Inside the Mind Of Justice Kennedy on the Mandates' Constitutionality

Will he strike down the individual mandate?

• Frank J. Colucci
• March 28, 2011 | 1TNR

After decades of battles in the political system, and now in the courts, the fate of health care reform is likely to come down to the vote of one man: Justice Anthony Kennedy. As the swing vote on a Supreme Court closely divided between liberals and conservatives, he will almost certainly have the power to uphold or strike down the “individual mandate” that is a centerpiece of President Obama’s Affordable Care Act (ACA). Nobody seems able to predict what Kennedy will do, and even after years studying his jurisprudence, I am also unable to say with any certainty.

I can, however, explain the reason why Justice Kennedy’s ultimate view is so uncertain. The question of the individual mandate’s constitutionality is closely tied to two competing values that Kennedy believes in deeply: a judicial duty to enforce limits on the federal government, and acceptance of a practical post-New Deal conception of the federal power to regulate a national economy. His record contains repeated defenses of both commitments, and when confronted with cases that pit them against each other, he often tries to have it both ways. With the mandate, though, Kennedy will have to choose.

Early in his tenure, Kennedy served as a reliable vote to limit the scope of federal power. In the 1980s, while a judge on the Ninth Circuit, he gave speeches calling for a restoration of federalism as “an underlying essential, ethical, moral value.” On the Supreme Court, Kennedy has voted to limit the reach of federal power to preserve the sovereign immunity and “dignity” of the states, and joined majorities in U.S.v. Lopez (1995) and U.S. v. Morrison (2000) in striking down federal legislation as beyond Congress’s power to regulate commerce among the several states. Yet Kennedy’s concurring opinion in Lopez, which he described as a “necessary though limited holding,” evinced deep tension between his belief in federalism and his recognition of the need for expanded federal authority to regulate a growing economy.

In that case, Kennedy joined a 5-4 majority to invalidate the federal Gun Free School Zones Act, which made possession of a weapon with 1,000 feet of a school to be a federal crime. He conceded that Congress has a broad role in regulating a “single, national market.” His opinion explicitly mentioned the seminal New Deal decision in Wickard v. Filburn (1941)—which extended federal commerce power to cover local, noncommercial actions that are thought to have a “substantial effect” on interstate commerce—as well as later decisions upholding the 1964 Civil Rights Act’s prohibitions on discrimination in public accommodations as an exercise of the commerce power. At the same time, however, Kennedy stated that courts have “a duty to recognize meaningful limits on the commerce power of Congress.”

He decided that the Gun Free School Zones Act was unconstitutional because it was not a regulation of commerce but a criminal law, “regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term.” To uphold federal legislation, Kennedy said he would require “stronger connection or identification with commercial concerns that are central to the Commerce Clause.”

More recently, though, Kennedy has voted to uphold exercises of federal power under the Commerce and the Necessary and Proper clauses. He voted with four liberal justices and Antonin Scalia, in Gonzales v. Raich (2005), to affirm the application of the federal Controlled Substances Act to the intrastate, noncommercial medical use of marijuana even as allowed by state law. In 2007, Kennedy wrote the majority opinion to uphold the federal ban on partial-birth abortion as an exercise of Congress’s power under the Commerce Clause to regulate the field of medicine.

And just last year, in U.S. v. Comstock, Kennedy voted to uphold congressional authority to keep federal prisoners who are guilty of sex crimes in civil confinement after the conclusion of their sentences, if they are found to have “serious difficulty in refraining from sexually violent conduct or child molestation.” In a separate concurrence, Kennedy introduced a standard that seems to show how he would analyze the Affordable Care Act’s individual mandate: “When the inquiry is whether a federal law has sufficient links to an enumerated power to be within the scope of federal power,” he wrote, “the analysis depends not on the number of links in the congressional-power chain but on the strength of the chain.” With this statement, Kennedy signaled his openness to arguments supporting federal power—including the mandate—if they are justified in terms of enumerated congressional powers such as the regulation of interstate commerce and the power to tax. Even here, however, Kennedy issued a “caution.”

He warned “that the Constitution does require the invalidation of congressional attempts to extend federal powers in some instances” and “federal authority must be subject to some limitations.” The justification for federal authority, he wrote, must be “based on some empirical demonstration.”

Kennedy tends to adopt positions that straddle both values, and it’s likely that he’d prefer to do so in the case of the individual mandate as well. The past Commerce Clause decision that would most closely resemble this approach is Rapanos v. U.S. (2006). In Rapanos, the Court divided 4-1-4 to limit the enforcement of the Clean Water Act to isolated wetlands. Kennedy joined the four conservative justices in overturning the broad discretion of by the Army Corps of Engineers to define “navigable waters.” “The extension of regulatory authority to ‘remote and insubstantial’ wetlands,” he wrote, transcends “the requirement that the word ‘navigable’ in ‘navigable waters’ be given some importance.” “Where ‘wetlands’ effects on water quality are speculative or insubstantial,” he explained, the Corps has no authority to regulate. His opinion required the Corps to justify its jurisdiction with a clear standard applied to each wetland on a case-by-case basis.

But it bears noting that Kennedy refused to join Scalia’s plurality opinion in Rapanos and make it a majority. Instead he wrote a separate concurring opinion that—even when limiting the Corps’ claim—explicitly allowed for a broader scope of federal power. Kennedy admitted that “the end result” under his standard “may be the same as that suggested by the dissent, namely, that the Corps’ assertion of jurisdiction is valid.” He again cited Wickard favorably, and wrote “there is evidence in the record suggesting the possible existence of a significant nexus” and ecological interdependence with navigable waters. In Rapanos, as in Comstock, Kennedy admitted a broad practical conception of federal power—and yet he nevertheless required the federal government to justify its authority based not on mere speculation but on empirical demonstration.

All of this points to a strategy that might convince Justice Kennedy to uphold the individual mandate. To persuade him, supporters of the mandate have to address three of his larger concerns. One strategy—taken by Walter Dellinger and Charles Fried in recent Senate hearings—is to connect the mandate to previous post-New Deal Commerce Clause legislation and to illustrate a clear connection between the mandate and enumerated powers to tax and to regulate commerce. Given Kennedy’s attachment to Wickard, supporters of the legislation would do well to stress the relevance of health care to the extension of the broad congressional commerce power that was allowed by the Court in the process of upholding the Agricultural Adjustment Act and the Civil Rights Act.

Second, defenders should aim to prove how closely connected the individual mandate is to the workings of the larger economy. This will help to counter the distinction—pivotal in the Virginia and Florida decisions that struck down the mandate—between ordinary commercial activity, which the government has a right to regulate, and “individual activity” such as the decision not to purchase health insurance, which mandate opponents say the government cannot regulate.

Third—and most importantly—to address Kennedy’s commitment to restraining federal powers, mandate defenders will have to formulate a plausible theory of congressional commerce authority that remains subject to meaningful, judicially enforceable limits. This is a line of argument that, to date, mandate defenders have been less successful in articulating. They cannot simply ridicule mandate opponents’ contention that the law would open the door to legislation requiring people to eat their broccoli: They must provide realistic examples to demonstrate that principled limits on federal power to regulate commerce among the several states remain meaningful and are not merely words on parchment. Were Kennedy to vote to strike the mandate, it will most likely be because its defenders could not present a principled, enforceable stopping point to federal power under the Commerce Clause.

If these efforts prove unsuccessful, Kennedy’s record in federalism cases—including Bush v. Gore—illustrates that he would not hesitate to provide a fifth vote to overturn a law on a controversial or partisan issue. But, because of his commitment to both opposing values, he would be unlikely to strike the ACA in its entirety, as Judge Vinson did in Florida this January. In Morrison, for example, the Court struck as unconstitutional Congress’s effort to establish a remedy in civil court for those who were victims of a “crime of violence based on gender.”

But the Court did not invalidate the entire Violence Against Women Act or the omnibus Violent Crime Control and Law Enforcement Act of 1994 of which it was a part, even though the text of the larger bills do not say a word about the severability of unconstitutional provisions. Given his practical conception of the federal commerce power, it is more probable that, like Judge Hudson in Virginia, Kennedy would strike the individual mandate but not the rest of the Affordable Care Act.

Were he to strike the individual mandate but leave the rest of the ACA intact, Kennedy’s opinion might include conciliatory language inviting Congress to pass new legislation that more explicitly ties the mandate to the enumerated powers to regulate interstate commerce and to tax and spend. This is what he did in Lopez, writing that “Congress can revise its law to demonstrate its commercial character.” Within months of the Court’s decision in Lopez,Congress overwhelmingly voted that criminal prosecution required any weapon possessed in a school zone to have traveled in or otherwise affected interstate commerce. After Rapanos, the Army Corps of Engineers issued several memos adopting a version of Kennedy’s “substantial nexus” standard.

