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The Rules Matter…

Director Steven Spielberg’s latest offering – Bridge of Spies – works on several levels as his best films tend to. In fact, it may be one of his very best films.

Mark Rylance as Soviet spy Rudolf Abel and Tom Hanks as his attorney James B. Donovan

Mark Rylance as Soviet spy Rudolf Abel and Tom Hanks as his attorney James B. Donovan

The movie is a classic big screen thriller with adequate action and suspense. It’s a finely tuned period piece (mid-century modern) complete with old cars, vintage billboards, and “duck and cover” filmstrips.

Bridge of Spies is also an actor’s movie with superb performances by Tom Hanks and Mark Rylance, perhaps the world’s most acclaimed stage actor, and a talent that will be new to many movie goers.

And since this is Spielberg, the film is also an American history lesson.

When the Cold War Was Really Cold…

Hanks, who seems to hit his stride when working with Spielberg, plays New York attorney, James B. Donovan, who improbably becomes the key player in arranging a celebrated Cold War prisoner swap between the United States and the Soviet Union. The action is set at the end of the Eisenhower Administration and continues on into the Kennedy years – days of the Berlin Wall, the Bay of Pigs, the Cuban Missile Crisis, and spy versus spy.

The key figures in the prisoner swap – again all true – were the young American Air Force lieutenant Francis Gary Powers, who is appropriated to fly spy planes for the CIA, and the notorious Soviet spy, Colonel Rudolf Abel.

Francis Gary Powers with a model U-2 spy plane after his release from a Soviet jail in 1962

Francis Gary Powers with a model U-2 spy plane after his release from a Soviet jail in 1962

Powers became a Soviet prisoner in May 1960 when his U-2 spy plane was shot down in the Ural Mountain region of the Soviet Union during a photography run. Powers survived the crash – great scene in the movie – and was captured by the KGB.

The Eisenhower Administration originally tried to pass off the incident as a wayward weather aircraft, but the Soviets produced wreckage of the super-secret U-2 and Soviet Premier Nikita Khrushchev reaped an international propaganda windfall. A summit meeting in Berlin was cancelled and efforts to improve U.S.-Soviet relations were temporarily derailed. It was a major international incident that also had the human dimension of a young American with a head full of secrets about U.S. spy activities sitting in a Russian jail.

Earlier, in 1957, after a long string of events that read, appropriately enough, like something out of John Le Carre, the FBI and Immigration and Naturalization Service identified Colonel Abel as a Soviet spy who had been operating in the United States for some time. Abel was arrested in Brooklyn, tried, and convicted of espionage. The New York lawyer, Donovan, was appointed by the federal court in New York to defend him.

The film mangles some of the timeline and a few things are invented out of whole cloth – this is Hollywood after all – but the real power of the story and its great relevance today is in the courtroom scenes where Abel is first convicted and then loses an appeal before the U.S. Supreme Court.

After seeing and completely enjoying the film, I got to wondering what really happened in the U.S. justice system during the height of the Cold War when the government tried a man thought to be a Soviet spy.

Does a Soviet Spy Deserve Due Process…

The film understandably compresses a good deal of the story, which played out over several years, but makes some powerful and important points in the telling.

A basic question is raised early on when attorney Donovan (played by Hanks) has to confront the dilemma of an upstanding attorney, a pillar of the New York Bar, signing on to do his best to defend a Russian spy. What are the implications for his career, his law firm, his family? I immediately thought about the private attorneys who continue to represent Guantanamo detained terror suspects.

The real Rudolf Abel

The real Rudolf Abel

The film makes us confront whether it is merely enough to give Abel a defense that goes through the motions of due process or whether he deserves a no-holds-barred defense, including appeals on grounds that his hotel room and apartment were improperly searched.

At one point a CIA operative shadows Donovan in order to question him about what his client has been saying. Donovan, in one of the film’s best moments, tells the CIA fellow that he won’t – indeed can’t – talk about what his client is telling him since it is protected by attorney-client privilege. There are rules, Donovan says, most importantly the Constitution that make our system different than the system that is detaining Gary Powers.

Abel’s case, both in the film and real life, eventually reaches the Supreme Court over the question of the lack of a proper warrant that specifically authorizes a search the defendant’s rooms. Give Spielberg credit, he even gets the Supreme Court courtroom correct. Abel’s case was argued, actually twice, in 1959 and the courtroom has since been remodeled.

The case turned on a complex question about whether a warrant for an “administrative arrest” – Abel was actually arrested by the immigration service after being detained and questioned by the FBI – allowed the subsequent FBI search of his rooms. The celebrated Justice Felix Frankfurter wrote the rather technical 5-4-majority opinion upholding the legality of the search and Abel’s conviction stood.

This is a notorious case, with a notorious defendant…

As is often the case, the dissents in such cases make for better reading and offer more insight into the workings of our justice system. Justice William O. Douglas wrote one of the dissents in the Abel case and Justice William J. Brennan another.

Mr.  Justice Douglas

Mr. Justice Douglas

“Cases of notorious criminals—like cases of small, miserable ones—are apt to make bad law,” Douglas wrote in his dissent, which was joined by Justice Hugo Black.

“When guilt permeates a record, even judges sometimes relax and let the police take shortcuts not sanctioned by constitutional procedures. That practice, in certain periods of our history and in certain courts, has lowered our standards of law administration. The harm in the given case may seem excusable. But the practices generated by the precedent have far-reaching consequences that are harmful and injurious beyond measurement. The present decision is an excellent example.”

Douglas was saying sure this Abel is a Soviet spy – a notorious criminal – but the rules apply to him just as they apply to “small, miserable” law breakers.

“If the F.B.I. agents had gone to a magistrate, any search warrant issued would by terms of the Fourth Amendment have to ‘particularly’ describe ‘the place to be searched’ and the ‘things to be seized,’” Douglas wrote. “How much more convenient it is for the police to find a way around those specific requirements of the Fourth Amendment! What a hindrance it is to work laboriously through constitutional procedures! How much easier to go to another official in the same department! The administrative officer can give a warrant good for unlimited search. No more showing of probable cause to a magistrate! No more limitations on what may be searched and when!”

Brennan was just as pointed: “This is a notorious case, with a notorious defendant. Yet we must take care to enforce the Constitution without regard to the nature of the crime or the nature of the criminal. The Fourth Amendment protects ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ This right is a basic one of all the people, without exception…”

Real American Exceptionalism…

The court case and the film also make the fundamental point that Abel, not a U.S. citizen, still enjoyed the full protections of the country’s justice system, a point worth pondering as the terror suspects sit year after year in Cuba.

