Oil is not the only mess in the Gulf of Mexico

Based on the various media accounts I've read it's a mess, reminiscent of Robert Heinlein's little ditty,

When in danger and in doubt
Run in circles, scream and shout!

The danger and the doubt are certainly present -- probably as much of the latter as of the former, and the screaming and shouting are abundant. It seems as though an analogy to elephant matings is appropriate: lots of stomping of feet and roaring, everything done at a high level, with results, maybe, in eleven months.

While the stomping and shouting are going on at all levels, high and low, numerous foreign offers of assistance are being "considered" and multiple bureaucracies are having red tape parties. Meanwhile, tropical depression - tropical storm - tropical depression - tropical storm and maybe moderate hurricane Alex with maximum forecast winds of up to eighty-five knots may or may not be getting ready to do mischief with the oil recovery measures; unlike responses to the oil "spill," Alex is forecast to become better organized before June 30^th. A hurricane watch has been issued for Baffin Bay, Texas, which means that storm force winds may hit there within the next forty-eight hours. Lesser winds of gale force accompanied by high seas may strike the oily areas. If that happens, or becomes likely, whatever oil recovery steps are now in progress will be seriously disrupted for up to two weeks. Predictions of events to come in more than a day or two are useful but far from perfect. The official track guidance, provided by the multiple computer models, recently shifted a bit to the north; it is thought to be of below average confidence.

Various proposals have been made, many of them fitting into a psychiatrist friend's classification of lunatics into three groups -- sad, mad and bad. Others appear to be rational and might even work were somebody actually in charge. According to U.S. Rep. Gene Taylor -- a Democrat from Mississippi,

It’s criminal what’s going on out there," Taylor said minutes later. "This doesn’t have to happen.”

A scientist onboard, Mike Carron with the Northern Gulf Institute, said with this scenario, there will be oil on the beaches of the mainland.

“There’s oil in the Sound and there was no skimming,” Carron said. “No coordinated effort.”

Taylor said it was a good thing he didn’t have a mic in the helicopter, because he might have said some things he didn’t want his children to hear.

“They’re paying all these boats to run around like headless chickens,” Taylor said, as reporters gathered to hear his assessment of the Sound.

His frustration is understandable. The Taiwanese owned oil tanker - skimmer A Whale, reported to be the world's largest, departed port in Norfolk Virginia on June 25 and should be in the area soon; maybe she will receive the authorization needed to help and a waiver of the Jones Act; or maybe but probably not. There have been many offers of assistance from other countries, and most of them remain "under consideration."

Oil skimmers are not "good enough" because they suck in very oily water, separate most but not all of the oil and discharge a very little of it back into the sea. Perfection is sometimes the worst enemy of the merely excellent.

Is all of this the fault of President Obama? Of course not. He didn't personally cause the BP oil rig to explode and sink, and apparent mismanagement by BP is largely to blame. It would have been in BP's best interest not to cut corners and thereby to create the mess. BP is paying a big price as are its stockholders and employees. BP may well face bankruptcy. Tough.

The highest price is being and will be paid by the folks living in the Gulf area and the environment in which they live and from which many of them will have great difficulty, perhaps for years, in earning a living. The psychological damage is likely also to be great.

To the extent that President Obama is to blame, it is for the abysmal lack of coordination coming from the executive branch of the Federal Government, of which he has now been the chief executive officer for seventeen months; we are now more than two months into the aftermath of the oil "spill." There needs to be coordination and the responsibility for it can't be delegated to various federal agencies with different agendas by a CEO who has little clue what's happening or what needs to be done about it. During World War II, Prime Minister Churchill and President Roosevelt were far more aware of what was happening. They both, and Prime Minister Churchill in particular, took a far more lively interest. It would not be reasonable to expect President Obama, with no executive experience and far less experience with oil "spills" than Prime Minister Churchill had with the realities of war, to come even close. Still, if President Obama is as intelligent as has been proclaimed he should bring his intellect into focus on this problem and direct his minions to lead, follow or at least to get out of the way. There are big problems and small problems, and a competent CEO should be capable of figuring out which is which and providing useful guidance in dealing with the big ones. The three most important qualities are focus, focus and focus and President Obama has thus far demonstrated not even one of them. That's a major part of the job he fought so effectively to get. Having got it, he should do it. If that helps him to keep it, so be it. Keeping it, however, should not be his principal focus.

What's With the Birthers?

First published by BlogCritics on 7 August 2009

Even if President Obama was born in Kenya, it's too late to do much about it.

According to a 2 August "breaking news" item from WorldNetDaily, a purported copy of President Obama's 1961 Kenyan birth certificate, certified by a Kenyan official in February 1964, has been found. The linked article reproduces a copy. As the article properly notes, a few weeks ago a different Kenyan "birth certificate" had been discovered by someone else and attempted to be marketed on e-bay; it was determined to be a fraud. It seems likely that this one may also be a fraud; it has been so claimed, and the some of the claims at first glance make some sense. On 4 August, an article published in Australasia seemed to claim that the Kenyan "birth certificate" was a forgery based on an Australian birth certificate issued to an Australian. Oh well. Maybe the Birthers are just as nuts as the Truthers, an apparently more reputable bunch who believe that 9-11 was a put up job by President Bush. Then there are those who think that President Obama's policies are increasing the national debt. How could seventy-one percent of the voters believe in such heresy? Still, "88% of Republicans blame the president’s policies, compared to 52% of Democrats. But 79% of voters not affiliated with either party agree." Tsk Tsk! And, as all good people know, those who oppose President Obama's magnificent health care reforms are part of a wicked Republican cabal, mendaciously spreading falsehoods. President Obama and his friends have told us so. We're going to get Obamacare, like it or not; we need it! We had better like it.

I have no absolutely no idea where President Obama was born. However, in view of the recurrent discussion about birth certificates, it seems worthwhile to suspend disbelief briefly and to explore what could likely happen were a bona fide Kenyan birth certificate for President Obama to appear. Such an appearance would raise the important constitutional and practical question of --- "So What?"

As most everyone is by now well aware, Article II, Section 1 of the United States Constitution provides:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

It seems clear on the face of things that if President Obama was born in Kenya, he is not a "natural born Citizen" of the United States and is therefore constitutionally unqualified to be the President. The practical and legal problems revolve around the fact that he was elected to the office, sworn in as president, and in the intervening more than six months has signed into law several major pieces of legislation.

The only constitutional process for removing a sitting president is impeachment by the House of Representatives and conviction by the Senate under Article II, Section 4 for "Treason, Bribery, or other high Crimes and Misdemeanors." Under Article III, Section 3, treason

against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. (emphasis added)

Anything may be possible, but it would be a big stretch to characterize presidential lack of constitutional qualification as "treason" as defined in the Constitution. No element of bribery has thus far surfaced, and it seems unlikely that any will. That leaves "high crimes and misdemeanors," the meanings of which are more ambiguous.

If President Obama took office knowing that he was not a natural born citizen of the United States, that might possibly constitute a high crime or misdemeanor. However, this is unclear because there generally must be a law prohibiting specific conduct to make it a crime. There is no federal statute making it a crime to become the president knowing that one does not possess the requisite constitutional qualifications. There probably should be, but there isn't. Until recently, there had been no apparent need for one.

