Criticism Financial Crisis Holy Cross

Profiling Holy Cross Grad Mark Walsh

Devin Leonard for the Times wrote this weekend about Mark Walsh, formerly of Lehman Brothers. The article portrays him as one of Wall Street’s top deal makers whose decisions were one of the major factors that led directly to the fall of the bank. Yet the article is also strangely positive in describing Walsh. 

What stood out for me most were the numerous connections Walsh has to me. As the article describes his brief biography:

Mr. Walsh grew up in Yonkers, the son of a lawyer who once served as chairman of the New York City Housing Authority. He attended Iona Preparatory School in New Rochelle; the College of the Holy Cross, where he majored in economics; and, finally, the Fordham University School of Law.

And then a bit later:

He bankrolled Tishman Speyer in its purchase of the Chrysler Building in 1997.

I am a fellow alumnus of Holy Cross – a fact which by itself causes me to be irrationally positive about individuals, from Chris Matthews to Bob Cousy to Obama speechwriter Jon Favreau. He also went to Fordham Law – which is one of the schools I am considering. And I currently work in the Chrysler Building. All tenuous connections, but enough to make me root for the guy.

Of course, it’s hard to get around the damning nature of this reporting:

[I]t wasn’t long before Mr. Walsh found a way to do an even bigger deal with Mr. Speyer’s company. In May 2007, Lehman and Tishman Speyer offered to buy Archstone-Smith Trust, a $22 billion deal struck at the peak of an already dangerously frothy market. Tishman Speyer put up a mere $250 million of its own equity. Lehman, in a 50-50 partnership with Bank of America, put up $17.1 billion of debt and $4.6 billion in bridge equity financing.

The most enlightening aspect of the article were the way in which it spotlighted the oddness of what was going on. Leonard describes one of Walsh’s biggest clients pulling out his money saying that:

 [T]he real estate market — and, indeed, the entire financial system behind it — was becoming increasingly bizarre.

In an example of this from 1997 – well before this observation – Leonard describes one of Walsh’s coups – how he managed to steer Lehman clear of the financial crisis resulting from the failure of Long Term Capital Management that Nassim Nicholas Taleb had predicted at the time:

On the eve of the financial crisis brought by the near collapse of Long Term Capital Management in 1998, Lehman flushed $3.6 billion in commercial real estate loans through its securitization machine, avoiding some of the losses that crippled other firms, including Nomura and Credit Suisse.

I hate to say it – but I have no idea what that means. And that’s not unintional – at least according to a lecture given by Financial Times reporter Gillian Tett at the London School of Economics. (A lecture very much worth listening to – and which I will blog about later.)

But to demonstrate the oddly positive take on Walsh, here’s how Leonard concludes his piece:

His friends say they believe that Mr. Walsh will eventually emerge from the rubble of Lehman’s collapse and return to deal-making.

“Guys like this are very rare,” says Mr. Rosen, the developer. “He’ll be back. He picked up the phone and people listen. Nobody can take that away from him.”

Back in the game perhaps – but hopefully a bit wiser.

Foreign Policy National Security Pakistan Politics The Opinionsphere The War on Terrorism

Pakistan: The Edge of the Abyss

[digg-reddit-me]Today, as the President Zardari of Pakistan is scheduled to meet with Obama, the news about Pakistan is growing worse and worse.

A nation with nuclear weapons seems on the brink of collapse. Yet it often seems as if the country’s leadership is still more focused on the threat from its historic rival, India. As the New York Times editorial board explained last week:

If the Indian Army advanced within 60 miles of Islamabad, you can bet Pakistan’s army would be fully mobilized and defending the country in pitched battles. 

The Pakistani Taliban is now within that distance – 60 miles – of the capital. It’s advance has not been halted and it continues to destabilize and then take over large portions of Pakistan. You can see the strong position the Taliban is in by reading the story published just a few days ago by Jane Perlez and Pir Zubair Shah also in the Times telling the story of a Taliban strategist who gave them an inside look at the Taliban’s regional strategy – which focuses in a large part on exploiting the border between Afganistan and Pakistan over which the Taliban move without qualms, but which U.S. forces generally respect. The Pakistani army and intelligence agencies are both said to be sympathetic to the Taliban and islamist extremism in general – and U.S. strategists believe their goal is to wait out America’s interest in the region and then use these Taliban forces to exert control over Afghanistan and to destabilize India, which they still consider the main threat to their national security. This is why – despite the billions of dollars in funding given to the Pakistani military and intelligence agencies since September 11 for the purpose of aiding them in their war against the Taliban – their forces they have arrayed against the Taliban are ill-equipped and too few in number – as they have used most of these funds to build up their military for a more conventional war against India. David Sanger, speaking at the Council on Foreign Relations some weeks ago told a story he described as telling you “everything you need to know about the U.S.-Pakistan relationship.” It is a story, essentially, of a leadership that is friendly with the Taliban – even as they tell the Americans they are doing everything they can to stop them. 

