Supporting Israeli Survival While Opposing Israeli Actions

The Israeli raid on relief supplies going to Gaza was certainly a bad move, both on humanitarian grounds and in terms of public relations. It is a shame that so many people are framing the events in Israel and Gaza as being for or against Israel. It is It is possible to understand why Israel has gone to extreme measures,seeing its survival at stake, and to support Israel’s survival, while still opposing some of Israel’s actions.

Supporting Israel”s safety and continued existence is like supporting the United States in defending ourselves against terrorism while also opposing the Iraq War. During the war the question wasn’t one of being for or against the United States (even if many right wingers tried to frame it this way).

Just as American liberals opposed George Bush’s acts in the so-called “war on terror” while still supporting the United States, many American liberals also support Israel while opposing many of its actions, especially when led by those on the far right such as Benjamin Netanyahu.

While written before the current incident, Ezra Klein had an excellent post earlier in the month on The Conflict Between Zionism and Liberalism which was motivated by a response to Peter Beinart’s recent essay in The New York Review of Books. Klein wrote:

This disagreement often falls across generational lines. As Beinart says, young Jews do not remember Egypt, Jordan, Syria, Iraq, Saudi Arabia, Kuwait and Algeria massing forces in the run-up to the Six-Day War. They do not remember a coalition of Arab forces streaming across the Sinai on Yom Kippur in order to catch the Jewish state by surprise. Their understanding of Israel was not forged watching the weak and threatened state improbably repel the attacks of potent adversaries.

The absence of such definitional memories has contributed to a new analysis of the Israeli situation. Today, Israel is far, far, far more militarily powerful than any of its assailants. None of the region’s armies would dare face the Jewish state on the battlefield, and in the event that they tried, they would be slaughtered. Further stacking the deck is America’s steadfast support of Israel. Any serious threat would trigger an immediate defense by the most powerful army the world has ever known. In effect, Israel’s not only the strongest power in the region, but it has the Justice League on speed dial.

That is not to say that the Jewish state is not under threat. Conventional attacks pose no danger, but one terrorist group with one nuclear weapon and one good plan could do horrible damage to the small, dense country. That threat, however, is fundamentally a danger born of the Arab world’s hatred of Israel. It follows, then, that hastening the peace that will begin to ease that hatred makes Israel safer. Exacerbating the tensions that feed it, conversely, only makes the threat more severe.

And to many of us, it looks like Israel is making the threat more severe. Its decision to pummel the city of Gaza from the air in a misguided attempt to punish Hamas. The ascension of Avigdor Lieberman and the return of Benjamin Netanyahu. Neither an overwhelming assault certain to kill many Arab civilians or a political movement that seeks to disenfranchise Israeli Arabs — whose respected position in Israeli politics has long been a point of pride for Jews — seems likely to begin the long process required to get back to the place where peace is conceivable…

But Israel has to walk with care. Previous generations might have believed in “Israel, right or wrong.” Their replacements may not be as willing to sacrifice moral perspective in service of tribal allegiance. And much more importantly than that, every day that relations with the Arab world don’t improve — or, more to the point, continue to worsen — is another day that Israel remains under threat. For those of us who worry about the state’s safety and believe the primary threat is terrorism combined with more potent weaponry, the continuation of current trends is a terrifying thought.

The Israeli right wing has to learn how their actions are counterproductive to the long term security of their country–much like the actions of the American right wing are counterproductive to our long term security.

Peggy Noonan’s New Criteria For Presidential Competence

I’m never sure what to think of Peggy Noonan. Sometimes she sounds more rational than the typical conservative columnist writing for The Wall Street Journal. Other times she comes up with nonsense like in today’s column bashing Obama over the BP oil spill. Naturally many conservative sites are lapping it up as it attacks Obama.

It is amusing to see writers who normally claim that the role of the federal government should be limited to the functions specifically listed in the Constitution now arguing that the ability to handle an oil spill is the way to measure a president’s competence. The same bloggers who whine that health care is not listed in the Constitution don’t care that oil spills are not mentioned either. Of course they are totally oblivious to how Republican deregulation and hiring of political cronies and industry shills as opposed to competent regulators  contributed to this disaster as I noted yesterday.

If Noonan is going to judge the success of Obama’s presidency based upon this oil spill then she needs to review her own view after Katrina. Blue Texan provides this comparison:

Nooners, today.

