never been especially comfortable with allocating this authority to judges.

But assuming you can make that initial conceptual leap – i.e., if you concede that a constitutional right of privacy exists – then I believe Roe is an easy case. In the prior post linked above, I listed many of the major cases that rely upon the right to privacy. The common theme that emerges in these cases is that the judicially-recognized right to privacy is essentially about intimate familial relations. In this sense, the right to privacy is pro-family – which is a narrative rarely used to justify it. Anyway, here’s what I said:

The pattern here is that all these cases involve protecting a constellation of rights surrounding family, marriage, child-rearing, and intimate relations. Viewed in context, Roe is hardly an outlier or the act of wild unprincipled activism it’s often made out to be. It’s part and parcel of the larger and logically coherent pattern of cases protecting family liberties and family privacy. So, the real issue is not Roe. The real question is whether you want to throw out this entire line of logically related cases.

Thus, the much bally-hooed limitless, ungrounded right to privacy may be far more grounded than conservative and liberal textualists care to admit. The right of privacy has not been extended to drug use or euthansia, but it has been extended to contraception, sex, the decision to give birth, the control of children’s education and upbringing, sterilization, and housing laws that discriminate against families.

But still, the fact that all of these cases are logically related does not mean that they fall within any right spelled out in the text of the Constitution. That’s why you either have take the whole thing or leave it. What you can’t do is single out Roe as some sort of tyrannous outlier. That’s elevating politics over legal principles.

If you’re with me so far, you’ll understand why the really critical jump is recognition of the right of privacy. Once you go there, it’s hard not to accept Roe too. That’s why I was initially very surprised to read how clearly and unequivocally Roberts agreed that such a right existed.

SPECTER: Do you believe today that the right to privacy does exist in the Constitution?

ROBERTS: Senator, I do. The right to privacy is protected under the Constitution in various ways.[He lists various amendments - 1st, 4th, etc.] [I]n addition, the court has -- it was a series of decisions going back 80 years -- has recognized that personal privacy is a component of the liberty protected by the due process clause. The court has explained that the liberty protected is not limited to freedom from physical restraint and that it's protected not simply procedurally, but as a substantive matter as well. And those decisions have sketched out, over a period of 80 years, certain aspects of privacy that are protected as part of the liberty in the due process clause under the Constitution.

I don’t think Roberts revealed anything about his views on Roe merely by saying that it must be respected as a precedent. That answers nothing and in no way limits his future actions. However, recognizing the right of privacy this unequivocally is potentially significant – or at least I initially thought so. Roberts seemed to be putting himself on record as agreeing with the conceptual jump necessary to justify Roe. The “80 years” is also significant because Roberts is referring to the old World War I cases Meyer and Pierce, which are generally recognized as the seminal substantive due process cases and are the jurisprudential ancestors of Griswold and Roe.

But alas, after talking to the once-and-(hopefully)-future Plainsman, I realized that Roberts was saying far less than I had originally thought. The first warning sign was this exchange:

BIDEN: Do you agree that there is a right of privacy to be found in the liberty clause of the Fourteenth Amendment?

ROBERTS: I do, Senator. I think that the court's expressions, and I think if my reading of the precedent is correct, I think every justice on the court believes that, to some extent or another.

That’s when I realized that Roberts wasn’t actually saying anything at all – which would be consistent with the rest of the hearing. After all, he’s essentially saying that Scalia and Thomas agree that a right of privacy exists, but both clearly oppose Roe. So what gives? How can you buy the textually-suspect right of privacy (the one included in the Meyer-Pierce line of cases), but disagree with the holding of Roe?

The answer is in that last little bit about “to some extent or another.” The “right of privacy” means something far different to Justice Scalia than it does Justice Ginsburg. The bottom line is that when Roberts said he believed in the right of privacy, he didn’t clarify whether he was referring to Scalia’s conception or Biden’s conception. If there is some enterprising Senate staffer reading this tonight, it might be worth cutting a line or two from the opening statements and spending more time pressing him on this.