President Zardari meanwhile tried to assure American lawmakers – who he met with yesterday – that the money they were sending to Pakistan was being used wisely by likening it “to the government’s bailout of the troubled insurance giant, American International Group” according to the Times. 

The fall of Pakistan to the Taliban is perhaps the worst case scenario national security experts can imagine. The Taliban is allied with Al Qaeda – who have planned to use weapons of mass destruction against America. Pakistan has nuclear weapons in numerous locations throughout the country – and is already responsible for more nuclear proliferation than any other nation on earth. It is, what Dick Cheney might call, the nexus of America’s worst fears. And worse yet, none of America’s policies in the region seemed to have had the desired effect – former President Musharraf seemed unable to truly take on the Taliban and terrorist elements, despite his being motivated their attempts to kill him – and America, by continuing to support Musharraf in the face of his desperate bids to hold onto power, alienated many Pakistanis and was finally removed from office due to the pressure from both America and groups organizing for a civil society; Benazir Bhutto, martyred running for office, said all the right things and seemed to recognize that the fundamental enemy of Pakistan was no longer India – but the religious extremists within it’s own borders; but she never had an opportunity to lead Pakistan again; her widower, the current President Zardari has followed too much in the path of Musharraf and had likewise angered many Pakistanis by using his power to undermine political rivals  (leading to massive destabilizing protests until he backed down due to pressure from America and groups organizing for civil society) – while at the same time, despite fine words, he has been unable to make progress in combating the Taliban. Instead, he signed a deal with them to allow the Taliban to impose their extremist religion on a large region of the country. Despite the glaringly self-interested actions of Pakistani leaders – and the fact that even today with the Taliban encroaching upon the capital, it is not clear that the government is yet committed to rooting out these insurgents or terrorists – America has been forced time and again to double down in our support of Pakistan’s leaders. What other choice do we have? Pakistan is too important to allow it to fail – and it has nuclear weapons. 

Which is why we can longer accept the constant refrain from Pakistan’s leaders that “Everything’s fine; please send helicopters.” Pakistan is “ground zero in many of the worst-case scenario exercises gamed out by national security officials [and seems] on the verge of spiraling out of control.” General Petreaus is apparently saying privately that “the next two weeks are critical [in] determining whether the Pakistani government will survive.” David Kilcullen, an Australian counterinsurgency expert advising the Obama administration, expressed a related point:  “We have to face the fact that if Pakistan collapses it will dwarf anything we have seen so far in whatever we’re calling the war on terror now.” 

This is where we are – at the edge of an abyss. And it seems there is nothing for us to do but to trust that our government is properly trusting the ineffectual (or perhaps conflicted) Pakistani leadership to control the situation.

Or is that all we can do? Wendy Chamberlin, a former ambassador to Pakistan suggested another idea: “We have to make clear that our relationship is with the people of Pakistan and not with [any] one man…” I don’t this is what she meant – but it seems to me that the best way to make this clear is for Americans to begin communicating with Pakistanis. And I don’t just mean the government.

Remember the Obama campaign – which encouraged tens of thousands of volunteers to call or email or knock on the doors of millions of citizens – in a grass-roots effort to change the nation? We should start that. Here. Today. Go on Facebook. Find someone from Pakistan. Send them a pen-pal letter and ask them what’s going on – so each of us can do our part to figure out what is going on in what we are being told is a very dangerous situation. Be humble; be curious; be respectful. But reach out. It seems kind of silly, but what other choice do we have?

Criticism Economics Politics The Opinionsphere

Taxing the Wealthy

[digg-reddit-me]Liberal orthodoxy has made the state dependent on a volatile source of revenues – high income tax rates on the wealthy.