I don’t see how the president’s position and popularity can survive the oil spill.

Nooners, after Katrina.

Is the Bush Era over? No, no, no. It has three more years. That’s a long time. History turns on a dime. There is much ahead, and potential for progress.

Andrew Sullivan has an excellent rebuttal of Noonan’s post:

The premise of Noonan’s moronic column is that the federal government, especially the president, should be capable of ending an oil-pipe rupture owned and operated by private companies, using technology that only deep-sea oil companies deploy or understand. And if such a technical issue is not resolved by government immediately, it reveals paralyzing presidential weakness and the failure of an entire branch of political philosophy. Again: seriously? It’s Obama‘s fault that under Bush and Cheney, government regulation of oil exploration was so poor and corrupt, corner cutting appears to have been routine? And this, Peggy, is what governments do, even when run by crazy-ass liberals. Governments do not dig for oil; they merely regulate those who dig for oil. That the government failed to do so under the previous administration does not seem to me to be proof that this administration has failed. (For a blast of common sense on this, see Clive.)

For Noonan, the American public is concerned only with spending, illegal immigration and the federal government’s inability to stop an oil leak. For Noonan, the steepest downturn since the 1930s never happened. For Noonan, the flaws of the healthcare system – like, er, millions have none – do not exist. For Noonan, the massive debt – almost all of which Obama either inherited or built in the emergency attempt to stabilize a global economy heading into an abyss – is evidence that government does not work and that Obama is incompetent. For Noonan, actual difficult practical tasks most adults understand are complex to grapple with – how to prevent a Second Great Depression, how to police thousands of miles of border, how to stop an oil leak deep in the ocean floor – are easy. Just do it. Or be labeled incompetent and doomed.

This is utterly unrelated to the reality I have witnessed these past two years, or the slow catastrophe of misgovernment that really did unfold in the last ten. Maybe that says as much about my cocoon as Noonan’s. But I doubt it. What I have also learned these past few years is that the right seeks merely a narrative to lead themselves out of the hole they dug for all of us. Reality be damned. The job of the rest of us is to insist that reality matters and that these fools be exposed.

Pete Abel adds two additional points:

1. Yes, there’s an obvious and substantial difference between Katrina and Deepwater Horizon. The first was a natural disaster that required a relief effort tailor-made for government intervention. The second is a man-made debacle, requiring specialized expertise to fix; expertise that apparently no one has, although BP seemingly has more than any other entity. Regardless, the current situation makes me more sympathetic to the Bush administration’s travails with the former situation. Both are complex undertakings and those of us who are not directly involved are too damn quick to judge. At least once, possibly more, I suggested the “incompetent” label for Bush, et. al., in the context of Katrina. Noonan does the same for Obama, et. al., in the context of Deepwater Horizon. Increasingly, I believe both characterizations are unfair.

2. In the midst of the Gulf crisis, the President has performed a Solomonesque move. He has ordered “a suspension of virtually all current and new offshore oil drilling activity pending a comprehensive safety review.” He has also balanced that decision with an unflinching commitment to the fact that we must embrace these ventures until petroleum can be more voluminously replaced as an energy source.

“It has to be part of an overall energy strategy,” Mr. Obama said. “I mean, we’re still years off and some technological breakthroughs away from being able to operate on purely a clean-energy grid. During that time, we’re going to be using oil. And to the extent that we’re using oil, it makes sense for us to develop our oil and natural gas resources here in the United States and not simply rely on imports.”

Given the Republicans’ drill-baby-drill mindset, shouldn’t they be leaping forward to praise this instance of Presidential discretion?

To be clear: I’m not suggesting the GOP should muffle all criticism. To the contrary: Pointed questions — from both sides of the aisle — are appropriate and necesary to the functioning of the Republic, even (especially) in times of crisis. But wrecklessly fanning the flames of criticism — and yes, I believe, Noonan and like-minded Republicans are being wreckless — is irresponsible and potentially detrimental to one of the GOP’s pet positions.

Republicans Ask America For Ideas

The Republicans want to be returned to the majority party but they have one problem which was painfully obvious the last time they were in the majority–they have no rational policies to promote. After all, when you think that everything the government does is bad it is hard to think of things to do when you run the government. To attempt to solve this problem the Republicans set up a web site to ask people what they should do.