But in the aftermath of a Supreme Court decision to strike the individual mandate, revision by Congress to meet constitutional concerns would not be so easy. In practice, however, a Supreme Court decision striking the mandate but inviting a political fix would be fatal to the ACA. The initial debate in Congress over the Affordable Care Act was contentious enough; after Republican gains in the 2010 midterm elections, any attempt to restore the mandate by passing it as new tax legislation seems politically impossible.

So Justice Kennedy cannot split the difference. Throughout his career on the bench, Kennedy has tried to reconcile a judicial duty to enforce limits on Congress’s commerce power with the practical need to allow federal regulation of a growing and unified national economy. Now, the inevitable Supreme Court case testing the constitutionality of the individual mandate will leave him no practical way to protect both of these commitments. Kennedy will be forced to choose one over the other.

Frank J. Colucci is an associate professor of political science at Purdue University-Calumet and author of Justice Kennedy's Jurisprudence: The Full and Necessary Meaning of Liberty.

Me:

1. Based on this excellent analysis, I'd say Kennedy will vote to affirm constitutionality.

2. Interesting it is how the 4/4 split in the other justices has become conventional and received wisdom.

Imagine a Nuclear Libya

Michael Oren/WaPo/March 29, 2011

America and its allies, empowered by the United Nations and the Arab League, are interceding militarily in Libya. But would that action have been delayed or even precluded if Libyan leader Moammar Gadhafi had access to nuclear weapons? No doubt Gadhafi is asking himself that same question.

Gadhafi unilaterally forfeited his nuclear weapons program by 2004, turning over uranium-enriching centrifuges and warhead designs. A dictator like him—capable of ordering the murders of 259 civilians aboard Pan Am Flight 103 and countless others in many countries including his own—would not easily concede the ultimate weapon. Gadhafi did so because he believed he was less secure with the bomb than he would be after relinquishing it. He feared that the U.S., which had recently invaded Iraq, would deal with him much as it had Saddam Hussein.

A similar fear, many intelligence experts in the U.S. and elsewhere believe, impelled the Iranian regime to suspend its own nuclear weapons program in 2003. According to these analysts, the program resumed only when the threat of military intervention receded. It continues to make steady progress today.

The Iranian regime is the pre- eminent sponsor of terror in the world, a danger to pro-Western states, and the enemy of its own people who strive for democracy. It poses all of these hazards without nuclear weapons. Imagine the catastrophes it could inflict with them.

And if Iran acquires the bomb, other Middle Eastern states will also pursue nuclear capabilities, transforming the entire region into a tinderbox. The global enthusiasm recently sparked by Arab protesters demanding freedoms would likely have been limited if Middle Eastern autocrats had nuclear arsenals. Under such circumstances, the question would be not only which side—the ruled or the rulers—gains ascendancy in the Middle East, but who controls the keys and the codes.

The efforts to prevent Iran from obtaining nuclear weapons have been obscured by the dramatic images emanating from the region, but the upheaval makes that campaign all the more critical. While cynically shooting its own dissidents, the Iranian regime is calling for the overthrow of other Middle Eastern governments and exploiting the disorder to extend its influence.

In Lebanon, Iran has installed a puppet government and gained a strategic foothold on the eastern Mediterranean—an achievement of historic gravity. Triumphantly, Iranian warships for the first time passed through the Suez Canal and maneuvered off the Syrian coast. Iran has also stepped up arms supplies to Hezbollah and Hamas, as revealed by Israel's recent interception of the freighter Victoria laden with Iranian missiles. And last week Iran welcomed—or perhaps instigated—the firing of some 100 rockets and mortar shells into Israel from Gaza.

All the while, Iran has remained the target of international sanctions designed to dissuade it from pursuing military nuclear capabilities. These strictures have affected Iran's economy, but they have yet to significantly slow the country's nuclear program or dampen its leaders' appetite for atomic weapons. In spite of some technical difficulties, according to International Atomic Energy Agency Director General Yukiya Amano, Iran is enriching uranium "steadily, constantly."

America's policy, like Israel's, is that "all options are on the table." We know that only a credible threat of military intervention can convince nondemocratic regimes to abandon their pursuit of nuclear weapons. Sanctions alone are unlikely to prove effective unless backed by measures capable of convincing the Iranian regime that the military option is real. It is the very threat of such force that reduces the danger that it will ever have to be used.

The critical question then becomes: Does anybody in Tehran believe that all options are truly on the table today? Based on Iran's brazen pronouncements, the answer appears to be no. And while the allied intercession in Libya may send a message of determination to Iran, it might also stoke the Iranian regime's desire to become a nuclear power and so avoid Gadhafi's fate. For that reason it is especially vital now to substantiate the "all options" policy.

Now is the moment to dissuade the Iranian regime from obtaining a nuclear weapon that might deter any Libya-like intervention or provide the ayatollahs with a doomsday option. If Gadhafi had not surrendered his centrifuges in 2004 and he were now surrounded in his bunker with nothing left but a button, would he push it?

Stanley Kurtz on Obama and Libya

The Corner/NRO.March 29, 2011

As his speech tonight confirms, President Obama intervened in Libya to prevent a massacre in Benghazi. That is the long and short of it. Yes, he also hoped that his action would blunt Qaddafi’s counter-revolutionary stroke, thereby putting us “on the right side” of the emerging revolt in the Middle East (Hillary’s chief concern). Yet that was a secondary motive. Fundamentally, Obama was unwilling to go down in history as the man who allowed a massacre in Benghazi. He also wanted to set a precedent for future multilateral humanitarian interventions under United Nations auspices. Everything else follows from this core motive, which is represented within his administration by Samantha Power and Susan Rice, above all.

Obama is not a neoconservative democratizer. When he talks about our values of human rights and democracy, he has in mind the progressive vision of a UN-dictated rights regime that constrains and encroaches upon national sovereignty, including our own. This is the portion of his policy goals in Libya (drawn from advisors like Power) that he does not explicitly spell out. It depends on doctrines like “responsibility to protect,” liable to future expansion and abuse by international bodies. Instead of going into all this, Obama merely highlights the “historic” UN resolution that enshrines the new doctrine, and speaks of his worry that a failure to act would have rendered the UN’s “writ” meaningless.

There are immense problems with all of this, of course, both from the standpoint of American interests more conventionally defined, and from the standpoint of humanitarianism. In a tribal civil war, those we have saved are as likely to massacre Qaddafi’s supporters, should they take power with our help, as Qaddafi was to kill them. Getting out from our moral and military responsibility for that will be a neat trick.

As far as our “conventional” national interests go, whether you’re an eager democratizer or a realist, nothing Obama is doing makes much sense. The point is, Obama was unwilling to let Benghazi fall under Qaddafi’s power, and he’s trying to avoid excessive American involvement beyond that simple act. He would love for all the uncomfortable consequences of his humanitarian gesture to go away. But of course they won’t. Saving Benghazi is not a simple act. It has massive ramifications and complications for humanitarianism, for democracy promotion or the lack thereof, and for America’s economic and military interests traditionally defined. On all this, Obama is simply juggling the complicated results of his humanitarian gesture as best he can.

Let’s go back to that fateful Tuesday meeting. Benghazi was about to fall. Hillary had just been rebuffed in her efforts to meet with the young demonstrators who brought down Mubarak. She had also been told by other Egyptians that they wanted Qaddafi stopped, because his success against his foes would break their movement’s momentum in the region. Obama saw in all this a chance in that to square the circle of our values and our interests, the conflict between which had been causing him no end of difficulty and embarrassment for weeks.

By stopping the massacre, he saved his good name and helped Hillary in her efforts to gain favor with the revolutionaries in Egypt and beyond. (The real reason Hillary was rebuffed, I maintain, was the bitter anti-Americanism of the Tahrir Square demonstrators who shunned her. They cannot be appeased, although Hillary falsely believed they could be.) Obama’s national security advisors looked at our conventional interests and saw the mess of constraints and contradictions intervention would bring. Obama famously overruled “the men,” going instead with his troika of female advisors, and it’s all played out to form since.

Obama has saved his good name on Benghazi for the history books. The young Egyptians still don’t like us, and they aren’t in charge anymore anyway. An alliance of the military and the Muslim Brotherhood is now running the show in Egypt instead. As for our more conventional interests and military position, Libya is a contradictory mess, as Obama’s own national security advisors foresaw. It was all predictable and predicted (except for Hillary’s naive take on Egypt). Obama made his choice and we are living with the consequences now.

