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Preview: RealClearPolitics - Articles - Ronald A. Cass

RealClearPolitics - Articles - Ronald A. Cass

Last Build Date: Fri, 27 Jun 2008 07:42:07 -0600

Copyright: Copyright 2008

DC v. Heller: Ending the Term with a Bang

Fri, 27 Jun 2008 07:42:07 -0600

Discussion of Heller will focus to a large degree on the political divide. But the dominant message that readers should take away from the case is that the justices did their job. Both the majority and the dissenters examined exactly what the justices should have, considered carefully the mountain of material before them, and critically evaluated the arguments about it - and together came to a result that is not only reasonable but also advances our freedom under law. ********** The issue in Heller was the constitutionality of the District of Columbia law subjecting all legal firearms to licensing, banning all hand guns, and requiring all legally permitted weapons, such as rifles and shotguns, to be kept in homes only if "unloaded and disassembled or bound by a trigger lock or similar device". Dick Heller, a special police officer, objected that the law unconstitutionally deprived him of the chance to defend himself effectively against threats in his home. The Second Amendment to the Constitution declares: "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Before Heller, the Court had never directly decided whether that language created a right for individuals or a collective right of state militias. The language of the amendment gives some basis for both of these opposing views. So, too, does the history of the amendment's adoption. Some of the provisions that were rejected in the drafting process clearly would have limited the amendment to protecting arms used for the common defense. Others would clearly have made the right an individual one. Contemporaneous adoptions of related provisions in state constitutions provide tangential support for both positions. The justices - both in Justice Scalia's opinion for the majority (finding an individual right) and Justice Stevens' opinion for the four dissenters (which would have limited the amendment to a collective right) - labor over the amendment's text and history, debating just what was understood by those who wrote and ratified the amendment. While Justice Stevens scores some points, especially about how often discussion of a right to bear arms was associated with concerns over protection of state militias against federal encroachment, by and large Scalia has the better arguments, not least about how the rights of "the people" are used elsewhere in the Constitution and the most natural way to read the amendment's operative clause. Beyond the existence of an individual right, the justices differ over the scope of that right. Justice Scalia and the majority declare that the right to bear arms is subject to reasonable regulations, such as the limitations on gun possession by felons or on use of weapons in proximity to schools. They conclude, however, that the complete ban on guns and the requirement of disabling all other weapons in the home cannot be squared with the Second Amendment. Justice Breyer's opinion (for the same four dissenters) parries the majority's arguments and urges the reasonableness of the rules at issue, using a decidedly softer standard of review. ********** At the end of nearly 160 pages, the three opinions show the justices took great care in looking at the legal materials that should bind them, their meanings and implications. More than anything else, Court-watchers should come away from Heller confident that the justices did the hard work of constitutional interpretation the way it should be done. And yet, looking beyond these opinions, there is still the temptation to see justices as driven by political predilections rather than inquiries into language and history. Take, for instance, Justice Stevens. His dissent in Heller tackles the relevant issues with gusto. But where was the critical examination of language and history in his decisions involving abortion rights (like Stenberg v. Carhart), cases based on the filmiest creation of a constitutional "privacy" right derived from the "penumbras formed by emanations" from [...]

