Archive for March, 2010

Better Late…

dojU.S. Attorneys Nominated for Idaho, Eastern Washington

If you need any proof that the confirmation process for high officials of the United States government works about as well as Toyota’s braking system, consider the long delayed, but finally announced appointments of U.S. Attorneys in Idaho and eastern Washington.

Barack Obama took office more than 13 months ago and as of last week, according to the website Main Justice, he has nominated just over half of the 93 U.S. Attorneys in the country. The Senate has approved just 34 of the nominees. What is strange about this pace is that no one seems to think its strange.

The good news is that both the nominees recently announced, Wendy Olson in Idaho and Mike Ormsby in eastern Washington, are highly respected attorneys and quality people who should be quickly confirmed by the world’s greatest – and slowest – deliberative body, the United States Senate. The Main Justice site has good profiles of both Olson and Ormsby, including the interesting tidbits that Olson once interned in the Los Angeles Times sports department and that Ormsby is part owner of the Yakima Bears baseball team in the Northwest League.

Olson is the consensus choice of the entire Idaho delegation, which put out a joint statement expressing approval. The fact that a consensus choice of a long-time and highly respected career prosecutor, whose appointment has been the best kept secret in Idaho’s legal circles for months, could take so long speaks volumes about the time consuming, onerous vetting process that now slows down even the most obvious presidential appointment.

In Ormsby’s case, his nomination, also speculated upon for months, was slowed by questions about his role in a controversial downtown Spokane development and by what the Seattle PI correctly called “partisan gridlock” in the capitol. Now that the Justice Department and the FBI have combed over the story, he should receive – and deserves – quick bipartisan approval in the Senate.

[Full disclosure: I've known Mike Ormsby for a long time and know him to be both a quality individual and a fine attorney. That a fellow of his experience and ability is willing to undergo the months-long vetting process, with all the uncertainty and turmoil it must create for his existing practice, is a testament to his commitment to both professionalism and public service. He'll do a superb job.]

Federal prosecutors play extremely important roles in our justice system. They should be people of great experience, sound judgment and outstanding character. The advice and consent of the Senate is properly the place to double check on those qualifications.

By the same token, when an election takes place, a new president – regardless of party – must be able to make timely and considered judgments about the people he wants in important positions. We will soon have new, high quality U.S. Attorneys in place in our neck of the woods, but it certainly hasn’t been a hasty process.

A better approach for these important jobs might be to do what Bill Clinton did following his election and request the resignation of every U.S. Attorney. Then during the long vetting and confirmation process a career prosecutor would be in charge of every office. The opportunity for political mischief is actually reduced under this scenario. The Obama method has left in place for months and months a gaggle of the previous administration’s political appointees, with many likely going through the motions of being a United States Attorney.

Maybe the best that can be said is that the deeply flawed confirmation process in Washington, involving everything from assistant secretaries of this and that to Supreme Court judges, is so onerous and so time consuming that few people with real flaws can possibly survive running the gauntlet. Maybe that’s the point. But, does it have to take so long?

Too bad we can’t apply the same level of scrutiny to the Eric Massa’s of the Congress. That kind of vetting would be worth the wait.

Why History Matters

YaltaKnowing the Past…

For much of the 1950’s and 1960’s, this photo – Churchill, Roosevelt and Stalin together at Yalta in February 1945 – served as the iconic evidence that hard headed, authoritarian Russian Communism rolled over idealistic western democracy at the end of World War II.

In the most popular narrative, largely unchanged for more than half a century, the Cold War started at Yalta and the U.S. and Britain were easily rolled by that cagey Commie Uncle Joe Stalin.

The truth, of course, is much more complicated, more nuanced, and much more important. A new book – Yalta – The Price of Peace - by Harvard historian S.M. Plokhy tells the nuanced story of Yalta and the account helps explain why the famous gathering in the Crimea was neither a victory nor a defeat for the west, but rather one step in the long march of history that helped shape the post-war world.

Sen. Joseph McCarthy and others exploited many of the myths about Yalta, including the notion that FDR was naive about dealing with the Russians and that somehow Churchill and Roosevelt should have been able to get a better outcome for Poland.