If these hurdles could be got over, there would be others. What is meant by "knowing?" No one actually has personal knowledge as to when or where he was born. I "know" that I was born in Washington, D.C. on 17 June 1941, not only because my parents later told me and I trust them, but also because I have seen the original of my birth certificate which so states. But I have no first hand, personal knowledge. Even had I been fully aware of my immediate surroundings at the moment of birth, a state of awareness which no other infant has ever experienced, there is no way that I could then have differentiated between a maternity hospital room in Washington, D.C. and one in Kenya. Despite my lack of actual personal knowledge, I have many times claimed to have been born on that date and at that place, in official documents executed subject to penalties for perjury.

If Obama falsely and knowingly swore in an official document that he was born in Hawaii, he could perhaps be impeached and convicted on the basis of perjury. There is no evidence of which I am aware of his having taken an oath to that effect; if such evidence exists, and should it be proved that he was not born in Hawaii, perjury would probably be an impeachable offense.

In any event, for impeachment and conviction of "high crimes and misdemeanors," on the basis of perjury or (improbably) without a criminal statute, it would be necessary for President Obama to have had some clear knowledge that he was not a "natural born Citizen" when he assumed office. Where might evidence of such knowledge be found?

If Candidate Obama actually believed that he had not been born in the United States, but knowingly claimed falsely that he had been, evidence of that would certainly be relevant to his state of mind. Proving what someone "believes" is never an easy task, unless the believer has written or spoken of his beliefs. President Obama has probably never expressed, publicly at least, a belief that he is not a "natural born" citizen. It has been claimed (probably correctly) that President Obama's Hawaiian birth certificate is not probative of his birth in Hawaii, even though copies of it were posted on his campaign web site. It seems reasonable to presume that Candidate Obama was aware of the posting. Whether he believed that the Hawaiian birth certificate was spurious is a different question, and a big one.

If President Obama, as a youth, travelled on a passport issued by a foreign country, that could be probative that he was then a citizen of another country. There are two possibilities here:

1. Obama was a United States citizen but obtained and used a foreign passport. If he did not thereby intend to renounce United States citizenship, then he did not forfeit it.

2. Obama was not then in fact a United States citizen, and therefore used a foreign passport. This would be very good evidence that he knew that he was not constitutionally qualified as "natural born" when he sought and accepted the presidency.

There are many questions and few answers. In any event, it seems very unlikely that the present House of Representatives would impeach President Obama even if a newly discovered and clearly valid Kenyan birth certificate proved beyond question that he was born in Kenya; it also seems unlikely that the present Senate would convict. In practice, an impeachable offense boils down to what the House and the Senate say is it is. Former President Ford said substantially the same thing. Currently, the Democrats control both houses of the Congress, and President Obama seems to control the Democrats -- if not completely, then still sufficiently to ward off a successful impeachment. The very first impeachment and conviction in United States history of a (Democratic) president seem so unlikely to occur while there is a Democratic Party majority that the subject may not even be worth discussing.

Impeached and convicted or not, the constitutional crisis would be draconian in the extreme. One possible solution would be for President Obama to resign in order to spare the country lots of turmoil. Then, or if President Obama were removed by the impeachment process, Vice President Biden would become the president, making Speaker Pelosi next in line. This might well be even worse than having President Obama remain in office. Alternatively, President Obama might simply remain in office, a much weakened "lame duck" president, quite probably facing an opposition Congress following the 2010 elections. That might well be the best possible outcome.

There is at least one other possibility, although it holds at best modest facial appeal. All of the laws enacted since 20 January might be attacked as invalid because signed by a spurious president. Aside from the fact that these attacks would take a long time to make their tortured ways through the courts, they would if successful cause a big mess. What about appropriations bills? The Government needs funding. We joke that it would be neat if the Government simply stopped, but realistically that would have some pretty undesirable consequences: the military needs to pay troops and even to feed and arm some of them. Could troops remain active in Iraq and elsewhere? Could they even be brought home? Perhaps they could hitchhike. Like it or not, the Government needs to function, and this requires such mundane things as electricity, salaries, aircraft fuel, and lots more, all of which costs money.

No matter what happens, President Obama will most likely remain in office at least until 20 January 2013. There is a useful teaching point in all of this, however. The "forth estate," the press, let the country down very badly during the primaries and general election campaigns. Rather than pursue even tepidly the question of Candidate Obama's constitutional qualifications, the press grossly disparaged anyone who raised such questions and made sick jokes of the whole thing. That spectacle continues. If a valid Kenyan birth certificate were to surface, it might wake up the press; if that were not to do so, then nothing would.

There are a few things which might be done to avoid similar crises in the future. The states could require proof of constitutional qualification before any candidacy is certified. There are constitutional qualifications for all federal elected officials, and the constitutions of many states likely also specify qualifications for office. There is a move afoot to push for a federal law so providing. The political parties could impose requirements that prior to primaries, candidates make reasonable showings, under oath, of their constitutional qualifications. The Congress might some day pass legislation criminalizing the assumption of the presidency knowing that one is not constitutionally qualified. Maybe some day, another president might sign such legislation, making it the law of the land. Until now, these have been pipe dreams. Now, in the probably unlikely event that a valid Kenyan birth surfaces, there may be sufficient impetus.

Strange Events May Be Brewing and Honduras is Their Focus.

First published at BlogCritics on 9 July 2009

Mediation of the Honduran Situation by President Arias May Well be a Good thing.

The selection of Costa Rican President Arias to mediate the dispute between former Honduran President Zelaya and the Government of interim President Micheletti appears to have been a wise one. It may be useful to speculate a bit about why and by whom President Arias was selected, as well as about the likely impact of these things on the power of Venezuelan President Chávez in Latin America.

The possible role of President Arias as a mediator was suggested to Zelaya during his 7 July Washington meeting with Secretary Clinton, and Zelaya agreed to it. Secretary Clinton promptly telephoned President Arias to ask for his help and he agreed. However, her's was not the only contact with President Arias regarding the Honduran situation: he had been asked the day before by Honduran interim President Micheletti to consider playing such a role. I am unaware of any reports indicating that Chávez had sought Arias' selection, and the United States Government has said nothing to indicate that it has been in discussions with the interim Government of Honduras; it seems not to have been.

Zelaya and Micheletti went to Costa Rica as contemplated, and are to meet separately with Arias. Their positions, at least for now, are unchanged: Zelaya says he must be reinstated and Micheletti says that's out of the question. As I suggested in the linked article, this may prevent, or at least postpone, a military confrontation between the Honduran military and forces from other countries, principally Chávez ally, Nicaragua.

During the 1980s, President Arias played a substantial role in efforts to decrease the influence of the United States over much of Latin America and to bring some measure of stability to the region. He received a Nobel Peace Prize in 1987 for doing so. However, President Arias is not very chummy with Chávez. During his barely successful campaign for reelection as President of Costa Rica in 2006, Arias' principal opponent was Ottón Solis, much favored by Chávez.