President Kennedy with James B. Donovan who also negotiated return of Bay of Pigs captives

President Kennedy with James B. Donovan who also negotiated the return of Bay of Pigs captives

Rudolf Abel languished in U.S. prisons until early 1962 when the Donovan-brokered exchange took place on a bridge dividing East and West Berlin. That bridge gives the film its title. The New York attorney was publicly acknowledge by the Kennedy Administration as having helped make the arrangements.

The negotiations over the swap are some of the best moments of the film and, intentionally or not, Spielberg shows that the New York insurance lawyer who became an Cold War negotiator turned out to be a lot better high stakes deal maker than his CIA minders.

The film is already getting some Oscar buzz – it is certainly worthy – if only for its deft storytelling and the great performances. Mark Rylance’s portrayal of Rudolf Abel is nothing short of brilliant. And the script by the Cohen Brothers is first rate. A typical Cohen touch is the reoccurrence of Abel’s response when his lawyer asks him if he’s worried or afraid: “Would it help?” That has become my new mantra.

As good as the movie is as entertainment here’s hoping a few enterprising high school (or college) teachers use the film in class to make the more important points about our justice system and our history.

The hero in the film is, of course, attorney Donovan, a man mostly lost to history whose role in Abel’s trial and in the spy swap may now finally enjoy some long overdue recognition. Donovan, who died in 1970, spent years working on the Russian spy’s defense and appeals and donated half his $10,000 fee to Fordham University and split the rest between Harvard and Columbia. Setting aside the Abel case and the spy swap, the rest of Donovan’s career – naval officer, Nuremberg prosecutor, New York board of education member, U.S. Senate candidate – was truly incredible. A great American story.

Even though he lost at every level Donovan said after the Supreme Court ruling, “The very fact that Abel has been receiving due process of law in the United States is far more significant, both here and behind the Iron Curtain, than the particular outcome of the case.”

That one sentence says a lot about why we won the Cold War.


Advise and Consent…

Years ago I enjoyed a delightful series of conversations with John Corlett, a true old-school newspaper reporter in Idaho who could recall political anecdotes with the sharpness that a gambler brings to counting cards in a Las Vegas casino. John’s career spanned a good part of the last century, from Franklin Roosevelt’s presidency to Ronald Reagan’s. He covered political conventions, wrote about statesmen and scalawags and he relished sharing his storehouse of memories every bit as much as I enjoyed hearing those memories.

Judge Chase Clark

Judge Chase Clark

One of many stories I remember involved former Idaho Governor and U.S. District Judge Chase Clark, the father-in-law of Senator Frank Church. Clark was part of a genuine Idaho political dynasty that featured two governors and a congressman who later became a U.S. Senator. Church married into the dynasty when he wed Bethine, the politically astute daughter of Chase Clark. The Clarks were mostly Democrats, but for bipartisan flavor the family also includes the remarkable Nancy Clark Reynolds, the Congressman’s daughter, and a Ronald Reagan confidante and D.C. power player.

Chase Clark ran for re-election as Idaho governor in 1942 and narrowly lost a re-match election with former Governor C.A. Bottolfson, the man Clark defeated in 1940. But 1942 was a Republican year, the country was at war, Roosevelt was in the second year of his third term and voters everywhere seemed to hanker for change. Corlett remembered that Democrat Clark considered his re-election chances to be less than stellar under those circumstances; so much so that Clark seems to have taken steps to create for himself a soft landing should the election turn out badly from his point of view.

As returns trickled in on election night 1942 it soon became clear that the governor’s race in Idaho would be a cliffhanger. Bottolfson eventually won by 434 votes out of more than 144,000 cast.

The Governor Who Wanted to Lose…

Late on election night as Corlett monitored the vote counting and tried to determine who was winning the very tight contest his phone rang. Governor Clark was on the other end of the line. “John,” he said, “it’s time for you to call the election for Bottolfson.”

Corlett could hardly believe what he was hearing. The incumbent Democrat was effectively conceding the election and doing so hours before it would become clear who the real winner might be. The curious phone call only made sense a few weeks later when Roosevelt announced Clark’s appointment to fill a vacancy on the federal bench in Idaho. A little over a month after leaving office in January 1943, Clark was nominated for the judgeship. He was confirmed by the Senate fifteen days later and served on the federal bench until his death in 1966.

Franklin Roosevelt

Franklin Roosevelt

Corlett was convinced that Clark had made a deal with Roosevelt before the election in 1942, a deal to have the president appoint him to the court should he lose, and John believed Clark actually wanted to lose, maybe even planned to lose. For Corlett, Clark’s election night telephone call concession was a political smoking gun. The governor wanted to be a federal judge a good deal more than he wanted to be a governor.

The life tenure of a federal judicial position (assuming good behavior) is just one attractive aspect of the job. The pay isn’t shabby, the working conditions are typically first rate and the retirement benefits quite nice thank you. As they say, “it’s indoor work with no heavy lifting,” unless you consider hours of sitting, listening, reading and writing strenuous. Done correctly, however, the job really should be demanding. It requires a certain temperament and a scholarly demeanor, experience, perspective, learning in the law and an abiding sense of fairness. It helps, as well, to be a real person with an ego in check, someone who is not overly impressed when everyone refers to you as “your honor.”

Idaho’s Next Judge…

I remembered the old John Corlett tale recently as I read the news of the unfolding and very secret process being managed by Idaho’s two Republican United States senators to fill the vacant judgeship on the federal district court in Idaho. As the Spokesman-Review’s Betsy Russell first reported, Senators Mike Crapo and Jim Risch have been quietly – very quietly – interviewing prospective candidates for the federal court position, but, as Russell also reported, two of the most obvious women candidates have not been interviewed, at least not yet.

The senators subsequently released a short statement to the effect that the confidential process was in everyone’s best interest and that men as well as women would be considered. Russell also reported that the current process is a dramatic departure from that used the last time Idaho had a federal court vacancy. In 1995, with Democrat Bill Clinton in the White House, Republican Senators Larry Craig and Dirk Kempthorne created a nine-member bipartisan panel made up of five Democrats and four Republicans. The partisan split was in deference to fact that Democrat Clinton would make the appointment. That process ultimately produced three stellar candidates, including current federal District Judge Lynn Winmill, who was nominated and confirmed and continues to serve with great distinction.

Judge Edward Lodge

Judge Edward Lodge

Crapo and Risch could have adopted a similar approach when respected Judge Edward Lodge announced his decision to move to “senior status” in September of last year. That they did not, and that only in the last few days has there been any news about the judicial position, might indicate that the senators aren’t really much focused on producing a candidate that will be both acceptable to them and to the person who under the Constitution actually makes the appointment, Barack Obama.

While its clear under the Constitution that the president “shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint” federal judges, it is an unwritten fact of life in the United States Senate that no nominee gets approved by the Senate unless the senators of the state involved green light the appointment. This is particularly true when the Senate is controlled, as it now is, by one party while the other party holds the White House.