That’s George Will in his most recent column. As phrased, I’m not sure it makes sense. A tax rate is not a source of revenue. A tax is. And while an income tax rate can be volatile – that doesn’t seem to be Will’s point – it is that the revenue generated from the tax is. So, let me correct Mr. Will:

Liberal orthodoxy has made the state dependent on a volatile source of revenues – taxes paid by the wealthy.

Now, I won’t argue about the volatility of any financial strategy based on depending on just a few individuals to generate revenue. 

But let’s pose a hypothetical for a moment. What if those that made over $200 million were taxed at a lower rate than everyone else – let’s say 18% – and those who made less than $100,000 were taxed at a 35% rate. And what if – even given this, the revenue generated from taxing those making over $200 million far exceeded the vast majority who made less.

Wouldn’t that complicate things just a bit?

And now, what if it were true?

The stats here are national – not based on California which Will is talking about. And there are only concerning the top 400 taxpayers who despite being just over 1/one millionth of the population, pay nearly 2% of all income taxes. But based on my previous research, I’m pretty confident the pattern holds – that those at the top of the income scale pay a lower rate of taxes than those at the bottom (Warren Buffett famously explained that he was taxed at a lower rate than his secretary)  – and yet because wealth and income is so concentrated in America, the richest 5% pay about 60% of all taxes.

Volatility is built into any system in which wealth is concentrated – which is why I’m not sure Will’s point here is well-founded. What does he suggest is a more stable type of taxation? If wealth were distributed more broadly, then our economic system – and tax revenues  – would undoubtedly be more stable – but I doubt this is what Will wants. If consumption were taxed rather than income, then the system would likely be even more unstable – especially in a downturn such as now when everyone is cutting back. So, what is the solution?

Barack Obama Criticism Law National Security Politics The Bush Legacy The Opinionsphere The War on Terrorism

Andrew C. McCarthy’s Self-Righteous Sophistry

[digg-reddit-me]Andrew C. McCarthy was a prosecutor on a few terrorism-related cases back in the 1990s. But it wasn’t until after September 11, 2001 that he found his true calling – writing opinion pieces for the National Review and Commentary. As a prosecutor, McCarthy had to go through that exhausting process of finding evidence to back up his case – and use that evidence to convince a skeptical audience that his case was right. As an opinion writer for two right-wing publications, McCarthy is free from both constraints as he preaches to the converted. McCarthy – who previously had a career as a criminal prosecutor – now uses this background to give him added credibility when discussing the two issues he cares most about: detainee policy in the War on Terrorism and torture. This is a man who said of McCain’s Anti-Torture legislation that it was “two parts grandstanding and one part suicide” and declared that McCain by supporting it, had “no business serving in a government whose first obligation is the security of the governed.” Of course, McCarthy found it necessary to support McCain over Obama in 2008 – because Obama was “disqualified” from office because of his ties to America-hating leftists – and because his policies were even more suicidal(!) than McCain’s. Yet, even so, over McCarthy’s strongly worded objections, America elected Obama.

You’ll never guess what happened next. Obama – being the partisan, leftist, America-hating, suicidal guy that he is – invited Andrew C. McCarthy to be part of a panel that advised him on the issue which McCarthy had been most vocal – the detention and torture of suspected terrorists. McCarthy, of course, would have none of it – and declined to join the force – taking the unusual step of releasing his letter of declination to the press and writing about it in an opinion piece in the National Review

All’s fair in love and politics – you might say. But it’s clear McCarthy has gone soft from years of presenting his arguments to those already agree with him.

Let’s look at a few of the premises to McCarthy’s piece:

Obama’s Bad Faith. McCarthy knows that Obama – in instructing the Justice Department to determine if any laws had been broken in instituting the torture policy of the Bush administration is acting in bad faith.

“[Obama] has unleashed his Justice Department to criminalize political disputes after claiming for weeks that he did not want to do this. And the president is being a bully about it…Any experienced prosecutor would know there is no criminal case here.” And what nefarious purpose does Obama have for bullying such upstanding citizens? ” McCarthy explains Obama’s prime motivation: “To satisfy his antiwar base and to put paid to commitments offered by his top campaign advisers.”

Obama’s Bad Faith (II). McCarthy also knows that Obama is acting in bad faith in creating this task force to advise him.

McCarthy clearly has divined Obama’s intentions as he declares that “the exercise known as the ‘President’s Detention Policy Task Force’ is a farce. The administration has already settled on a detainee policy: It is simply going to release trained jihadists.”

