26 June 2010

Counterinsurgency, part 2

I just read the Rolling Stone piece on Gen. McChrystal.

I didn't see one thing wrong with anything the general or any of his subordinates said.

McChrystal was in no way portrayed as insubordinate to his commander-in-chief. In June 2009, Defense Secretary Gates ordered a top-down review of the military's Afghanistan policy. McChrystal responded with a stark, jarring report, recommending that 40,000 troops be added. Obama was reportedly annoyed by McChrystal's analysis -- and apparently thought McChrystal might have been trying to show him up -- but if that's the case, why did Obama/Gates order the review in the first place?

The story did in fact paint President Obama just like I portrayed him in our recent post of June 24 (before reading the Rolling Stone piece) -- tepid, uncertain, hemming and hawing, the ultimate think-tanker -- believing a pullout to be unwise but never fully buying into the counterinsurgency. When McChrystal requested 40,000 additional troops, Obama gave him 21,000.

What precisely are we doing in Afghanistan? The story correctly that al Qaeda has shifted their operations into Pakistan -- where the terrain is equally rugged, the government is a more reluctant partner and the populace is considerably more anti-American. The elements of the Taliban remaining in Afghanistan are much less dangerous to American security than the al Qaeda operatives still roaming the Pakistani mountains.

When one realizes that the Afghani Taliban, the Pakistani Taliban and al Qaeda are three completely separate entities, that complicates the American mission in Afghanistan further.

There really are no good answers. The more I think about Afghanistan, the more complicated it gets.

Back to McChrystal.

I've changed my tune. I'm upset that he was forced out. While David Petraeus is probably the greatest general of his era, isn't the military stronger with McChrystal in Afghanistan and Petraeus at CENTCOM? McChrystal was in no way insubordinate to his commander-in-chief in the Rolling Stone piece, and if anything, the piece left me with the impression that if the counterinsurgency strategy truly is the way to go, McChrystal is without a doubt the man to lead it.

The counterinsurgency strategy is, at its core, really about winning the support of the Afghan people, just like was done in Iraq. But as we noted, Afghanistan is an entirely different animal.

Now -- many liberals like to shriek "Vietnam" like a bunch of granola-munching late-60s hipsters. Get it through your thick heads: Afghanistan is not Vietnam. Afghanistan was the base for the most catastrophic attack on the American homeland in history. Their government provided the only state-sponsored safe harbor to al Qaeda. We haven't lost 60,000 troops. The enemy is less destructive and less numerous than the Viet Cong. And American support for the war still remains reasonably high.

But what the Rolling Stone piece did do was crystallize a number of serious doubts about our strategy in Afghanistan and whether victory is actually plausible under the current framework. It demonstrated that -- as we noted two days ago -- 8 1/2 years after launching the offensive, we are only incrementally closer to handing over security to the Afghans.

At the current rate, we will likely be another 5-10% closer to our ultimate goal of Afghan control by the targeted pullout date in 2011. U.S. casualties will remain high, but unlike in Vietnam, clear progress will be apparent. The U.S. military will be a wonderfully efficient force in building highways, schools and hospitals. The attitude of the populace will improve -- and I know these things because they all happened in Iraq. The problem is that, at the current rate, the end goal is probably seven to ten years away. Can we sustain this? Do we want to? Realistically, can America become a true occupier?

The whole thing is incredibly discouraging.

24 June 2010

Counterinsurgency in Afghanistan?

As much as I respected Gen. McChrystal, I had no problem with President Obama removing him from command and replacing him with Gen. David Petraeus. The fact that a Rolling Stone columnist managed to gain access to such high-level sources raises significant questions about whether McChrystal had a tight enough grip on the operation.

Now, Petraeus will take over. He was the undisputed star of Woodward's "The War Within," detailing the Bush administration's deliberate effort to re-tool their efforts in the Iraq War, and, in the face of criticism from both sides of the aisle, pursue a counterinsurgency strategy that has put the United States on the precipice of victory.

In Afghanistan, I have two big concerns moving forward.

