Oh, for a little straight talk now that spring is in the air

The political reaction to the death of Supreme Court Justice Antonin Scalia is the clearest evidence I’ve seen lately of the sclerotic thinking that passes for wisdom and strategy in American politics.  Not saying I’m surprised, mind you, just saying.

Don’t get me wrong: every vacancy on the Supreme Court of the the United States, ever, has been the occasion for political plotting and pontificating…that’s the nature of the beast.  Maybe there was more lip service paid in the past to observing “a decent interval” before going public, but we know that one reason the successful professional political players are successful is that they don’t let an opportunity to gain advantage go to waste.  In this case, Scalia’s body hadn’t made it home to Virginia before Senate Majority Leader Mitch McConnell announced his intention to block anyone nominated by President Obama in the hope that a Republican wins the presidency this November.

Why?  Because “The American people should have a voice in the selection of the next Supreme Court justice”?  Excuse me, Mr. Majority Leader and avowed Obstructionist-of-Obama-in-Chief, but that’s not the way it’s done and we all know it.

There isn’t—or shouldn’t be—any disagreement on the facts: the Constitution gives this president the responsibility to nominate a new justice in this case, not the next president; many of the same Republican senators now insisting that the process must be put on hold for the good of the nation had very different opinions when the question came up during the last few months of George W. Bush’s presidency.  (Yes, plenty of Democrats have more than a passing acquaintance with hypocrisy as a political tool, too, starting with Chuck Schumer on this same topic eight years ago; I’m sure some of you have more examples.)  Also true is that the Constitution gives responsibility to the Senate to approve or reject that nominee, with no timetable or deadline for doing so.

There’s no question that McConnell and the Republican majority have no legal requirement to approve President Obama’s nominee, or even to put the nomination to a vote.  They may make the political calculation that stonewalling for a year is the better path: bet on winning the White House and holding the Senate so they can have their pick of ultraconservative judges, versus running the risk of losing both and allowing the Democrats to choose another Douglas or Brennan (if one can be found).  I wish they would just say so, instead of going to the well for another round of the Obama Apocalypse that (inexplicably) plays so well with a certain portion of the electorate.  Andrew Prokop at Vox.com wrote them a first draft of such a speech:

Justice Scalia was a strong, solid conservative. And whoever Barack Obama nominates to replace him is certain to be well to his left — and will likely be very, very, very far to his left.

This would upset a balance of power in the Court that has existed for decades. Instead of a five-vote majority that is generally conservative, a Scalia replacement appointed by President Obama would allow a new majority bloc of five solid liberals to form. On issues affecting free enterprise, the sanctity of human life, and federal power, sweeping new liberal rulings could reshape law and precedent across America.

I believe this would be a disaster for the country. Most members of my party believe this would be a disaster for the country. And most of my party’s voters believe it would be a disaster for the country.

So I’m going to do my best to stop it from happening.

(snip)

…in suggesting that President Obama shouldn’t appoint any replacement for Scalia, and that he should just leave it to the next president, I am rhetorically going further than others have in the past.

But really I’ve just hit the fast-forward button. We would have ended up opposing whomever Obama nominated, because that person would, of course, have had liberal views. And my party’s senators would never have approved any other Obama Supreme Court nominee anyway, because they’re terrified of losing their seats in primaries.

So maybe my “no nominees in the final year” position hasn’t explicitly been taken by anyone before, but it hardly means the death of our constitutional democracy. The near-term upshot is that one Supreme Court seat stays vacant for a year. Some closely divided cases will effectively remain unresolved for a bit. Big deal.

This just in: Arizona governor vetoes “religious freedom” bill

Good for Gov. Jan Brewer, for taking a stand against hate and discrimination.  Nobody over the age of reason is falling for this “religious freedom” argument.  It’s a sign—a good sign—that the extremists see the writing on the wall, and are getting more desperate.

Hell, even a judge in Texas has struck down the state’s ban on gay marriage!  What more evidence do you need that things really are changing…

Meet Ed Snowden, and other notes from a remarkable week in privacy and espionage‏

As they used to say on every Top 40 rock ‘n’ roll station ever, the hits just keep on comin’:


After a stunning one-two punch of secret spying revelations last week, one thing that I hadn’t really counted on happened right away: a voluntary and fairly proud confession from the guy who says he turned over the secret documents to the reporters.  Meet Ed Snowden, and read the Washington Post reporter’s sidebar describing what it was like to communicate with Snowden, who knew that he had turned himself into a marked man.