Towards an Obama Doctrine?

Alana Goodman/03.28.2011

Contentions

There are certain patterns emerging from President Obama’s response to the Arab uprisings that may form the foundation of a broader foreign policy doctrine. His speech tonight on Libya will give us some more clues, but here are some of his positions so far:

National security interests and philosophical values alone do not legitimize U.S. military action. Approval from multilateral institutions is key, and the U.S. can’t justly go to war without it. The intervention in Libya was a prime example – President Obama bypassed the Congressional authorization process and instead devoted his energy to amassing support from the UN Security Council and the Arab League. Whether this was due to time constraints or Obama’s unwillingness to defend the moral or strategic necessity of the war to Congress, it indicates that approval from the international community is a non-negotiable prerequisite for going to war.

And even though national interest plays a role in Obama’s decision-making, it seems to be given far less weight than in previous administrations. When asked on Sunday if the U.S. would consider taking military action in Syria, Hillary Clinton said the only way this would happen was “if there were a coalition of the international community, if there was the passage of a Security Council resolution, if there were a call by the Arab League, [and] if there was a condemnation that was universal.” Noticeably absent from this string of “if’s” were any mentions of our own national security interests or humanitarian values.

The U.S. should be an active participant, not an active leader.

As domestic pressure increased for Obama to take a stance on Libya, the president filibustered until France and Britain finally took the lead and called for an intervention. The U.S. controlled the Libya mission by necessity at the beginning, but its role was reluctant leader – the Obama administration repeatedly made it clear that America was acting as part of a “coalition” and that it would hand over the reins to NATO as soon as possible.

This unwillingness to take the lead has been a characteristic of Obama’s response to the Arab uprisings. He was slow to take a position on Mubarak, slower to call on Qaddafi to step down, and he has yet to condemn Assad. Obama is not a non-interventionist, but he’s not a hawk either. He seems comfortable with actively participating in internationally-approved interventions, but has avoided taking an active or aggressive leadership role.

Covert warfare is preferable to overt warfare.

Obama isn’t opposed to American military power, he’s opposed to what he perceives as chauvinistic displays of that power. He realizes the importance of Bush’s counterterrorism policies and continues to use most of them.

In fact, in some regards he’s even increased the use of covert intelligence operations, in order to make up for his reduction of overt military operations. Under his administration, the U.S. has increasingly used drones in Afghanistan and Pakistan, may have used cyber warfare against the Iranian nuclear program, and sent Special Forces on clandestine military operations across the Middle East and Africa.

Scalia's Refusal of Recusal in the Richard Cheney Case: RICHARD B. CHENEY, VICE PRESIDENT OF THE UNITED STATES, ET AL. v. UNITED STATES DISTRICT COURT

http://fl1.findlaw.com/news.findlaw.com/wp/docs/scotus/chny31804jsmem.pdf Me:

After setting the background of the recusal motion and setting the factual matrix out of which the motion arises, Scalia rejects the presumption of recusal—which is of course not to say, “no recusal”— for the reason that, in contrast to appellate courts, no one else steps in when a SCOTUS judge recuses him or her self.

The recusal test is whether “impartiality might reasonably ne questioned. On Scalia’s narrative—the hunting party was arranged even before the cert petition had been filed—with no meaningful contact between him and Cheney, the issue boils down to one of Scalia’s friendship with Cheney. Friendship can ground recusal but not traditionally where official action is the issue before SCOTUS for that would functionally disabling given whom SCOTUS justices know. (See page 5 of his memo.) And it matters not that Cheney is a named party in the case because tradition does not make that a particularly relevant criterion and because high level officials are frequently named in suits concerning official action and because that naming doesn’t implicate the officer personally but rather officially, i.e. his office, as is the case this subject law suit.

Countermanding the allegation that Scalia proceeds crazily or deeply dishonestly is his consistent rehearsal of, and answer to, the full range of arguments put against him, transparently and fully for all to see and agree or disagree with.

The issue facing SCOTUS in the case is the power of the District Court under under certain law and whether Appeal Court should have asserted appellate or prerogative jurisdiction over the District Court. And the issue involves the question whether certain individuals were members, de facto, of a particular organization. This characterization of the issue meets the Sierra Club’s position that the case puts Cheney’s personal character on the line, thus grounding its recusal request.

Sierra Club’s argument, however, that Cheney, as head of an Energy Task Force, involved oil industry executives in his Task Force, which then made it and them subject to oversight and disclosure. But, Scalia notes, the formal pleading does not single out Cheney as involving the executives but even if it did it would have been irrelevant. The law is that disclosure is required when any private person is a Task Force member and no matter who gets them so involved. So how does Cheney’s integrity become singularly implicated given this? And of course there is nothing per se wrong or illegal in involving such executives. As to political consequences to Cheney from potential disclosure that Cheney favored business interests, that is not SCOTUS’s concern. So recusal cannot be linked to the political consequence to a party a case may entail.

The Club argued that by Scalia flying on Air Force Two he accepted a gift from a party in a pending case worth thousands of dollars. He had already bought round trip tickets before the invitation was so to fly was extended so there was no saving of money, though there was more comfortable and convenient travel. But more importantly, traditionally such social amenities extended at government expense by officials before the court in their personal capacities has neither gounded recusal nor suggestions of impropriety. Such invitation to travel is frequent and not considered unusual.

Scalia notes that the Club cites no precedent involving official action cases and or involving remotely similar circumstances. In a footnote, Scalia does refer to case cited by the Club involving the same disclosure and oversight statute in which he did recuse himself. But he recused himself because in the OLC he had written a particular opinion and the law mandates recusal where a judge in an official capacity expressed an opinion on the merits of the case now before SCOTUS. Scalia of course has expressed no opinion on the instant case. In Murphy, he footnotes that a judge holidayed with the prosecutor in Murphy’s case right after sentencing Murphy. But this case marked the prosecutor’s deep involvement in the outcome of the case in a way that a nominal defendant in an official action case is not.

To come to the essence of the Club’s argument: large, influential newspapers are calling for Scalia’s recusal; no newspapers defend his non recusal; the newspapers reflect American public opinion and are unanimous an objective observer must conclude that Scalia’s impartiality has been questioned and therefore the legal test—“might reasonably be questioned”—is satisfied. So the argument is: Scalia must recuse himself because an important segment of the press, as proxy for the American public, wants him to.

As against this argument, Scalia counter notes a number of things: many press reports have the facts wrong; most of the press accounts engage the legal proposition that a federal officer, a nominal party, is typically not regarded as a personal party to an official action case; and those that engage it assume incorrectly that potential political damage to the official grounds recusal. Recusal does not flow from press accounts. It flows from the perspective of a reasonable observer apprised of all the facts and surrounding circumstances.

As against the Club’s inability to cite a single persuasive precedent, Scalia has unearthed some helpful examples that analogously negative the Club’s position.

Justice Byron White was close friends with Robert Kennedy when he was A.G. White had served in fact as a deputy A,G. under Kennedy. They went skiing together when White was on SCOTUS and two official action cases were pending naming Kennedy as nominal party. Plus another case was going to be argued two weeks after the skiing holiday which was deemed politically significant to the administration. And Kennedy argued the case, his only ever argument before SCOTUS. No recusal was ever suggested by anyone.

Justice Jackson, known for taking the recusal obligation seriously, socialized frequently with FDR and kept a close personal relationship with him. Even thought his administration was constantly before him. He spent a weekend with FDR while pending before him and to be argued the next month was a significantly important Commerce Clause case. Jackson wrote the opinion. Nothing came up about recusal.

If friendship grounds recusal in official action cases, then they must be abjured. But if they don’t, then social contacts which evidence that friendship without more are beside the point. The latter is the case and the well known practice of judges and executive officials and members of the legislature socializing and enjoying friendship continues.

So because Scalia’s partiality does not come into question, his recusal is out of the question. Plus, if Scalia were to recuse himself it would be because of press speculation of political consequence to Cheney if the underlying suit is successful, those consequences speculatively including damage to Cheney’s integrity. But losing official action law suits often entails political consequences which can often be translated by public commentary to officials’ reputational damage. So that speculative possibility grounding recusal amounts to a virtual veto over any justice friendly with, or who had social contacts with, a nominal defendant in an official action suit. That’s entirely problematic and would lay a foundation for that type of mischief making in other cases. (For example the L A Times editorialized that it was improper for Scalia to sit on a case argued by a Law School dean whose school Scalia had visited a few weeks before at the invitation of the dean’s predecessor.)