First, Petraeus' rightfully vaunted counterinsurgency strategy worked like a dream in Iraq. But can it work in Afghanistan? In light of McChrystal's exit, this is a very important discussion to have. While I supported the troop surge in both countries, and give the president credit for standing up to his anti-war base, there are legitimate criticisms -- from rock-ribbed conservatives like George Will and thoughtful middle-of-the-roaders like Andrew Sullivan -- as to whether Petraeus' feat in Iraq can be duplicated in Afghanistan. Iraq is much more modern, has significant urban areas where most of the population is centered (e.g., Baghdad and Tikrit) and (with the exception of the Kurds in northwest Iraq) does not have a history of tribal leadership, but rather of strong central governance. In Iraq, American soldiers -- for better or for worse -- helped rebuild the country's declining infrastructure -- roads, schools, hospitals, etc. Baghdad is now a thriving center of commerce, thanks in large part to the nation-building done by the U.S. military.

Afghanistan is much the opposite. There is little infrastructure even in place. Kabul and Kandahar are modestly sized cities, but not urban. Much of the Afghani population lives outside of the major cities, and for centuries -- perhaps millennia -- warlords, drug kingpins and various local tribal leaders have reigned supreme. Afghanistan does not have a history of a strong central government -- in fact, much the opposite. While Saddam Hussein was a tyrant, the newly minted Iraqi officials circa 2004 had a governmental blueprint -- police, personnel, a warchest, regulations, procedures, etc. The largest standing army Afghanistan has ever had is no larger than 90,000 troops. And unlike Iraq -- where the battles were fought in the city streets -- the battles in Afghanistan against al Qaeda are fought in the must rugged areas of the world.

The objective, ultimately, is to transfer responsibility to the Afghani military and police forces such that it is their job to keep al Qaeda at bay. Can this be done? I think we all agree that the United States can't be in Afghanistan acting as the police force, and continue to sustain casualties, for another 10 or 15 years. At some point, the U.S. will be viewed as an occupier, muddling through nation building exercises in a country that has really never had such a blueprint to work from. This isn't to criticize the military leadership, but rather point out the vast differences between Iraq and Afghanistan.

The goal must be realized somehow. If the Taliban regains power, a second 9/11 is not only possible, but likely. I'm just not sure this objective is even realistic. What bothers me is that we have been in Afghanistan since October 2001, and today in June 2010, no one is under the delusion that the Afghan government is ready to take over security responsibilities from U.S. forces. In light of the president's curious target date of October 2011 for a phased withdrawal of troops, isn't it a bit unrealistic to expect the Afghan government to do in 18 months what it hasn't been able to do for 8 1/2 years?

And conservatives, please spare me the "cut and run" rhetoric of Sarah Palin. This was relevant in Iraq, but for the reasons listed above, Afghanistan is an entirely different animal.

Whether this war is actually winnable in a reasonable timeframe -- keeping in mind mounting casualties, widespread corruption in the Afghan government, issues between Karzai and the U.S., and the looming threat of Iran -- is a legitimate question.

My position is that yes, the war is winnable, but we need a more solid partner than Karzai, who is laughably corrupt and quite possibly mentally unstable. If he is unable to lead his country toward a fully functional Afghan security force, then the U.S. needs to displace him with someone who can. I have a complete lack of confidence in Karzai's willingness and abilities to deal with the pro-Taliban forces both in his own government and in his country's more remote regions where the enemy still lurks. I personally don't care that Karzai was democratically elected -- in fact, virtually the entire world believes there was voter fraud that took place, so whether he is actually a legitimate leader or just a stooge is debatable -- American interests are at a breaking point in Afghanistan, and if Karzai can't reach the bar, he must be displaced -- democracy be damned (see a prior post on this topic).

Secondly, the Afghanistan problem causes me to lose even more confidence in President Obama. On Hardball last night, Howard Fineman described the chain of command in the Obama administration as "a floating craps game." While the national security adviser has traditionally been the link between the generals in the field, the Department of Defense leadership and the president, Jim Jones is widely believed to be absent from the loop. This is a shame, as Jones is a highly decorated career military man who was a brilliant pick for NSA in the first place. The fact that he doesn't have Obama's ear is very discouraging. Who is dictating policy? Is it Hillary Clinton at State? Is it Bob Gates at Defense? Or is it Joe Biden? Reportedly, Biden is in favor of an accelerated withdrawal, while Clinton and Gates (and presumably Jones) favor a beefed up counterinsurgency campaign. Biden has reportedly been marginalized in Cabinet meetings, but the bottom line is that even many insiders aren't quite sure who is ultimately calling the shots.