Bush’s Good Faith. Because McCarthy is so good at divining the intentions of people in the news, he also knows that the legal advisors to the Bush administration – including those who issued binding legal opinions for the Office of Legal Counsel at the Justice Department – were acting in good faith when they issued opinions in contravention of every precedent in American history.

“Former Justice Department attorneys John Yoo (now a law professor at Berkeley) and Jay Bybee (now a federal appeals-court judge in California), as well as other government attorneys, were asked during the emergency conditions that followed the 9/11 attacks to advise Bush administration policymakers on U.S. interrogation law. They did that in good faith and, despite the fact that it’s now de rigueur to castigate them, quite reasonably…Bad legal advice given in good faith is not an ethical violation.”

McCarthy doesn’t explain why he knows these men were acting within the legal definition of “good faith.” And for what it’s worth, Jack Goldsmith, a Republican who replaced Jay Bybee, one of the lawyers McCarthy is defending, as head of the Office of Legal Counsel, wrote of the torture memos that they were designed with the purpose of providing a “golden shield” to the interrogators, had “no foundation in prior OLC opinions, or injudicial decisions, or in any other source of law” and were deliberataly biased. That sounds like an acknowledgment of bad faith to me.

Criminalizing Advice. McCarthy – being an expert in national security law apparently – also knows that while the Office of Legal Counsel’s binding legal opinions “are controlling on questions of law within the Executive Branch” [pdf], they are also no different from any advice any lawyer gives. 

That’s why “If the Holder Justice Department decides your good-faith advice promoted what it considers illegal activity, you could face criminal prosecution or ruinous ethical charges.”

Criminalizing Policy Disputes. McCarthy also apparently believes that if an administration sets a policy that is criminal, no one should be held responsible. So, now that it is clear that war crimes were committed – and that any nation in the world can now prosecute those American officials responsible thanks to Ronald Reagan’s Convention Against Torture. The only way to prevent other nations from bringing up Americans on charges of war crimes is to have our own investigation. McCarthy sees all this – yet maintains that instituting a policy of torture is a mere policy decision. Would McCarthy continue to hold this position if the war crime were genocide instead? If the Office of Legal Counsel declared genocide legal, the president ordered it be done, and other carried it out – would it still be a policy dispute that shouldn’t be criminalized? McCarthy’s point about not prosecuting torture only holds then if you first buy his declaration that “torture” isn’t illegal – or at least it shouldn’t be.

Mitigating Circumstances. Despite the fact that these lawyers provided advice that McCarthy still considers sound and McCarthy testifies were acting on good faith, McCarthy still wishes to qualify that these men gave these opinions in “wartime service to the country” under “the emergency conditions that followed the 9/11 attacks.” These facts don’t matter if you believe as McCarthy does that we should still agree with them now – but by bringing them up, the indicate, perhaps a single humanizing glimmer of doubt.

A few odds and ends.

The Uighurs. McCarthy speaks of how Obama is preparing to unleash the Uighurs who are “trained jihadists” who, once released, will be “plotting to menace and murder us” onto American soil! For those ignorant of the plight of the Uighurs, this can sound quite alarming. The facts are a bit less so. The Uighurs have been cleared of any charges as of five years ago, and it was declared that they “pose no terrorist threat” and have “not [been] charged with fighting or plotting against the United States.” Which brings us to the question: Why haven’t we repatriated them to their home country as the Bush administration did with hundreds of detainees? Because they are Chinese seperatists who China has vowed to execute if they return. Why not to a outside state? Because China has made threats against any nation that accepts them. (Albania accepted some of the Uighurs a few years ago – and since has faced threats from China.) McCarthy though – knowing the facts – decides to obfuscate all these “technicalities” – so he can focus on the core “truth” – that Obama wants to unleash trained jihadists in your neighborhood!

The standards of justice. Finally, is a throwaway point McCarthy makes as he concludes his feat of sophistry. He blames Obama for the fact that he has “no plan for what to do about the terrorists there, many of whom cannot be tried under the standards of the civilian justice system.” Those with critical faculties might wonder – why is it that these terrorists can’t be tried in a manner consistent with American traditions of justice? McCarthy himself prosecuted terrorists – and wannabe terrorists – it’s his claim to fame. So why can’t these men who participated in a far worse crime be tried now?