Last week someone (I forget who) noted, possibly on Twitter, the irony that we as a nation feel confident in farming out our National Security Agency work to companies like Snowden’s employer, Booz Allen Hamilton, which didn’t know that he was gathering up documents and talking to reporters, but the job of groping us in airports is so critical that only a government employee will do.  Oh, by the way, in a classic horse/barn door kinda thing, Booz Allen finally got around to firing Snowden


I also expected this sooner: the ACLU is suing the government alleging violation of its rights of free speech, association, and privacy:

As an organization that advocates for and litigates to defend the civil liberties of society’s most vulnerable, the staff at the ACLU naturally use the phone—a lot—to talk about sensitive and confidential topics with clients, legislators, whistleblowers, and ACLU members. And since the ACLU is a VBNS [Verizon] customer, we were immediately confronted with the harmful impact that such broad surveillance would have on our legal and advocacy work. So we’re acting quickly to get into court to challenge the government’s abuse of Section 215.


One of the most fun things here has been that the secret court orders forcing telephone and Internet companies to turn over information are so secret that the companies aren’t even allowed to discuss the orders, and the news has made it look like the companies have been happily cooperating with the feds in violating their customers’ privacy.  For anyone who still thinks there is no presumption of privacy anymore, consider this: Google is asking government permission to spill the beans and tell its customers what it has done, in order to “to ease public concerns about the privacy and security of users’ data.”

Google’s inability to disclose “the number of FISA national security requests that Google receives, as well as the number of accounts covered by those requests” fuels speculation that the company has given the U.S. government free access to all its users’ data. That speculation, [Google chief legal officer David] Drummond wrote, is “simply untrue.”


What about our national leaders, the men and women to whom we look for guidance and wisdom on such occasions…what do they have to say about this whole invasion of privacy/government spying on Americans thing?  Fortunately, some have been right on top of things, speaking out in favor of a national discussion about the proper balance of safety versus privacy; some have taken some time to think things over before coming to a conclusion about Snowden, and most are waiting for the polls to come in.


OK then, here’s the first poll: Americans tell the Pew Center that they’re pretty much OK with their government spying on them

The latest national survey by the Pew Research Center and The Washington Post…finds no indications that last week’s revelations of the government’s collection of phone records and internet data have altered fundamental public views about the tradeoff between investigating possible terrorism and protecting personal privacy.

Currently 62% say it is more important for the federal government to investigate possible terrorist threats, even if that intrudes on personal privacy. Just 34% say it is more important for the government not to intrude on personal privacy, even if that limits its ability to investigate possible terrorist threats.

Not everyone thinks that, though, me included.  But I’ve already had my say this past week; I recommend taking a look at Emily Bazelon’s thoughts on government abuse of power

The government has admitted to unconstitutional NSA spying before—last year. The existence of these newly reported databases should be worrisome because once the information is collected, it is so much easier for the government to misuse it. The more data mining, the more it becomes routine and the more tempting to come up with more uses for it. If you trust President Obama and his people not to go too far, what about the next president, or the one after that? We have now had a Republican and a Democrat administration sign up for a broad expansion of warrantless wiretapping and other surveillance, and bipartisan support in Congress for the tradeoffs we have struck. And yes, there is more to the current revelations than we know—in particular, the rationale for the FISA court’s long-standing order for the phone data, and the rationale for PRISM. Let’s concede that a terrorist attack somewhere has probably been prevented as a result of these efforts. So how do we ever go back?

We probably don’t. And someday, the abuses will begin, in all likelihood long before we know about them. I’m not usually moved by slippery slope arguments. But this one looks so very easy to slide down.

…and Charles Cooke’s consideration of a simple historical lesson on personal privacy in a free society:

The adult truth, as ever, is that being free means accepting the negative consequences of being free. I daresay that if cameras were installed in every one of the Republic’s private bedrooms and monitored around the clock by well-meaning sentinels, then the rates of both domestic violence and spousal murder would decrease dramatically. But a free people must instinctively reject such measures as a profound threat to their liberty and, in doing so, accept the risks of unregulated home life. Alas, the story of the last century is the tale of a gradually diminishing tolerance for risk. “I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it,” wrote Thomas Jefferson. In almost all areas, our modern calculation is quite the opposite.

(snip)

The Fourth Amendment exists now for precisely the same reason that it existed in 1791: to ensure that, in the absence of extremely compelling situations, Americans are not subject to casual government scrutiny. Its authors understood that knowledge is power, and that, as there is no justification for the state to have too much power over you, there is also no justification for the state to have too much knowledge about you


I hope that as this story continues in the months to come, people will give it the serious thought that it deserves.  For those having a tough time getting a handle on what all the furor is about, try this as a starting place: would you feel the same way you do now about the actions of the U.S. government if the last president were still in the White House?