Things seem to be happening behind—but not all that far behind—the curtain. On 7 July, the same day that she met with Zelaya and telephoned President Arias, Secretary Clinton submitted to an interview by Globovisión. The interview was at the State Department in Washington. Globovisión, one of the very few broadcast outlets in Venezuela still able to criticize the Chávez government, has been under vigorous attack by that Government, and may soon be closed; its principals are under criminal charges. Here are comments by a blogger in Venezuela, who does not much care for Chávez:

Questions were standard and Hillary responses standard . . . Still, she made it clear that things in Venezuela are not kosher and that she is aware of it.
***
No matter what, the interview does not solve anything, does not protect Globovisión from being closed though it makes very clear that the price Chavez will have to pay for it will be very high. Interestingly, the Honduras part . . . revealed how irrelevant Venezuela will become as negotiations keep going.
***
As soon as the interview was over I switched to VTV to watch La Hojilla reaction. I was not disappointed as Mario Silva was livid, as furious as I ever saw him. . . . Proving that the interview hit a raw nerve. The top was Silva belching "who named Arias?" betraying his resentment at 1) his boss not being on the forefront anymore and 2) that Arias did the most to block a commie takeover of Central America 20 years ago.

According to Alberto Federico Ravell, head of Globovisión, interviewed on 8 July in Miami as he returned to Venezuela from Washington, he is convinced that

Clinton supports Globovisión's efforts to speak out against Hugo Chávez's government. . . .In every thing she said I was seeing a red beret . . . .It was incredible that the same day she met with ousted Honduran President Zelaya, she also met with representatives from a television channel that is seen by Chávez as part of the opposition.

I think that the full transcript of the Clinton interview confirms that she was, indeed, talking about Chávez, whose media censorship continues unabated. A somewhat different take on the interview is provided here. If, as claimed in that article, Secretary Clinton wanted to "to lower the temperature" in the United States' relations with Venezuela, neither her Globovisión appearance itself, nor statements such as these may have been the best way to go about it:

Clinton said that what the White House hopes to see "over the next months in Venezuela is a recognition that you can be a very strong leader and have very strong opinions without trying to take on too much power and trying to silence all your critics."

"So I think there are ways that the current government in Venezuela could maintain a very strong presence without, in any way, raising questions about the commitment to democracy," the secretary said.

A reminder to viewers of the television station which Chávez is about to close that he shouldn't silence all his critics could hardly have been warmly received by Chávez.

Zelaya's attempt to amend the Honduran Constitution to eliminate the presidential term limit, and later his attempt to return to Honduras, had been vigorously supported by Chávez, who had supplied the aircraft in which he attempted to return to Honduras. It has been reported that Chávez was simultaneously on the telephone with Zelaya, Ortega of Nicaragua and Fidel Castro of Cuba during Zelaya's aborted flight to Honduras. It seems obvious that Chávez's standing in Latin America would have been enhanced by a spectacularly bloody reception of the former President on 6 July, and that it has been diminished by the failure of Zelaya's return and by the selection of President Arias as a mediator.

Despite Chávez's apparent earlier successes in helping to create the Constitutional crisis in Honduras and in pushing the UN, the OAS and ALBA to make it worse, things were not going entirely as he might have wished.

* Shortly before Zelaya's attempted return, several members of the OAS—an organization dominated by Chávez and his allies-- apparently tried to dissuade Zelaya from making the attempt.

* Argentine President Kirchner was one of the dignitaries who flew to El Salvador and thence to Nicaragua to be with Zelaya following his attempt to enter Honduras. Her Peronista party had lost very badly in Argentina's 28 June congressional elections, and her husband resigned as the head of the Peronista party on 30 June; Chávez had been among the principal supporters of their party.

* The current President of Panama in June won a decisive victory with more than sixty percent of the vote over his opponent, a big Chávez supporter. During his inauguration address he announced, "As president, I will do everything within my reach to advance the ideals of a free economy, challenging the different ideological pendulum that Latin America has."

Nor are things going well for Chávez domestically. Here is a link to an article I wrote about that just over a month ago.

Hope perhaps springs eternal, and I may have too much of it. Still, during the days immediately after the "coup" in Honduras, Secretary Clinton's State Department seemed to be at least marginally less supportive of Zelaya's position than was President Obama. At a 30 June State Department briefing, it was stated that "it’s not up to us to determine what’s in line with the [Honduran] constitution." President Obama was quoted, at about the same time, as saying that the weekend ouster of Zelaya was a "not legal" coup and that Zelaya remains the country's president. These statements can be read to suggest a difference of opinion.

According to an article in Power Line by an author with whom I frequently agree, and with whom I very much agree on the nature of the Honduran "coup,"

Obama's position on Honduras is part of an emerging, and very sad, pattern. His bogus catchphrases may vary ("meddling," "illegal," or whatever), but the result always seems to be the same. Whether the venue is Honduras, Russia, or Iran, Obama instinctively sides, in the first instance, with the enemies of freedom and the rule of law. And it doesn't hurt at all if that party is also hostile towards the U.S.

I don't know whether Secretary Clinton's interview on Globovisión was cleared by President Obama. However, her appearance on a Venezuelan television station sufficiently at odds with Chávez that it is likely to be thrown off the air soon, and in the course of the interview to appear to challenge Chávez's silencing of his critics—was certainly a major step. It was one which I suspect would ordinarily have had to be approved by the President. Might these things at least hint that President Obama may yet see that Chávez et al are not the sort of friends he or the United States want? Or might they indicate that Secretary Clinton is looking for a graceful exit from the Obama administration ostensibly over foreign policy? She is a crafty person whom I don't much like, but it will be quite interesting to see what happens over the next few months.

Presidents Chávez, Obama et al Are Meddling Egregiously with Honduras.

First published by BlogCritics on 30 June 2009

The United States gave the lawfully deposed President of Honduras full support, after giving meager support to the Iranian protesters.

Over the weekend, Honduras was about to have a referendum on whether its Constitutional prohibition against a sitting president running for a second term should be modified. This referendum was proposed by President Zelaya, whose term in office expires next year; an election is to be held in November.

The Constitution expressly states that its provisions concerning the presidential term of office and prohibiting reelection are among the very few provisions not subject to change.

Title VII, with two chapters, outlines the process of amending the constitution and sets forth the principle of constitutional inviolability. The constitution may be amended by the National Congress after a two-thirds vote of all its members in two consecutive regular annual sessions. However, several constitutional provisions may not be amended. These consist of the amendment process itself, as well as provisions covering the form of government, national territory, and several articles covering the presidency, including term of office and prohibition from reelection.

The text, in Spanish, of Article VII is provided in a footnote. Despite a ruling by the Honduran Supreme Court that he could not constitutionally do so, President Zelaya determined to go forward with the referendum.