And here we return to the beginning – because our justice system has accepted the long-held truth – that confessions tainted by torture are likely to be untrue – and so are ignored. Thus, these men who attacked America – who killed Americans – who McCarthy is opposed to – can never be brought to justice according to our traditions.

McCarthy does have some good advice for the man he considers unfit for public office – a leftist, America-hating, dangerous man who is aiding our enemy. McCarthy advises Obama: “We can arrive at a sound policy, or not, without demonizing our adversaries as crooks and cads.”

Perhaps – but you can’t write for the National Review with that attitude these days.

Morality National Security Politics The Bush Legacy The War on Terrorism

Why Should I Care If a Terrorist Was Tortured?

[digg-reddit-me]Because torture has played an insignificant role in American life until recently – and it’s recent history is still somewhat shrouded in secrecy – the best arguments for and against torture are abstract. The two sides of the debate tend to be simplified as these two competing scenarios:

[Interior establishing shot] Jack Bauer approaches terrorist with an menacing grimace on his face.

BAUER: Tell me where the ticking time bomb that will destroy a major American city is!


BAUER: (plunges a pen into the terrorist’s knee) Tell me!

TERRORIST: 415 Main Street, hidden in the basement under a tarp!

And on the other hand, there’s Shep Smith on Fox News:

The arguments over whether or not we torture or whether or not it is effective are secondary. The simple question to ask when we want to determine what is and is not torture is, “What would we call the methods being used if they were being done by our enemies to our soldiers?” If we would call it torture then, it is torture when we do it as well. Questions of effectiveness are more complex – but in short, it seems that torture works very well – for some things. It’s effectiveness as a truth serum though does not seem high.

The heart of this debate though is not whether or not terrorism is effective – or whether or not we tortured – but:

Why should I care what was done to some evil fuck like Khalid Sheikh Mohammad who wants to kill me and killed thousands of Americans on September 11?

The main motivator of people’s opposition to government action is because they can see it might happen to them. 

Why did students oppose the draft? Because it might happen to them. Why are citizens outraged over raising taxes? Because it will happen to them. Why are people concerned about the Kelo decision? Because their homes might be taken from them. Normally, a state will try to counter these concerns by ensuring that there is a fair and transparent process in place to prevent arbitrary actions by the government – in other words, to ensure that the law protects individuals. But national security, under the Bush administration, was a lawless zone. The president maintained he had the power to declare anyone a terrorist, imprison them without trial forever, and torture them. He managed to do this without raising an outcry, without raising concerns that he might be coming after your family next because he did most of it in secret and because the people he went after were foreign, Muslim, Arab – in other words alien to most Americans. It was harder then for many Americans – who did not have any Muslims or Arabs in their family – to identify with the Others being tortured even if they were later found to be innoccent of any crime and released. This is certainly a failure of empathy – and a failure of Christian values – on the part of many Americans. 

But even so, we should care if our government is torturing people – even if it only is torturing people it suspects of being terrorists. Here’s four reasons why you should care:

  • Because it might be you next. 
    Yes –
    the detainees seem different – but they always seem different at first. Once the government expands its powers to torture and arbitrary arrest of a group of people suspected of one crime, it quickly expands from there. Anti-terrorism statutes – though not as far as we know torture – have already been used against anti-war groups and teenagers writing violent fantasies. 
  • Because it corrupts.
    What a government does shapes the type of government it is and the society. This is the basis for much of our politics – and the reason conservatives are so concerned about irresponsible government spending for example. We can see how torture corrupted our national security apparatus – how it infected it like a virus. Some of our top national security officials may be indicted as war criminals as a result of Ronald Reagan’s Convention Against Torture. False confessions are the inevitable result of torture – which is why our legal system, in the interests of justice, does not accept any evidence tainted by torture. This raises all sorts of issues relating to the perpetrators of September 11. We may never be able to bring them to justice given our laws. (This is one of the primary motivations behind Spain’s Judge Garzon’s attempt to go after torturers in America.) At the same time, information elicited by torture led our intelligence agencies to believe that Al Qaeda and Saddam Hussein were working together – and that Saddam was preparing to share his weapons of mass destruction with them. This information has all been proved to be false. So, our justice system and our national security apparatus are now in a bind as a result of these corruptions.
  • Because it is immoral and was done in your name.
    I am of the opinion that much of morality is really the passed-on wisdom of our foreparents – the not always obvious principles that allowed them to thrive over generations. In this way, the fact that torture is immoral has much to do with the way in which it corrupts. 
  • Because it matters whether government officials follow the law.
    Without the constraints of law, the power of the government is near absolute – and the government itself can easily become a far greater threat to the American way of life than the terrorists. A people will never remain free if it preemptively surrenders its liberties out of fear.