Needless to say, there’s a lot of off the wall suggestions. It is certainly possible that some of the off the wall suggestions came from Democrats who just wanted to make the Republicans look ridiculous. While in some cases it is clear a submission isn’t serious, in most cases  actual Republican ideas are so ridiculous that it is  impossible to differentiate between their actual ideas and ideas presented to mock them.

Here’s some examples from the America Speaking Out site:

“End Child Labor Laws,” suggests one helpful participant. “We coddle children too much. They need to spend their youth in the factories.”

“How about if Congress actually do thier job and VET or Usurper in Chief, Obama is NOT a Natural Born Citizen in any way,” recommends another. “That fake so called birth certificate is useless.”

“A ‘teacher’ told my child in class that dolphins were mammals and not fish!” a third complains. “And the same thing about whales! We need TRADITIONAL VALUES in all areas of education. If it swims in the water, it is a FISH. Period! End of Story.”

“Build a castle-style wall along the border, there is plenty of stone laying around about there.” That was in the “national security” section of the new site.

“I say, repeal all the amendments to the Constitution.” (“American prosperity” section.)

“Don’t let the illegals run out of Arizona and hide. . . . I think that we should do something to identify them in case they try to come back over. Like maybe tattoo a big scarlet ‘I’ on their chests — for ‘illegal’!!!” (Filed under “job creation.”)

“Require all Muslims in the U.S. to wear ankle bracelet transponders so we know where the terrorists are at all times.”

“We should administer capital punishment to anyone who has an abortion. In order to cut costs that the death penalty normally entails, we will have lax gun laws that will allow people to obtain guns with greater ease. Then we would allow the “free-market” to dictate whose philosophy wins out – the liberals irrational philosophy or our logical and God following philosophy. Liberals who have abortions would be taken care of by a militia of the willing who will get rid of all liberals who take the life others irrationally and will allow us to remove all of our opponents to life, liberty, and the pursuit of happiness.”

“all leaders should proclaim faith in Jesus Christ. anyone who does not, like muslims and atheists should be removed from office.”

“I’ve noticed lately that America’s birds are getting a little on the small side. The North African Ostrich is the world’s largest and therefore best bird. Why is it that the greatest country on earth doesn’t have the world’s biggest birds? Liberals want our birds to be small because they hate the Constitution. Jews did 9/11.”

“have Jesus turn water into gasoline”

“We need to take the government out of ALL public services. NO GOVERNMENT IN HEALTHCARE. Make it all private sector. Let Blockbuster run the ambulance services. Let Comcast schedule an appointment to put out a fire and tend to the injured. Let AT&T handle the police service (where available). THIS IS AMERICA!”

“Faith-based medicine and healing should be given the same respect as Western allopathic medicine.”

“Bomb any country that messes with us.”

“Simple idea: take the nukes we currently have pointed elsewhere, and aim them at Mecca. Then, announce to the muslim world that if Bin Laden is turned in (or proven beyond a doubt to be dead) within the next two years, we will not fire, will withdraw from all operations in muslim nations, and will pay the person who gives the penultimate tip 100 million dollars. If he is not turned in by then, and another attack is carried out…well, you know.”

“We have to repeal the 14th Amendmant. NONE of the “Bill of Rights” is in the original Constitution, and most of them were passed illegally, so we can show that 14 is UNCONSTITUTIONAL. That is the amendmant that makes “Anchor babies” and grows the illegal problem here in the USA.”

“The only law enforcement powers in the Constitution are given to the Militia – Art 1, Sec. 8, Para. 15 – The Militia is to execute the laws of the union, suppress insurrections, and repel invasions. The flood of illegal aliens is an invasion. Para. 16 requires the Government to arm the Militia. In case you don’t know — the Militia is, by law, Check your State Constitution, every able bodied man between 18 and 50. Certainly not the National Guard. Now, we should consider it to be men and women between 18 and 60. The Constitution requires the government to arm its Citizens so they can defend themselves. We need to tell congress to quit arguing over the 2nd Amendment and do your job.”

“Limit the size of any bill to a single subject that must fit in standard type on two sides of a sheet of legal paper.”

“They should send the Statue of “Liberty” back to France. We dont want your hungry tired poor, sorry! They should stay in France with you and your statue.”

“I should have the right to name my children using numbers. If I want to name my child l33t, I should be able to name him that, darsh gone it. Who is the guberment to say that I can’t name my children using numbers?”