Given that the man at the top -- Obama -- has next to zero foreign policy experience, this is even more alarming.

What Fineman and Chris Matthews spoke of last night was a lack of some sort of chain of command, where the leaders on the ground in Afghanistan know they can go for policy decisions and the like. As Matthews astutely noted, the administration's tepid response to the oil spill in the gulf can be compared to the McChrystal situation (where the commanding general on the ground reportedly called the NSA chief a "clown") -- and a conclusion can reasonably be drawn that no one knows who's in charge.

Say what you will about President Bush, but has a chain of command ever been more clear?

Furthermore, isn't it bothersome that the president mandated a troop surge, but wants to begin withdrawing troops within 18 months?

This is bothersome to me as we enter perhaps the most critical period of the war in Afghanistan. Whether he likes it or not, Afghanistan might be the most crucial issue of Barack Obama's presidency. Split-the-baby decisions do not good leaders make. Is the president content to find nuanced (read: confusing) positions on issues of enormous import (much as he did with the terrible healthcare bill where he expanded Medicaid rolls and imposed regulations on insurance companies, but jettisoned the public option, managing to piss off everyone) just to please?

Obama in this way is very much like Bush, I believe -- there is a danger in having a president walk into the Oval Office knowing almost next to nothing about foreign policy. Bush was susceptible to the neocon forces in his administration -- Cheney and Wolfowitz, et al. -- but Obama is a rudderless blank slate who doesn't appear to be fully committed to this surge. In fact, the only thing he appears truly committed to is his professorial method of so-called leadership.

He needs to take charge. Furthermore, he needs to demonstrate to Karzai that American interests will not be compromised by a timeline.

To this point, the president's atrocious style of leadership is wearing thin, and he needs to decide whether the country will indeed be worse off in 2012 because of it.

This is why you don't elect an inexperienced, first-term, back-benching liberal senator with no significant legislative accomplishments president of the United States.

Because he doesn't know how to lead.

17 June 2010

The problem with democracy

It was the stated policy of the Bush administration, and ostensibly, is now the policy of the Obama administration, to spread democracy the world over. This has perhaps been best embodied by the Bush administration's invasion of Iraq, when, after WMDs were nowhere to be found, the president justified his actions by touting that a new democracy had sprung up amongst neighbors who are anything but democratic.

Truth be told, this is a noble goal. And I certainly don't fault President Bush for pursuing it as a measure of foreign policy, especially when the idea of dictatorship is so patently antithetical to the idea of freedom and the rights we Americans believe all world citizens enjoy.

But democracy has its consequences -- especially in the Middle East. In Iraq, the popular, radical Sunni cleric Mudtaqa al-Sadr gave the Bush administration fits and ordered "fatwas" killing hundreds of innocent Iraqis (not to mention American servicemen). In Afghanistan, the "democratically elected" Hamid Karzai threatened to join the Taliban and continues to run perhaps the most corrupt government in the world. And in Gaza, the Palestinians went to the polls and elected the members of Hamas -- a legitimate terrorist organization -- to be their ruling party. As a result of this decision, the Israeli army promptly initiated a blockade of the Palestinian settlements in Gaza.

Democracy has consequences. Many technically democratically elected leaders -- Hamas, Iran's Ahmadenijad and Belarus' Lukashenka, among others, aren't even recognized diplomatically by the United States. On the other hand, the U.S. is quite friendly with a number of full-on dictatorships, most critically the ruling class in Saudi Arabia. Saudi Arabia is a Muslim theocracy. Palestinians in Gaza, on the other hand, have legitimately chosen Hamas to lead them after free and fair elections.