Plokhy’s research makes clear that FDR was far from naive. He went to Yalta to make a deal in the interest of getting Russian approval of his outline for the creation of the United Nations and, under intense pressure from his military advisers, to get Stalin to commit to joining the war in the Pacific against the Japanese. He accomplished both objectives. He also got agreement on post-war occupation of Germany and secured for the French, who Stalin wanted out of the picture, a major role in both the U.N. and western Europe. By contrast, neither Churchill nor FDR had much leverage over Stalin when it came to Poland, since, by early 1945, Red Army troops were occupying much of the country and would win the race to Berlin.

That is the history and the nuance, yet as recently as 2005, George W. Bush, choosing to read (or remember) history with an ideological bias, was declaring that Yalta led to some of “the greatest wrongs of history.” No word on what the former president thinks of Karl Rove’s new book that acknowledges no Bush-era culpability for American military adventures in Iraq and Afghanistan, but that’s another history lesson.

Still, both cases – Yalta and the post-war and Iraq today – prove a fundamental truth: where there is no nuance, history gets distorted; where history is abused in the pursuit of ideological ends there can be no truth.

“History can help us be wise,” Margaret MacMillan, the Canadian historian, writes in her new book – Dangerous Games: The Uses and Abuse of History. “It can also suggest to us what the likely outcome of our actions might be.”

MacMillan is the best kind of historian; a skilled researcher and a lively writer on the search for truth. Her last book – Paris 1919 - tells the story of the Versailles Treaty that ended World War I and helped set the stage for the next war. The book should be required reading for every American politician, since all seem to need to understand the rule of unintended consequences.

Ultimately, history is about trying to arrive at truth, which is why MacMillan tweaks Bush and Tony Blair for invoking Munich of the 1930’s to justify an invasion of Iraq in the 21st Century. But she is no ideologue, also pointing out that a “liberalizing” China is unwilling to deal with the legacy of Mao and that even normally circumspect, mild mannered Canada experienced a full-throated controversy in the 1990’s when a documentary suggested that there might be questions of morality associated with Canadian aircrews and their wartime strategic bombing of Germany.

I think Margaret MacMillan might agree that one of the profound challenges facing the American Republic is a deepening and profoundly troubling lack of understanding of our history coupled with the fact that history is ever more regularly twisted to suit some need to score immediate partisan politic points.

Frank Rich, writing in the New York Times over the weekend, made this fundamental point in a starkly effective way. Rich quotes a former Bush White House press secretary and the ever present Rudy Giuliani, as saying “we did not have a terrorist attack on our country during President Bush’s term.” Say what?

Obviously, this ultra selective “abuse” of history was rolled out in an effort to portray the current occupant of the White House as “soft or terrorism.” Barack Obama may or may not be soft on terrorism, but abusing the reality of recent history to make that case is beyond comprehension and should be labeled for what it is – a distortion or, if you prefer, a lie. As the old saying goes, everyone is entitled to their own opinion, but not their own facts, or their own history.

The recent race to raise America’s educational standing in math and science has generally meant a diminishment of teaching of what we normally call the humanities, most importantly history. I’m all for better math and science education, but I also know that too many Americans, as surveys and Jay Leno’s sidewalk interviews have shown us, don’t know much about their history.

No less an historian than two-time Pulitzer Prize winner David McCullough said a while back that the lack of knowledge about our history is jeopardizing our way of life.

We don’t all need to ponder the real impacts of Yalta in 1945 or know in detail the terms of the Paris peace conference in 1919, but we do need to know enough about our own history to call foul on those who would distort it. We can’t rely exclusively on historians to hold the ideologues of the right and the left to account for “abusing” history. Democracy doesn’t – or can’t – work that way.

If we fail to know enough of our history, or, as David McCullough has said, to “know who we are” or we misunderstand “how we became what we are, we’re going to start suffering from all the obvious detrimental effects of amnesia.”

That truly is a threat to our way of life.

Teddy…a Socialist?

Teddy RooseveltOh…My…God…

Apparently in the supercharged environment of today’s American politics the worst thing that can be said of someone is that they are…a socialist!

Comes now the wingnut set in the person of Glenn Beck leveling that scurrilous charge at, of all people, the 26th president – Theodore Roosevelt. Glenn must be off his meds, or he’s been reading different history than me.

Beck, one of the new generation of agitators from the far right (they also exist on the far left) who live to create heat (never light), spoke recently to a very conservative audience in Washington, D.C. and managed to lay a good percentage of the problems of the 20th Century at the door of “progressives” like Roosevelt. What a profound misreading of American history, but then again what do you expect from cable TV bloviators who willy-nilly re-write history to fit the politics of the moment.