This political reality cries out, if indeed Idaho’s senators really want to see a judicial appointment while Barack Obama is still in office, for something like the bipartisan approach Craig and Kempthorne employed twenty years ago. It is entirely conceivable that the process now being used will produce a candidate that will turn out to be unacceptable to the White House and that may be what the senators truly desire. In the hardball of Senate politics the Idaho Republicans may have decided, as an Arizona Congressman actually said recently, that Obama should have not more appointments approved – period.

Idaho’s senators may have simply made the political calculation that they will “run out the clock,” while betting that a Republican wins the White House in 2016. Under this scenario Crapo and Risch will have teed up the candidate they want for early consideration by President Jeb Bush, Scott Walker or someone else.

With no more than seventy working days remaining on this year’s Senate calendar and with the Senate surely going into paralysis mode next year with a presidential election looming time will soon dictate whether an Idaho appointment is even possible. Even if Crapo and Risch were to produce a candidate relatively soon the White House and FBI vetting process could take months and extend into next year’s presidential morass. For the two senators this approach could neatly, if unfairly, place the blame for failing to fill the vacancy on the president’s desk.

The statement from Crapo and Risch last week made much of the need for an “entirely confidential” process. But it’s worth asking why? At least two widely mentioned, not particularly political and eminently qualified female candidates – U.S. Attorney Wendy Olson and federal Magistrate Candy Dale – have publicly acknowledge their interest in the appointment. Idaho, of course, is unique in that the state has never had a woman federal district judge. One suspects it is the senators insisting on the confidentially, since applying to become a federal judge, even if you are not selected, is hardly something most Idaho lawyers would hide under a bushel. Merely applying puts one in rare company.

One can certainly understand senatorial prerogatives and the Constitution wisely provides for “advice and consent” from the Senate, but a vacant federal judgeship that comes around maybe once in a generation really doesn’t belong exclusively to two U.S. senators or even to a president. The important job belongs to Idaho and given the nature of Idaho and national politics shouts out for a high degree of transparency.

Advise and Consent…Not So Much…

As this process stumbles forward the White House might consider these political facts:

Attorney General Loretta Lynch

Attorney General Loretta Lynch

Idaho’s two senators recently voted against the confirmation of a highly qualified African-American woman to become the first ever attorney general. They based their votes on the fact that Loretta Lynch, a seasoned federal prosecutor, merely said that she agreed with her boss, the president, on his immigration actions; actions admittedly controversial, but also currently under judicial review. Such conservative Senate stalwarts as Mitch McConnell, Orrin Hatch and Jeff Flake voted to confirm Lynch as attorney general, but not Crapo and Risch.

Additionally, from health care to Iran, Idaho’s senators have opposed virtually all of Obama’s policy actions. They regularly lambast the administration for everything from underfunding the Idaho National Laboratory to over regulating Main Street businesses. Obama’s budgets, they have said repeatedly, are awful, his foreign policy a disaster and the president regularly engages in extra-constitutional behavior. Little wonder then that Idaho’s senators, as reliably opposed to anything the White House proposes as any two senators in the nation, have shown so little interest in actually working with the president on the rare Idaho judicial appointment.

What Would FDR Do…

As the old story about Judge Clark in the 1940’s proves, being appointed a federal judge is a highly desirable job. Franklin Roosevelt placed the just defeated Chase Clark on the federal bench in 1942 without, near as I can tell, much if any involvement by Idaho’s two senators at the time.

Senator D. Worth Clark

Senator D. Worth Clark

In fact it’s very likely that Roosevelt could have cared less about the opinion of Senator D. Worth Clark, Chase’s nephew and Nancy Clark Reynold’s father, since Worth Clark was an outspoken opponent of FDR’s foreign policy. Coming as it did from a member of his own party, Roosevelt bitterly resented Clark’s harsh isolationist critique and let it be known that he did.

Senator John W. Thomas, a Republican, who was appointed to replace William Borah when he died in 1940, was, with the exception of foreign policy, philosophically far removed from the man he replaced. Roosevelt both liked and respected Borah even though the two men clashed on many things and had Borah, a long-time member of the Judiciary Committee, lived he certainly would have had a say in filling the Idaho judgeship. With a war to run it’s not hard to speculate that the opinions of Clark and Thomas counted for next to nothing in Roosevelt’s White House. While the Senate did “advise and consent” on Judge Clark, it can safely be said that Idaho’s two senators had very little to say about his appointment.

Perhaps in the current case Mr. Obama ought to engage in some of that dictatorial activity he is so often accused of and go ahead and appoint one of the highly qualified and non-political women candidates to the federal bench. Let Idaho’s senators explain why a sitting U.S. attorney already confirmed by the Senate, or a federal magistrate vetted by her peers, or any number of other qualified women aren’t acceptable. The way things look today President Obama has nothing too lose as the clock winds down on his term and he confronts a judicial selection in Idaho vetted and suggested by two senators who can hardly mention his name without a sneer.

Barack Obama might enjoy, just as Franklin Roosevelt often did, seeing some of his greatest opponents in the Senate squirm just a little. At the very least, Mr. Obama could go down in history as the first president who tried to appoint the first women to the federal bench in Idaho.


A New Judge for Idaho – Part 2

The New York Times reported recently on a little noted aspect of Barack Obama’s legacy that will have lasting impact for the country.LadyJusticeImage As the paper’s Jeremy Peters wrote earlier this month, “For the first time in more than a decade, judges appointed by Democratic presidents considerably outnumber judges appointed by Republican presidents. The Democrats’ advantage has only grown since late last year when they stripped Republicans of their ability to filibuster the president’s nominees.” Peters was writing about Obama’s appointments at the the federal Court of Appeals level, but the same impact applies more broadly to federal District Courts.

In fact, the U.S. Senate has virtually eliminated the old back log of judicial nominations, so much so that earlier this summer there were few pending judicial nominations in the confirmation pipeline. Part of the reason for that is apparently the fact that some Senate Republicans – particularly from states with two GOP Senators – have simply refused to engage in the time-tested process of working with the White House to get potential judicial appointees into the cue.

“Texas Sens. John Cornyn (R) and Ted Cruz (R) have 10 empty court seats without nominees,” Jennifer Bendery reported in June, and one of those Texas positions has been “vacant for more than 2,000 days; another is approaching 1,100 days. Making matters worse, six of the 10 open judgeships in Texas are ‘judicial emergencies,’ meaning the workload for other judges is now more than 600 cases. For seats vacant more than 18 months, judges are handling 430 to 600 cases.”

Since that was written, Cornyn and Cruz have helped advance at least three candidates to the Senate for consideration, but the long wait continues in a number of states.