Ted Kennedy's America

Thu, 22 May 2008 13:30:00 -0600

Ted Kennedy's career is a blend of two larger-than-life stories, one political, one personal. The political story starts where our fictional meeting does, with his brother's election to the presidency. As the youngest son of a political dynasty, little was expected of Ted, other than to follow in his older brothers' footsteps and help promote the family's aims. When JFK became only the second president elected while a sitting Senator, he had to resign his seat as the junior senator from Massachusetts. The family engineered an arrangement that installed someone they thought would be merely a bench-warmer to keep the seat safe until Ted turned 30 and was able to stand for election two years later. Ted won the Democratic nomination and the seat in 1962 and has represented his state in the Senate for 45 years now. During that time, no one has been more constantly and consistently in the public eye, for good and bad, and few have had a bigger impact on our political life. ********** As a conservative Republican who has been very public in my support of conservative principles (including writing many an op-ed skewering Senator Kennedy during the confirmation fights for Chief Justice John Roberts and Justice Sam Alito and for circuit judges before that), I do not come to the subject of Ted Kennedy as a natural ally or fan. And as someone who spent 14 years as dean of a law school in Boston - the Kennedy family's backyard - I have developed a special resistance to the liberal infatuation with all things Kennedy. Yet during my time in Boston, I also had occasion to observe a side of Senator Kennedy that doesn't get that much attention. Much of the alumni base of my school was devoted to Senator Kennedy, so it may not be surprising that he accepted my invitations to come speak to them and to students at the law school. Public officials routinely do such things. Senator Kennedy was gracious whenever he came to and spoke at these events. He displayed personal warmth and a sense of humor that was appreciated, and he said the requisite nice things about the dean as well. Again, all of this is within the norm for public officials, though Kennedy readily surpassed many on these margins. Far more important, however, was what he did after the barbaric attacks of 9/11. I lost a very dear friend that day and afterward joined the board of the Massachusetts 9/11 Fund, an organization devoted to helping the families of 9/11 victims. Many public figures turned out for the larger events honoring the victims, but Ted Kennedy was the one who was most consistently available and anxious to help. As Ted went around the room to talk with the survivors, he always had a kind word, something encouraging to say, a personal touch, a hug, a tear - and for everyone, he showed the emotion of someone who had coped with tragedy in his own life. Kennedy evinced genuine understanding of the families' hurt, their sorrow, their sense of senseless loss. He was never in a rush to leave, to get on to something more important. Ted knew that sharing the grief of others, forming a bond of those who have faced a pain that can only be salved with time and understanding, gives something precious to those whose lives are forever changed. He gave from the heart, to those in need. And he gave in that setting in a way few public officials could and fewer yet did. ********** Ted Kennedy's career - in and out of office - provides many targets for commentary. Liberals will extol his accomplishments on issues such as education, health care, and civil rights, issues he has helped make cornerstones of Democratic Party policy. Conservatives will note times he reached across party lines, but also recall Kennedy's shameful treatment of Bob Bork - a serious misrepresentation of a very accomplished jurist and part of what has pushed our judicial confirmation process into political quagmire. Some die-hard Kennedy haters will remind readers of Chappaquiddick. Many Senate colleagues - from both sides of the aisle - will speak [...]

Cross-over Hits of the Campaign Season

Mon, 28 Apr 2008 10:30:06 -0600

The well understood norm in the media is that people don't really want new information so much as they want confirmation of their own cherished views. Psychologists who study reactions to news find that information is processed by people with strong views in ways that reinforce their views. Those who work in the news-and-information media understand that point without the need for controlled experiments. Their base readership, viewership or listenership is generally confined to a like-minded audience. Liberals may tune in to Rush Limbaugh if they are committed political animals who want to know what to be outraged about from the other side, but for the most part Rush's audience ranges from conservative to antediluvian. So, too, Paul Krugman will be read by a smattering of folks from the right of center who are interested in seeing what a formerly thoughtful academic economist has to say, but mostly his readers are the hard-core socialist left to far left who appreciate his vitriol more than his analysis. Most media carry just enough writing by columnists who don't fit their core demographic to give the appearance of balance. The Washington Post carries George Will and Charles Krauthammer, but everyone understands that the paper has a strong liberal bias and caters to an audience that wholeheartedly embraces the liberal credo. The New York Times carries David Brooks and William Kristol, but its opinion pages are far to the left of the Post and its current approach to a paper's central mission is closer to "all the news that fits our views" than the motto emblazoned on its masthead. A few media outlets, such as RealClearPolitics, actually take seriously the task of presenting all major viewpoints on important issues, but those are the exceptions. Media tend to be slanted left or right and the advent of the 24/7 blogosphere hasn't done anything to moderate that tendency. Far from it. The Drudge Report is required reading for anyone tracking scandals in either party, but most Web sites tilt heavily in one direction. So what should we make of the springtime awakening to the genius of writers from the other side of the aisle? ********** The genesis of this transformation, of course, is that the divisions within the two parties combined with open contests for their presidential nominations have encouraged columnists and commentators to take shots at their heretic brethren. For insiders, the cannonades aim to purify the order by weakening leaders who are taking the party the wrong way. The Republican contests in particular highlighted sharp differences over what the party should stand for, with critiques of individual candidates often being proxies for the policy debates. Where real differences on policy are vanishingly thin (see Hillary versus Barack), the critical columns and comments are intended to advance the cause by helping to move aside someone standing in the way of accomplishing the party's good ends. For Democrats, this primary season hasn't been remotely about reexamining their goals, just selecting a better messenger. Seen from across the aisle, however, any fusillade directed at one of our enemies is applauded as recognition of that politician's inherent flaws. Conservatives have complained for years that Hillary doesn't really care much about the truth, and they recognized years ago that she's never had any hesitation in trampling over anyone who gets in her way. When Maureen Dowd exposes Hillary's most recent lie or shameless sniping at her opponent, she's simply acknowledging a core tenet of conservative faith. Liberals have made common cause with Senator McCain, but there's plenty they don't like about him. Coming from the opposite side of the political globe, Ms. Coulter and Rush Limbaugh have lambasted McCain for his apostasy from conservative precepts. But liberals warm to their criticism of McCain whenever it points out what they see as a character flaw, finding for instance George Will's complaints about his moral van[...]