Such is the problem with making the "spread of democracy" a pillar of foreign policy. I am not necessarily opposed to the spread of democracy as an ideal, and believe that America retains its glow as the shining city on the hill -- the world's greatest democracy.

But we must be ever mindful of what can happen when individuals with very different interests, and in very different parts of the world, choose their leaders.

13 June 2010

The downward spiral

I just returned to the Midwest from a weeklong vacation in Destin, Florida. The BP oil spill made it within 30 miles of Destin -- to the beaches in Pensacola, west of us -- but never reached shore. It was a beautiful vacation and the beaches, world-class.

During my vacation, the White House press corps -- fresh off their games of grab-ass with Rahm Emanuel and the Bidens -- paid enough attention to their journalistic responsibilities to illuminate the fact that despite the passage of nearly eight weeks since the spill began, President Obama still has not spoken with Tony Hayward, the CEO of BP. Yes, BP possesses the technology to cap the spill, but they are effectively a government contractor serving at the pleasure of the United States government, and this is the biggest environmental disaster in American history. After press secretary Robert Gibbs protested to the press corps that Hayward isn't necessarily the one in charge of day-to-day operations and such is the responsibility of the Board of Directors, NBC's Chip Reid first pointed out that Gibbs clearly has no clue about corporate governance, and second, asked Gibbs whether, alternatively, Obama has spoken with any members of BP's Board.

Gibbs of course said no, he hadn't.

Americans want leadership from their president. If Obama really wanted to make a difference, he'd be on the phone with Hayward daily and members of the Board weekly, and eight weeks in, he'd be launching full-scale criminal proceedings against BP's officers and directors. It was nothing short of gross negligence that caused this catastrophe, and if BP -- the entity solely responsible for the spill and the one who bears the responsibility for cleaning it up -- can't figure out a solution, then it's the job of the executive branch to break out the proverbial sticks until they do. BP is a multi-squillion-dollar company, which has reaped record profits year after year by engaging in risky behavior. They must be held accountable. If Obama can't make them accountable, then he shouldn't be president.

Furthermore, why have each of the Gulf state governors, to a man, said that they have inadequate amounts of boom and skimming vessels? Governor Riley of Alabama specifically noted on Face the Nation this morning that it's difficult for even him to determine who exactly is in charge of the cleanup portion of the spill.

This is precisely why we so heartily supported John McCain for president in 2008. Yes, he's temperamental, and yes, he enjoys kicking his base in the teeth, but McCain is a leader with a proven track record of accomplishments and an uncanny instinct for the right cause. From campaign finance to balanced budgets to pork barrel spending to the Gang of 14 to the Iraq surge, McCain is a tireless advocate for that which is right, and a crusader against that which the likes of the back-benching Obama have come to represent.

Say what you will about President Bush -- and here, we have said a lot -- but he always led from the front. On the stimulus package, on Gitmo, on health care, on budgets, and yes, now on the oil spill response, Obama has proven himself time and again as aloof and reactionary. The crucible of the American presidency has shown us plenty about Barack Obama -- namely, that he isn't a leader.

As Chris Matthews astutely noted a few weeks ago, Obama acts like the liberal Democratic senator from Illinois, and not the President of the United States. This is precisely what we warned about two years ago. What in this man's past indicated to anyone that he would be an effective chief executive?

31 May 2010

Happy Memorial Day: Israel kills 19

A few observations:

First: The ship was delivering humanitarian aid to Gaza and carried not a single firearm. It did not fire on the Israeli forces and the civilians onboard only fought back with hand-crafted weapons after the Israelis boarded and attempted to commandeer the ship.

Second: The ship was in international waters. Israel has no more claim of right to international waters than I do.

Third: Can you imagine the outrage if the Iranians had boarded a ship in international waters and killed 19 civilians?

Fourth: What did we write several weeks ago? If Israel's most critical objective was beating back the Iranian threat, this takes them in the complete opposite direction with their would-be allies in the Middle East. Turkey, Egypt and Jordan have all pulled their ambassadors from Israel. Their objective is hegemony. Period.

Fifth: How would we react if there was an American among the dead? Just wondering.