With irony, Scalia observes the Club’s lead counsel, a friend, invited Scalia in a “warm note” to speak to some of his classes at Stanford Law School with his transportations and expenses paid. Scalia as he says, saw nothing wrong in that friendly letter and invitation but would have thought otherwise if friendship simpliciter could ground recusal.

The issue, again devastating to the logic of the recusal request, is:

.…The question, simply put, is whether someone who thought I could decide this case impartially despite my friendship with the Vice President would reasonably believe that I cannot decide it impartially because I went hunting with that friend and accepted an invitation to fly there with him on a Government plane. If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined…(p.20)

and his final words rather moving:

…As the newspaper editorials appended to the motion make clear, I have received a good deal of embarrassing criticism and adverse publicity in connection with the matters at issue here—even to the point of becoming (as the motion cruelly but accurately states) “fodder for late­ night comedians.” Motion to Recuse 6. If I could have done so in good conscience, I would have been pleased to demonstrate my integrity, and immediately silence the criticism, by getting off the case. Since I believe there is no basis for recusal, I cannot. The motion is…denied….(p 20-21)

So again, I find his reasons compelling. Others may disagree. And I am happy to argue with them about it.

Molly: Basman, I respect and like you, too, as you well know. But I'm afraid I must say that you did nothing above but give me a rote summary of Scalia's arguments. Scalia easily knocked down some of the Sierra Club's arguments, but that's because I'm assuming the Sierra Club did not hire very decent lawyers. Roi makes all the arguments I sort of made when I scribbled my notes, albeit I was far more inchoate. Now, I think there was plenty in this memo that showed a pathology of some kind. Probably pathological arrogance. And self-deceit. He truly believes his own hype. When the man wrote that every official in DC knows that you don't discuss pending cases, as if that could completely dismiss any of our concerns, as if there were no difference between knowing and doing, I almost fell out of my chair. Oh, and also, Washington is a bastion of purity. Furthermore, let's not leave aside the matter that Cheney's integrity was called into question by most thinking people in this country. And that the Cheney/Bush White House reeked of cronyism. This is true, and that alone should have been enough for any reasonable person to say, gee, I shouldn't take that plane trip, now should I. I might not want that taint. Scalia claims he could remain impartial. I doubt that sincerely. My own father-in-law, a lawyer and fan of Scalia's, was asked when he reported to jury duty, whether he had any biases. He answered that he had no idea, and that if he did, they wouldn't be biases. (He immediately got off jury duty.) So, OK, Scalia is super man. Nothing gets in the way of his judgment. He is blind justice itself. That there is his argument. Basically, his whole argument. T The trouble is, many expert HIGHLY RESPECTED legal scholars (never mind the press, for which Scalia has so little respect) have made many observations that Scalia is in fact highly partisan. Now, a man who wasn't pathologically arrogant and dishonest with himself would recognize that people have qualms about his very apparent biases, and he would go out of his way--not overboard, but out of his way--NOT TO GIVE THE IMPRESSION OF CONFLICT OF INTEREST. (Of course, Scalia purposely conflates overboard with out of the way. He conflates a lot. He's sneaky that way.) That is reason enough to have recused himself. I don't care how many other cases he sites. The man's job is not just to decide justice, but to allow the rest of the citizens in this country to feel as if we don't live in a banana republic. It's called propriety. Scalia is big on propriety. So big on it that he feels there's nothing inherently wrong with, evil about, a law that forbids gay sex. He is a self-confessed old-fashioned guy who believes in old-fashioned values. Here are some of my scribblings, if you're interested, as I was reading the memo. Roi covers these points better (forgive me Roi if any of my points are not in line with yours), but I figured if I took the time, I might as well include it in my post. If only for my own ego gratification. 1. He says this decision would have no bearing on Cheney's reputation. But this suit was very much, if not entirely, about Cheney's reputation. Yet Scalia, either because he thinks he's God or is lying, knows full well that the outcome of this decision would completely affect Cheney's reputation. 2. Then he opines about whether the energy execs being on the task force is necessarily a bad thing. That's not the point--it's a straw man. The point was whether their being on the task force hurt other interests--i.e. the Sierra Club folks, for starters. Here, he is either dishonest or stupid. Or, back to craziness, pathologically naive. 3. He writes in intricate detail about the cost of the plane ride. I recently, as I mentioned elsewhere on TNR, read excerpts of Peepys's diaries, as well as as a couple of biographies of the man. In his capacity as a naval secretary of sorts, he was twice called up to discuss "where the money all went." His technique was very similar to Scalia's. Bury them in details. It makes you look honest; as if you're revealing everything there is to reveal. So Don Nino buries us in a mound of unnecessary detail and obscures the fact that flying on air force two is not the same as flying commercial. That it's an honor, a thrill, a luxury, to be on that plane. Of course, as he goes on to say, this still doesn't matter. He's above those feelings. If this doesn't matter, then why mention it? Just like I asked above, why make mention of the dentist and physical/occupational therapist. If you're right on case law and precedent, Nino, there's no need to bring up this self-serving crap. But he's bringing it up to shade his argument. He also weirdly brings up the cost of attending a white house dinner for charity. Huh? That that would cost more? And that's relevant to the price of eggs because . . . . . That's either meant to mislead or he's crazy and can't make logical arguments. 3. Then he dismisses the entire press as irrelevant because a few idiots (not the NY Times or the Journal) got the facts wrong. So what? More unnecessary detail. More misleading, or more craziness not being able to make a logical argument. The Sierra Club is right: The press speaks for the people. It is an essential element of our democracy. Most major newspapers saw that Nino's flight was wrong. Which leads me back to my main point: The appearance of a conflict of interest. But Nino is above such matters. Besides which, the press makes "baseless accusations." I don't think questioning a possible conflict is baseless. But he thinks he gets away with this because he mentions a few bad apples. 4. Recusal would not, in this case, have harmed the court. Recusal would have made many intelligent Americans feel that we have a just system of law. That would have enhanced the court. 5. Consistency is some measure of sanity, I think. I'm not asking for machine-like consistency. Just enough to demonstrate that situations do not entirely decide your actions. He talks about the need for a tie-breaker. He pulled himself out of the pledge case. What? Was he not concerned? Was this case a trivial matter? Did he not care about the outcome (in which case one could assume he did care about the outcome of the Cheney case)? Or did he do a general kind of survey of his fellow justices so that he could know whether he'd be necessary or not? So he uses the pledge case to prove he's capable of recusing himself, even if that means contradicting himself. Either you're capable of listening to a case on its merits, or you're not. That's Nino's argument, not mine. 6. About the pledge case: What's he saying? That the world saw a bias, therefore he's out? Because according to Nino, he has no biases. So what does public opinion matter? He is incorruptible. That should be enough for us all. Claiming you're incorruptible could of course be seen as a sign of insanity. Or simply a sign of dishonesty--with others or yourself. Makes no difference. I'm sure there are plenty of flaws and inconsistencies in my arguments. And misunderstandings of the law. But that didn't stop Tony boy. On top of my other judgements, I judge him kind of lame. Where's the legal brilliance. I've never been to law school, and I'm sure that's apparent, but even a simpleton such as I could find flaws in his arguments. You, Basman, however, when you're arguing on behalf of yourself, nearly always convince or half-convince me. You devil, you.

Me:

Because Roi concurred with Molly’s long post of 03/27/2011 - 8:46pm, I’ll address it specifically on the assumption it takes into account Roi’s arguments. If there is an argument I’ve missed along the way, let me know and I’ll try my best to take it up. (It’s irrelevant I think, but I note that while you dismiss Sierra Club’s lawyers as not “very decent” Scalia’s memo has their lead counsel as Dean of Stanford Law School.)

Firstly I reject inferring from the style of Scalia’s writing or his piling on of details any emotional malady about him. Any such diagnosis should be based on something he said so preposterous, so detached from reality, like the scribblings of Loughner or whomever, that inferences of mental defect are reasonable to draw even by humble laypersons such as ourselves. “Nuts,” “crazy,” those are your terms of choice and they are grave and in the circumstances, I submit, wild. (Hence, my admonition as to some circumspection.) No, you will need palpable evidence from what he wrote to have a chance at probity for your characterizations on this score.

What you ought not do, and what I think you do do, is conflate your hated of the man plus your own ideological leanings with your assessment of what Scalia wrote in his memo.