Bill & Hillary: Union-Busters?

Fri, 18 Jan 2008 09:30:05 -0600

After getting Hillary endorsements from the leaders of 13 unions representing 6 million members, thanks to relentless pursuit of every establishment credential they could find, the Clintons responded with outrage that a local union with 60,000 members could prefer her primary opponent. As Bill said, this shows the "establishment organization" is with Senator Obama, while the "insurgents" are with Hillary. (Somehow I missed Hillary's days as a grass-roots community organizer - which must have come somewhere between her stints as First Lady of Arkansas and First Lady of the U.S., great places to hone those bottom-up organizing skills!) That endorsement sparked the recognition that union bosses are elitists whose power hurts workers. In his best, red-faced, finger-pointing, hoarse-shouting style (right on cue for the 10-year anniversary of Matt Drudge's exposure of the Monica story), Bill told listeners that union leaders "they think they're better than you are" and challenged workers to buck the unions. Of course, Hillary and Bill aren't suggesting that the 6 million members of unions endorsing Hillary should be independent. Union members should still vote for Hillary when union leaders say they should, but they also should vote for Hillary when the union says they shouldn't. That's the kind of independent thinking the Clintons want. ********** The new call for independence for union members runs smack into the ingrained view of Democratic union-backers that workers can't stand up for themselves as individuals. That's the idea all pro-union laws are built on - individual workers need unions to stand up for them. For 75 years, Democrats have insisted that workers can't decide whether to stay out of a union other workers have chosen, that workers can't negotiate for themselves on issues within the union leadership's portfolio, and even that workers can't decide whether they want to have their money go to a union, much less direct how it's spent. Conservatives long have challenged the assertions that workers are better off having someone tell them what they should do, having unions speak for workers, take money from them, and spend money on political causes (and, implicitly, candidates) that the union leaders favor. But Democrats, backed by huge infusions of union money, keep a system in place predicated on just the opposite view. The system works well for the union leaders and the candidates they support. Laws pushed by Democrats have allowed union taxation of worker wages to support leaders' spending priorities. Unions collect $8 billion or so annually through involuntary assessments. One court, looking at union spending, found that about 80 percent of union collections went not to worker representation and collective bargaining but to political activity. Something like 95 percent of this spending goes to help Democrats. In the 2000 elections, unions spent an estimated $800 million on attack ads and other political activities to promote Democrats, including Senate candidate Hillary Clinton (a special favorite of the United Auto Workers Union). The AFL-CIO alone will spend $200 million on the 2008 races. That's not small change, even for a party now obsessed with change. The Supreme Court's 1988 decision in Communications Workers v. Beck ruled that union members have the right not to support political spending they don't agree with. But one of President Bill Clinton's first acts was to repeal an executive order from President George H.W. Bush implementing the Beck decision (by requiring federal contractors post notices telling workers they aren't required to give money to unions for political spending). Bill and the union establishment saw no reason even to let workers know they have the right to think for themselves when that threatens the Democrats' prime engine of political sponsorship. But that was then. ********** The Clintons are nothing if not flexible. Bill can lie straight-faced about anything with eno[...]