Sixth: President Obama is, coincidentally, scheduled to meet with Israeli Prime Minister Benjamin Netanyahu tomorrow. This will be a test for Obama's presidency -- will he capitulate to the Kristol/Lieberman/AIPAC forces, or will he make it clear to Netanyahu that such conduct is inhumane, unacceptable and a violation of international law? I hate to take a cheap shot at the president on Memorial Day, but after 16 months of observing Obama, I can't imagine he has the stomach for doing anything outside the box.

Finally: I made my way over to Right Wing News to check out "conservative" reaction to the flotilla attack. (I use parentheses because I'm not sure how reflexive support for anything and everything Israel does makes you Burkean.) They cited reaction from Firedoglike, Daily Kos and others, which was unsurprisingly critical of Israel's attack, and drew the conclusion that such liberals were merely "Jew haters." Seriously. To the folks at RWN, that is precisely why liberals have the gall to criticize Israel -- not because of what Israel actually does, but because they are anti-Zionists in the mold of Iran's Ahmadenijad. For the longest time, that was a classic left-wing trick -- call your opponent names and impugn his motives, so you don't have to argue facts. Now the shoe is on the other foot. I criticize Israel today for the same reason I'd criticize Yemen or Turkey or France or Indonesia. Israel is a strong ally and I hope it stays that way. But that doesn't mean the Israeli government gets to do anything they want -- just like Britain, Germany and every other ally we have, they are subject to international law, and when our interests and theirs diverge, or when their actions don't comport with international law, they deserve rebuke. Period. I take this view because I'm an American whose only loyalties lie with the United States. It's not because I'm a "Jew hater." I mean, this stuff is just absurd.

But the most critical point: The ship was in international waters! In. International. Waters. I'd ask my conservative friends: What are the limits of Israel's sovereignty, if any, if it is allowed to do whatever it wants in international waters?

28 May 2010

Obama's Katrina

Next to Ross Douthat, Peggy Noonan is the best columnist in America. She takes the Obama administration's detachment to task, making the obvious comparison to Katrina, and views the administration's tepid response to the crisis in the Gulf in the larger context of the conservative belief system: When you ask the government to do too many things, it will do none of them well.

What I appreciate about Noonan is that she is authentically, quintessentially American -- she criticizes Obama while not rooting against him. She has no trouble pointing out, as many conservatives seemingly forget, that it is a disaster, in and of itself, to have an American president so publicly weakened by a crisis.

Remember how Bush infamously was heard saying, "Heckuva job, Brownie" to his FEMA chief? It's difficult to see Obama's attendance at a fundraiser for California Sen. Barbara Boxer a week ago, as anything but a reprise of that laughably contemptible detachment. Additionally, Obama's EPA chief somehow found time to attend a fundraiser of his own in New York. The president has made exactly one trip down to the Gulf.

As Noonan points out, Katrina crystallized everything that was wrong with the Bush administration in the public's eyes -- the budget surplus blown to hell, the mismanagement of two wars, the missing WMDs, the perceived incompetence in governing, the skyrocketing debt. The oil spill aggregates the same about Obama's team -- the detachment, the secrecy, the health care debacle, the spending, the blatant, utter hypocrisy in too many areas to count. I don't doubt the president is deeply concerned about the oil spill. But his nonchalant, aloof response is inviting an enormous backlash. He must convince Americans he is passionate about something other than spending their money or lecturing them.

As if the biggest 15-month slide in the 70-year history of public opinion polling wasn't bad enough, the oil spill casts even more of a pall on his increasingly unlikely prospects for re-election.

27 May 2010

The line-item veto, resurrected?

I'm still not sure whether to take Obama's 2008 campaign pledge that he wants to cut the deficit in half seriously. But he deserves a great deal of credit for trying this.

The Supreme Court declared the Line Item Veto Act -- a joint effort by Senate Republicans, led by John McCain, and the Clinton White House -- unconstitutional in 1998. Obama is now seeking "expanded rescission authority,"which wouild allow the president to propose a package of cuts to recently signed spending measures, and force Congress to make an up-or-down vote on those measures. If those cuts are approved by both chambers, they become law. This circumvents the inherent constitutional problem with the line-item veto -- that the president, under the old law, would have essentially been writing spending laws himself.