“All naughty children should be baked into a pie.”

“Men should be prohibited from getting themselves off, because that is spilling seed, which is life. And women should be prohibited from menstruating because their eggs are life.”

After all that, this suggestion really sounds good:

“Stop wasting federal money on websites designed to make Americans feel like Republicans are actually listening to them.”

Gallup Poll Shows Greater Acceptance of Gay/Lesbian Relations

In 2004 one of the reasons that George Bush narrowly won reelection was by increasing turn out on the right by using ballot initiatives outlawing gay marriage. It worked for the Republicans in 2004 but they subsequently lost badly in 2006 and 2008. While the fundamentals of this year’s off-year election favor the party out of power, any victories by the Republican Party might just be a dead cat bounce as long term trends continue to work against the views of the authoritarian right.

Another example that Americans are gradually rejecting the views of the American Taliban comes in a new Gallup poll showing greater acceptance of gay relationships:

2001-2010 Trend: Perceived Moral Acceptability of Gay/Lesbian  Relations

Americans’ support for the moral acceptability of gay and lesbian relations crossed the symbolic 50% threshold in 2010. At the same time, the percentage calling these relations “morally wrong” dropped to 43%, the lowest in Gallup’s decade-long trend.

Gallup’s annual Values and Beliefs survey, conducted each May, documents a gradual increase in public acceptance of gay relations since about 2006. However, the change is seen almost exclusively among men, and particularly men younger than 50.

Additionally, Gallup finds greater movement toward acceptance among independents and Democrats than among Republicans, and a big jump in acceptance among moderates. Liberals were already widely accepting of gay relations in 2006, and have remained that way, while conservatives’ acceptance continues to run low.

Notably, there has been a 16-point jump in acceptance among Catholics, nearly three times the increase seen among Protestants. Acceptance among Americans with no religious identity has expanded as well…

There is a gradual cultural shift under way in Americans’ views toward gay individuals and gay rights. While public attitudes haven’t moved consistently in gays’ and lesbians’ favor every year, the general trend is clearly in that direction. This year, the shift is apparent in a record-high level of the public seeing gay and lesbian relations as morally acceptable. Meanwhile, support for legalizing gay marriage, and for the legality of gay and lesbian relations more generally, is near record highs.

I think that sometime in the future we will reach a tipping point where intolerance of gays becomes as unacceptable as racism. Some on the right will hold on to their homophobia, as some have continued to embrace racism. This will further alienate right wing views from the mainstream, especially among younger voters (who unfortunately will not turn out in high numbers in 2010 if historical trends continue).

The True War Over Economic Dogma

Arthur C. Brooks, president of the American Enterprise Institute, takes liberties with the meaning of the culture war to write in The Washington Post that free enterprise versus government control is the next culture war. While there are problems with the economic views expressed in the article which other bloggers such as Matt Zeitlin have discussed,I’m more interested in the erroneous framing used by Brooks. Brooks begins:

This is not the culture war of the 1990s. It is not a fight over guns, gays or abortion. Those old battles have been eclipsed by a new struggle between two competing visions of the country’s future. In one, America will continue to be an exceptional nation organized around the principles of free enterprise — limited government, a reliance on entrepreneurship and rewards determined by market forces. In the other, America will move toward European-style statism grounded in expanding bureaucracies, a managed economy and large-scale income redistribution. These visions are not reconcilable. We must choose.

It is not at all clear which side will prevail. The forces of big government are entrenched and enjoy the full arsenal of the administration’s money and influence. Our leaders in Washington, aided by the unprecedented economic crisis of recent years and the panic it induced, have seized the moment to introduce breathtaking expansions of state power in huge swaths of the economy, from the health-care takeover to the financial regulatory bill that the Senate approved Thursday. If these forces continue to prevail, America will cease to be a free enterprise nation.

Brooks cites polls which show that Americans by wide margins support free enterprise. That is certainly correct but what Brooks misses is that a large majority of Americans support the actual American free market system which has been successful, while smaller numbers support the faux capitalism that those on the far right advocate.

While Brooks tries to portray those who disagree with his positions as supporting government control, the reality is that most people in this country, left and right, support some version of a free market system. Only a small minority on the left support socialism while there are some on the right who support a system which would better be described as fascism than capitalism if not for all the other negative connotations of the word.