Is This Any Way to Pick a President? Madison's Nightmare

Thu, 03 Jan 2008 14:15:19 -0600

Madison and his colleagues understood that individuals naturally seek individual benefits even while wishing for the collective good and worried about giving public power to small groups. Madison wrote in Federalist 10 of the concern over faction, over the actions of particularly intensely interested groups, and in Federalist 51 he explained that the whole structure of our government was designed "to control the abuses of the government" while enabling the government to control the governed, a system of divided and dispersed power that limited the influence of any individual or group and that reduced the prospect for precipitous decisions. That system has stood the test of time. But the current process for nominating our President - the chief symbol and, in important respects, the primary custodian of that system - looks like it stands Madisonian principles on its head. In Madison's time, of course, presidential nominees were picked by small, elite groups. But those groups generally were representative of their parties, and nominees were selected for both their appeal across the party and their prospects for electoral success. And the selection was self-consciously designed to create a different constituency for the President than for the collateral branches of government. The current nominating process threatens to replace one set of elite voters with another, but with less prospect of securing the benefits of Madison's time. ********** The nominating system starts in Iowa, not just with an unrepresentative state but with unrepresentative voters as well. On the Democrat side in particular, this is coupled with deeply flawed voting methods that resemble a political game of musical chairs. And for both sides, the game is played in small venues replete with public pressure, both from those who have intense interests in particular issues and from those who profit directly from the process. Iowa's caucus system empowers the most insular of special interests, political junkies, and folks with little better to do on a cold night in winter. Iowans are wedded to their caucus system, but no political scientist trying to design a representative voting method reflecting national consensus would have thought up this peculiar arrangement. The next stop is New Hampshire, with about 4/10th of one percent of the nation's population. The New Hampshire primary plays by ordinary primary rules, but it has its share of quirky ideas and preferences. Over the years, New Hampshire has voted for more than a few candidates who've gone on to victory, but its primary voters also endorsed Harold Stassen, Ed Muskie, Henry Cabot Lodge, Paul Tsongas, and Gary Hart, a collection of local favorites, neighbors, and soon-to-implode wannabes. Iowa and New Hampshire are, to be sure, part of America, but they aren't all of America or a microcosm of America by any stretch of the imagination. The conceit among a group of cognoscenti over the years - and, in truth, not over very many years by historical standards (1968 for New Hampshire and 1972 for Iowa, really) - is that the rest of the nation can pretty well take the leaders selected by these states on faith, trusting that they've done the hard work of looking the candidates over and selecting the best. But "best" for one isn't best for all, and there is plenty of evidence that Iowans and New Hampshirites can favor people the rest of us might not like nearly so much. Look, for example, at the Republican side of these tests. Few Americans care so much as Iowa's Republican caucus-goers who's closer to the fundamentalist position on a set of quasi-religious issues. While many Republicans want to keep taxes low, few have made a fetish of this the way New Hampshire's GOP has. Most Republicans across the nation place greater emphasis on selecting someone who has demonstrated he can be trusted in a crisis, who has sound values on what government can do well and on what individual[...]

Can Hillary Solve Her Bill Problem?

Fri, 21 Dec 2007 06:42:45 -0600

But the crowds aren't there for Hillary. And, unlike Oprah's stumping for Barack Obama, it's not clear that the ex-President's goal is wholly to make the crowds into Hillary supporters. Perhaps fitting for a marriage that has raised its share of questions about embraces, Bill hasn't completely embraced Hillary's positions just as Hillary hasn't fully embraced his. The goal from her side is to make it look like Hillary is the rightful heir to anything the public likes about Bill. From his side, the goal is part resurrection, part preservation, part transformation, and a lot of just enjoying the spotlight and living in the moment. Right now, Bill's side is ahead on points. ***** Bill has certainly succeeded in getting attention. He made headlines by complaining that the news media were too hard on Hillary, holding her to a higher standard than other candidates. He caused ripples with his observation that Obama would be a risky choice and made waves by saying that he'd sit in on Cabinet meetings in a new Clinton administration only if Hillary wanted him to - and intervene in decisions only if he thought she wasn't doing things right. And he raised eyebrows with his suggestion that Hillary's first presidential priority would be to send him and his good friend, former President George H.W. Bush, on a goodwill tour around the world to repair America's tattered reputation and send the message that we're "open for business" again. As he has throughout his life, Bill is going with what works for him. His first concern remains his own image and his own legacy. He parses words carefully, at times microscopically - which is how the word "Clintonian" came into our lexicon - but just as often Bill doesn't seem willing or able to control himself, whether the control is over what he says or what he does. There's always a sense of thrill-seeking, of enjoying flirting with danger, and of being on the star of a high wire act performing without a net. The assertion that Hillary's "number one priority" would be sending the 41st and 42d Presidents around the world to fix the damage done by the 43d President can't have been something that he thought about before saying. Not only does it defy reality to think that this would be Hillary's main concern; it also defies belief that President George W. Bush's father would let himself be used in such an obvious and open slap at his son's foreign policy. The news stories garnered the predictable reaction from President Bush 41: he's proud of his son, proud of his son's foreign policy, and proud of what his son has done as President. It was, in effect, as thorough a slap-down as the gentlemanly Texan can deliver. Bill's comments remind people of his reckless side. He does a lot that gratifies his need for attention from audiences and from the press - neither are things Hillary wants voters to remember. ***** Bill's most telling unscripted comment may have been his response to Barbara Walters' question about the thinking behind Hillary's run for the White House. He started by reflecting on the (unfortunately, in his view) foreclosed possibility of a third term for himself. The message was clear: that would have been the best choice, but if he couldn't have that, then having his wife as President was a good second choice. Like Vladimir Putin having his hand-picked successor as President and himself as Premier. But would this really be Bill's third term? Hillary isn't Bill. She may have some of the same issues respecting honesty and candor, but she doesn't have his charm, to be sure. That's why on the eve of the Iowa caucuses her campaign has launched another effort to show her warm and fuzzy side, the "Hillary I Know" tour of friends and relatives, the planned tear-shedding, the appearances designed to make her look like the cookie baker she so adamantly denied being when Bill first ran for President. More to the point, it's not just thei[...]