As Plainsman explained to me, Scalia only believes in the right of privacy to the extent the right in question is “deeply rooted” in the nation’s history and tradition. It’s a curiously vague standard for a Justice who prides himself on analytic precision and formalism, but it is what it is. In practice, it allows Scalia to pick and choose among the rights currently recognized by past majorities. The old Meyer-Pierce holdings (involving the right to control children’s education) are conceptualized at a high level of generality, which makes them “deeply rooted.” Abortion and consensual homosexual sex are conceptualized at a more specific level, which makes them not deeply rooted. I called this the “ladder problem” in a prior post about originalism. Scalia climbs up the ladder of generality for Meyer and Pierce but scurries back down for Roe and Lawrence.

Again, the bottom line is that saying that you believe that a right of privacy exists doesn’t really reveal much of anything. Roberts has cleverly sounded forthcoming while simultaneously revealing nothing - an essential ability for any lawyer.

And based on the relative levels of competence on each side of the table, I think the chances of any Senator derailing Roberts are slim to none (though Leahy and Specter were the most effective I thought).

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Matthew Yglesias:

To some extent, I think Katrina's generated a genuine crisis of confidence in Bush's ability to handle things. He's made great hay of his generic "leadership" abilities as opposed to his specific policy initiatives which have been generally unpopular with the public and, a surprising amount of the time, anathema to conservatives (see, e.g., Medicare, immigration, the Department of Homeland Security) as well. With his leadership looking shaky, people may be rethinking a thing or two.

The Emperor's New Clothes (2005 edition):

Many, many years ago lived an emperor, who thought so much of clothes that he spent all his political capital in order to obtain them; his only ambition was to be always well dressed. But he thought not of any ol’ clothes – and not of the latest hipster clothes from decadent coastal cities. No, the emperor craved “leadership clothes” – clothes that projected the qualities of leadership to all those who gazed upon them. He did not care for his soldiers, and the theatre did not amuse him; the only thing, in fact, he thought anything of was to show off his leadership clothes.

The great city where he resided was full of astute observers – so driven by facts and empiricism were they that it was difficult to make them see leadership where none existed. The emperor worried about the keen eyes of these astute observers and these fears added to his desire for leadership clothes. One day two advisors came to this city. They made people believe that they were weavers, and declared they could manufacture the finest leadership cloth to be imagined. Their colours and patterns and photo-ops and speeches, they said, were not only exceptionally beautiful, but the clothes were possessed with the wonderful quality of being invisible to any man who was a sissy liberal.

“That must be wonderful cloth,” thought the emperor. “If I were to be dressed in a suit made of this cloth I should be able to project leadership and find out which men in my empire were sissy liberals. Because the leadership clothes will be invisible to sissies, it will be easy to determine who is or is not a sissy liberal. I must have this cloth woven for me without delay.” And he gave a large sum of money to the advisors, in advance, that they should set to work without any loss of time. They set up two looms in the policy room, and pretended to be very hard at work crafting policy threads, but they did nothing whatever on the looms. They asked for the finest silk and the most precious gold-cloth from hapless supporters; and pretended to work hard at the empty looms till late at night. They announced loudly how early they rose each morning to show their vigilance to the world.

“I should very much like to know how they are getting on with the cloth,” thought the emperor. But he felt rather uneasy when he remembered that only sissies could not see the leadership clothes. Personally, he was of opinion that he had nothing to fear, yet he thought it advisable to send somebody else first to see how matters stood.

“I shall send my honest old friend Colin Powell to the weavers,” thought the emperor. “He can judge best how the stuff looks, for he is intelligent, and nobody understands his office better than he.”

The good old Secretary went into the room where the advisors sat before the empty looms. “Heaven preserve us!” he thought, and opened his eyes wide, “I cannot see anything at all,” but he did not say so. Both advisors requested him to come near, and asked him if he did not admire the exquisite pattern and the beautiful colours, pointing to the empty looms. The poor old minister tried his very best, but he could see nothing, for there was nothing to be seen. “Oh dear,” he thought, “can I be so sissified? I should never have thought so, and nobody must know it! Is it possible that I am a sissy liberal? No, no, I cannot say that I was unable to see the cloth.”