The far right promotes a free market philosophy which denies virtually any role for government. They are essentially demonstrating the same fallacious thinking as Rand Paul in his opposition to the Civil Rights Act of 1965.

In general there is little controversy in this country as to the benefits of a free market economy. Where the far right is mistaken is in believing that Adam Smith’s invisible hand will correct all problems, ignoring the fact that even Adam Smith saw a role for government.

Markets are the creations of men, and are at danger of men abusing the system. The profit motivations in the free market system often does result in what Brooks refers to as human flourishing. However at times the market system fails to work and provides incentives which are not beneficial to the nation.

One example has been with the health insurance industry which found that it was more profitable to find ways to deny health care to the sick than to provide for such care. This resulted in a need for government to step in and reform the system. This reform was not motivated by people who are opposed to the free market system. It is a market-oriented system which will result in even more people being covered by the private insurance industry than there currently are. The right distorts the facts in calling this a government take over of health care. In reality, even the American Medical Association which typically opposes government intervention supported health care reform, seeing this as increasing freedom of choice for both patients and physicians.

The war is not between supporters and opponents of a free market system but is based upon disagreements over the nature of the system. Liberals want to see a free market system in which everyone has the opportunity to participate and profit from their work.

The results of Republican economic policies have been to transfer wealth from the middle class to the upper class and bring us to the brink of depression. Many on the right try to disassociate themselves from Republican policies, ignoring the harm done by over-zealous deregulation. They protest that George Bush didn’t follow their policies but the reality is that their policies would be so disastrous that most Republicans in office will never follow them to the letter. Even Ronald Reagan raised taxes as opposed to blindly following the dogma that lowering taxes is the way for governments to increase revenue.

The American Enterprise Institute does not really advocate a serious economic policy. They claim credit for the benefits of a free market system which has little to do with their beliefs and distort economics to find ways to justify paying less taxes and escape necessary regulation.

Noam Chomsky Denied Entry Into Israel

Israel has denied Noam Chomsky entry into the country to speak at Bir Zeit University.

Professor Noam Chomsky, an American linguist and left-wing activist, was denied entry into Israel on Sunday, for reasons that were not immediately clear.

Chomsky, who was scheduled to deliver a lecture at Bir Zeit University near Jerusalem, told the Right to Enter activist group by telephone that inspectors had stamped the words “denied entry” onto his passport when he tried to cross from Jordan over Allenby Bridge.

When he asked an Israeli inspector why he had not received permission, he was told that an explanation would be sent in writing to the American embassy.

While I often disagree with Chomsky’s views I do find his work worth reading, and exposure to a wide variety of views should be part of the function of a university. The Israeli government shows a poor understanding of this concept in making this decision, as well as undermining Americans who support Israel out of a support for a democratic nation in the middle east. While Chomsky has been very critical of Israel, those who disagree with him would be wiser to respond to his arguments than to deny him entry into the country.

Update: Not surprisingly some among the authoritarian right do not understand the belief  of liberals in defending freedom of speech–even when coming from those we disagree with. Donald Douglas writes that “some folks on the left — unsurprisingly — are outraged. See for example, Steve Clemons, Ron Chusid, Taylor Marsh, and Village Voice.”

I do not feel threatened by people such as Chomsky expressing views I disagree with. I do see governments who prevent people from speaking their opinion to be a danger. I also do not agree with Douglas equating censoring Chomsky with defending its  sovereignty. As I noted in the original post, a far better response would be to defend their position and dispute Chomsky’s views.  (I also find it unusual to be linked to Taylor Marsh since the 2008 Democratic race).

Palin Repeats Usual Right Wing Lies, Claims Obama Would Ban Guns

Conservatives routinely outright lie about the positions of liberals because they stand no chance in an honest comparison between conservative and liberal beliefs. Conservatives also tend to concentrate on scare tactics with their lies, knowing this is often effective with the low-information types of people who tend to vote for conservatives. Today Sarah Palin came out with a real whopper. AP reports:

Former Republican vice presidential candidate Sarah Palin said during a speech Friday that President Barack Obama and his Democratic allies would ban guns and ammunition if they could get away with it.

The former Alaska governor said in a speech to the National Rifle Association that political backlash is the only thing stopping Obama from gutting the Constitution’s right to bear arms. Palin said the public needs to stop Democrats in their tracks, starting with the November elections.