Sandy Berger and the Real Hillary Clinton

Thu, 18 Oct 2007 09:30:05 -0600

Voters still want to know if a candidate shares their views and values, if he seems like "one of us," and if he - or she - is likely to respond to a crisis in a way that gives us comfort in his or her leadership. Those are more matters of gut instinct than analysis. In today's scripted and staged political world, it's especially difficult for voters to get a fix on the character issues they care about. When a misguided comment or look can de-rail a candidacy, it's no surprise that an entire profession now exists to coif, dress, coach, and produce the candidates' appearances, as well as to tell us afterward what we saw and heard and what to make of it. But sometimes, you can still see a glimpse of who the candidates really are. **********According to reports in Newsweek, The Washington Post, and other liberal news media not commonly associated with a "vast right wing conspiracy," Hillary Clinton has selected a team of national security advisers led by the "triumvirate" of Madeline Albright, Richard Holbrooke, and Sandy Berger. All three were prominent members of Bill Clinton's national security team when he was president. Ms. Albright was President Clinton's Secretary of State. Mr. Holbrooke was U.S. Ambassador to the United Nations. And Mr. Berger was President Clinton's National Security Advisor. While conservatives generally give them negative reviews, all three have substantial experience, close ties to the senator and her husband, and are exactly the sort of "old hands" who become key insiders in a campaign. Except for one small detail. Sandy Berger isn't just a former National Security Advisor - he's also the only National Security Advisor in U.S. history to be convicted after stealing and destroying classified documents. For those who missed the story, Berger was President Clinton's designated representative to the 9/11 Commission investigating intelligence-gathering and analysis preceding the terrorist attacks that took the lives of 3,000 innocents on American soil, by far the worst such attack in our history. As President Clinton's representative, Berger was granted access to specially classified material in the National Archives relating to the handling of information respecting the threat from al Qaeda and the Clinton Administration's response in preparation for his testimony before the 9/11 Commission. Berger willfully removed classified material, hiding documents first in his pants and then under a construction trailer, destroyed them, and lied to officials investigating the theft. We'll never know just what information Berger destroyed. The only people who know aren't likely to talk - after all, they wanted the information destroyed. The 9/11 Commission did not know of Berger's theft and destruction of classified documents when he testified in front of them, trumpeting his former boss's handling of terrorist threats and faulting President Bush for failing to do enough to prevent the attacks. But we do know that, whatever it was that Sandy Berger destroyed, it had to be exceptionally damning for a man of Berger's professional stature to risk disgrace, disbarment, and imprisonment in order to keep it from view. Shockingly, he was able to obtain a relatively lenient plea agreement before most of the truly damning facts about his actions came to light and, when the DC Bar began a proceeding, Berger voluntarily surrendered his license to practice law in order to close down the only remaining avenue of inquiry into what he'd done. For a nation that will live for decades with the legacy of 9/11 and the need to be vigilant in identifying and defending against future attacks, the loss of that information could prove tragic. The missing information could have helped determine what happened in the run-up to 9/11, what went wrong, and what could be done to prevent another 9/11. Sandy Berger plainly cared less about that than he did abo[...]