As I noted in yesterday’s Post, one key question about the pending vacancy on Idaho’s federal bench – my friend Randy Stapilus has made the same point – is whether the state’s two GOP Senators will work with the Obama Administration to identify a candidate to replace long-time Judge Edward Lodge, or whether the Senators will run-out-the-clock on the Obama presidency, while hoping a Republican ends up in the White House to nominate federal judges in 2017. If Senators Mike Crapo and Jim Risch adopt a run-out-the-clock strategy, Judge Lodge’s decision to assume “senior status” next summer will, even in the best case scenario, leave the Idaho courts shorthanded for 12 to 18 months, or longer. More on that later.

Time for a Woman…

Also yesterday, I suggested three highly-qualified, and largely non-political women who might make the Idaho selection process easier for both the Republican Senators and the White House. U.S. Magistrate Candy Dale, Idaho U.S. Attorney Wendy Olson and former Idaho Supreme Court Chief Justice Linda Copple Trout would be superb members of the federal bench and worthy successors to Ed Lodge. No doubt there are other Idaho women who have the qualifications, talent and temperament to be good federal judges. It is also clear that it is past time to have a woman on the federal bench in Idaho – Idaho has never had a woman as a federal judge – and for that matter it is past time to have women back on the Idaho Supreme Court. Idaho’s highest court once had two women among the five justices. Now there are none.

The National Women’s Law Center calculates that only 32 percent of the nation’s federal District Court Judges are women, and that number remains low despite the fact that, at least since 1992, women have made up at least 50 percent of the nation’s law school graduates. Idaho is one of only nine federal courts in the country that has never had a women district judge. As I said, it is long past time and no one can truthfully argue there are not qualified and, in fact, exemplary candidates.

The appointment and confirmation of federal judges has been one of the most contentious activities in our political system. Both parties have been guilty of the most blatant type of partisanship when it comes to staffing the supposedly non-partisan federal courts. It would be nice to think that Idaho, with a history of outstanding federal judges including Lodge, Lynn Winmill, Ray McNichols and Steve Trott to name just a few, could find a way to set the partisanship aside and identify and confirm a truly able federal judge. Stay tuned.

OK…and Some Men…

While appointing a highly qualified woman makes abundant sense to me, let’s play the “what if” game and consider four male possibilities that seem to me highly qualified, capable and possessed of the right temperament to do a fine job as a federal judge.

SGutierrez.sflbIf women are badly under represented on the federal bench, so too are Americans of color. Idaho Court of Appeals Chief Judge Sergio Gutierrez would be another historic appointment. The Judge has a compelling up-from-poverty story that took him from the Job Corps to a high school GED certificate to the University of California Hastings School of Law. Then-Gov. Cecil Andrus put Gutierrez on the District Court bench in Canyon County in 1993 and Dirk Kempthorne appointed him to the Court of Appeals in 2002. Gutierrez is a judge-as-role-model, a quiet, smart and decent fellow. He would be an historic and inspired choice for the federal bench and would shatter some old and persistent barriers.

I also think the current Chief Justice of the Idaho Supreme Court, Roger Burdick, is a truly fine judge, a stand-up guy, and Burdick could burdick-small-8-9-11 probably be voted the funniest federal judge in the country. The guy has a seriously good sense of humor, often displayed in a delightful, self deprecating manner. Burdick has been a prosecutor, a public defender, worked in private practice, served as a state district court judge and once oversaw the massive Snake River Basin adjudication. Burdick could not only do the federal job, he would do it very well.

lawrence-wasdenSince I’m a truly bi-partisan guy, I would suggest that current Idaho Republican Attorney General Lawrence Wasden is another qualified and talented guy who has show a real and important independent streak during his time in public office. Wasden has been a champion of open government, is a work horse, rather than a show horse, and has had the political courage to go against the prevailing sentiments of his own party more than once. If the federal judge process in Idaho eventually requires a nominee who could serve as a “compromise” candidate to bridge ideological gaps, Wasden could fill the bill. Along with retiring Secretary of State Ben Ysursa, Wasden is among the most non-partisan of the state’s elected officials.

Last, but hardly least, the politicians make these decisions could benefit from taking a long, hard look at the former Dean of the don-burnettUniversity of Idaho Law School Don Burnett. No knock against the new president of the University, but Burnett, who served as “interim” president of the U of I, would have been an inspired choice to run the state’s land grant university. Burnett has been a law school dean at the University of Louisville, as well as Idaho, was an original member of the Idaho Court of Appeals, appointed by Gov. John Evans, and is both a scholar and a gentleman having graduated from the Universities of Chicago and Virginia. Burnett is a deeply thoughtful legal scholar, who writes and speaks with a wonderful command of the law, history and common sense. What more could you want in a judge? Some might argue that Burnett is nearing the end of his very accomplished professional life, but I would argue that a few more years as a federal judge would be the perfect capstone to his already distinguished career in public service.

What’s Right, Rather than Political...

It has been nearly 20 years since Idaho has had a vacancy on the U.S. District Court. The decision about who replaces the respected Judge Lodge is about as important a public policy decision as the state has seen in some time. Perhaps as much as ever before it is falling to the nation’s courts to sort out society’s most complicated issues, often because partisanship and narrow interest has paralyzed the Congress. If partisan politics trumps what is best of Idaho, the decision on a replacement for Judge Lodge could drag on for months and months. It shouldn’t.

In February of this year, Idaho’s Republican Senators introduced legislation that would create a third District Judge position in Idaho. At the time, Mike Crapo said: “The need for an additional judge in Idaho has been widely recognized for years. The District of Idaho has been working to meet the needs of the district while facing growing personnel and financial challenges. Advancing this productivity by adding an additional judgeship to the court would help ensure effective access to justice for Idaho’s increasing population.” The Senators point out that its been 60 years since a second federal judge was authorized for Idaho, which argues both for expeditiously filling the new vacancy and passing legislation to create another position.

I have suggested seven potential candidates – three outstanding women, four highly qualified men. There are certainly more out there. Here’s hoping for an open, bi-partisan, efficient process that produces another Idaho judge as good as Ed Lodge has been.


A New Idaho Judge

It would be difficult to overstate the importance to Idaho of the various political and judicial decisions that will be made over the next few months at the White House, at the Justice Department, and in the United States Senate. These decisions will be made almost entirely behind closed doors. We’ll likely have to speculate about why the decisions that we eventually hear about were made and who influenced them. Lots of politics, partisan and personal, will be involved. Chances are some deals will be cut. In the end, the decisions will impact the state – and arguably all of its residents – for a generation.

As Joe Biden might say – nominating and confirming a federal judge is a pretty big deal.