The news reports on what happened next are often unclear and frequently contradictory; to some extent, the massive media coverage of Michael Jackson's death may have displaced them. Here, however, is my best effort at offering a summary distilled from multiple sources: Sometime earlier this year, President Zelaya decided that the Constitution should be amended to permit him to run for another term. The Congress -- controlled by the party of which President Zelaya is a member -- refused to go along. The Bolivarian Republic of Venezuela provided the necessary ballots, and President Zelaya ordered the military to distribute them for a referendum to be held on 28 June. The Supreme Court determined that the referendum was violative of the Constitution, and ordered the top military commander, Gen. Romeo Vásquez Velásquez, neither to distribute the ballots nor in any other way to carry out the logistics of the vote as the military would normally do in elections. General Vásquez Velásquez so advised President Zelaya, who promptly fired him. The Supreme Court ordered him reinstated, and President Zelaya refused. On 28 June, President Zelaya led a group of his followers to the military installation where the ballots were being stored, took them, and had his followers distribute them. The Congress voted unanimously to appoint a committee to analyze the situation and investigate President Zelaya for his refusal to respect the Constitution and the orders issued by other branches of government. He nevertheless carried on with his preparations, and offered only a cosmetic change to the referendum: on Saturday night (27 June), he verbally stated that the referendum would not be binding, but confirmed that it would go ahead as planned the next day. A few hours before the opening of the polling stations, the Supreme Court ordered the president’s arrest and removal from office. The army carried out the order, arrested Mr. Zelaya and transported him to Costa Rica. A reason for doing so was to avoid a bloodbath in the face of the threat of other governments interfering in Honduras’ internal affairs, among them Venezuela and Nicaragua. The likelihood of substantial popular protests over the ouster of Mr. Zelaya seemed small, since Mr. Zelaya had low support -- polls showed around 30 percent before his ouster -- "as many Hondurans were uncomfortable with his tilt to the left in a country with a long conservative, pro-Washington position." As indicated below, that bloodbath now seems quite possible, largely due to outside interference from Washington, Caracas and elsewhere. The referendum was not held, and the Legislature, in emergency session, unanimously selected its president as the interim President of Honduras as provided by Honduran law, and stated that a presidential election would be held in November, as scheduled. The interim President is of the same political party as former President Zelaya.

The ouster of President Zelaya has frequently been termed a "coup." That seems, to me at least, to stretch the word well beyond its commonly understood meaning. The Honduran military acted to execute the lawful orders of the Supreme Court and with the blessing of the "democratically elected" legislature; I have seen no indication that the military instigated the ouster. Nor is Honduras under military control; it has an interim civilian president, properly selected by unanimous vote of the legislature in compliance with the laws of presidential succession.

The United States Government was very active during the days leading up the exile of Mr. Zelaya. According to an article in the New York Times,

American officials did not believe that Mr. Zelaya’s plans for the referendum were in line with the Constitution, and were worried that it would further inflame tensions with the military and other political factions, administration officials said.

Even so, one administration official said that while the United States thought the referendum was a bad idea, it did not justify a coup.

I do not understand that it is the proper business of the United States Government to dictate to a foreign government on such matters; the decision whether another country should ignore its Constitution in order to maintain tranquility and thereby please the United States Government is not for the United States Government to make. This is particularly the case here, since the United States Government recognized that the proposed referendum was not "in line with the Constitution" and was a "bad idea."

The situation in Honduras provides an interesting comparison to the recent situation in Iran. President Chávez of Venezuela, who had expressed great solidarity with his ally, the ruling theocracy in Iran, during the recent unpleasantness there, came quickly and vigorously to the defense of one of his other allies, President Zelaya.  President Chávez said on state television that if his ambassador to Honduras were killed, or if troops entered the Venezuelan Embassy, the "military junta" would be entering a de facto state of war. Although he cited no credible evidence that these things were likely to occur, he put the armed forces of Venezuela on alert. "We will bring them down, we will bring them down, I tell you," he said, while hundreds of his supporters gathered outside Venezuela's presidential palace in solidarity with Zelaya. References to the current Honduran Government as a "military junta" were certainly erroneous; that, and characterizing the transition of power as a "coup" certainly are conducive to massive unrest. They would appear to serve no any other, legitimate, purpose. Ecuadorean President Rafael Correa, an ally of President Chávez, said that he would also support military action if Ecuador's diplomats or those of its allies were threatened.

President Obama came quickly but with slightly less vigor to Mr. Zelaya's defense as well.

"I call on all political and social actors in Honduras to respect democratic norms, the rule of law and the tenets of the Inter-American Democratic Charter," Obama said. "Any existing tensions and disputes must be resolved peacefully through dialogue free from any outside interference."

Although that doesn't sound like much interference, and in fact asserts that there should be none, it omits any mention of President Zelaya's refusal to engage in dialogue, even with the active encouragement of the United States Government. Moreover, the Obama Administration inconsistently "called for Mr. Zelaya's return to office as legitimate president of Honduras. Secretary Clinton accused Honduras of violating "the precepts of the Interamerican Democratic Charter" and said it "should be condemned by all." The Governments of the United States and of Venezuela thus supported the Honduran status quo ante; both ignored President Zelaya's defiance of Honduran law, of the Honduran Constitution, of the Honduran Supreme Court and of the Honduran Legislative branch. The new Interim President of Honduras, Roberto Micheletti said, "nobody, not Barack Obama and much less Hugo Chavez, has any right to threaten this country."

President Chávez was to meet with Mr. Zelaya in Nicaragua on 29 June. Now, Argentina's president and the head of the OAS plan to accompany Mr. Zelaya as he tries to return to Honduras. The World Bank has "paused" all program lending. Mr. Zelaya plans to speak at the United Nations on 30 June. Meanwhile, President Chávez and his friends are trying their best to cause all of the confusion and violence of which they are capable.

President Chávez had rejected the recent Iranian protests and blamed them on outside interference:

"We call on the world to respect Iran because there are attempts to undermine the strength of the Iranian revolution," said Chavez on Sunday in his weekly radio and television address.

"Ahmadinejad's triumph was a triumph all the way. They are trying to stain Ahmadinejad's triumph and through that weaken the government and the Islamic revolution. I know they will not succeed," Chavez said.

The Venezuelan Foreign Ministry also issued a statement blasting "the fierce and unfounded campaign from outside [of Iran] to discredit" Iran's president.

President Obama had tried to walk a very fine line in Iran -- too fine a line, in my opinion -- so as not to appear to "meddle" in its internal affairs.

The United States Government evidently viewed expressions of support for the Iranian protesters as meddling in internal Iranian affairs, yet it saw fit to express extraordinary support for Mr. Zelaya by demanding that Honduras  depose an interim president unanimously selected as provided for in the Honduran Constitution, and return to power a president who had sought to violate the Honduran Constitution and whose arrest had been ordered by the Supreme Court. Although President Obama called on Honduras to respect "democratic norms and the rule of law," he evidently did not mean the norms, Honduran laws and Honduran Constitution as interpreted by the Supreme Court of Honduras.

If it is the policy of the United States Government not to meddle in the internal affairs of other countries, there are stark differences in its treatment of the Iranian theocracy and the Government of Honduras. There are no significant differences in the treatment of the Iranian theocracy and the Government of Honduras by President Chávez of Venezuela, and I would expect none; he desires permanent and total power over Venezuela for himself, and evidently views any attempts at diminishing the power of governments sympathetic toward him as counterrevolutionary and therefore very bad. I do not think that President Obama shares such views, and certainly hope that he does not. Nevertheless, I consider the current Washington approach to the crisis in Honduras to be grossly confused.  Whatever may be President Obama's motives, I think that the United States Government made a very bad mistake in trying to upset the orderly transfer of power in Honduras.

*Article VII states, in Spanish:

CAPITULO I
DE LA REFORMA DE LA CONSTITUCIÓN

ARTICULO 373.- La reforma de esta Constitución podrá decretarse por el Congreso Nacional, en sesiones ordinarias, con dos tercios de votos de la totalidad de sus miembros. El decreto señalará al efecto el artículo o artículos que hayan de reformarse, debiendo ratificarse por la subsiguiente legislatura ordinaria, por igual número de votos, para que entre en vigencia.