That’s half the argument. How much longer until she also warns that Democrats like Obama will not only take away their guns but take away their bibles?

Media Again Creates False Equivalency Between Democrats And Republicans

There is a tendency of the media to confuse equal favorable or unfavorable comments about each party with objective reporting. We often see the media take a comment from the Republican and a Democrat and act as if the truth is somewhere in the middle, even if there is strong evidence that one party is lying (typically the Republicans in recent years) and one is telling the truth. Factcheckers for newspapers similarly try to present equal scores by finding errors on the part of both parties. Often they show huge whoppers coming from Republicans and counter them with cases where a comment from the Democrat is generally true but there are occasional exceptions which were beyond the scope of the limited interviews usually conducted.

The Washington Post has an example of creating a false equivalency between the parties in this editorial on the parties purging their members. Steve Benen explains the error in their comparison between the two parties:

There’s quite a few problems here. The most obvious is the flawed effort to draw a parallel between Bennett and Lincoln. In the former, Bennett has been a reliably conservative senator from a reliably conservative state for nearly two decades. He was purged by the GOP’s right-wing base for only being rigidly dogmatic most of the time.

Lincoln, on the other hand, really has proven herself to be a disappointment to most Democrats, not because of a handful of isolated votes, but because of her departures from party priorities on a wide range of issues, over the course of several years. Utah Republicans had no such beef with Bennett.

There’s also a pragmatic angle — Bennett was a shoo-in for re-election, but was primaried for purely ideological reasons. Lincoln has struggled badly in the polls, prompting Dems who want to hold the seat to consider alternatives.

But it’s the bigger picture that the Post‘s editorial board gets especially wrong, with its description of “the ideological purification of both parties.” I realize that major media outlets have an unwritten rule — all criticism of Republicans has to include related criticism of Democrats, whether it makes sense or not — but the evidence to bolster the Post‘s observation is lacking.

Even if we concede that Blanche Lincoln is facing a competitive primary, at least in part for her lack of commitment to progressive goals, one primary for a vulnerable incumbent does not an “ideological purification” make. If Dems were seriously trying to drive those who strayed from the party line from the ranks, Blue Dogs would be under heavy fire, and the party wouldn’t have rallied behind Brad Ellsworth in Indiana and Charlie Melacon in Louisiana, neither of whom represent the bold, progressive wing of the party.

In contrast, there’s an actual“ideological purification” underway in the Republican Party. Florida’s Charlie Crist was deemed insufficiently right wing. So was Pennsylvania’s Arlen Specter and New York’s Dede Scozzafava. In Utah, Bob Bennett was handed a pink slip by his own party, and in Arizona, Sen. John McCain (R) is facing a tough primary challenge for nearly identical reasons.

There are occasional cases of Democrats trying to replace conservative Democrats with more liberal Democrats. The key difference is that the Democrats continue to have large numbers of moderate and conservatives, while the Republicans are trying to eliminate not only liberals and moderates but conservatives who they find are not conservative enough.

A Non-Ideological Argument For Kagan

There are other ways to look at the nomination of Elena Kagan beyond the ideological questions. While I might have preferred someone with a stronger track record on civil liberties issues, Ezra Klein does make a compelling argument in her favor:

When Obama announced Kagan’s nomination, he praised “her temperament, her openness to a broad array of viewpoints; her habit, to borrow a phrase from Justice Stevens, ‘of understanding before disagreeing’; her fair-mindedness and skill as a consensus-builder.” This sentence echoes countless assessments of Obama himself.

Obama is cool. He makes a show of processing the other side’s viewpoint. He’s more interested in the fruits of consensus than the clarification of conflict. In fact, just as Kagan is praised for giving conservative scholars a hearing at Harvard’s Law School, Obama was praised for giving conservative scholars a hearing on the Harvard Law Review. “The things that frustrate people about Obama will frustrate people about Kagan,” says one prominent Democrat who’s worked with both of them.

Understanding this is the key to understanding the Kagan pick: Obama’s theory of negotiations is that extending an open hand makes it easier for people to see if the other side has made a fist. It both increases the likelihood of a deal and increases your chances of winning the PR war if a deal falls apart.