LodgeLast week long-time U.S. District Judge Edward Lodge told President Obama and the Idaho Congressional delegation of his decision to assume “senior status” as a federal judge. That move allows Judge Lodge, on the federal bench for a quarter century, to gradually scale back his case load, and also paves the way for the President to nominate, and the Senate to confirm, the first new federal judge in Idaho in nearly two decades.

When I read the news about Lodge’s decision I had two immediate thoughts: Like most who know him and have followed his career, I reflected on his long and distinguished tenure (something I wrote about a while back) and then, like I would bet ever lawyer and political person in Idaho, I immediately started thinking about who might replace Lodge on the federal bench.

 You can bet there will be lots of volunteers for the job Ed Lodge now holds – it pays pretty well, the work load is substantial, but the working conditions aren’t bad, and there is that “life-tenure” provision (assuming good behavior) that the Founders wrote into the Constitution. One can almost see Idaho’s lawyers gazing into their bathroom mirrors and seeing a federal judge smiling back. Like every high school senior class president who secretly thinks of herself as President of the United States one day – and I use that “her” purposefully – most lawyers, if they are candid, will admit to thinking about becoming a federal judge. It is really a pretty big deal.

So, some modestly informed guessing about how this devilishly important and mostly secret process will unfold.

If Idaho had a Democratic elected official, even one, at the federal or even the state level it might be easier to predict the nomination path for a new judge, since that elected Idaho Democrat (who, of course, doesn’t exist) would no doubt be asked for recommendations. But, lacking much opportunity for the traditional forms of political vetting for an Idaho federal appointee, the politics around a federal appointment – particularly involving a judicial nomination – will get even more interesting. I’m betting a lot of telephone calls were made over the weekend on this subject.

Obviously, Republicans dominate the state’s politics, but just as obviously the person with the Constitutional mandate to do the nominating of Ed Lodge’s replacement is a Democrat. You can bet Senators Mike Crapo and Jim Risch, both lawyers, are working on a strategy to impact the appointment process, and in a more direct way than merely participating in the “advise and consent” role reserved to the Senate on such matters. Beyond those assumptions, we really slip into uncharted territory with the prospect of a new Idaho judge, particularly given the likelihood that the U.S. Senate will fall into Republican hands after November’s election. Presumably that would only give Idaho Republicans even more leverage over the appointment.

Idaho’s Senators could elect to approach the White House about forming a bi-partisan, merit-based panel to make a recommendation (as happened when Idaho Judge Lynn Winmill was nominated in 1995), but that would require both the Idaho Republicans and the Democratic administration to agree to work together and abide by the results of such  process, which may not be agreeable to anyone.

Risch has already hinted that he will invoke a little known Senate tradition – the blue slip – that allows a home state Senator to quietly block a nominee that a Senator finds objectionable for any reason. The Senator’s comment to the Coeur d’Alene Press last week mentioning the “blue slip” process wasn’t merely political analysis, but a signal about how long the new Idaho judge process will take, how complicated the decision can become, and the degree to which good old partisan politics will play a role.

The quaint, behind-the-scenes Senate practice “is not widely discussed, but it is a common practice in the United States Senate,” Risch told The Press. “Unless both U.S. senators sign the blue slip and return it to the judiciary and rules committee, that (nominee) will not leave the judiciary and rules committee.” Risch also said, as the paper reported, “that, by custom, every senator maintains some control of a nomination – with ‘veto power’ – over who is appointed from the senator’s state to the federal bench.”

Legal analyst and New Yorker writer Jeffrey Toobin says of “the blue slip” process: “Blue slips are not authorized or mentioned in the Constitution, in federal law, or even in the rules of the Senate. They are nothing more than a tradition, which has been in use off and on (mostly on) since the early twentieth century.”

In a piece analyzing the use of the Senate “blue slip,” Toobin predicted – in a case exactly like Idaho’s now – that two Republican Senators might just refuse to approve any nominee of a Democratic President, particularly when that President is Barack Obama. That begs the question of whether Crapo and Risch will just stall the selection of Lodge’s replacement until after the 2016 election hoping that a Republican ends up in the White House? It could happen.

No matter how this plays out, if there in fact is a nomination before the 2016 election, Ed Lodge’s replacement will have to pass muster, behind the scenes and quietly, with Risch (assuming he’s re-elected in November) and Crapo, just as happened with a Democratic president’s nomination of Judge Winmill the last time Idaho had a vacancy on the federal bench. You may recall that then-Senators Larry Craig and Dirk Kempthorne, as well as Gov. Phil Batt, embraced Judge Winmill’s appointment by President Bill Clinton.

Assuming the process works with only a high degree of partisanship, as opposed to a high degree of political obstruction, and that is a very big assumption, who then might Obama nominate who could survive the “veto power” of two Republican U.S. Senators? I’d guess that the White House would like to nominate a woman, and that should be a major consideration since Idaho has never had a woman U.S. District Judge. Let’s begin the vetting with that assumption.

Current U.S. Magistrate Candy Dale would have to be considered a serious candidate. Judge Dale, selected for her current Hon_Candy_Dalejob by a competitive, merit review process, is smart, well regarded by the state’s legal community and young enough to occupy a federal position for a long, long time. Her recent eloquent, courageous and, in my view, correct ruling overturning Idaho’s prohibition on same sex marriage no doubt got the attention of senior officials at the U.S. Justice Department. Those who do the administration’s vetting my well like Judge Dale’s guts and reasoning on that decision, but her ruling may also cut the other way with highly partisan Republicans. Still, on the merits, and given her experience on the bench and in private practice, Judge Dale would have to be on any administration short list.

The same can be said for the current U.S. Attorney in Idaho, Wendy J. Olson. A career federal prosecutor and
wolsonofficialStanford Law School grad, Olson was a widely praised choice for the U.S. Attorney position when she was nominated in 2010. She has a strong record prosecuting white collar crime and would also merit White House and Justice Department consideration because of her serious involvement in civil rights issues. She has conducted herself in a low-key, competent and non-partisan way in her current job and, like Judge Dale, is young enough to serve on the federal bench for a long time. If the White House wants to make it difficult for Idaho’s Republican senators to play overt politics with the federal judgeship, they could appoint either of this highly qualified, and not terribly political women. Either would make it difficult for Crapo and Risch to say “no.”

One more highly qualified woman who I suspect would sail through a confirmation process is former Idaho Linda Copple Trout
Supreme Court Chief Justice Linda Copple Trout. The first woman to serve on Idaho’s highest court, appointed by former Democratic Gov. Cecil D. Andrus, Trout has a first-class intellect, a solid record as a trial and appeals court judge and a winning personality. Justice Trout is also tough and no nonsense. It’s easy to see her commanding instant respect on the federal bench. She may not want the position, but it would be hard to argue that she isn’t qualified.