ARTICULO 374.- No podrán reformarse, en ningún caso, el artículo anterior, el presente artículo, los artículos constitucionales que se refieren a la forma de gobierno, al territorio nacional, al período presidencial, a la prohibición para ser nuevamente Presidente de la República, el ciudadano que lo haya desempeñado bajo cualquier título y el referente a quienes no pueden ser Presidentes de la República por el período subsiguiente.

CAPITULO II
DE LA INVIOLABILIDAD DE LA CONSTITUCIÓN

ARTICULO 375.- Esta Constitución no pierde su vigencia ni deja de cumplirse por acto de fuerza o cuando fuere supuestamente derogada o modificada por cualquier otro medio y procedimiento distintos del que ella mismo dispone. En estos casos, todo ciudadano investido o no de autoridad, tiene el deber de colaborar en el mantenimiento o restablecimiento de su afectiva vigencia.
Serán juzgados, según esta misma constitución y las leyes expedidas en conformidad con ella, los responsables de los hechos señalados en la primera parte del párrafo anterior, lo mismo que los principales funcionarios de los gobiernos que se organicen subsecuentemente, si no han contribuido a restablecer inmediatamente el imperio de esta Constitución y a las autoridades constituidas conforme a ella. El Congreso puede decretar con el voto de la mayoría absoluta de sus miembros, la incautación de todo o parte de los bienes de esas mismas personas y de quienes se hayan enriquecido al amparo de la suplantación.

The United States Government Should Not Remain Neutral During the Iranian Protests.

First published at BlogCritics on 23 June 2009.

There are circumstances when neutrality is wise; neutrality in the face of outrageous human rights violations is unwise.

Corporations, in my view, have one basic obligation, and it is to those who invested money in them. That obligation, in most circumstances, is to make money for its investors -- not to promote freedom and not to ensure the well being and comfort of corporate employees, except as doing so increases their earnings. It is for those who invested in the corporation to decide whether and how to use their own resources to support worthy causes. A business corporation has no mandate to diminish the gains of its investors by using what should be their money to support what its officers and directors consider to be worthy causes.

The United States Government is, in many respects, similar to a corporation. Her primary obligation is to her citizens, which she should meet by keeping them safe and otherwise generally staying out of their way. In most circumstances, the United States Government should offer support to, or oppose, other governments only when that benefits her own citizens. On this basis, if Country A attacks Country B, and there are no pesky treaty obligations standing in the way, the United States Government should normally intervene only when it appears to be in the best interests of United States citizens for her to do so; no matter that Country B may be a democratic, freedom loving country or that Country A may be a dictatorship lusting after the resources of Country B.

The problem here, as I see it, lies in the words "in most circumstances;" those words suggest that there may be cases in which the United States Government should seriously consider doing things not likely to promote the safety of her own citizens -- directly or even indirectly. Such cases are probably uncommon. They may include providing relief to people in other countries suffering from natural disasters. They may include spending money to support literacy and medical efforts in other countries. Some would probably say that they include sending food to the people of North Korea, many of whom are starving, even though this may help North Korea to keep her armed forces well fed and better able to attack our ally South Korea. These things cost money and detract, pro tanto, from the ability of the United States Government to ensure the safety of her own citizens and otherwise to stay out of their way. Contrary to the apparent opinion of some, the United States Government's supplies of money and other resources are finite.

Most of those now protesting the Iranian election are not starving, nor are they the innocent victims of a natural disaster. Still, I think it the obligation of the United States Government to come to their aid in whatever way is within her means and is likely to assist them. There are times when even a country should strive to encourage those freedoms which she claims to hold dear -- even if it costs money and even if a consequence may be to irritate an existing, already hostile, Government such as that of Iran.

It is claimed by some that, due to her horrible record in the past, the United States Government has no moral authority now to encourage freedoms elsewhere. I don't accept that basic thesis, but even accepting it for the sake of argument, it seems very unlikely that by remaining indifferent to the situation of the Iranian protesters will help the United States Government to regain any moral authority; to the contrary, it will further erode what little she is said to have.

The United States Government is not a human being, and generally should not behave as though she were. A human being, seeing another human or a dog lying injured in the road should, I think, stop and render such assistance as he can. If a delay in getting to the grocery store or even worse results, so be it. "Good" people do that sort of thing. That human reaction is probably at the root of many of the cases in which the United States Government uses the resources of her citizens to assist those elsewhere in time of crisis.

I think that's what the United States Government should do in the present Iranian situation. Even if the United States has not done enough to support human freedom in the past, it is now high time for her to do so.

What can't and shouldn't the United States Government do? I have not heard any cries for her to send in troops, and think that to do so would be a very bad mistake. The imposition of further sanctions on the Iranian Government would not likely help, and would do far more harm to the Iranian citizens who are now opposing that Government than to the Government itself. At best, further sanctions would reiterate to the Iranian Government what she already knows -- that other countries are unhappy with her actions. That has not worked well in the past, and seems unlikely to do so now.

The United States Government should and can come down firmly on the side of the Iranian protesters by stating, clearly and not in "diplospeak," that the protesters are right to oppose their Government's actions, and that their Government is wrong in violently repressing them. President Obama has done this to a minor extent, and he continues to do a bit more, a little at a time. However, he still needs to do more; with passion and not as though he had to. He should use the office of the Presidency to emphasize the recent news coverage of the Iranian Government's highly dubious election and of the violent repression of those protesting it, as well possibly as any independent intelligence gathered by the United States Government and (with their consent) by her allies; he should say that He, personally and as the President of the United States, agrees with the voices in the United States and elsewhere damning the Iranian Government's actions. He should say that the United States Government will provide all of the moral support it can, but will not send in troops or otherwise meddle in any physical sense. He should express the strong hope that those willing to give their blood and their lives succeed in overthrowing an illegitimate Iranian Government, and the belief that if they do not give up, they will succeed. He might even consider using a minor variation on his campaign phrase, "Yes You Can!"  He should extend the hand of the United States People to them, and promise that when they succeed, he will make it his priority to extend diplomatic recognition to their new Government and to provide whatever assistance it may request and which does not undermine United States treaty obligations. If, as I understand to be the case, the Iranian people seek and badly need such support, he should give it to them, unstintingly and without unnecessary reservations. Unlike a corporation looking only after its profits, or a government looking only after her own the parochial interests, the United States Government should do all within its power to assist those Iranians who want voices in a legitimate  Government of their own.

President Obama has said that having such voices is a universal human right.

Democracy, rule of law, freedom of speech, freedom of religion — those are not simply principles of the West to be hoisted on these countries, but rather what I believe to be universal principles that they can embrace and affirm as part of their national identity.

Now, President Obama has a very good chance to show that he meant what he said. He should do it before it's too late.

President Obama's Cairo Speech -- a Worthwhile Effort or an Exercise in Narcissism?

President Obama's Cairo speech was full of sound and peacefulness, but signified little.

First published by Blogcritics on 9 June 2009.

President Obama delivered an historic -- some would say "masterful" -- speech in Cairo on 4 June 2009. Some have disparaged it and some have praised it to the heavens, going even so far as to suggest that President Obama is godlike.

