More Supreme Court Speculation

The chatterers in Washington seem to believe President Obama will name his nominee to the Supreme Court sometime this week.  The Sunday morning shows spent a good deal of time yesterday speculating as to the nominee.  This Week spent nearly all of their focus on Kagan, Wood, and Sotomayor, despite the fact that President Obama said last week that he is looking for "...somebody who has the intellectual fire power, but also a little bit of a common touch and has a practical sense of how the world,”

On Meet the Press, David Gregory posed the following question to Senator Durbin:

The, the--I spoke to a White House official this week who said it'll be clear what the president wants to accomplish when you see the nominee. Can you interpret that? What is it that the president wants to accomplish with this first nomination?

Senator Durbin replied:

I think the president's made it clear. Understand, this is a man who, who's spent his life studying the law and the Constitution and teaching it. He understands it.  I would, I would hate to go through that interview on constitutional issues with our president, because he knows a lot more about the Constitution than many people who serve as judges today. And I think he's going to look for a person who understands the law, someone of high integrity and, as he said, someone who's in touch with the real world in terms of the real impact of constitutional decisions [emphasis added].

Am I the only who who thinks this sounds like President Obama is looking to nominate a sitting politician to the Court?  Currently, all nine members of the Court came through the Appellate Court system prior to their nomination to the Supreme Court.  The most likely nominees that fit this criteria are Janet Napolitano or Jennifer Granholm.  Both have been Governors and both have seen some very real issues facing America right in their backyard (Napolitano with immigration in Arizona, and Granholm's Michigan is at the epicenter of the economic downturn).  If it is going to be "clear what the President is trying to accomplish" and he has laid out what he is hoping to accomplish, all clues seem to be pointing in the direction of Granholm or Napolitano 

Joining the Fray

by Matthew Schuh

“I would say to Chairman Steele, you know, the party of no shouldn’t now become the party of no empathy.” 

-DNC Chairman, Governor Tim Kaine on NBC’s “Meet the Press” on May 17, 2009

(Birmingham, Alabama) Southerners are gritty people; they really can be the nicest folks in the world, but you do not want to cross them at the wrong time. As explained to me yesterday by a lifelong Alabaman, “...we’re nice until we’re not, but don’t mess with us.” Perhaps it was the instinct of a party that has become increasingly concentrated in the southern United States that motivated Republican National Committee Chairman Michael Steele’s statement yesterday to State Republican Leaders that “if we have the courage of our conviction, and we do, then we will and we must stand up against disastrous policies, regardless of the president’s popularity.”

Good. I hope so, but it is concerning that as the party seeks to appeal to more voters, more and more Republicans find themselves being questioned as to their conservative bona fides. So, as the party “turns the corner” and seeks to become one of “new ideas”, allow me to join the fray as a Republican suggesting some ideas on which to focus, none of which are new.

Federalism/Separation of Powers
In a letter to Bishop Mandell Creighton, Lord Acton wrote in 1887 that “[p]ower tends to corrupt, and absolute power corrupts absolutely.” With the expansion of Executive powers of the Federal Government under the Bush and Obama Administrations, Republicans should be on the front lines extolling the virtues of the decentralization of power. States, as Justice Louis Brandeis argued, should be “laboratories of democracy” that offer the latitude to exercise the powers reserved to them in the 10th Amendment of the Constitution. While this does leave more freedom for people to locate to places most in line with their political sympathies, it also allows the Federal Government to see public policies in place before implementing them on a national scale where Interstate Commerce comes into question. Furthermore, the Republican Party has to insist that Congress reassert its rightful place as a check on the Executive Branch, even when both are controlled by the same party.

Humble Government
In the Declaration of Independence, Thomas Jefferson notes that “Governments are instituted among men, deriving their just powers from the consent of the governed” for the purpose of securing “inalienable Rights.” Republicans should take these words seriously in favoring limited government, but they should also take seriously the words “among these are” that precede “Life, Liberty and pursuit of Happiness” (Jefferson came down on that side of the Oxford Comma debate?). Perhaps legitimate government can extend beyond the role of literally protecting life and liberty (and then striking “pursuit of Happiness” on the grounds that it is void for vagueness), and can instead capitalize upon the collective energies of a nation that could not be achieved solely by individuals. The key to this is that this power be exercised with reluctance and with humility.

Thoughtful Approach
For quite some time, American politics has been defined by false dichotomies that forced potential legislators, Governors, and Presidents to choose between options that provided incomplete answers to public policy problems. Candidates were forced to say whether they were “for” or “against” everything from gun control to taxes with the idea being that it was incomprehensible to fall somewhere in between a complete “yes” or “no” answer. Part of what I believe attracted some conservatives to Barack Obama as he sought the Presidency was his willingness to consider all options and then thoughtfully push beyond the traditional yes/no answers. Many who strongly disagreed with his policy views were willing to give him a chance because they believed he would at least consider their ideas and take a thoughtful approach to public policy.  Republicans do not need to weaken the prescription to the conservative lenses through which they view the world, they just need to gain some peripheral vision and refine their approach.

So there you have it, three ideas the Republican party can implement on their way to recovery. These are of course bullet points, each meriting a much more significant discussion. Perhaps these make me a moderate or a “Republican In Name Only” (RINO), but the party needs such voters if it is going to survive. In the meantime, I need to eat to survive so I’m going to go have some barbecue and sweet tea. Gotta love Southern Hospitality!

Matthew Schuh is an attorney in St. Louis, Missouri. He can be reached at mschuh@gmail.com. He writes a weekly op-ed column at The Ayes Have It.

Alabama Trip Next Week

In my preparation for my trip to Alabama next week, I came across this video.  I think it's pretty clear I am going to have to make a visit.

(h/t Justin M.)