If the Obama Administration wants a relatively quick – and I mean relatively quick – process to replace the distinguished Judge Lodge, and wants to make Idaho history and appoint a woman, and also seeks a highly qualified candidate who is well respected in the legal community, and comes without a lot of partisan political baggage, they now have a short list.

There will be much about this important and far-reaching process that will be fascinating to watch. Not least will be whether the Obama Administration is smart enough and agile enough to manage the nomination and confirmation of a federal judge in a deeply red state so as to make it difficult – or even impossible – for the state’s two Republican Senators to throw sand in the political gears.

Tomorrow, I’ll make the case for a couple of other worthy candidates. But, feel free to forward this to Attorney General Eric Holder. Now that he has announced his departure once his successor is confirmed, he should have a little time to think about the Obama Administration’s legacy in Idaho. This appointment will be a pretty big deal out here and it could make history.

Understanding the Mind of Other Men

alexander-hamilton-og-BEAlexander Hamilton was the nation’s first Treasury Secretary and not, as Groupon recently promoted, one of those old, dead white guys we celebrate on President’s Day. Hamilton, who died in a duel with Aaron Burr, would probably rather be remembered as the chief author of a number of the Federalists Papers, the brilliant essays on the powers of government that continue to serve as footnotes to the Constitution and as PR “white papers” that helped sell the founding document to the nation.

In Federalist 78, Hamilton, writing as Publius, discussed several issues related to the judicial branch of the government that had been created under Constitution, including how judges would be appointed and why it was essential to their impartiality and independence that they be guaranteed “life tenure.”

Hamilton was an elegant writer, if somewhat prone to the run-on sentence. Here’s a key (long) sentence from his famous discourse on judges and the judiciary. “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

It would be understandable if you didn’t get all that in one reading, but Hamilton’s essential point was – I’ll put it in my words – that the judiciary ultimately stands as a guard against popular whims and government actions that run counter to the Constitution and individual liberties. The great Federalist admits – maybe hopes – that over time the people will be smart enough to figure out these “ill humors” and correct them, but in the short term, minus “more deliberate reflection” public men (and women) can and will make mistakes or, heaven forbid, stupid decisions.

The job of a judge – particularly a federal judge – is unique in our system and, as Alexander Hamilton and others argued, it must be unique in order for the delicate balance of competing interests among the three branches of government to work. Judges must have the opportunity to engage in “deliberate reflection” and the freedom to know that as long as they maintain certain ethical standard their jobs are not in jeopardy.

Not One of Us…

Idaho’s governor is a genial fellow. In the old days we might have referred to him, as in the old English phrase, as “a hail fellow well met.” I’ve heard Butch Otter quote Shakespeare and he’s been known to lace his speeches with references to the Founders, especially that champion of limited government Thomas Jefferson. Otter once courageously voted against his party and a Republican president when he argued that The Patriot Act, passed in the wake of the September 11 attacks, might well become a threat to civil liberties.

Ours is, as they say, a free country and sharply worded criticism from the lips of public officials is about as common as Groupon promotions, but the nature of Gov. Otter’s recent criticism of Idaho’s widely respected federal District Judge Lynn Winmill – Otter reported said the judge “isn’t one of us” – is just plain hard to figure. Otter went on to suggest that Winmill  “doesn’t share all of the enthusiasm for the marketplace and freedom that we do in Idaho.”

The governor may be able to quote Jefferson, but he may find it useful to re-read some Hamilton.

Read more here: http://blogs.idahostatesman.com/otters-blast-at-judge-winmill-hes-not-one-of-us/#storylink=cpy

Goodness knows federal judges are not – nor should they be – immune from serious criticism. Franklin Roosevelt once famously said after the U.S. Supreme Court had wiped out much New Deal legislation that the court was stuck “in the horse and buggy” era of judicial analysis. Dwight Eisenhower privately lamented the Brown v. Board of Education decision that struck down the decades of law that held that blacks and whites could gain the same quality of education in segregated schools that were “separate but equal.” Barack Obama dissed the current Supreme Court’s decision in the Citizens United case that opened the floodgates for corporate and labor money to wash into our politics. Criticism of judges is cheap and it is a free country.

What is interesting about the Idaho governor’s criticism is not that he made it, but that he has yet to offer any specifics that might illuminate both his criticism and how he thinks about the role of judges. After all, Otter regularly appoints state court judges. Some enterprising reporter needs to follow-up.

Meanwhile, as the Idaho Statesman’s Dan Popkey has noted, Winmill’s capabilities as a person deserving of life tenure was rather exhaustively vetted when he was nominated by President Bill Clinton 19 years ago. Then-Sen. Larry Craig took pains to explain to the Senate Judiciary Committee how diligent he and then-Sen. Dirk Kempthorne had been in assessing Winmill for a job on the federal bench. Craig said they had consulted widely with bipartisan members of the bar and retired judges and determined that Winmill “was extremely well qualified.” Needless to say, the two Republican senators didn’t rely for their analysis on the opinions of the Bannock County Democratic Central Committee, a group that also would have been high on Winmill.

When Kempthorne had his chance before the committee nearly two decades ago he quoted the Old Testament to the effect that “justice, and only justice” must be the pursuit of a judge and that Winmill “meets this test.”

Judge Winmill, who I have known since his early days in Bannock County politics, hardly needs any defense from me, but if you wonder, as I do, about the governor’s recent comments about the federal judge ask any lawyer you know for his or her take. I predict you’ll get an earful.

The Mind of a Judge

Years ago U.S. Supreme Court Justice Benjamin Cardozo, considered by most historians of the court as one of the greatest justices in the nation’s history, was asked who among his Supreme Court colleagues he considered to be the greatest living American jurist. Cardozo said, “the greatest living American jurist isn’t on the Supreme Court.” The greatest judge, Cardozo maintained, and he may well have been correct, was the hugely respected U.S. Appeals Court Judge Learned Hand of New York. Hand, who died in 1961, served on the federal bench for 52 years and was still deciding cases when he died. He is still regarded as the best judge to never make it to the Supreme Court.

Until 1944 Judge Hand was largely unknown outside of legal circles. Then he made a speech at a huge ceremony where thousands of immigrants became U.S. citizens. The speech both captured public imagination and served to articulate Hand’s own mind as a judge. He titled the speech “The Spirit of Liberty.”

“What then is the spirit of liberty? I cannot define it; I can only tell you my own faith,” Hand said. “The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.”

I was reminded of Judge Hand’s short and remarkable speech a few years back when I was in the audience when Judge Winmill, a man remarkably well-read in history as well as the law, called upon a detailed discussion of the infamous Dreyfus Affair – the scandalous anti-Semitic trial of a French military officer in the 1890’s – to illustrate a talk about the American system of justice. I have also heard the judge talk about the lessons of the now widely acknowledge miscarriage of justice that lead to the unconstitutional internment of Japanese-Americans during World War II and to the qualities required of a patriot.