One thing that has historically separated America from our enemies is that we were the ones who did not torture. The British tortured American prisoners – but General Washington refused to allow the torture of the British prisoners; when American soldiers were accused of torturing Filipinos during the brutal insurgency campaign during Teddy Roosevelt’s term in office, Roosevelt himself made sure that the crimes were not covered up and the men accused were tried for their crimes. The Communists and the Nazis were known to torture – but America did not – and because of this, when the American army was marching through Germany in the final days of World War II, the German army fled to us so they could surrender to ours. When Ronald Reagan sought to demonstrate to the world our moral superiority over the Soviet Union, he pushed through the United Nations Ban on Torture. There is a wisdom in this history – a wisdom passed down through generations of Americans – that held that there is something about America that does not allow it to condone torture. That is why Captain Ian Fishback wrote that he was not willing to torture because he was not willing “to give up even the smallest piece of the idea that is America.” It is why Senator John McCain proclaimed on the floor of the Senate that while our enemies do not deserve mercy, “This is not about them. This is about us.” 

I would be glad if something awful and painful befell the terrorists who wish us harm. But we do not deserve to become a country that does that. As a country, we are not judged by our faith alone – but by how we act. We have now seen the corruption of our national security apparatus by a rather controlled and minimized authorization of torture.

So, why should anyone care that we tortured some evil fuck?

Because by doing so we are endangering our way of life – the foundational principles and institutions that create our fragile system of democracy and checks and balances and laws constraining even the president him or herself.

Barack Obama Domestic issues Economics Financial Crisis History Politics The Opinionsphere

The Value of a Safety Net

Jean Edward Smith points out the obvious yet neglected truth about Franklin Delano Roosevelt’s achievements:

The safety net provided by the New Deal allows time for government to move deliberately.

This is one of the extraordinary things about the legacy of FDR – that even as the nature of the state itself has changed significantly since he was president, the institutions he created still serve some – if not the same purpose – as they did back then.

Today, the safety net created by Roosevelt is an essential stabilizing factor in our society – on the order of regular elections, a civil society, a judiciary, a balance of powers. 

The initial intention of these social safety net programs was consisent with the nation-states of the day, as they competed to see who could provide a minimal standard of living for various at risks groups – such as the elderly and the poor. But today it is far more useful as a stabilizing factor allowing businesses and government officials and individuals adequate time to respond appropriately to financial crises.

Barack Obama Law Political Philosophy Politics The Opinionsphere

Replacing Souter

There’s a few different schools of thought on how Obama should go about replacing Justice David Souter. Dahlia Lithwick – a few months ago – called on Obama to make his next appointment “a hero, a bomb-throwing, passionate, visionary, liberal Scalia.” Others are just calling for Obama to place someone liberal enough to counter-balance the extreme conservatives appointed by Bush. Conservatives and right-wingers are calling on Obama to appoint someone “moderate” – though given the political circumstances, it is almost guaranteed that they will not accept any appointment, no matter how “moderate.” All of this is based on a rather direct analysis of the Supreme Court – presuming that decisions are and will be made based on political viewpoints. 

I’m not trying to say that we should accept Justice Roberts’s oft-cited analysis of the judge as umpire – just calling the law as he sees it. I thought Obama made an excellent point back in July 2007 when he critiqued this view:

 When Roberts came up and everybody was saying, “You know, he’s very smart and he’s seems a very decent man and he loves his wife. You know, he’s good to his dog. He’s so well qualified.”

I said, well look, that’s absolutely true and … in the overwhelming number of Supreme Court decisions, that’s enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsberg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart—the empathy—to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criteria by which I’ll be selecting my judges. Alright?

Ed Whelan over at the Corner is trying to make a big deal out of what he’s calling Obama’s lie – which is that judicial philosophy is unimportant. He cites the above quote as proof Obama thinks judicial philosophy is unimportant – but he doesn’t seem to have read it closely, as you can clearly see Obama say:

[I]t’s those five percent of the cases that really count.