Never missing a beat, White House press secretary Robert Gibbs let it be known that his boss, not unfamiliar with being tarred with the “s” word, is reading Edmund Morris’ wonderful biography, The Rise of Theodore Roosevelt. I recommend it if you want the real story about Teddy.

My old buddy Joel Connelly, writing in the Seattle PI, was one of many to address the “kookiness” of history as misrepresented by Glenn Beck, the darling of the Tea Party crowd. Jonathan Alter in Newsweek had a similar take. If Beck’s take on T.R. weren’t so laughable it would be, well, laughable. That some people actually listen to this guy is, however, frightening.

Truth be told, the “progressive” movement of the early 20th Century was a pragmatic and very American response to the very real possibility that real socialists would gain a substantial following in American politics. When Teddy Roosevelt bolted the Republican Party in 1912 to run on the Progressive ticket – the Bull Moose ticket – he faced not only the conservative incumbent GOP President William Howard Taft, but progressive Democrat Woodrow Wilson and a real socialist, Eugene V. Debs. In that four-way contest, one of the most electrifying elections in American history, Debs garnered nearly a million votes running under the Socialist Party banner. In other words, Debs had a following and Roosevelt and Wilson, the progressives of the day, were dealing with the reality of that following. Their vision of America prevailed.

What did T.R.’s “progressives” stand for? Well, direct election of United States Senators, an income tax, regulation of monopoly, women’s suffrage and pure food and drug laws, among other things. Later progressives, including Senator Robert M. La Follette of Wisconsin, advocated additional reforms, including what became Social Security and regulation of utilities. Franklin Roosevelt brought such reform to reality in the 1930’s, continuing the progressive trend in American politics. This wasn’t socialism, it was progress.

It is simply a perversion of our history for anyone to suggest that the whole series of progressive reforms that began with the first Roosevelt have anything to do with socialism. It would be more accurate to say that the progressive agenda of the early 1900’s saved the country for capitalism and headed off socialism. FDR’s New Deal did much the same 20 years later during the darkest days of the Great Depression. Neither Roosevelt harmed capitalism, rather their response to the issues of their times saved capitalism.

Progressive reforms helped usher in the strong, diverse, resilient capitalist democracy that has long made the United States the envy of the rest of the world. It is a free country and Glenn Beck can extend and revise his fiction all he wants, but the facts get in the way.

Teddy Roosevelt, like all of the greatest of the great presidents, was a flawed leader. He was a romantic about war. He had an ego the size of North Dakota where he retreated after his wife and mother died a few hours apart on the same day. He had a tendency, like most presidents, to push the bounds of executive power in dangerous directions. But, he was also brilliant, a genuine scholar, a fine writer, an historian, a soldier, naturalist and a visionary. It is not an accident that he is with Washington, Jefferson and Lincoln on Mt. Rushmore. He deserves to be there. Edmund Morris, Ronald Reagan’s official biographer, is my authority.

Perhaps the most famous speech Teddy ever delivered – the man in the arena speech - sums up this remarkable man; a great president, and his importance to his times and ours. Think of a clown like Glenn Beck when you read this.

“It is not the critic who counts: not the man who points out how the strong man stumbles or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes up short again and again, because there is no effort without error or shortcoming, but who knows the great enthusiasms, the great devotions, who spends himself for a worthy cause; who, at the best, knows, in the end, the triumph of high achievement, and who, at the worst, if he fails, at least he fails while daring greatly, so that his place shall never be with those cold and timid souls who knew neither victory nor defeat.”

Roosevelt made that speech in 1910. In Paris. In France. At the Sorbonne! Sounds like something a socialist would have done. I’ll bet Glenn Beck is outraged.

The Real Activist Judges

supreme+courtIs It Time to Rein In the Court?

The esteemed American historian James MacGregor Burns published an important and fiercely argued little book last year that received too little attention.

Burns, an historian of “political power” – his books about FDR’s presidency are still among the best accounts of Roosevelt’s accumulation and use of presidential power – turned his attention in his latest work – Packing the Court – to the awesome power of the unelected members of the United States Supreme Court. Jeffery Rosen, writing in the Washington Post, called the book “readable and accessible,” but also a polemic, albeit an “elegant and interestingly radical” one.