"I mean in a way Obama’s standing above the country, above – above the world, he’s sort of God."

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"I think the President's speech yesterday was the reason we Americans elected him. It was grand. It was positive. Hopeful...But what I liked about the President's speech in Cairo was that it showed a complete humility...The question now is whether the President we elected and spoke for us so grandly yesterday can carry out the great vision he gave us and to the world."

Hope is generally a good thing, even for obviously terminal cancer patients; change is sometimes a good thing. However, there are times when hope is delusional and change is for the worse. There are also times when delusional hope can lead to disastrous change.

Superficially, President Obama's Cairo speech appears to have been intended to demonstrate to the Islamic World that the United States should no longer be viewed as an enemy of Islam and that Islam is not and should not be an enemy of the United States. So far, so good. His speech may well appeal to some of the Islamic "moderates" who are already in full agreement with the "Islam is the religion of Peace" notion; it will probably appeal to those in the United States and elsewhere who very much want to believe that Islam is, in fact, a religion of peace, and that to avoid future problems it is only necessary that the United States recognize this and act accordingly. However, that's rather like preaching to the choir -- not a bad thing to do on occasion, but unlikely to change many minds.

What about those who seem accept the idea that "Islam is a religion of peace" only in the sense that true peace is found exclusively in death: those who cheered the obliteration of the World Trade Center in New York City, the attempted obliteration of other places in the United States and the deaths which those actions caused? What about those who send small children off bearing instruments of violent suicide in order to kill their enemies? What about those who hate the United States and the "universal principles" for which she is said to stand -- democracy, the rule of law, the rights of all, including minorities and women, freedom of speech, freedom of religion, and all that sort of thing? What about those who do not accept the notion that such treasures should be universal, as President Obama had proclaimed earlier and as he reiterated in his 4 June speech? What about those who look forward with glee to the death of Israel and of her citizens? Are their minds likely to be changed? I doubt it. Nor does it seem likely that those who view all Islamists, collectively, as their sworn enemy are likely to be persuaded to see the error of their ways; that the lion and lamb will henceforth lie down and enjoy a lasting peace with one another.

It was sad that President Obama felt it necessary to point out that the Holocaust actually happened and was evil, that Israel should be accepted as a legitimate state and that nuclear weapons should not proliferate. It was sad because many in his audience reject these notions; it seems unlikely that more than a very few of those who previously rejected these notions changed their views as a result of the Cairo speech.

President Obama went on at some length to promote his "two state solution" for Israel and her rather quarrelsome neighbors as the keystone for peace in the region. He did not mention the previous failures of similar solutions.

It seems to me that Israel is considered by many of her neighbors to be a thorn in their sides principally because she approaches democracy and the freedoms which are thought to accompany democracy to a far greater extent than does any other collection of people in the region; because she has thereby turned her previously barren lands into fertile and prosperous ones; and because she has thereby become a leader in various areas of military and commercial technology. If this is so, then the "two state" solution embraced by President Obama in his Cairo speech and elsewhere as the policy of the United States will not produce a scintilla of change -- at least not for the better. If Israel survives the two state solution, she will presumably continue to have these same pesky attributes, she will continue to be an unwelcome example to her neighbors, her neighbors will continue to lob missiles and suicide bombers at her, and she will have no choice but to try to make them stop. Should the interesting but hardly novel two state experiment fail, as seems quite likely to me, it will not be exclusively at the expense of the United States; it will be at the expense of another sovereign state, Israel, as well. It will also be at the expense of those "universal principles" which President Obama praised in Cairo and elsewhere.

Perhaps the gushing reactions of President Obama's supporters to his Cairo speech noted in paragraph one above accurately reflect President Obama's own views. If so, his narcissism knows no bounds. In any event, he clearly wants to be remembered as the Great Peace Maker. That is a worthy ambition; it would be even more worthy if his words and deeds had a realistic chance of success in actually bringing forth the blessings of peace. However, I fear, that they are little more likely of success than was the spectacular willingness of Neville Chamberlain to turn Czechoslovakia and other countries (but not, of course, England herself) over to the Nazis in 1938.

Chamberlain believed passionately in peace for many reasons . . . thinking it his job as Britain's leader to maintain stability in Europe; like many people in Britain and elsewhere, he thought that the best way to deal with Germany's belligerence was to treat it with kindness and meet its demands. He also believed that the leaders of people are essentially rational beings, and that Hitler must necessarily be rational as well. Most historians believe that Chamberlain, in holding to these views, pursued the policy of appeasement far longer than was justifiable . . . (emphasis added)

I very much wish that President Obama did indeed have at least a chance-- for the first time in recorded human history-- of producing a lasting "peace in our time." However pure may be his motives, as things now stand, I consider this very unlikely.

 

¡Viva el Presidente Chávez! Part II

First published on BlogCritics on 7 June 2009

In the first part of this article, I tried to explain the pitiful situation in which Venezuela now finds herself under El Presidente Chávez, some ten years after he came to power. There, I could do little more than scratch the surface; things are very bad and are getting worse daily. The power of the Venezuelan Government resides, for all practical purposes, in the hands of El Presidente. It is obvious to me that El Presidente has one goal: to solidify his power totally, and to extend it until he dies. It is conceivable that a revolution may be in the offing.

It behooves us to become familiar with the works accomplished by such heads of state as El Presidente, and to ensure that the United States does not emulate countries like Venezuela, intentionally or inadvertently.

President Obama has been in office for only a few months. Nevertheless, in his short time in the Oval Office, President Obama is arguably showing the way to a "socialist paradise" to no lesser extent than did El Presidente Chávez during his first few, relatively calm, months in office. Big things take time to accomplish.

It is not surprising that El Presidente Chávez spoke warmly with President Obama and presented him with a book about the rape of Latin America as a token of his affection at their recent meeting in Trinidad. It is somewhat surprising that President Obama later remarked that

The 2008 presidential campaign proved that American voters want the president to engage with his counterparts, whether or not they are avowed friends of the U.S.

He said it "was a nice gesture to give me a book. I'm a reader." The president added that the election was a referendum of sorts on the argument that U.S. solicitude toward foreign leaders could be seen as "weakness."

This is surprising in light of President Obama's subsequent observation that

Democracy, rule of law, freedom of speech, freedom of religion — those are not simply principles of the West to be hoisted on these countries, but rather what I believe to be universal principles that they can embrace and affirm as part of their national identity.

These "universal principles" are now completely foreign to Venezuela under El Presidente.

On a different occasion, El Presidente also

invited President Barack Obama of the United Status to join Venezuela's "socialist revolution," claiming that this was the only way to get through the world economic crisis.

In a speech in which he defended his revolutionary approach and a string of recent state takeovers or "interventions" of food industry and other companies, Chávez exclaimed: "Come on, Obama, align yourself with us on the way to socialism! Come on, it’s the only way!"

It would be unseemly for the United States, or any other free country, to detract from the glories of Venezuela by emulating her. However, some contend that the U.S. has already begun the process. The new Pravda says that the United States is already well along the path. El Presidente Chávez appears to be highly pleased

Venezuela's President Hugo Chavez said on Tuesday [2 June 2009] that he and Cuban ally Fidel Castro risk being more conservative than U.S. President Barack Obama as Washington prepares to take control of General Motors Corp.