“Now, have you got nothing to say?” said one of the advisors, while he pretended to be busily weaving. “Look look – this one says “‘Mission Accomplished.’ This one says ‘Fight them there so we don’t fight them here.’”

“Oh, it is very pretty, exceedingly beautiful,” replied the old minister looking through his glasses. “What a beautiful pattern, what brilliant colours! I see the leadership exuding from the threads! I shall tell the emperor that I like the cloth very much.”

“We are pleased to hear that,” said the two weavers, and described to him the colours and explained the curious pattern. The old minister listened attentively, that he might relate to the emperor what they said; and so he did.

Now the advisors asked for more money, silk and gold-cloth, which they required for promoting small government. They kept everything for themselves and their various interest group contributors, and not a thread came near the loom, but they continued, as hitherto, to work at the empty looms.

Soon afterwards the emperor sent another honest courtier named Moderate Republican Senator to the weavers to see how they were getting on, and if the cloth was nearly finished. Like the old minister, he looked and looked but could see nothing, as there was nothing to be seen.

“Is it not a beautiful piece of cloth?” asked the two advisors, showing and explaining the magnificent pattern, which, however, did not exist.

“I am not stupid,” said Moderate Republican Senator, “but I am certainly not a sissy. It is very strange, but I must not let any one know it;” and he praised the cloth, which he did not see, and expressed his joy at the beautiful colours and the fine pattern. “It is very excellent,” he said to the emperor. “I will offer half-hearted criticism, but then retract it and redouble my efforts to support it.”

“But you will not vote against it?” asked the advisors.

“Never. I'm no sissy.”

Everybody in the whole town talked about the precious cloth. At last the emperor wished to see it himself, while it was still on the loom. With a number of courtiers, including the two who had already been there, he went to the two clever advisors, who now worked as hard as they could, but without using any thread.

“Is it not magnificent?” said the advisors. “Your Majesty must admire the colours and the pattern. We call it the Katrina Leadership Shroud, and it is the most magnificent facade we have yet constructed. It is even more glorious than your 9/11 Leadership Robe.” And then they pointed to the empty looms, for they imagined the others could see the cloth. “You must take off your 9/11 robe and wear the Katrina Shroud tomorrow. You will be revered and feared, as all great leaders should be.”

“What is this?” thought the emperor, “I do not see anything at all. That is terrible! Am I a sissy? Am I unfit to be emperor? That would indeed be the most dreadful thing that could happen to me.”

“Really,” he said, turning to the weavers, “your cloth has our most gracious approval;” and nodding contentedly he looked at the empty loom, for he did not like to say that he saw nothing. All his attendants, who were with him, looked and looked, and although they could not see anything more than the others, they said, like the emperor, “It is very beautiful.” And all advised him to wear the new magnificent clothes at a great flyover of New Orleans tomorrow. “It is magnificent, beautiful, excellent,” one heard them say; everybody seemed to be delighted, and the emperor awarded the two weavers with the Medal of Freedom.

The whole night previous to the day on which the flyover was to take place, the advisors pretended to work, and burned more than sixteen candles. They wanted people to see that they were busy finishing the emperor’s new Katrina suit. They pretended to take the cloth from the loom, and worked about in the air with big scissors, and sewed with needles without thread, and said at last: “The emperor’s new suit is ready now.”

The emperor and all his barons then came to the hall; the advisors held their arms up as if they held something in their hands and said: “These are the trousers!” “This is the coat!” and “Here is the cloak!” and so on. “They are all as light as a cobweb, and one must feel as if one had nothing at all upon the body; but that is just the beauty of them – the sheer leadership of them.”

“Indeed!” said all the courtiers; but they could not see anything, for there was nothing to be seen.