I cannot see any reasonable legal or common sense connection between general perceptions of Cheney’s dishonesty, which I’ll stipulate existed only for the sake of this argument, and Scalia’s getting a plane ride from him. The issue was not personal as to Cheney. Reconsider the technicality of the issue before SCOTUS as set out by Scalia: how the Appellate court is to exercise its jurisdiction over the District Court in the latter court’s determining discovery limits. I mean how abstruse is that?

You elide the ongoing and crucial distinction between Cheney as a personal defendant and Cheney as a nominal defendant by virtue of his office in an official action law suit. As Scalia makes clear, friendship is not ground for recusal in such suits. So the question which you don’t attend to is: since Scalia would not have been disqualified by reason of his friendship with Cheney, what difference did his catching a plane ride, one way, when he had already bought return tickets, and hunting with Cheney in a large group of hunters under arrangements struck before the cert petition was filed, in the circumstances Scalia carefully describes, make?

What was super added by virtue of that trip? Scalia spends a lot of time in his memo describing the kind of socializing that goes on in Washington amongst judges, legislators and members of the executive including Presidents and Vice Presidents. He gives examples of the kind of non-eyebrow-raising close mingling in the past while cases were pending—Justice White and before him Justice Jackson. You don’t address what’s different in this case.

As well your concern that Scalia could not remain impartial is misconceived here for the above reason. If his friendship with Cheney is not enough to dislodge Scalia’s impartiality in official action suits, what is, again, super added by the hunting trip as described by Scalia? All it was was a demonstration of an incident of their friendship. His partiality was not going to be bought by that trip, obviously.

Your third paragraph is highly emotional. Scalia may be thought to be highly partisan. So what? His perceived partisanship is irrelevant. If your argument has any force, it would apply to a judge who by reputation is neutral just as it would to a judge whose reputation is partisan. He is or he isn’t partisan. If he is, then the hunting trip isn’t going to make him more partisan. And if he isn’t, the hunting trip isn’t going to make him more partisan. He is going to be the same judge regardless of his going on the trip.

So, again, the same law that does not disqualify him from judging based on friendship will not disqualify him based on the trip. If you think it through a bit, you would be more concerned with a judge so mingling with a party to an action that he was not friendly with than with one he is friendly with. In the latter case, ironically, given your argument, Scalia’s friendship with Cheney ameliorates the concern, puts it into an accommodating context, as two strangers so mingling does not.

You say Scalia “conflates a lot.” I need concrete examples of that supported by things he specifically says. Molly, as I have been trying to point out, the conflation rests with you.

As to your enumerated points:

1. Scalia does not say this case has no bearing on Cheney’s reputation. He says rather the issue before the court is not Cheney’s reputation but some technical issue about superior court supervision and the limits of discovery. You miss the difference between cases where reputation precisely forms the legal issue before the court—say fraud, or some such—and cases where damage to reputation is a political consequence.

Contrary to what you say, Scalia engages the potentiality of the bad political consequences to Cheney from a decision ultimately going against him. He says, correctly, they are not his business as a judge. As a judge his business concerns the legal issues before him, which he will decide unmindful of political consequence. So on this point, respectfully, you are wrong.

2. You are harping on, and putting way too much emphasis on, some irrelevant (what lawyers and judges call) obiter dicta—non essential judicial comment. He’s just saying, probably better he hadn’t, that oil execs might be good on the Task Force, but his comment is neither here nor there. And if that’s what you’re pinning mental defect or dishonesty on, it’s time to move on to the next debate. (Ironically here, given the issues, if the oil executives were functionally part of the Task Force, the Club by law will have discovery of them.)

3(1) I think it’s entirely salutary that he gave a comprehensive account of his trip. There is no appeal from his decision. He stands only to stand or fall for his decision in the public mind including his peers and other lawyers and judges who engage his reasons. If he was trying to make his position and his ruling persuasive, who’s to call him pisher? We all do that in our way.

At least he laid it all out there and we can all come to our own judgments. And what details did he bury anyone in? Harken back to the legal test: partiality being called into question from the perspective of a reasonable observer apprised of all the facts and surrounding circumstances. Given that test, I’d think the “court of public opinion,” the only court left to judge and that matters, if only reputationally, would want as many details of the trip as are relevant.

(Plus there is another, smaller point conformable to understandable human nature operating here: Scalia is in part defending his honour as a judge. For the suggestion in the motion is that he is incapable of being partial as regards his friend the Vice President. I don’t agree with Scalia’s textualism or his originalism but unlike you, I think he proceeds in good faith. Or else why is Ruth Bader Ginsburg such a good friend of a man who is either insane or deeply dishonest? Hmmm?)

3(2) Scalia's right to dismiss press accounts and what the press calls for. The press has agendas. Most of the press got details of the story wrong. Most of the press did not attend to the law that he rehearses so fully in his reasons—the distinction between private law suits and official action law suits and the relation between friendship to both sides of the distinction. Most of those that attended to the law misconceive the role of *political consequences* in the recusal analysis in official action suits.

There is no case of recusal based on the press standing as proxy for public opinion or more saliently for the reasonable observer apprised of all facts and circumstances called for by the legal test. On this point, recusal here vindicates political consequence as a relevant factor and changes the law by importing friendship into the analysis where it had no place before. Were this to happen the practical parade of “horribles” is easily imaginable.

4. Harming the court is not the issue. But my speculation is as good as yours. Recusal would have harmed the court because it would have elevated itself into a tactic on a new ground—friendship in official action cases—with a great potential for manipulative mischief and in defiance of the obvious socializing between judges and highly placed others.

5 +6. Is the “pledge case” the Public Citizen case? I assume it is. If it’s not I don’t know what you are referring to. If it is, on the assumption it is, what in God’s name are you talking about? And if it is, you make a hash of “consistency” by not being careful in your observations. That case invoked a specific ground for recusal:

…I concluded that my withdrawal from the case was required by 28 U. S. C. §455(b)(3), which mandates recusal where the judge “has served in governmental employment and in such capacity . . . expressed an opinion concerning the merits of the particu­lar case in controversy.” I have never expressed an opinion concerning the merits of the present case… (page 12, footnote 3).

Scalia had expressed the very opinion warranting recusal. In the instant case, as he notes, he had not. So there is, I think, assuming we are talking about the same case, nothing to your point about consistency.

So Molly, I still love you the way only a younger brother can love his older sister. Nothing in what I say is personal. And if you wish to respond, I’ll be happy to try and address what you further to say.

Yours truly,

The Devil

Charles Krauthammer: The Professor's War

March 24, 2o11/The Orange County Register

President Obama is proud of how he put together the Libyan operation. A model of international cooperation. All the necessary paperwork. Arab League backing. A Security Council resolution. (Everything but a resolution from the Congress of the United States, a minor inconvenience for a citizen of the world.)

It's war as designed by an Ivy League professor.

True, it took three weeks to put this together, during which time Moammar Gaddafi went from besieged, delusional (remember those youthful protesters on "hallucinogenic pills") thug losing support by the hour -- to resurgent tyrant who marshaled his forces, marched them to the gates of Benghazi and had the U.S. director of national intelligence predicting that "the regime will prevail."

But what is military initiative and opportunity compared with paper?

Well, let's see how that paper multilateralism is doing. The Arab League is already reversing itself, criticizing the use of force it had just authorized. Amr Moussa, secretary-general of the Arab League, is shocked -- shocked! -- to find that people are being killed by allied airstrikes.

This reaction was dubbed mystifying by one commentator, apparently born yesterday and thus unaware that the Arab League has forever been a collection of cynical, warring, unreliable dictatorships of ever-shifting loyalties. A British soccer mob has more unity and moral purpose. Yet Obama deemed it a great diplomatic success that the League deigned to permit others to fight and die to save fellow Arabs for whom 19 of 21 Arab states have yet to lift a finger.

And what about that brilliant U.N. resolution?

Russia's Vladimir Putin is already calling the Libya operation a medieval crusade.

China is calling for a cease-fire in place -- which would completely undermine the allied effort by leaving Gaddafi in power, his people at his mercy and the country partitioned and condemned to ongoing civil war.

Brazil joined China in that call for a cease-fire. This just hours after Obama ended his fawning two-day Brazil visit. Another triumph of presidential personal diplomacy.

And how about NATO?

Let's see.

As of this writing, Britain wanted the operation to be led by NATO. France adamantly disagreed, citing Arab sensibilities. Germany wanted no part of anything, going so far as to pull four of its ships from NATO command in the Mediterranean. France and Germany walked out of a NATO meeting on Monday, while Norway had planes in Crete ready to go but refused to let them fly until it had some idea who the hell is running the operation. And Turkey, whose prime minister four months ago proudly accepted the Gaddafi International Prize for Human Rights, has been particularly resistant to the Libya operation from the beginning.