I admit to bias about such things, but I like my life tenured judges to know about, think about and reflect on the kinds of ideas that judges like Learned Hand and Lynn Winmill did and do.

In Federalist 78 Alexander Hamilton made the case for life tenure for federal judges in order to insulate those judges from the pressures and partisanship of daily politics under our system. It’s not a perfect system, of course, politics and partisanship still leak in from time-to-time, but it is a system that has and still serves the nation pretty well. Hamilton recognized something else when he was writing in 1788 – that being a judge requires special skills not always widely available in society.

“Hence it is,” Hamilton said, “that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.”

Integrity and knowledge then, when everything is said and done, is what we really must demand from a judge. Decisions and rulings, along with ill-defined criticism from politicians will come and go. Integrity and knowledge were the qualifications for the Founders and that should still be good enough for us.

Read more here: http://blogs.idahostatesman.com/otters-blast-at-judge-winmill-hes-not-one-of-us/#storylink=cpy

The Start of Something Big

cit7_SRX_EDWARD_LODGE_t620The United States Senate this week confirmed a new judge, Patricia Millett, to a seat on the U.S. Court of Appeals for the District of Columbia. That court is, after the Supreme Court, arguably the most important federal court in the nation. Millett’s confirmation had been stalled for weeks over a partisan dispute, not about her qualifications, but basically over whether a Democratic president would be allowed to make an important appointment to an important federal court.

That standoff helped precipitate the recent change in Senate rules that eliminates the filibuster as a tool of the minority to thwart a president’s federal court and executive branch nominees. When it finally happened the vote to confirm the new judge was mostly along partisan lines, two Republicans – Lisa Murkowski and Susan Collins – did vote to confirm.

Regrettably, in my view, partisan politics – and both parties bear some guilt – has taken on a completely outsized role in the selection and confirmation of federal judges. And, remember in the case of new Judge Millett, hardly anyone questioned her strong qualifications for the job. She has been a partner at the white shoe D.C. law firm Akin Gump, she worked at the Justice Department in both Republican and Democratic administrations and argued 32 cases before the Supreme Court. She’s qualified, but partisanship was the stage manager in this case, and unfortunately, has been in many others in the recent past.

Until the 1920’s appointees to the Supreme Court didn’t even go before a Congressional committee for a confirmation hearing. When former Utah Sen. George Sutherland was nomination for a position on the Supreme Court in 1922 his nomination went to the Senate one morning and he was confirmed that afternoon. Admittedly that pace may have been too light on the “advise and consent” role of the Senate, but now days it’s not uncommon for a judicial nominee to hang in confirmation no-man’s (or no-woman’s) land for months. It has become an awful system that will over time further erode public confidence in an independent judiciary and it doesn’t have to be this way.

A small, long ago example from Idaho involving Federal District Judge Edward Lodge (that’s Judge Lodge in the photo) makes the case that judges – and sometimes great judges – are indeed “made” by politicians acting as politicians, but that politics – if practiced wisely – can also help ensure the right man – or woman – ends up in the right job.

Ed Lodge has been on the Federal District Court in Idaho since 1989. He was nominated by Republican George H.W. Bush and confirmed unanimously by the Senate. The Judge, widely respected, even revered by those who know him and practice before him, just passed 24 years on the federal bench and all told Lodge has been a judge in Idaho for half a century. But, it’s Ed Lodge’s time before he came to the attention of the first President Bush – we can thank Sen. Jim McClure for that – that really counts in this little story.

In 1965, Lodge was laboring in relative obscurity as a probate judge in Canyon County, Idaho – Idaho did away with probate judges during judicial reorganization years ago – when a vacancy came open in the state District Court bench in Canyon County. It dawned on a couple of young, northern Idaho legislators – Ed Williams from Lewiston and Cecil Andrus from Orofino, both Democrats, that they might be able to use the Canyon County vacancy to engage in a bit of political mischief at the expense of Republican Gov. Robert E. Smylie and also help create a new judge at the same time.

Smylie, a mover and shaker in national GOP politics, was out of the state for a few days as was his habit; a habit that helped get him in trouble with voters a year later, which meant the governor had left the tending of the state store to his Democratic Lt. Gov. William Drevlow, a old-style party warhorse who hailed from Craigmont. In Idaho, by virtue of the state constitution, when the governor is physically absent from the state the lieutenant governor assumes the governor’s full powers, including the power, if he chooses to use it, to make appointments. If you understand politics perhaps you see where this is going.

According to Andrus, his good friend Williams came up with the idea of trying to convince Lt. Governor Drevlow to act in Smylie’s absence and fill the Canyon County judicial vacancy. But who to appoint? The two north Idaho lawmakers consulted with Rep. Bill Brauner of Caldwell, also a Democrat, and a well-regarded local attorney. (Yes, Canyon County did once upon a time have Democrats in the Idaho Legislature.)

Andrus recalls that another prominent Canyon County attorney and Democrat, Dean Miller, was brought into the discussions and it was Miller who suggested strongly that able young Ed Lodge, who Miller knew personally and professionally, would be a superb candidate to fill the vacancy. All the players in this little tale, save for Andrus and Lodge, are no longer with us to confirm or deny, but Andrus claims none of them were really sure at the time of Lodge’s politics. Lodge was being touted by Democrats who knew him well, after all, and only later did the legislators learn that Republican blood ran in Lodge’s lawyerly veins. Even better they thought. When the stuff inevitably hits the fan the conspirators could fall back on the fact that a Republican-leaning judge had been appointed by a Democrat. What could be more bipartisan?

But the really key thing here is that the mischief makers were not looking simply to make mischief, although that was clearly a motivation, they also wanted to see a capable judge appointed. Politics was played, but the goal of putting a capable candidate on the bench was also achieved.

“We convinced Bill Drevlow, maybe with a little help from John Barleycorn,” Andrus said, “to make the appointment. He knew it would damage his relationship with Bob Smylie, but he really didn’t care. We knew Smylie would be livid, since he must have had his own candidate.” And, one suspects, that didn’t bother the legislators either.

Judge Lodge was appointed to the state court vacancy by Drevlow – the youngest district judge in Idaho at the time – where, by all accounts, he immediately began to acquit himself with real distinction winning awards as the state’s top trial judge and serving for years as the administrative judge of the district. After a short stint as the state’s federal bankruptcy judge President Bush came calling and Lodge went to the federal bench some twenty years after his Democratic benefactors plotted to get him appointed to the Idaho court.

Andrus remembers Smylie being peeved about the whole thing, but as the man who would go on to be elected governor of Idaho four times told me recently, “Smylie could never argue with the fact that the cream rises to the top. And time has proven that Ed Lodge is one of the two or three best federal judges Idaho has ever had.”