Burns offered a bold and far-reaching critique of the Court as having historically and unconstitutionally overstepped its authority and he suggested that before long some president – or the people – will need to act to re-define the power of the unelected third branch of government. The Court, Burns contends, has historically been populated with “partisan politicos” who have made the judiciary both unstable and unrepresentative of the American people.

Burns, as Emily Bazelon noted in an excellent summary of the book at Slate, goes all the way back in his critique to the landmark case Marbury v. Madison. If you remember your history, Marbury was the case, with John Marshall as Chief Justice, that forever established the notion that the Supreme Court has the power – no where found in the Constitution – to review and rule unconstitutional acts of Congress. From such power, Burns argues, much trouble has come to the Republic.

Citizens United v. FEC

I’ve been thinking about Burns’ arguments in light of the extremely controversial recent case involving campaign finance limits. In that case, Citizens United v. FEC, the court effectively overturned a 100 year old ban on corporate and labor expenditures in federal elections and likely impacted existing laws in more than half the states.

[Montana, with a colorful and corrupt history of corporate political influence, is one state where existing law is potentially impacted by the Citizens ruling. The state's former top election official, Bob Brown, offered his take recently at NewWest.net.]

Some of the more compelling analysis I’ve read of the landmark Citizens case comes from Ben W. Heineman who once served in senior legal and public affairs roles for corporate giant GE. Heineman makes three key points about the Citizens case, but each also relates to a larger argument about the current Roberts Court and its approach to the Constitution and Congress.

First, Heineman says, the Court imposed in the Citizens decision its own “values” as opposed to the values of the elected and openly political branches of the government. The Court, he argues, did not need to render such a sweeping decision, but by the narrowest of margins, did just that.

Similarly, the Court swept aside a Teddy Roosevelt-era law that denied corporations the same rights as individuals. Again, a value judgment, in Heineman’s view. And, finally, the Court completely disregarded the “political record” concerning the issue of corporate political spending by denying that Congress – in a whole series of political findings over a long period of time – had demonstrated a compelling public interest in prohibiting unlimited corporate money in politics.

Whatever your feelings about corporate “free speech,” which is how the Roberts Court presented the issues, the Citizens case should, once and for all, put a torch to the claim that “conservative justices” bring to the bench a bias to defer to the political branches of the government. With one sweeping ruling, the Roberts Court, or at least five members, overturned decades of precedent, ignored the policy prescriptions of Congress and issued a broad, far-reaching decision where a narrow, limited ruling was not only possible but desirable. This is not the behavior of a “conservative” court.

An Activist Court

One of the great political fictions of the last 25 years years is that “activist” judges – these judges are always from left of center politically – have molded the law and the Constitution in ways not keeping with the intent of the Founders. In fact, over the last 25 years, it has been the conservative majorities on the Rehnquist and now the Robert Court that have been the “activists.” There is more to come.

In his book, Professor Burns offers the radical prescription that some future president – or current president – should simply defy the Court when it overturns a policy position that has been fought out, compromised and agreed to by the political branches of the government. I’m not sure I would go so far, since I still wonder what might have happened, for example, had Richard Nixon defied the Court during Watergate or had Al Gore not quietly stepped aside when the Court made George W. Bush president in 2001.

Still, the Citizens case and what comes along next from the Roberts Court may make such a challenge less and less unthinkable.

President Obama was sharply critical of the Citizens decision and was criticized for his criticism. Still, Obama’s critique was really quite measured and he may find that he’ll have many more occasions to speak out about rulings from this Court. In criticizing the Court, he was also in good company. Presidents have done so repeatedly in our history.

Franklin Roosevelt found that taking on the Court, as he did in 1937, was a short-term political loser, but more because of how he managed the criticism as opposed to the substance of his complaints. Arguably FDR’s assault on the Court helped moderate its conservatism in the late 1930’s. The other Roosevelt, Teddy, repeatedly lashed out at the Court early in the century, once complaining of “flagrant wrongs” committed by judges.

A wise man once told me the Founders had made one fundamental mistake: they turned one whole branch of government over to lawyers.

Another made the observation that all judges, by their nature, are political and that doesn’t change once the black robe is draped over the shoulders of a former political operative. Judges almost always receive appointments, and, at the federal level, lifetime tenure, by virtue of a political background or a political sponsor. What they do with the power that they alone define is also political.

More Power to the Court

In the poisonous and largely paralyzed world that is Washington these days, the Roberts Court may have the clearest agenda in town and an agenda that can actually be implemented. Whether the country likes it over time is another matter.