And as for the United States, who knows what American policy is. Administration officials insist we are not trying to bring down Gaddafi, even as the president insists that he must go. Although on Tuesday Obama did add "unless he changes his approach."

Approach, mind you.

In any case, for Obama, military objectives take a back seat to diplomatic appearances. The president is obsessed with pretending that we are not running the operation -- a dismaying expression of Obama's view that his country is so tainted by its various sins that it lacks the moral legitimacy to ... what? Save Third World people from massacre?

Obama seems equally obsessed with handing off the lead role. Hand off to whom? NATO? Quarrelling amid Turkish resistance (see above), NATO still can't agree on taking over command of the airstrike campaign, which is what has kept the Libyan rebels alive.

This confusion is purely the result of Obama's decision to get America into the war and then immediately relinquish American command. Never modest about himself, Obama is supremely modest about his country. America should be merely "one of the partners among many," he said Monday. No primus inter pares for him.

Even the Clinton administration spoke of America as the indispensable nation. And it remains so. Yet at a time when the world is hungry for America to lead -- no one has anything near our capabilities, experience and resources -- America is led by a man determined that it should not.
A man who dithers over parchment. Who starts a war from which he wants out right away. Good God. If you go to take Vienna, take Vienna. If you're not prepared to do so, better then to stay home and do nothing.

Libya War as War Lite

CLIFFORD ORWIN //Globe and Mail // Mar. 24, 2011

Humanitarian military interventions such as the one under way in Libya typically face just two main obstacles. The first is, they’re humanitarian. The second is, they’re military interventions.

Humanitarianism means never having to say you’re sorry. The wars it generates present themselves as peace by other means. Not politics by other means – Clausewitz’s famous definition of war – because humanitarianism is, by definition, non-political. It aims for goals on which “the international community” can agree, and there’s no political goal on which that illusory body can agree.

It can only agree on non-controversial aims, such as saving innocents from suffering. Brandishing these, it huffily denies that its ends are political ones. Heaven forbid we should be blowing up all those things in Libya for the sake of effecting regime change.

Regime change is controversial, you see, even when the regime is that of a mad dog like Moammar Gadhafi. So for the sake of consensus – humanitarianism loves consensus, since it’s just this consensus that vouches for it as non-political – intervention couches itself in neutral terms. Yes, Colonel Gadhafi must go (Barack Obama has said so), but it’s not the intervention’s aim to remove him. That aim is merely to stop him from doing such terrible things.

That goal is a worthy one. But it can’t be achieved except by removing Col. Gadhafi. Leave a despot in power and you leave him with the power to oppress. And removing him may require more than your typical humanitarian intervention – a war fought at 15,000 feet, or with cruise missiles lobbed from distant warships, without too much danger to the intervenors. No despot has ever been deposed from 15,000 feet.

Because humanitarian intervention is War Lite, it often fails to evoke the resolve that “real” wars do. Yet, because it, too, is war, it, too, requires that resolve. Here, the historical record is clear: To be even partly successful, interventions must feature one determined power, militarily capable and clearly committed, on whom everyone else involved depends to do the heavy lifting. Examples are the U.S. interventions in Bosnia and Kosovo, the Australian one in East Timor and the British one in Sierra Leone. International endorsement merely provided the fig leaf of non-politicality.

Then there were the genuinely multilateral and, therefore, ineffectual interventions: Somalia, Rwanda, the toxic combination of the Europeans and the United Nations in the Balkans. True multilateralism features everyone hoping that someone else will do something. It means being more concerned with being seen to act on CNN than with actually accomplishing anything.

No one has strong enough reasons of their own for intervening in Libya. The strategic interests of each participant lies elsewhere (although the Europeans worry, as they did in the Balkans, about a flood of unwanted immigrants). Each country is primarily concerned with exposing itself as little as possible to danger or costs of any magnitude. Mr. Obama, David Cameron and Nicolas Sarkozy are not in strong enough positions at home to weather significant setbacks abroad. The Americans insist that the Europeans will take the lead, as both parties indulge the wishful thinking that the Arabs will.

No one will admit to being in charge, nor is there avowed agreement on the goal. Yet, these are the two things that a military campaign needs above all. Mr. Obama needs to see that a president shouldn’t stake his political futures on vacillating allies to whom he’s offered the example of his own irresoluteness.

The half-heartedness of the intervenors against the manic determination of Col. Gadhafi; the ragtag rebels against his better-armed and -trained pretorians; our concession of control of the ground to him for unwillingness to put any of our boots there – it all seems to bode something less than a glorious victory. No war is a bargain except for those who can afford it, but cheap, half-hearted ones aren’t bargains for anyone.

Interesting Defence of Obama in Libya

Lawrence Korb//March 23, 2011//Politico

President Barack Obama is being criticized from all sides on his Libyan policy.
Some criticism on these Opinion pages came from two high-level Bush administration appointees, both of whom had a role in bungling the war in Afghanistan and were part of a team that led this country into the needless, senseless invasion and occupation of Iraq. (In fact, these Libyan military operations began almost eight years to the day after “shock and awe” began in Iraq.)

Richard Haas, President George W. Bush’s director of policy planning in the State Department, contends that Obama’s Libyan war is ill advised because it is a strategic distraction. Paul Wolfowitz, the deputy secretary of defense for Donald Rumsfeld, argues that Obama should have acted unilaterally a month ago.

But close analysis reveals four reasons that demonstrate Obama has done this just right. First, since there are no vital U.S. interests involved, it was necessary to take the time to gain legitimacy from the United Nations before launching attacks. Moreover, since the Bush administration had invaded Iraq under false pretenses, and thereby undermined U.S. standing in the Arab world, it was crucial that an organization like the Arab League endorse the action.
Second, the U.N. Security Council resolution, while somewhat ambiguous, encompasses far more than just a no-fly zone.

It also authorizes all necessary measures to protect civilians —excluding occupation forces. By allowing the nations involved to take “all necessary” measures, it legitimizes attacks on military targets by the coalition’s missiles and planes.

Third, given the fact that our military is overstretched and that we are broke, it was important that Obama get other countries to provide substantial military assets. Moreover, since there is still considerable anger among Arab and Muslim publics over the debacle in Iraq, it was important that Arab countries, as well as European allies, make military contributions. After the initial phase, the operation is to come under the control of another nation.Fourth, Obama has not exaggerated the threat or created unrealistic expectations about the outcome. He has not compared Col. Maummar Qadhafi to Joseph Stalin or Adolf Hitler, nor has he said, as Bush did about Iraq, that we want to implant democracy in Libya, or that Libya poses an existential threat to the U.S.

It’s strange that, given the complaints of people like Haas and Wolfowitz, Obama’s strategy actually mirrors the way President George H. W. Bush (for whom they both worked) handled the first Persian Gulf War. Saddam Hussein invaded Kuwait in August of 1990 — but we waited six months before taking military action.

That Bush administration wanted U.N. approval and significant military contributions from other nations — Arab countries, like Egypt and Syria, as well as significant financial contributions from Japan. Just as important, it left Hussein in power. Is the Obama approach perfect? Of course not. Would we have wanted a U.N. resolution allowing ground forces to be sent? Yes. But had we insisted on that, the U.N. resolution would most likely have been vetoed. Would we like to maintain continuing complete control of the military operation? Of course. But by handing command over to another country, it will not look like another U.S. intrusion in the Arab world — and ensure that other nations continue to make more than token contributions. Moreover, even if the U.S. is not in command, we still play a substantial role by providing our unique capabilities.

For example, the U.S. military almost single-handedly eliminated Libya’s entire air defense system. Finally, the military operation over Libya is not so complex that it can only be handled by a U.S. commander. Would we like to remove Qadhafi from power? Sure. But stopping the killing has gained us points in the Arab World and with our European allies.

In fact, supporting our European allies was a critical reason for joining the coalition. Would it have been preferable to get a congressional authorization? Yes. But by the time Congress, especially this Congress, would have acted, Bengazi would have fallen to Qadhafi’s forces. How will this end? No one can say. But given the way Obama has handled it, U.S. strategic interests and prestige are likely to be enhanced, even if Libya becomes another Lebanon.

Obama Wolfowitz Convergence in the Case of Libya?

Tim Hodgson//March 23rd, 2011//FrumForum

In late February, as the Libyan crisis unfolded, former Undersecretary of Defense Paul Wolfowitz made an impassioned plea for the United States to intervene. Wolfowitz argued that “when there are so many things that could be done to help the unbelievably brave Libyan people — without any risk to American lives — it is shameful to be sitting on our hands.”