Yes, the stimulus was an enormous waste of money, and yes, Obama has been just as bad, if not worse, than Bush when it comes to fiscal discipline. Additionally, this proposal doesn't go far enough, as it leaves entitlement spending untouched. But this is an encouraging step in the right direction, and something that no one in the last (allegedly) conservative administration thought of.

This is something Republicans should -- no, have to -- get behind. There is no compelling reason whatsoever to vote against this.

19 May 2010

The end of the line for Snarlin' Arlen

Entering his fourth decade in the Senate, Democrat-turned-Republican-turned-Democrat-again Arlen Specter was finally ousted last night by liberal primary challenger Joe Sestak.

At one time -- in the not-so-distant past -- Specter was an increasingly rare breed of politician: A legitimate centrist and principled, independent thinker who gave leadership fits and drew the wrath of the bases of both parties. He was one of the first Republicans to publicly criticize President Bush, drawing the ire of conservatives everywhere. His pseudo-small government mindset and support for the Afghanistan and Iraq wars made him deeply unpopular with the Democratic base, who turned out in droves to support Sestak last night.

Specter switched parties last year because of a primary challenger from the right, former Club for Growth President Pat Toomey -- a true-blue conservative. As Toomey's stock rose, GOP leadership avoided giving Specter much support due to his questionable conservative credentials. This obviously was the sole factor informing Specter's decision to become a Democrat in April 2009. Our thoughts at the time can be found here.

After the dust settles, Arlen Specter will undoubtedly be remembered as a tremendous public servant with a distinguished record of independence. However, in the late stages of his career, he became a lap dog for the Obama administration, folding like a tent and voting with the Democrats on virtually every major item of import in an effort to curry favor with party leadership and generate support from the party's liberal base. In an effort to save his career, he compromised his once-legendary independent principles and became a caricature of what's gone so terribly wrong in Washington.

Chris Matthews said it best last night: A politician who changes parties to get re-elected is like the guy who put on a dress to get a seat in a lifeboat.

The Arlen Specter of 1995 was a true original, and an invaluable part of a Senate that requires compromise and civility.

But Americans have no use for the Arlen Specter of 2010.

13 May 2010

More on Kagan

Republicans have a chance to do serious damage to the Obama administration in the upcoming confirmation hearings. Elana Kagan, while I'm sure a nice lady, should be viewed through the same crony-colored glasses as Harriet Miers.

What is Kagan if not an Obama crony? At least Miers was an experienced litigator. I'd venture a guess that I've seen the inside of a courtroom more than Kagan, and I've been practicing law for about 7 months.

We pointed out Tuesday that Kagan hasn't ever -- from the bench, in courtrooms, in the classroom, in scholarly journals, in public speeches or even private conversations -- given anyone an idea of her opinions on any meaningful constitutional issue. What's equally troubling is that we don't know how Kagan thinks of these things. As David Brooks astutely noted, her almost nonexistent scholarly record, plus the paucity of any public statements about anything meaningful, viewed in the context of her lifelong goal to be a Supreme Court justice, indicates a woman who has purposefully and meticulously avoided being tied to any sort of position. She's a blank slate, and that's by design.

And that makes these confirmation hearings all the more important. For the first time in my adult life, we have a nominee who we actually need to learn something from in order to determine whether she is qualified.

The nomination can be skewed another way: Remember when Obama said his next appointee's chief qualification should be "life experience"? By this standard alone, Kagan utterly fails. This is a woman who hails from a well-to-do family in New York's Upper West Side. She obtained her undergraduate degree from Princeton, her law degree from Harvard, taught at the University of Chicago with Obama, and then found a spot in the Clinton White House. After Clinton left office, she returned to Harvard Law, where she became dean. Life experience, Mr. President? In what? Elite liberal institutions?

Obama's standard was unquestionably met by Sotomayor, but Kagan is a different story entirely. This is a woman who has lived a life of incomprehensible privilege, who has stealthily moved her way up the institutional ladder by -- wait for it -- obfuscating her actual views.