During one of Chavez's customary lectures on the "curse" of capitalism and the bonanzas of socialism, the Venezuelan leader made reference to GM's bankruptcy filing, which is expected to give the U.S. government a 60 percent stake in the 100-year-old former symbol of American might.

"Hey, Obama has just nationalized nothing more and nothing less than General Motors. Comrade Obama! Fidel, careful or we are going to end up to his right," Chavez joked on a live television broadcast.

A joke, to be sure; but jokes generally fall flat unless they embody some element of truth.

Of course, El Presidente can be a tad mercurial. He has also referred to President Obama as an ignoramus. Nevertheless, El Presidente says that he may give President Obama a copy of Lenin's book What is to be Done? when next they meet.

The right of all citizens to vote is the bedrock of a democratic society, and position advocacy is a fundamental part of that bedrock. Citizens should not only be free to vote, they should be free -- and, indeed, encouraged, to express their opinions. El Presidente Chávez has done much to enable the citizens of Venezuela to vote, and to express their opinions on how their fellow citizens should vote -- provided that they support El Presidente. The recent decision by the U.S. Department of Justice to drop all charges against members of the New Black Panther Party in connection with their emphatic expressions of views at polling places in Philadelphia, while brandishing a weapon is, perhaps, part of a grand and glorious plan to encourage freedom of expression in the United States as it has been encouraged in Venezuela; or, perhaps (and I hope) it is not. In any event, great trees from little acorns grow, particularly little acorns watered and fertilized with substantial Federal grants.

To stave off draconian consequences, President Obama has effectively nationalized both General Motors and Chrysler, in ways very likely to make his supporters rather pleased with him and thereby to enhance his powers to advance his social programs. Many of his programs, such as card check legislation and other nifty stuff for unions (or, perhaps more accurately, for union bosses), help further to solidify his own bases of power; whether the nation's economy will thereby be made better or worse is a different question. GM and Chrysler had too much economic power and were, therefore, "too big to fail;" concentrating their power in the Federal Government, rather than attempting to diminish it, seems to me to have been a mistake. The Venezuelan example suggests that this sort of mistake can be quite unfortunate.

Although President Obama claims to oppose any revival of the old "fairness doctrine," it is far from clear that even more restrictive efforts to limit speech are not being made in the name of "media diversity." The Federal Communications Commission now has a panel to consider ways to increase media diversity. It is chaired by former FCC Chairman Henry Rivera, who was an outspoken proponent of the fairness doctrine. The panel has thirty-one members, including the following:

Henry Rivera
Emma Bowen Foundation for Minority Interests in Media (Chairperson)
Raul Alarcon, Jr., Spanish Broadcasting System
Geoffrey C. Blackwell, Chickasaw Nation Industries, Inc.
Maria E. Brennan, American Women in Radio and Television
Steve Hillard, Council Tree Communications
David Honig, Minority Media and Telecommunications Council
Debra Lee, BET Holdings, Inc.
Marc H. Morial, National Urban League
Karen K. Narasaki, Asian American Justice Center
Jake Oliver, Afro-American Newspapers
Andrew Schwartzman, Media Access Project
Charles Warfield, Inner City Broadcasting
James Winston, National Association of Black Owned Broadcasters

The panel includes no member likely to favor the continuation of "conservative" talk radio, much disparaged by President Obama and his colleagues.

Fairness and diversity are good things; however, in my opinion, neither the old Fairness Doctrine nor prior FCC attempts to stimulate minority ownership were effective in achieving their stated and salutary purposes. I am at least modestly concerned, although (or perhaps because) it is far from clear what impact, if any, this incremental step may have on the nature of the media in the United States. I hope that the powers-that-be view Venezuela as a horrible, rather than as a good, role model.

I do not suggest that President Obama has thus far managed to change the United States into the sort of place where El Presidente Chávez would feel right at home. Nor do I suggest that President Obama clearly views El Presidente as a suitable role model. I do suggest that in the few months he has been in office, President Obama may have shown at least the beginnings of a trend in that direction, and that in light of the present situation in Venezuela, his protestations that Democracy, rule of law, freedom of speech and freedom of religion are universal principles that other countries can (and perhaps should) embrace and affirm as part of their national identity, may ring a bit hollow. Venezuela conspicuously lacks the rule of law and freedom of speech; the institutions of democracy have been almost totally destroyed, and the situation there continues to deteriorate. By the time that these "universal principles" have been noticeably diminished in the United States, it will be too late to do much about it.

I don't consider El Presidente Chávez a fictitious bogeyman, to be ignored as presaging a possible future for the United States; I very much hope that  that there is no such problem. Still, as a nation, we spend a lot of time agonizing over matters as to which we are impotent and as to which we have no say. Prudence suggests that we look to the past and to the present, both in the United States and elsewhere -- including Venezuela, in attempting to augur the future. As to such matters, we still have at least a little to say; it should be heard.

Afterthought re 26 May 2009 Sotomayor Article

Afterthoughts

I began to write this article very shortly after reading early this morning that, according to the usual suspects, President Obama had selected Judge Sotomayor as his nominee to fill a vacancy on the Supreme Court. Unfamiliar with her record as a judge, I did such background research as I could in several hours, knowing that before my article had been published, there would be numerous others. I expected that some would be enthusiastically in favor of her nomination, that there would be others wildly opposed to it, and that there would be some which could be characterized as offering a sigh of relief which sounded rather like "ho hum" -- pretty much the view I expressed.

I was right. Unfortunately, most of the more exciting articles I read seem to reflect little understanding about how courts and judges function or about about how they should function. That bothers me. I have been in hospital operating rooms only twice (as far as I know) and then under anaesthesia most of the time. Could I reliably critique a surgeon based on something he may have said at a cocktail party or during a speech to a general audience? Based on the extent to which his social views and mine are at odds? Seems unlikely.

According to an article in the National Review -- a publication which I often find well worth reading,

In introducing Sotomayor, Obama said he valued "a rigorous intellect" and "a recognition of the limits of the judicial role," before pronouncing them both "insufficient." A justice must have been tested "by hardship and misfortune," Obama stipulated, so that he has "a common touch and a sense of compassion."

It’s as if he wants a justice who can break the tension in an oral argument about the intricacies of antitrust law with engaging sports banter. The "Would you want to have a beer with him?" test reasonably applies to a politician, but to a black-robed justice charged with interpreting the Constitution? Justice Clarence Thomas is delightful company. Does that make his opinions any better or worse?

That's silly. There is hardly time during an oral argument for anyone to engage in sports banter, and I have known quite adequate judges with whom I would have enjoyed having a beer and quite inadequate judges with whom having a beer would have been, well, "torture." Rush Limbaugh's comments appear to be even further off the mark. I very rarely listen to Mr. Limbaugh, but occasionally read some of his stuff. Sometimes, it amuses me and sometimes I agree with his basic views. Not this time.

Another writer, discussing the Ricci case, said:

In a background briefing at the White House this morning, Senior Administration Officials gave clues as to how they'll handle attacks based on this case. During her vetting, White House officials were very careful to avoid asking her about the Ricci case because, depending on both the Supreme Court's actions and her confirmation, it might end up before her again, one official told reporters.