Any way you analyze it Ed Lodge has had a distinguished and impactful career. He presided over the Ruby Ridge case, Claude Dallas was in his courtroom, financial responsibilities under the Superfund law in the Silver Valley were hashed out under his watch, and the U.S. Department of Energy was held to account for cleaning up the Idaho nuclear waste legacy of the Cold War. Judge Lodge was honored last summer for his his service and for the longest judicial tenure in Idaho history. His is quite a legacy.

Is there a moral to this little story of political intrigue? It’s entirely possible that Ed Lodge, even without the bipartisan push he got from a bunch of mischief making young Democrats in 1965, would have amassed a distinguished legal career. He might well have made it to the state district court by another route and been ultimately appointed to the federal bench to preside over all those important cases. Who is to say?

Perhaps the only moral, as the old saying goes, is that politics does – or can – make strange bedfellows. And once in a while – not as often as it once did unfortunately – strange bedfellows conspire to help along the career of an able young man, who given the chance became a truly distinguished judge and helped write the history of Idaho for the last half century.

Next time you read a news report about some judicial decision that identifies the judge involved as an “appointee of George Bush” or as a “nominee of Bill Clinton,” think about Judge Lodge. There is more to most judges – and there should be – than the partisan label attached to the person who appointed them. And think about the new and highly qualified D.C. Circuit Court Judge Patricia Millett who came so close to being denied a chance to serve at all because of, well, just politics.

There will always be “politics” involved in the appointment of judges. It’s been that way since John Adams and Thomas Jefferson fought over the shape of the federal judiciary, but too much emphasis on politics must inevitably lead to a too politicized judiciary, which only damages public confidence in the judges and our judicial system. Ed Lodge got his start on the merits. An able young man with supporters on both sides of the aisle then proved over the course of a distinguished career just what he was able to do.

I like to think that is what we call the American Way.


Stuff Happens

imagesCAOS34K3Exceptionalism, Hubris, Cluelessness

The protesters in the streets of Cairo could most likely care less about American domestic political debate. They have bigger issues. Still, while the chaos continues to unfold in the streets of our erstwhile ally, it might be worthwhile for those of us watching to undertake some sober reflection of what the likely fall of Mubarak says about American foreign policy.

Two seemingly disconnected data points – the latest silly debate over American “exceptionalism” and former Defense Secretary Donald Rumsfeld’s new memoir – are informative launching pads for some of the reflection we need.

For a few days after President Obama’s State of the Union speech, cable’s talking heads were popping off about why the president refused to use the word “exceptionalism.” Exceptionalism is the notion that American ideals, ambitions, and commitment to liberty are so unique and so special that naturally the United States has not only the moral authority to lead the world, but the moral responsibility to export those ideals, ambitions and commitments.

The president did say that America is “the first nation to be founded for the sake of an idea — the idea that each of us deserves the chance to shape our own destiny.” And that “America’s moral example must always shine for all who yearn for freedom and justice and dignity.”

Some conservatives, aware that Obama’s still greatest political vulnerability is his “differentness,” have seized on his allegedly tepid embrace of the exceptionalism notion to bash him. Columnist Kathleen Parker captured the essence of the argument in a recent piece when she said: “On the right, the word ‘exceptional’ – or ‘exceptionalism’ – lately has become a litmus test for patriotism. It’s the new flag lapel pin, the one-word pocket edition of the U.S. Constitution. To many on the left, it has become birther code for ‘he’s not one of us.’

“Between left and right, however, are those who merely want affirmation that all is right with the world. Most important, they want assurance that the president shares their values. So why won’t Obama just deliver the one word that would prompt arias from his doubters?”

My answer, all is not right with the world and the president, while embracing the moral leadership role that should go with the office he holds, tends to have a nuanced view of the world – not black/white, neither uniquely exceptional or standard run of the mill. The president is trying hard, against the last 100 years of history, to pull us back from the kind of exceptional arrogance that once led us into Vietnam and more recently into Iraq. For the exceptional crowd, its impossible to believe that the rest of the world just doesn’t get on the with the notion that it is American manifest destiny to lead the world and, when necessary, reshape it our liking.

Which brings us to Donald Rumsfeld. The advance press on his new book – it sounds like a standard score settler sure to get him on TV a great deal – seems sure to remind his detractors, including John McCain, of Rummy’s fundamental arrogance. The man who brought us such memorable lines as “stuff happens” in response to widespread Iraqi looting after the invasion and “known unknowns” about the non-existing weapons of mass destruction, says he has few regrets about Iraq.

Rumsfeld is a metaphor for American foreign policy cluelessness. Not only did he get almost everything wrong about the American invasion of Iraq, he clearly doesn’t possess the self reflection gene necessary to learn some of the all-too-obvious lessons. The real known unknown is what America doesn’t know – and usually refuses to learn – about the rest of the great world. We never seem to learn the limits to which others in the world are willing to embrace our ideals and follow our lead. We may be repeating this time tested mistake now in Egypt, Yemen and the rest of the volatile Middle East.

“We evidently think,” Idaho Sen. Frank Church once said, “that everything which happens abroad is our business…we have plunged into these former colonial regions as though we have been designated on high to act as trustee in bankruptcy for broken empires.”

The Middle East is ancient ground. The yoke of British, Ottoman, French and other colonial empires – and what must look to many young Arabs like the new American Empire – hangs uneasily over the region. Young people in Tunisia and Egypt, empowered by access to the Internet and ideas – not always ideas we like, for sure – are demanding change. It is hubris to think that our notions of what makes America exceptional is necessarily going to appeal, or be right, for them.

One Middle Eastern analyst, Shadi Hamid, director of research at the Brookings Doha Center in Qatar, says it bluntly: “No one in the region is pro-American anymore. The only hope is if Obama uses this opportunity to re-orientate U.S. policy in a fundamental way,” he said. “Otherwise, I think we’re losing the Arab world.”

With thousands of our troops spread across the region, with billions lavished on Mubarak for more than 30 years – by one estimate the old boy is worth as much as $70 billion – we’re down to being an after thought to the people in the street.

Writing for the New York Times, the sagacious Tim Egan, offers some of the best sober reflection: “…in the Internet age, no authoritarian can keep his own people from knowing the truth,” Egan writes. “Millions of Egyptians are disgusted with their leadership. They have hope. They want change. And we should stand with them with the tools of an open society: ideas and technology, and maybe a deft diplomatic nudge. Beyond that, it’s out of American hands.”

As we cast a very wary eye toward Cairo and beyond, a real question for Americans is whether we can be exceptional enough to understand the limits of our power; whether we can’t learn the humbling lesson that our ability to cause other cultures, with different histories, religions and traditions, to embrace our way is exceptionally limited.