The same Barack Obama who once breezily dismissed Wolfowitz as an “arm-chair weekend warrior” has now embraced an only slightly modified version of his doctrine of preemptive intervention to frame his case for U.S. involvement in Libya. And the same Paul Wolfowitz who fretted Obama would walk away from George W. Bush’s “Freedom Agenda” in the Middle East was tenaciously defending the emerging White House Libya policy from sniping by the likes of George Will on Sunday’s talk shows.

Stranger bedfellows are almost impossible to imagine. We would appear to be in Lion-Lies-Down-With-Lamb territory. But this entente très cordiale is simply the latest confirmation of Lord Palmerston’s dictum about the primacy of permanent national interests in foreign relations.

The conventional thinking had been that President Obama’s centrist leanings combined with fears of political blowback from a U.S. electorate fatigued by global nation-building duties (along with the predictable condemnations from implacable foes and fair-weather friends) were staying him from unsheathing the sword in Libya.

Now some unconventional thinking is challenging those assumptions.

In an intriguing and well-sourced piece on Time magazine’s Swampland political blog, it seems Wolfowitz’s thinking didn’t so much anticipate the eventual White House Libyan strategy as provide the actual blueprint.

The National Security Council’s Ben Rhodes is quoted as saying the long-term benefits of saving lives in Libya, protecting democratic change elsewhere in the region and — most tellingly — ensuring “the ability of collective action to be a tool in circumstances like this” eventually outweighed short-term domestic and international concerns. The despised policy of preventive intervention was essentially taken out of mothballs and re-commissioned.

President Obama, who once said he would abandon the Bush Administration’s “idealistic” approach to Middle Eastern affairs in favor of what he called a “realist” policy, at some point discovered realism was an animating principle of his predecessor’s policy all along.

Wolfowitz was never the promiscuous, shoot-first-think-later interventionist he has been caricatured as: it was he himself who famously said the U.S. could never be expected to play the role of global policeman in an unpredictable and increasingly fractious post-Cold War world. What he argued for was selective preemptive intervention — preferably internationally sanctioned — when humanitarian considerations and U.S. national interests converged. Libya presented a case study in the need for precisely such action.

A Libya embroiled in an ongoing, high- or low-intensity civil war — a chaotic situation certain to be exploited by jihadists — would clearly trigger seismic shockwaves throughout the country and the region, imperiling U.S. interests. So would a Libya controlled by a renascent Qaddafi bent on terrorizing his people and likely to once again make terrorism the country’s primary export. Intervention would also send a clear message to other Arab leaders challenged by popular discontent who might be flirting with Qaddafi’s notion that political power re-grows and is reasserted from the barrel of a gun.

The original Wolfowitz Doctrine stressed that vital security, economic and geopolitical factors made it imperative for the U.S. to foster Middle Eastern stability. It also recognized permanent stabilization could only come about by engaging the so-called Arab street rather than just the kleptocratic, sometimes theocratic leaderships and by vigorously promoting the items on what came to be known as the “Freedom Agenda”. This call for the spread of democratic values and institutions in a region where even mild dissent is often punishable by medieval cruelties was seen as the only antidote to ongoing repression: repression which provides radical jihadists with an endless supply of eager volunteers.

Wolfowitz’s initial qualms notwithstanding, President Obama’s realist school of diplomacy has always owed an unacknowledged debt to the supposedly misty-eyed idealism of the “Freedom Agenda”. The President’s unyielding emphasis on the need for comprehensive reform and restructuring in the Middle East is largely a by-any-other-name extension of policies initiated under the Bush Administration.

But what amounted to discredited U.S. unilateralism in Iraq (never mind the participation of more than 40 other countries in military and support roles) made the President pessimistic about the chances of America being able to coordinate multilateral action in response to the worsening Libyan situation. And a genuine exercise in American go-it-alone-ism in a Muslim country was, frankly, unthinkable at this juncture.

His sometimes fuzzy rhetoric notwithstanding, the President is on record as saying persuasive cases can and indeed should be made for humanitarian intervention on both moral and national security grounds. “More and more, we all confront difficult questions about how to prevent the slaughter of civilians by their own government, or to stop a civil war whose violence and suffering can engulf an entire region,” he said in his Nobel Peace Prize acceptance speech. “I believe that force can be justified on humanitarian grounds, as it was in the Balkans, or in other places that have been scarred by war. Inaction tears at our conscience and can lead to more costly intervention later.”

The President was finally prompted to act last week when a resurgent Qaddafi appeared poised to commit grand-scale atrocities in eastern Libya. In the face of open military skepticism about the prudence of pursuing a Libyan mission, the President — backed by Secretary of State Clinton and key National Security Council personnel — charged his United Nations ambassador Susan Rice with seeking support for a buffed-up version of a Lebanese resolution calling for a no-fly zone.

She succeeded. Last Thursday the U.N. gave broad support to “all measures necessary” to protect Libyan civilians, a move sanctioned by an Arab League traditionally as united by its members’ loathing of Qaddafi as the “Zionist Entity”.

Frankly, Security Council Resolution 1973 reads like a slightly wordier version of Wolfowitz’s robust February 22 critique, one in which he outlined a series of urgent actions the U.S. and the international community should be taking to contain the Libyan crisis.

In the Libyan scenario, by yoking U.S. diplomatic objectives — namely, the removal of Qaddafi and his criminally insane form of despotism — to U.N.-mandated military objectives intended to protect civilians from wholesale slaughter, the President has inaugurated what he must hope will be viewed as a kinder, gentler version of the Wolfowitz Doctrine.

The emerging Obama Doctrine takes much the same Big Picture view of U.S. interests as the Wolfowitz version. And the same U.S. Big Stick will be wielded when necessary — if only in conjunction with international coalitions at this stage. But it’s far more soft-spoken and far less clearly articulated than its predecessor. Detail, clarity and a much-needed sense of urgency still need to be added to make the political case for Libyan intervention to the American people.
But certainly the cerebral President has proved the theoretical case for intervention to his own satisfaction based on both ethical considerations and the overriding national interest. Equally certain is his belief that intervention now will preclude the need for an even costlier Libyan intervention in the not too distant future.

Michael Walzer: The Case Against Intervention in Libya

The Case Against Our Attack on Libya

Michael Walzer/March 20, 2011/TNR

There are so many things wrong with the Libyan intervention that it is hard to know where to begin. So, a few big things, in no particular order:

First, it is radically unclear what the purpose of the intervention is—there is no endgame, as a U.S. official told reporters. Is the goal to rescue a failed rebellion, turn things around, use Western armies to do what the rebels couldn’t do themselves: overthrow Qaddafi? Or is it just to keep the fighting going for as long as possible, in the hope that the rebellion will catch fire, and Libyans will get rid of the Qaddafi regime by themselves? Or is it just to achieve a cease-fire, which would leave Qaddafi in control of most of the country and probably more than willing to bide his time?

The size of the opening attack points toward the first of these, but success there would probably require soldiers on the ground, which no one in France, Britain, or the United States really wants. The second is the most likely goal, though it would extend, not stop, the bloodshed.

Second, the attacks don’t have what we should have insisted on from the very beginning—significant Arab support. Qatar and the United Arab Emirates have promised military forces, but they represent roughly 1 percent of the Arab people. There is no support coming from either Tunisia or Egypt, Libya’s immediate neighbors. The Tunisian army is small, but the Egyptian army isn’t small, and they have an air force, too.

The United States has spent billions of dollars on the Egyptian military, and it is astonishing that Egypt is not willing to make any contribution to the intervention. That is a very bad sign, for the attacks will undoubtedly kill civilians, and these will be innocent men, women, and children, Arab and Muslim, killed (again) by the French, the British, and the Americans. Russia and China, who opposed the intervention, abstained on the final Security Council vote, perhaps because they can’t imagine an outcome that better suits their interests in the Middle East and Africa.

Third, opposition in the Security Council didn’t stop with Russia and China. India, Brazil, and Germany also opposed the intervention, and then abstained. The African Union refused to send a representative to the meeting called by President Sarkozy in Paris to consolidate support for military action. The Arab League called for the creation of a no-fly zone, but some of its leaders are already criticizing the attacks required to make it work. And, again, no major Arab state is participating. It is an old pattern that we thought was finished after the uprisings in Egypt and Tunisia—where Arab states (and other states too) don’t take responsibility for doing what they want done … by someone else.