The emperor undressed, and the advisors pretended to put the new suit upon him, one piece after another; and the emperor looked at himself in the glass from every side.

“How well they look! How well they fit!” said all. “What a beautiful pattern! What fine colours! That is a magnificent suit of clothes! What leadership you exude!”

“I am ready to fly over New Orleans,” said the emperor. “Does not my suit fit me marvellously? It will be even more glorious than the 9/11 Robe.” Then he turned once more to the looking-glass, that people should think he admired his garments.

The chamberlains, who were to carry the train, stretched their hands to the ground as if they lifted up a train, and pretended to hold something in their hands; they did not like people to know that they could not see anything.

The emperor marched in the procession under the beautiful canopy, and all who saw him in the street and out of the windows exclaimed: “Indeed, the emperor’s new suit is incomparable! What a long train he has! How well it fits him!” Nobody wished to let others know he saw nothing, for then he would have been a sissy liberal who hates our military. Never were the emperor’s clothes more admired.

“But he has nothing on at all,” said David Brooks of all people. “Good heavens! listen to the voice of David Brooks,” said one reporter, and one whispered to the other what Brooks had said. “But he has nothing on at all,” cried at last the whole people.

That made a deep impression upon the emperor, for it seemed to him that they were right; but he thought to himself, “Now I must bear up to the end.” And the chamberlains walked with still greater dignity, as if they carried the train which did not exist. “Brownie – you’re doing a heck of a job carrying my train.”

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I just got back from a long, relaxing weekend and wedding on the beaches of MA with no access to the news, so I'm trying to catch up on things. But I did want to say that this weekend brought me face-to-face once again with a social practice that I just can't get comfortable with no matter how long I've lived on the East Coast - cheek-kissing. I don't know if it's just because it was never done where I grew up, or maybe because I have some deep-rooted neurosis, but I don't care for the cheek kiss as greeting. In fact, whenever the cheek-kiss-greeting is imminent, I experience a Larry David freak-out moment in which I worry about kissing too much or too little or not following with a hug or scratching someone's face. It's all too much. A hug seems more than enough.

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And with that last uplifting post, I'm out for the weekend. I'll be back Sunday night or Monday.

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Taking a step back from all the timelines and the who-said-what-and-whens, I think one of the biggest shocks was not that the Bush administration failed to predict the scope of the disaster, but that they failed to anticipate the ferocity of the political attacks that followed. It’s the one thing they’re usually very good at. To the extent top Bush aides thought about Katrina in political terms at all, I suspect they thought the hurricane would be a distraction from Iraq and might even result in a rallying around the president. That’s why the political coordination (like the relief effort) was about five days too late – they didn’t see the threat in time.

But unfortunately for Bush and the nation more generally, Katrina the national tragedy has now been transformed into Katrina the political opportunity (or vulnerability, depending on your perspective). I’m sure that Bush officials and supporters are privately grumbling about how anti-Bush forces are using the national tragedy for partisan purposes, just like they were using Cindy Sheehan. What they may not so readily admit is their own responsibility for the modern transformation of any and all national tragedies into polarized, zero-sum political battles.

In my opinion, Bush officials slipped back into the pre-9/11 world last week – the world in which there were boundaries to partisan exploitation in the face of national tragedies. But those boundaries have long since been destroyed. And even if Bush is not to blame for the hurricane or its aftermath, he is certainly responsible for this poisonous political climate that is now turning on him. Call it the Frankenstein effect. Or maybe the reap-what-you-sew effect.

What I mean is that the intense political backlash against Bush should not have been unexpected. In fact, it’s the necessary cost of the polarize-and-conquer strategy that Rove adopted to maintain the White House. Since 9/11 (more on that in a moment), Rove adopted a "screw-the-center" strategy that was aimed at revving up the base by, among other things, demonizing the opposition. The debilitating polarization of modern America was not some unintended consequence of Bush’s policies and rhetoric, Bush’s policies and rhetoric were explicitly crafted and marketed in a way to generate as much polarization as possible. Polarization was the whole point.