What concerns me is not so much that I don't know what Kagan thinks, but rather that I don't know how she thinks, why she thinks the way she does, and most importantly, why she has so carefully avoided letting the public know things for the better part of two decades as she carefully put herself in position for this moment.

Back to the GOP: We will no doubt hear a lot of white noise about Kagan's supposed devotion to the gay rights cause. Frankly, other than the military recruitment episode at Harvard -- which, right or wrong, was echoed by literally thousands of other administrators nationwide -- I can't find a single shred of evidence supporting this charge. This is simple cultural resentment at its most debase. I've read a few too many comments from leading conservatives suggesting that she is an LGBT advocate in sheep's clothing.

Furthermore, the LGBT debate is a red herring. Let's attack the president based purely on his political failure here. Obama has utterly failed by his own standards, enunciated just months ago. He has appointed a career opportunist who has gotten where she is by intentionally taking the path of least resistance and keeping her views shrounded. Conservatives need to go after Kagan for the right reasons.

There's a pattern here.

Cabinet-level appointees who don't pay taxes. Shattering supposedly ironclad ethics rules. Breaking every conceivable campaign promise about bipartisanship. Snarky swipes at the other side during the State of the Union. And now appointing someone like Elana Kagan.

Change, indeed.

11 May 2010

Kagan reaction

Like my reaction to President Obama's Sotomayor pick, I had little or no initial reaction to his pick of Elena Kagan to replace John Paul Stevens.

I've changed my mind.

Sotomayor had a strikingly similar resume to Sam Alito -- a 15-year tenure as an appeals court judge, with really one case (Alito's was the 1992 Casey abortion decision in which he dissented at the appeals level and was struck down by a plurality of the High Court; Sotomayor's was the recent affirmative action/reverse discrimination decision on which she was reversed unanimously) sullying what was otherwise an impressive, thoughtful career on the bench. Both Sotomayor and Alito were derided as extremist shills by the other side, a charge that was true in neither case. In actuality, both were eminently qualified for the Supreme Court. To say either is outside the mainstream of American thought was absurd.

Kagan is different. She seems like a nice woman and an able administrator, but one look at her scant record brings Harriet Miers to mind immediately.

She doesn't have prior judicial experience, which isn't itself a disqualification -- Ted Olson didn't, and was eminently qualified anyway (he was passed over for first Roberts and then Alito). But unlike Olson (and former Chief Justice Rehnquist, who was the last appointee without bench experience) her courtroom resume is paper-thin. She has argued a grand total of 6 cases to the Supreme Court as the administration's solicitor general. Before that, she was dean of the Harvard Law School, served in the Clinton White House Counsel's office (coincidentally, the office Miers ran under Bush from 2005 forward) and was a colleague of Obama's at the University of Chicago. It appears she's not much of a litigator.

Additionally, it doesn't appear that she's given much if any thought to any constitutional questions of any import. She has written a total of five scholarly articles in her career, most of which dealt with technical/procedural matters. After publicly decrying judicial appointees for not making their views clear during the appointment process, this is a woman who has clearly and carefully avoided creating any sort of a paper trail. Much like David Souter in 1990, Kagan is a complete blank slate. The administration has touted her academic record as her primary credential for the Court, but she really doesn't have much of a record. She is much more an administrator than a scholar.

This isn't to say she'll be a bad justice. It seems that she possesses many admirable qualities -- intelligence, thoughtfulness, judiciousness and a friendliness toward those with whom she disagrees (she and Justice Scalia are friends). These are all necessary qualities for a judge at any level. But as many have noted, the administration is asking Americans to trust its judgment, much like President Bush did when nominating Miers in 2005. Frankly, that's insulting coming from a president whose approval ratings have plummeted at a historical rate and who has backtracked on virtually everything he originally campaigned for.

Harriet Miers was both nominated by the administration and then opposed by virtually everyone in Washington because she was a Bush crony. The same ties that we saw five years ago are there now.

Obama picked Kagan because he is trying to avoid a fight -- because she was approved as solicitor general a year ago, he must be figuring that the Democrats won't break ranks now. But I'm trying to figure out what Kagan has actually done to earn the nomination.