None of this would matter if this were a humanitarian intervention to stop a massacre. But that is not what is happening in Libya today. There would have been a cruel repression after a Qaddafi victory, and it would have been necessary to help rebels and dissidents escape and to make sure that they had a place to go.

Watching the repression wouldn’t be easy (though we seem to be having no difficulty doing that in Bahrain and Yemen). But the overthrow of tyrants and the establishment of democracy has to be local work, and in this case, sadly, the locals couldn’t do it. Foreigners can provide all sorts of help—moral, political, diplomatic, and even material. Maybe neighbors, who share ethnicity and religion with the Libyan people, could do more. But a military attack of the sort now in progress is defensible only in the most extreme cases. Rwanda and Darfur, where we didn’t intervene, would have qualified. Libya doesn’t.

Me:

The axis of Walzer’s argument, its underlying premise, is that there is no humanitarian crisis:

…None of this would matter if this were a humanitarian intervention to stop a massacre. But that is not what is happening in Libya today. There would have been a cruel repression after a Qaddafi victory, and it would have been necessary to help rebels and dissidents escape and to make sure that they had a place to go…

How is Walzer so confident as to what Kadaffy would not have done, left unattended? The president, and so many expert others, made assessments that Kadaffy would have done precisely what he said he would have done. As someone wrote, in precise contrast to Walzer, “The battle of Benghazi had already begun; and it would have been not a battle, but a massacre.”

From the reading I have done the latter view seems conventional wisdom and I trust the assessment that grounded the decision Obama finally took to involve U.S. might.
Here is some of the preamble to 1973 in defiance of Walzer’s underlying premise:

...Expressing grave concern at the deteriorating situation, the escalation of violence, and the heavy civilian casualties,

"Reiterating the responsibility of the Libyan authorities to protect the Libyan population and reaffirming that parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians,

"Condemning the gross and systematic violation of human rights, including arbitrary detentions, enforced disappearances, torture and summary executions,

"Further condemning acts of violence and intimidation committed by the Libyan authorities against journalists, media professionals and associated personnel and urging these authorities to comply with their obligations under international humanitarian law as outlined in resolution 1738 (2006),

"Considering that the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity...

So if Walzer’s underlying premise is incorrect, then by his own admission his critique is irrelevant. By the measure of the right to protect, I think Walzer’s objections either fall by the way side or are misconceived.

TNR on Obama and Libya:" In Libya, Obama Finally Did the Right Thing"

The editors/March 20, 2011

Over the past few days, President Obama has surprised us. For weeks, he seemed committed to avoiding military action against Libya—even though Libyans were imploring America and the West to come to their aid. But at the very last minute, when Muammar Qaddafi seemed to be only days and perhaps hours away from retaking the remainder of his country by force, Obama decided to act. It was a decision we wish he would have arrived at weeks ago. But it was the right decision. And Obama deserves credit for having made it.

To understand why Obama’s decision was not only correct but really the only decent one that was available to him, it is necessary to contemplate what would be taking place in Libya right now if we had not intervened. Late last week, Qaddafi announced that his forces, having reestablished control over most of the country, were closing in on the rebel stronghold of Benghazi, and issued his now infamous warning to those who refused to give up. “We are coming tonight,” he said. “We will find you in your closets. We will have no mercy and no pity.” Had we not intervened to cripple his forces, it seems likely that, by now, Qaddafi would be in Benghazi and, undoubtedly, carrying out bloody reprisals against his opponents. The rebellion, moreover, would effectively be over, and any hopes of freedom that the Libyan people had been entertaining would be dead, at least in the near term.

Skeptics of the intervention (including TNR contributing editor Michael Walzer, whose thoughtful analysis can be found here) have argued that one of the mission’s flaws is that its goals are woefully unclear. Are we trying to topple Qaddafi? Are we merely trying to create a safe-haven for rebels in the east? These are fair questions, but it seems to us that the most immediate goals of the mission were quite clear: first, to prevent a slaughter in Benghazi, a slaughter that Qaddafi himself had promised was only hours away; and second, to tip the balance of power in the rebellion away from Qaddafi, so that his forces were unable to retake any more of the country, thus extinguishing the resistance for good. On these terms, the intervention has already been a success.

As for what comes next: It is difficult to say whether Western airpower can tip the balance of power toward the rebels so dramatically that they will be able to topple Qaddafi. We certainly hope so. But even if it does not, an intervention that at least allows the rebels to maintain a free zone in Libya will certainly be a better outcome than the alternative—a Libya reunited under Qaddafi’s iron control.

In making this argument we are mindful of the lessons of Iraq. We supported that war, which has exacted an enormous human cost on Iraqis and Americans alike, and we long ago came to the conclusion that our support was a grave mistake. But we are also mindful of recent instances where Western power has been necessary to head off mass killing and to help oppressed people achieve their liberation. In some of these instances—Bosnia, Kosovo—we acted, and the outcomes have been generally positive. In other instances—Rwanda, Darfur—we did not act, and the results were hundreds of thousands of dead. The point is that Iraq alone cannot be used as a basis for determining the morality or predicting the efficacy of any given intervention.

Many skeptics have also pointed to the events unfolding in Bahrain, where a Sunni minority government allied with the United States has (with the help of another U.S. ally, Saudi Arabia) violently suppressed an uprising by the Shia majority. Isn’t Obama a hypocrite, many liberals have asked, for intervening to stop an autocrat in Libya but not in Bahrain? It is a legitimate point. Bahrain is said to be a difficult case for American policymakers because a revolution by the Shia majority would be a major victory for Iran. And it is true that anything which advances the interests of a brutal Iranian government in the Middle East must be seen as a setback to the cause of liberal democracy.

At the same time, the events of the last few months show that aligning oneself with autocrats is never a wise course. We spent decades paralyzed with fear about what the fall of Mubarak would mean for our strategic interests. And yet, looking back, would we not have been better off cutting Mubarak loose a generation ago, and siding forthrightly with the Egyptian people? By helping to postpone the arrival of democracy, we did not fortify our long-term strategic position one bit.

We must now think about Bahrain (and Saudi Arabia and our other repressive clients in the region) in the same terms. If our backing allows the Al Khalifa family to remain in power for a few more years, and in the process causes the Bahraini people to conclude that the United States is fundamentally hypocritical, we will in fact be helping Iran. The message of the Obama administration to the Al Khalifas and to Saudi Arabia’s rulers must now be unequivocal: You cannot rule forever, and you must begin the process of opening up your societies and paving the way for liberal democracy.

Should we have intervened diplomatically to stop the repression in Bahrain? Absolutely. But for those offering our failure in Bahrain as a reason not to intervene in Libya, here is a simple question: Would our failure in Bahrain have been in any way ameliorated by allowing Qaddafi to move into Benghazi late last week? We think the answer is a clear no.

Of course, no one knows what will happen from here forward. But this much we do know: Four days ago, a cruel dictator appeared to be on the verge of initiating a bloodbath in one of the last free zones of his country. Today, the free zone he was threatening to attack remains free. And his ability to wage war against a justified rebellion seems to have been at least somewhat compromised. Without Western intervention—that is, without Obama’s decision to finally do the right thing—there is little doubt that the situation would have been worse.

Me:

The editors say, under the tease, "In Libya, Obama Finally Did the Right Thing,"

...Over the past few days, President Obama has surprised us. For weeks, he seemed committed to avoiding military action against Libya—even though Libyans were imploring America and the West to come to their aid...

This statement and the tease itself have inspired much wrath, larded with imprecations having to do with how hard it is, and how long it takes, to get U.N.S.C. approval and to organize all the logistics of a no fly zone.

But the reporting I read in the Washington Post and in Time has it that until the evening of March 15, 2011 Obama was undecided just as his national security principals were sharply divided. on the question of U.S. involvement. As at that afternoon, at a meeting of his Security principals, he was firmly undecided.

What I read discloses that it was only on the evening of the 15th at a further convened meeting of these principals that Obama finally came to a decision and then authorized Susan Rice to go forward with it to the U.N., where, hitherto, other diplomats, working on getting a resolution, reported the U.S. as somewhat detached. As late as March 13, 2011, Ann-Marie Slaughter op edded, saying effectively that Obama was indecisive and dithering.

The reporting has it that Obama’s decision on the evening of the 15th was a sharp turnaround to his previous thinking about U.S. involvement.

If this reporting is accurate I am hard put to see:

1. why the editors come in for so much grief here for saying what I cited; and

2. what all the carfeul planning to get a resolution and organize a no fly zone--which all seems to have been put together quickly once Obama decided-- has logically to do with anything here. That seems a point going to nothing relevant as revealed by the above reporting.