And it worked – Bush won. Barely. But winning big was never part of the Rove strategy. Rove decided early on to go for the 51% strategy. And again, it worked. But it came with a big cost – it pissed off just under half of the United States population. And the problem with utterly alienating 45+% of the population is that they will not only never support you for any reason, but that they will be seething for revenge. It’s straight-up Newton – every action has an equal and opposite reaction. Rove created an army of revenge-seekers waiting for their moment. And that moment has arrived.

In addition to increasing the level and intensity of the opposition, Rove’s polarization strategy simultaneously imposed a hard ceiling on Bush’s level of support. Even if he were perfect, his approval rating could never rise above the low 50s. But as 2005 has made painfully and tragically clear, Bush (and when I say Bush, I mean his administration) is far from perfect. And given the razor-thin margin of error he was already working with even after his re-election, any significant loss of support essentially screws him. And for the first time in his presidency, he’s really in danger of having the bottom drop out completely. [Let’s not forget what’s in the pipeline – more Abu Ghraib videos; Fitzgerald; and the ongoing problems in Iraq].

The implications of all this are depressing. In fact, one the most depressing aspects of what Mark Schmitt has called "this wretched era" is that national unity in the face of a disaster is no longer possible. And I blame Bush for this. More precisely, I blame Bush’s exploitation of 9/11 because it gave rise to a collective action problem which made "defecting" the only politically rational policy. Immediately after 9/11, 99% of all Democrats rallied around Bush in the name of national unity. He became the nation’s president rather than a parliamentary leader of a majority legislative faction. In what I consider to be his most tragic decision (especially when you factor in the opportunity costs), Bush chose to transform 9/11 into a partisan bludgeon just months after the overwhelming majority of Democrats supported the war in Afghanistan and rallied around him in the name of patriotism and unity. Rather than building on that unique – and fleeting – moment in history that so few leaders enjoy, he chose to pursue a fiercely partisan, polarizing agenda. The lesson of course was that "cooperation" results in punishment (in collective-action-problem-ese). Accordingly, after 9/11, the rational (not moral) response to tragedy is to "defect" – or to use the tragedy for partisan purposes.

It’s all very depressing, but it’s a logical consequence of the polarization strategy that Bush pursued. Bush transformed the world into one giant zero-sum game where a national harm is one man’s benefit, and a national benefit is another man’s harm.

This is most clearly evident in Iraq. Personally, I strongly opposed the invasion. But once the war started, I was always uncomfortable with people who I perceived to be protesting too much about the latest fatalities. It’s not that such issues shouldn’t be prominently reported, it’s just that they shouldn’t be implicitly celebrated because of the political harm they will cause. But from a coldly rational perspective, what choice has Bush given these people? There is not a doubt in my mind that if Iraq went well, it would have been used to bludgeon Democrats politically, as well as anyone else who sincerely thought the war was a bad idea. Why then should Republicans get upset when people like Kos use bad news in Iraq as a partisan sword? Kos didn’t make up these rules, he’s just adapting to the world created by Rove. It would be one thing if one side were honestly appealing to national unity, and the other wasn’t. But we know from the exploitation of 9/11 and the 2004 election that national unity is the last thing on Rove’s priority list.

To Rove, everything is merely a means to a larger political end. This was the system that Republicans endorsed. So this is the system they get.

And so it’s a little late to whine about the exploitation of national tragedies. That train left the station in Georgia in 2002.

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I'm going on vacation later this week and I need to finish some real-world things before I do. So blogging will likely be light over the next couple of days. I'm hoping though that I can finish the Katrina post on limited government before I leave.

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Is FEMA constitutional? And why or why not?

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Kanye West caused a bit of a stir the other day when he said “George Bush doesn’t care about black people.” In one sense, I think West couldn’t have been more wrong. However, in another more complex sense, he couldn’t have been more right.