The person Whelan really should be attacking – if he believes judicial philosophy is unimportant – is Justice Roberts who sought to minimize the role of politics in his decisions (at least in his pre- and post-appointment rhetoric.)

But what I’m interested most in is a justice who can move the other members of the Court – either through personality or their compelling understanding of the law. One historical type that has moved the Court would be a politician – such as Sandra Day O’Connor or Earl Warren – whose personality drew other justices to accept some of their decisions, and gradually shaped the Court over time. This is why I think it’s a bad idea to appoint a liberal version of Justice Scalia – whose personality actually hurt his politics. Jennifer Granholm is a good possibility on this front. As would Hillary Clinton or Al Gore if they were only younger.

In the alternative, Obama could appoint an ideologically interesting thinker – who is liberal, but nevertheless, thinks outside of the box. The two people that come to mind on this score are Cass Sunstein and Lawrence Lessig. Lessig is probably too young yet – and Sunstein has not only encountered surprising resistance to his appointment to an obscure position, but he probably would like an opportunity to take a crack at enhancing that position and testing his theories on libertarian paternalism. 

Finally, I like Harold Koh for the post – even though it is unlikely he fits into any of the above two categories. He’s national security thinker with a great resume. I don’t know his record on most issues – but I’ve heard him speak on national security law – my main interest – and he has strong, nuanced positions, viewing our national security apparatus as a whole system rather than as a series of isolated issues. He would be a strong voice in reigning in an executive branch that has barely pulled back in terms of it’s assertions of power in the national security arena.

Foreign Policy History National Security Pakistan Politics Reflections The Bush Legacy The Opinionsphere The War on Terrorism The Web and Technology War on Drugs

Homo Blogicus, Pup, Pakistan, Torture, Marijuana, and the Revenge of Geography

[digg-reddit-me]I’m going to start creating a list of best reads for the week every Friday – picking between 5 and 10 articles or blog posts that are well worth reading in their entirety.

  1. Christopher Buckley writes a very personal essay for the New York Times, adapted from his soon to be published memoir, about growing up as the son of the famous Mr. and Mrs. William F. Buckley (“Pup” and “Mum”). Truly moving, surprising, honest and earnest. An excerpt:

    I’d brought with me a pocket copy of the book of Ecclesiastes. A line in “Moby-Dick” lodged in my mind long ago: “The truest of all men was the Man of Sorrows, and the truest of all books is Solomon’s, and Ecclesiastes is the fine hammered steel of woe.” I grabbed it off my bookshelf on the way here, figuring that a little fine-hammered steel would probably be a good thing to have on this trip. I’m no longer a believer, but I haven’t quite reached the point of reading aloud from Christopher Hitchens’s “God Is Not Great” at deathbeds of loved ones.

    Soon after, a doctor came in to remove the respirator. It was quiet and peaceful in the room, just pings and blips from the monitor. I stroked her hair and said, the words coming out of nowhere, surprising me, “I forgive you.”

    It sounded, even at the time, like a terribly presumptuous statement. But it needed to be said. She would never have asked for forgiveness herself, even in extremis. She was far too proud. Only once or twice, when she had been truly awful, did she apologize. Generally, she was defiant — almost magnificently so — when her demons slipped their leash. My wise wife, Lucy, has a rule: don’t go to bed angry. Now, watching Mum go to bed for the last time, I didn’t want any anger left between us, so out came the unrehearsed words.

  2. Stephen Walt, blogging for FP, asks Three Questions About Pakistan. He quotes David Kilcullen explaining:

    We have to face the fact that if Pakistan collapses it will dwarf anything we have seen so far in whatever we’re calling the war on terror now.

    He cites a Timur Kuran and Suisanne Lohmann for providing a construct for understanding why such collapses as Pakistan’s possible one are hard to predict:

    [R]evolutionary upheavals (and state collapse) are hard to predict because individual political preferences are a form of private information and the citizenry’s willingness to abandon the government and/or join the rebels depends a lot on their subjective estimate of the costs and risks of each choice. If enough people become convinced the rebels will win, they will stop supporting the government and may even switch sides, thereby create a self-reinforcing snowball of revolutionary momentum. Similar dynamics may determine whether the armed forces hang together or gradually disintegrate. As we saw in Iran in 1979 or in Eastern Europe in 1989, seemingly impregnable authoritarian governments sometimes come unglued quite quickly. At other times, however, apparently fragile regimes manage to stagger on for decades, because key institutions hold and the revolutionary bandwagon never gains sufficient momentum.