It seems very unlikely that she will participate in a future Supreme Court decision on the same matter, since (a) the Supreme Court will more than likely decide the Ricci case before Judge Sotomayor could possibly be seated on the Court and (b) if not, she would almost certainly recuse herself.

I don't much care whether Judge Sotomayor is Hispanic, Oriental, Black, White, female, male, Democrat, Republican, liberal, conservative, Roman Catholic, Protestant, Agnostic, Atheist, lesbian, from a well-off WASP family, put herself through college and law school unassisted by her parents, or whether she is "pro-choice" or "pro-life." Nor do I much care whether I agree with her perceptions of life, the universe and everything. Nor do I much care whether, if I were the President, I would have chosen someone quite different; I probably would have. We have a President, for whom I do not much care; he made his selection as was his function and, at this point, I can find no valid basis for the Senate to refuse to confirm it.

Dan(Miller)

Comments posted to Judicial Empathy and Experience Article

Thus far, more than two hundred comments have been posted to my 6 May 2009 article on empathy and judicial experience as criteria for selecting Supreme Court justices, published on this site and in the BlogCritics magazine. As of this morning, 12 May 2009, it remains the lead article in the politics section of BlogCritics magazine.

Copies of two comments I posted at BlogCritics in connection with the article are provided below:

Here is a link to an editorial in today's Boston Globe which points out, correctly I think, some of the reasons why the selection of a judge or justice on the basis of his particular empathies is a bad idea.

The oath required of Federal judges is as follows:

Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: "I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God."

It is OK for a judge to be particularly empathetic toward whomever he pleases -- the rich, the poor, the powerful, the weak, persons of color or those not of color -- however, he must not allow his particular empathies to play a role in doing his duty as a judge. We all have particular empathies. It is all well and good for his particular empathies to be part of a judge's private persona, to be left outside the courtroom just as should be his preferences for Fords or Toyotas, for Methodists or Roman Catholics, or for any side on the abortion controversy.

Federal judges are appointed rather than elected, and serve essentially for life rather than for a term of years. They are not elected legislators, and no matter how badly they may think the legislators screwed up, it is their proper function to substitute their views for those of the legislators in very few instances: where the law is unconstitutional or conflicts irreconcilably with a subsequently enacted law. I can think of very few* other valid bases for unelected Federal judges, or nine (or five) unelected Supreme Court justices, to substitute their personal views for those of the elected Congress which enacted a law and for those of the elected President with whose signature it became law. Nor can I think of any valid reason for judges to anticipate and thereby to attempt to preempt the role of the Congress and of the President by "enacting" new laws on their own -- no matter how greatly they may feel the need for such legislation.

I realize that some judges do permit their particular empathies to play a role in their decision making processes. Some judges take bribes and some drive while drunk. While very unfortunate and probably illegal, that does not make such things OK or even commonplace. To elevate candidates' particular empathies to positions of critical importance in the selection as a judge -- or worse as a very powerful Supreme Court justice -- damages the entire concept of equal justice under law. For a judge or justice, once appointed, to be guided by the empathies on the basis of which he was appointed would be even worse. If he adheres to his oath of office and leaves his particular empathies outside the courtroom, the consideration of his particular empathies in the selection process becomes an exercise in futility; if he takes those empathies into the courtroom, he violates his oath of office and the rule of law is, to that extent, emasculated.

Roger -- it is true that potential judges and justices are sometimes asked their views on current topics of controversy. They usually do not -- and certainly should not -- provide answers, recognizing that such questions are improper and that to answer them fully outside the context of a particular case and controversy would limit their ability to decide subsequent cases on the basis of the law and the facts then presented.

Dan(Miller)

*There are some other instances as well. Courts can overrule administrative regulations where inconsistent with Congressional enactments, in effect or due to their mode of adoption. There are other similar instances. As far as I know, none detract from the points I am trying to make.

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An article in Slate prompted me to think a bit more today about the meaning of empathy, as it is there argued the word was used by President Obama. According to the article, "empathy" is not a code for something else. I have no idea whether it is a code word or is not. However, words themselves have meanings, and the interpretation placed upon the word in the article and there attributed to President Obama is interesting.

"Webster's defines empathy as 'the experiencing as one's own the feelings of another.' Obama, in The Audacity of Hope, described empathy as 'a call to stand in somebody else's shoes and see through their eyes.' To Obama, empathy chiefly means applying a principle his mother taught him: asking, 'How would that make you feel?' before acting. Empathy in a judge does not mean stopping midtrial to tenderly clutch the defendant to your heart and weep. It doesn't mean reflexively giving one class of people an advantage over another because their lives are sad or difficult. When the president talks about empathy, he talks not of legal outcomes but of an intellectual and ethical process: the ability to think about the law from more than one perspective.

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[E]mpathy"at least as Obama has used the word"decidedly does not mean favoring only the poor, women, or minorities in every dispute. Again quoting from The Audacity of Hope: "Empathy … calls us all to task, the conservative and the liberal, the powerful and the powerless, the oppressed and the oppressor. We are all shaken out of our complacency. We are all forced beyond our limited vision."

Pretty words, no doubt; but what does all of this mean? To the extent that it means understanding and properly considering all facts in a case which are relevant under the law, then I have no problem with it. Should the feelings, or the factual situation, of an impecunious widow about to be evicted from her pitiful hovel due to the non-payment of the agreed upon rent be relevant under the operative statute, then clearly those facts and feelings should be given due weight and possibly decisional significance. To the extent that they are not relevant under the statute, they should be given no weight at all, no matter how badly the judge may feel about it or how greatly he may feel the widow's suffering. That is the function of a very different branch of Government.

Assume a statute stating, "any person renting real property who shall fail to pay the rent due under and according to the terms as set forth in the rental contract to which he is a party shall, upon proper request and the presentation of relevant evidence to a court of competent jurisdiction, be evicted from said property forthwith." I know of no such statute, but assume with me that it is the law pursuant to which a judge must decide a case. The judge then has no discretion to consider the widow's personal situation, her feelings, or whether he would have written the statute differently had he had the opportunity to do so. He cannot properly put himself in the shoes of either the landlord or the tenant. He cannot properly put himself in the shoes of counsel for the plaintiff or for the defendant, no matter how badly either might feel were his client to lose the case. He simply has no warrant to rewrite the statute, to ignore parts of it, to supplement other parts in his judicial capacity, or to be guided by how he would feel were he on the other side of the bench as plaintiff, as defendant, or as counsel for either; or to "experience as . . .[his] own the feelings of" such others. To act upon such a empathetic experiences in his judicial capacity would violate his oath if he had taken an oath comparable to the one taken by Federal judges.

Legislators do have not only the discretion but also the obligation to think before they legislate, and when the implementation of a statute produces outcomes which they find offensive, to do something about it -- by repealing or modifying the statute, albeit prospectively. The electorate also has not only the discretion, but also the obligation as well, to see to it that their legislators do so. It is the function of a judge to apply statutes as written, not to make up for the all too often sloppy work of legislators or of the voters who employed them.

Judges and legislators are very different species, and to wish them to behave as though they were the same or even nearly so, or to perceive of their functions as the same or nearly so, grossly distorts the separation of powers and functions embedded in the U.S. Constitution. Judges are not called upon to "do good" according to their empathies or other lights; they are called upon to rule upon the disputes before them justly, in accordance with the statutes authored by others.

Dan(Miller)