The tragedy of New Orleans cannot be separated from the issue of race. The problem, though, is that it’s exceedingly difficult to have a serious discussion about race in America today. One reason is that people too often squeeze complex issues into simple either/or boxes. Too many people see the world as existing in terms of pure racism versus pure non-racism. For instance, when you raise the racial dimensions of Katrina’s chaos in the context of a critique of Bush, many people’s “I’m-being-called-a-racist” radar goes off and discussion ends. It’s a variation of Godwin’s law – accusations or perceived accusations of racism end the discussion. And that’s because people can’t see beyond the simple dichotomy of “100% racist” versus “100% non-racist.” The issues we face today – in 2005 – are more complex than that, even though the language and linguistic labels we use do not reflect these new complexities given that they were a product of the Jim Crow and Civil Rights Movement era. In short, we need new words.

To the extent that West was saying that Bush’s actions last week were “racist” in the traditional Jim Crow sense, I think that’s completely wrong. To Bush’s credit, his administration has been completely free of the race-baiting that has characterized every previous post-Eisenhower Republican administration. It’s the one thing I give him consistent credit for. So, I just don’t buy it. I mean, I don’t think Bush said, “Ah, it’s just black people that’ll be stuck. Gimme that guitar.”

But to say that Bush (or the government more generally) was not motivated by racism in the old sense of the word doesn’t end the discussion. I think race still played a major role in this catastrophe, but for more complex reasons.

I’ve explained before that I think the major problems we face today are not racism, but “post-racism.” I think we’re making good progress on the former, but making no progress whatsoever on the latter. The idea behind post-racism is essentially the idea of lingering consequences. Even if we are no longer racist, we are living with the stubborn effects of past racism. “Post-racism” affects the black community in obvious ways – just look at the poverty of New Orleans. But it also affects the white and /or privileged community in that one of the consequences of past discrimination was the creation of a modern segregated world in which privileged whites are completely ignorant and oblivious to the plight of racial minorities. They are also unaware of the disproportionate harm that certain actions (or inaction) have upon these communities. To borrow from Ellison, black people are invisible to them.

And this isolation also causes minorities to misunderstand non-minorities. Because of the artificial (i.e., man-made) isolation of the communities, minorities often attribute to malice what is actually a product of utter ignorance.

Turning back to New Orleans, I think that despite all the talk of race, the proximate cause of the horrors was poverty. Most obviously, poor people were less likely to have the cars or hotel money necessary to evacuate. But poverty played other less obvious roles as well. And the roles it played are directly related to one of the central ideas behind “post-racism” – which is that people’s isolation from and ignorance of poor people caused government officials to disregard them when it came to both planning and evacuations. For instance, because people in poverty are often invisible and because they lack high-powered interest groups, government officials are more likely to disregard them. Again, it traces back to ignorance, not malice. The statement by our Arabian Horse Supervisor and roommate-of-the-powerful FEMA Director said it all – they just weren’t anticipating that people wouldn’t leave because nobody was aware that they were there in the first place. No one had any contact with the poor or its representatives.

But if poverty was the proximate cause of the tragedy, then race – or more precisely, post-racism, was the proximate cause of the poverty. That’s the link that most people are missing. Most obviously, the poverty we are seeing is the result of past, public-sanctioned racism. There’s simply no other reason why the poor of New Orleans would be so disproportionately black. The much bally-hooed market hasn’t corrected the problem, as anyone with eyes can see. The consequences linger on, tracing back to the past public acts of discrimination for which America has never fully atoned. [On an aside, that’s why it enrages me to read boarding school crackers like John Roberts talk sarcastically of the “supposed” need for remedies to discrimination – especially in 1982.]

But if racial malice explains what caused the poverty, it doesn’t explain why America continues to tolerate it. To me, the reason also traces back to post-racism. Many people with power and influence (who are not malicious) simply grew up and currently exist in a segregated bubble that was created by past discrimination. They have no contact with minority communities. They have no knowledge of the poverty that continues to plague them. And they have no understanding of the costs and effects that certain policies will have upon them. This is the Roberts problem – to him, efforts against discrimination violate some abstract principle in the Borkian Wonderland in his head. To people in New Orleans, it means they can’t get housing.