Gerson on GOP's Trending Irrelevance

Michael Gerson gets it: the Republican Party is going to become extinct if it is not willing to be part of the policy discussion surrounding issues they may not be 100% in agreement on with the Democratic majority. That isn't weak, it isn't "moderating", it is just good politics and more importantly -- it leads to better public policy.

A Battle to Confirm

By Matthew Schuh

The other night I boarded a plane at Chicago’s Midway Airport bound for St. Louis. When I got onto the plane, Game 6 of the Bulls/Celtics series was headed into overtime and all nine Justices on the United States Supreme Court were firmly holding onto their Article III lifetime tenure. When I landed an hour later, I was greeted with news that the Bulls/Celtics game was in triple overtime and Justice Souter had leaked his intention to resign from the Court at the end of the Court’s Term. At least there is stability somewhere. As I deplaned that evening, I walked to my car in excitement over the possibility of the first Supreme Court nomination since 2005. Certainly this was a big deal and worth following.

Isn’t it interesting though how quickly we take our eye off the ball? It seems like just yesterday we were moving in the direction of a public conversation over the proper criteria to use when evaluating a potential Court nominee. I think we’ll get back to it eventually, but there were some pressing concerns to handle first. See, last Saturday the White House Correspondent’s Association hosted their annual Dinner at the Washington Hilton and comedian Wanda Sykes said some mean things about some people. We needed to talk about that for three days. Then, the nation waited with baited breath while Donald Trump decided what to do about a beauty contest competitor who may have broken the rules of a contest that none of us originally even knew had taken place. Those problems are solved now, so I think we are ready to get back to the business of the Court.

In the days following the leak that Justice Souter would retire, President Obama set forth the criteria he was looking for in a potential Justice and the Senate Republicans responded by expressing concern over the President’s use of the word “empathy” as a prerequisite. Democratic pundits immediately railed against Senate Republicans for too quickly laying the groundwork against [nominee] while the Republican pundits fired back at the Democratic pundits for not holding themselves to the same standard as they did during the Roberts and Alito hearings. It was all very fun and interesting and inevitably ended in people yelling indecipherable things about Robert Bork and Ruth Bader Ginsburg at each other.

At the end of the day, the President is going to nominate an individual who falls in line with his judicial philosophy and the Senate should confirm that person absent problems with their temperament, legal ability, or integrity. Certainly the Senate should not be a rubber stamp, but the nomination is the President’s to make and Republicans would be wise to follow the rhetoric they applied during Justice Roberts and Alito’s confirmations. I would go so far as to argue that the Constitution suggests such a model:

According to Article II, Section 2 of the Constitution, the President “...shall nominate, and by and with the advice and consent of the Senate, shall appoint...judges of the Supreme Court...” The first thing to note about Article II, Section 2 is that it is in Article II -- the one that sets forth the Constitutional framework for the Executive branch of the Federal government. The process for the confirmation of Justices could just as easily have been placed in Article I (the Article devoted to the Legislative branch), but it was not. In fact, you will not find so much as a corresponding Constitutional equivalent in Article I. Certainly, something to the effect that the “Senate shall give advice and consent for the nominees of the President for...Judges of the Supreme Court” could have been thrown in for good measure to complete a symmetry of responsibility between the President and Senate -- but it was not. What else other than a deference on the part of the Senate in giving advice and consent is to be inferred from this wording?

Over the next few months you are going to hear a lot about “empathy”, “temperament”, and “judicial philosophy.” Keep in mind throughout it all that we are talking about a person who will be one of nine individuals charged with interpreting the document that has bound our nation for over two centuries, but also one that governs the framework of our governmental institutions today. It is easy to get caught up in the flurry of interest group press releases and media appearances and forget that we are talking about membership in an institution that has overseen the longest standing written charter of Government in the world. Remember what is at stake here and enjoy the ride.

Matthew Schuh is an attorney in St. Louis, Missouri. He can be reached at mschuh@gmail.com. He writes a weekly op-ed column at The Ayes Have It.

Frum on GOP Big Enough for Colin Powell, etc.

David Frum, author of Comeback: Conservatism That Can Win Again, sat down with CNN reporter Kiran Chetry to discuss his view of Dick Cheney's recent talking points about Colin Powell and President Obama.  Text of the interview is available here.  

Gift Card Economy

I read this Viriginia Postrel article in The Atlantic a couple weeks ago, but came across it against again earlier this week. According to the author, people are actually more likely to use gift cards when they have a shorter, rather than longer, window for use. There was also some interesting discussion about giving away gift cards as an incentive to get people to buy a more in a particular store, but I was most intrigued by a suggestion that future stimulus spending conveyed directly to taxpayers be in the form of giftcards rather than checks:

During the stimulus debate, some economists, including Edward Leamer of UCLA, suggested that quickly expiring gift cards might boost the economy more effectively than temporary tax cuts, which people tend to put toward savings. Although you could use a government-issued gift card for groceries you’d buy anyway and bank the savings, people tend to treat gift cards differently. When you get a gift card, Leamer noted, you not only tend to spend it on something you wouldn’t otherwise buy, but often wind up spending a bit extra—the perfect prescription for Keynesian stimulus.

If we have made a decision that we are going to have the government inject money into the economy by giving money directly to taxapayers like you and me (such as 2002 and 2008), why not ensure that the money is going there rather than into savings or paying off previously spent money. Of course taxpayers would rather have the cash, but the point of stimulus spending is not to increase utility, it is to inject money into the economy.

I am curious if it would be possible to impose such a system without it turning into a game of political winners and losers. I am always reluctant to get too much into the micromanagement of this sort of thing. I do believe though that if we are going to spend millions (billions, even?) of taxpayer dollars we have to be smart about it and make sure it is going toward solving the problem presented.