  3. Evgeny Morozov, also blogging for FP, suggests that “promoting democracy via the internet is often not a good idea.”

    I simply refuse to believe in the universality of this new human type of Homo Blogicus – the cosmopolitan and forward-looking blogger that regularly looks at us from the cover pages of the New York Times or the Guardian. The proliferation of online nationalism, the growing use of cyber-attacks to silence down opponents, the overall polarization of internet discussions predicted by Cass Sunstein et al, make me extremely suspicious of any talk about the emergence of some new archetype of an inherently democratic and cosmopolitan internet user.

    As much as I’d like to believe that internet decreases homophily and pushes us to discover and respect new and different viewpoints, I am yet to see any tangible evidence that this is actually happening – and particularly in the context of authoritarian states, where media and public spheres are set up in ways that are fundamentally different from those of democracies.

  4. Julian Sanchez blogs reflectively about “our special horror over torture” – especially as related to aerial bombing. He concludes:

    Civilian life affords us the luxury of a good deal of deontology—better to let ten guilty men go free, and so on. In wartime, there’s almost overwhelming pressure to shift to consequentialist thinking… and that’s if you’re lucky enough to have leaders who remember to factor the other side’s population into the calculus. And so we might think of the horror at torture as serving a kind of second-order function, quite apart from its intrinsic badness relative to other acts of war. It’s the marker we drop to say that even now, when the end is self-preservation, not all means are permitted. It’s the boundary we treat as uncrossable not because we’re certain it traces the faultline between right and wrong, but because it’s our own defining border; because if we survived by erasing it, whatever survived would be a stranger in the mirror. Which, in his own way, is what Shep Smith was getting at. Probably Khalid Sheik Mohammed deserves to be waterboarded and worse. We do not deserve to become the country that does it to him.

  5. Jim Manzi is equally reflective in his piece written “Against Waterboarding” for the American Scene and published at the National Review’s Corner as well:

    What should a U.S. citizen, military or civilian, do if faced with a situation in which he or she is confident that a disaster will occur that can only be avoided by waterboarding a captured combatant? Do it, and then surrender to the authorities and plead guilty to the offense. It is then the duty of the society to punish the offender in accordance with the law. We would rightly respect the perpetrator while we punish him. Does this seem like an inhuman standard? Maybe, but then again, I don’t want anybody unprepared for enormous personal sacrifice waterboarding people in my name.

    But consider, not a theoretical scenario of repeated nuclear strikes on the United States, or a tactical “ticking time bomb” scenario, but the real situation we face as a nation. We have suffered several thousand casualties from 9/11 through today. Suppose we had a 9/11-level attack with 3,000 casualties per year every year. Each person reading this would face a probability of death from this source of about 0.001% each year. A Republic demands courage — not foolhardy and unsustainable “principle at all costs,” but reasoned courage — from its citizens. The American response should be to find some other solution to this problem if the casualty rate is unacceptable. To demand that the government “keep us safe” by doing things out of our sight that we have refused to do in much more serious situations so that we can avoid such a risk is weak and pathetic. It is the demand of spoiled children, or the cosseted residents of the imperial city. In the actual situation we face, to demand that our government waterboard detainees in dark cells is cowardice.

  6. Robert Kaplan writes about the “Revenge of Geography” for Foreign Policy. The summary of the article:

    People and ideas influence events, but geography largely determines them, now more than ever. To understand the coming struggles, it’s time to dust off the Victorian thinkers who knew the physical world best. A journalist who has covered the ends of the Earth offers a guide to the relief map—and a primer on the next phase of conflict.

  7. Time magazine has a piece written by Maia Szalavitz on drug decriminalization in Portugal which is also worth checking out. Excerpt:

    “Judging by every metric, decriminalization in Portugal has been a resounding success,” says Glenn Greenwald, an attorney, author and fluent Portuguese speaker, who conducted the research. “It has enabled the Portuguese government to manage and control the drug problem far better than virtually every other Western country does.”

    Compared to the European Union and the U.S., Portugal’s drug use numbers are impressive. Following decriminalization, Portugal had the lowest rate of lifetime marijuana use in people over 15 in the E.U.: 10%. The most comparable figure in America is in people over 12: 39.8%. Proportionally, more Americans have used cocaine than Portuguese have used marijuana.