Because these people are so isolated from the problems faced by minority communities, they feel no urgency to eliminate poverty or ensure that services that help the poor are protected. That’s because the costs of both action and inaction are fully externalized.

I suspect that when the race-based poverty we allow to fester finally reveals itself as it has this week, the reaction of many black people is anger. They perceive that the disregard and inaction are the products of malice. I don’t think so though. They are the products of privileged ignorance and segregation bubbles.

And thus, when funding for the levee repair was proposed, they gave no thought to the real-world effects such a policy would have on poor minorities that lack high-powered interest groups to argue for them. And when state and federal authorities developed evacuation and contingency plans, they didn’t factor in the needs of these people for the same reasons. And in a sense, it is because government officials didn’t care – not because they were biased, but because their bubbled isolation prevented them from even being aware of the problem. “Their own” were not affected.

So in short, it’s true that poverty is the proximate cause of the tragedy. But to ignore the role that race played in the poverty is to ignore the source of the problem.

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From Newshour:

DAVID BROOKS: But to reiterate the point I made earlier, which is this is the anti-9/11, just in terms of public confidence, when 9/11 happened Giuliani was right there and just as a public presence, forceful -- no public presence like that now. So you have had a surge of strength, people felt good about the country even though we had been hit on 9/11.

Now we've been hit again in a different way; people feel lousy; people feel ashamed and part of that is because of the public presentation. In part that is because of the failure of Bush to understand immediately the shame people felt.

Sitting up there on the airplane and looking out the window was terrible. And the three days of doing nothing, really, on Bush was terrible. And even today, I found myself, as you know, I support his politics quite often.

JIM LEHRER: Sure.

DAVID BROOKS: Look at him today earlier in the program, this is how Mark Shields must feel looking at him, I'm angry at the guy and maybe it will pass for me. But a lot of people and a lot of Republicans are furious right now.

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John Edwards, over at TPM Cafe, saying good things:

During the campaign of 2004, I spoke often of the two Americas: the America of the privileged and the wealthy, and the America of those who lived from paycheck to paycheck. I spoke of the difference in the schools, the difference in the loan rates, the difference in opportunity. All of that pales today. Today - and for many days and weeks and months to follow - we see a harsher example of two Americas. We see the poor and working class of New Orleans who don't own a car and couldn't evacuate to hotels or families far from the target of Katrina.

. . .

Commentators on television have expressed surprise, saying they think that most people didn't know there was such poverty in America. Thirty-seven million Americans live in poverty, most of them are the working poor, but it is clear that they have been invisible. But if these commentators are right, this tragedy can have a great influence, if we listen to its message.

. . .

The government released new poverty statistics this week. The number of Americans living in poverty rose again last year. Thirteen million children -- nearly one in every five -- lives in poverty. Close to 25 percent of all African Americans live in poverty. Twenty-three percent of the population in New Orleans lives in poverty. Those are chilling numbers. Because of Katrina, we have now seen many of the faces behind those numbers.

. . .

Poverty exists everywhere in America. It is in Detroit and El Paso. It is in Omaha, Nebraska and Stockton, California. It is in rural towns like Chillicothe, Ohio and Pine Bluff, Arkansas. Nearly half of the children in Detroit, Atlanta and Long Beach, California live in poverty. It doesn't have to be this way. We can begin embracing policies that offer opportunity, reward responsibility, and assume the dignity of each American.

There are immediate needs in New Orleans and the Gulf Coast, and the first priority is meeting those, but after that, we need to think about the American community, about the one America we think we are, the one we talk about. We need people to feel more than sympathy with the victims, we need them to feel empathy with our national community that includes the poor. We have missed opportunities to make certain that all Americans would be more than huddled masses. We have been too slow to act in the face in the misery of our brothers and sisters. This is an ugly and horrifying wake-up call to America.