Fundamentally, the power of the Supreme Court and the role these largely untouchable justices play is a matter of separation of powers. James MacGregor Burns would argue that the Court has amassed power all out of proportion to what our system envisions or can tolerate over the long term.

A president can influence the Court with appointments and the Congress must advise and consent, but something else is also required if our system is to “balance.” The Court must self regulate; it must restrain its own activist and value driven impulses. The corporate campaign finance case is an indication that the current majority is unwilling, or unable, to impose that burden on itself. Despite what Chief Justice Roberts said during his confirmation hearing about seeing the role of a judge as an umpire merely calling “balls and strikes,” these umpires don’t seem to be defining the strike zone as much as tearing up the rulebook.

We’ll also see whether the country – from the political right to the political left – really tolerates that attitude over time. Neither conservatives nor liberals should be very comfortable with the direction we seem to be headed.

School for Scandal

RangelNot Resting, Just Dead…

Will Rogers famously said he belonged to no organized political party. He was a Democrat. The cowboy philosopher would find himself right at home in the national party these days.

Disorganization, disunity and doom hangs around the party, with its Congressional fortunes neatly summarized by a snoozing Rep. Charlie Rangel catching a few winks outside the Caribbean villa on which he failed to pay taxes.

Do you think this photo might show up in a few GOP ads this year?

The Times chronicles today the litany of scandals dogging Democrats and further souring the anti-ruling party sentiment in the country. Here is a key graph from the piece:

“The mix of power and the temptations of corruption can be a compelling political narrative at any time. But with voters appearing to be in an angry mood and many already inclined to view all things Washington with mistrust, the risks for Democrats could be that much greater this year.”

Another piece with the same conclusion at The Daily Beast. Here is the key sentence:

To understand why the Rangel scandals are so dangerous for Democrats, you need to understand something about midterm landslides: They’re usually composed of three parts. First, the other party’s activists are highly motivated. Second, your own activists are highly unmotivated. Third, independents want to burn Washington to the ground.”

The reality for Democrats this cycle is simple: the party in power suffers from scandal. Republicans paid the same price when they last controlled the Congress. Remember Tom DeLay and Duke Cunningham? Writing at Slate, Christopher Beam quotes the always reliable Larry Sabato:

“I’ve always called elections the opportunity to throw the bums out and throw a new set of bums in. Partisans never believe that. They think their side is golden and the opposition is a bunch of second cousins to Beelzebub.”

Democrats are riding for a major fall in the fall and, it seems to me, there is little they can do about it because, as Will Rogers also, said:

“The more you read and observe about this Politics thing, you got to admit that each party is worse than the other. The one that’s out always looks the best.”

Right now, Democrats look both bad and like losers.

Larry Osgood

OsgoodIn Praise of “a Good Bureaucrat”

I am tardy in making note of the passing of Larry Osgood, a long-time Idaho state government employee and, in the very best sense of the word, a good bureaucrat.

Larry was director of the Division of Public Works – the outfit that manages all the state’s buildings and construction – when I served as Chief of Staff to Governor Cecil D. Andrus. Osgood and I had a standing Wednesday morning meeting during those years. He would wheel himself over to the Statehouse – he’d been hurt in an auto accident some years earlier – and give me his briefing on problems and progress in his domain. He was a take charge, no nonsense guy who never sugar coated the problems and, since the state is a big land lord, there are always problems, nor did he take any credit for a project coming in under budget or ahead of schedule. That was what he expected and he’d frequently say: “we’re trying to make you look good.”

As the Idaho Legislature heads into the home stretch, it was nice to see Osgood acknowledged for his contributions. Rep. Maxine Bell made special note of Larry. Too often state employees get the rap for being less than stellar performers, sitting on their suitcases, waiting to retire. That characterization is mostly bull, but it is a perception that lingers.

I’ll never know how many millions of dollars Larry Osgood supervised during his years as a public works manager, we’ll never know what decisions, large and small, he made that saved money, created efficiencies or provided better public access. You can bet he did all that and more.

My dad used to talk about the company supply sergeant in the Army who seemed to know where everything was stored and knew where to find everything that was needed. You know the type, the person who keeps the organization running with apparent little effort and usually with little acknowledgement. Good bureaucrats do the same for government and they rarely get their due. Larry Osgood was a good bureaucrat. He made a lot of people look good.