This is a theory that frustrates many liberals who want to see a more confrontational tone from the president, but it’s core to Obama’s theory of winning a negotiation. And the need to win negotiations is core to Obama’s — and everyone’s — theory of the Supreme Court. With four liberals, four conservatives and one center-right justice who’s willing to play the swing vote, a skilled legal negotiator who can put together a majority is more important than a sharp legal thinker whose blistering dissents can cure liberals of their Scalia envy.

It remains to be seen whether Kagan is able to negotiate better outcomes. It also remains to be seen what her views are on the court. We might be either disappointed or pleasantly surprised.

Mixed Views From Both Left And Right On Kagan Nomination

News of the choice of Elena Kagan to be Barack Obama’s second appointee to the Supreme Court neither has me terribly upset or very excited. Presumably this is the type of reaction which was desired by choosing someone without a very strong, or controversial, public record.

There is mixed response on both the right and the left. There are already a number of falsehoods being spread, with Media Matters debunking a long list of  myths. The Volokh Conspiracy has some preliminary thoughts which show, while doubting the claims by some on the left that Kagan is a closet conservative, she is probably the best conservatives and libertarians can hope for. Ilya Somin believes that while Kagan is a liberal she has shown openness to non-liberal views. She also writes this,  disagreeing with some of the claims coming from others on the right:

While I won’t argue the point in detail here, I think Elena Kagan clearly has the necessary professional qualifications for the job (I thought that Sotomayor did too). She was a successful dean of Harvard Law School and a respected though not pathbreaking legal scholar. She also has a record of service in important Justice Department positions, including most recently as Solicitor General (the official responsible for arguing the federal government’s position before the Supreme Court). I don’t think that Kagan is the best-qualified possible nominee. Very few Supreme Court nominees are, since (to understate the point) it is not a purely merit-based process. But she does have at least the minimum necessary credentials. Comparisons to Harriet Miers are, I think, off-base.

Kagan’s openness to non-liberal views can be a virtue but also opens her to attacks from some liberals. Glenn Greenwald has outlined the criticism of her from the left. The issue of greatest concern to both liberals and libertarians is her view on presidential power. Radley Balko of Reason writes:

She’s a cerebral academic who fits Washington’s definition of a centrist: She’s likely defer to government on both civil liberties and regulatory and commerce issues. And though libertarians allegedly share ground with Republicans on fiscal and regulatory issues and with Democrats on civil liberties issues, neither party cares enough about those particular issues to put up a fight for them. Which is why Kagan sailed through her first confirmation hearings, and is widely predicted to sail through the hearings for her nomination to the Supreme Court.

Justice Stevens’ reputation as a stalwart defender of civil liberties was probably overstated. Which makes it all the more disappointing that Obama’s choice to replace him will almost certainly make the Court even less sympathetic to the rights of the accused. And taken with Obama’s decision to replace Justice Souter with Sonia Sotomayor, a former prosecutor with a “tough on crime” reputation, the candidate who touted his days as a community organizer for the powerless and dispossessed and who decried the criminal justice system’s disproportionately harmful treatment of minorities and the poor during the campaign will now almost certainly leave the Supreme Court more law enforcement-friendly and more hostile to criminal defendants than he found it.

While I would prefer a nominee who has a strong record on civil liberties issues I’m not certain there is cause to panic. Kagan has spent her time in government in the executive branch and does appear to see matters more from their perspective, but this could change as she works in a separate branch of government. Kagan’s job as Solicitor General is to argue the position of the administration but her views as a judge might not necessarily be the same. I also hope that her experience as Solicitor General has also led her to see the weakness of some administration arguments, even if she could not act upon this in her current position.

There has also been speculation as to how the appointment will affect efforts at marriage equality. William Jacobson discusses her view that, “There is no federal constitutional right to same-sex marriage.” This does not mean she is personally opposed to same-sex marriage, but that she might be unlikely to support judicial as opposed to legislative efforts to achieve this goal.

While immediate attacks from the right wing blogs were anticipated, it remains unclear as to whether the Republican Party will try very hard to block her nomination.  Seven Republican Senators did vote to confirm Kagan to be Solicitor General.   However Bob Schieffer believes that Republicans will wage a vicious fight in light of the current degree of polarization. He calls this an “especially toxic election year” as the far right members of the tea party movement are out to purge even conservative Republicans from the GOP for not being conservative enough. He believes  “you will see some Republican Senators, moderates, giving very careful consideration to their vote on Elena Kagan. In a way, a vote against her would be ‘Tea Party insurance,’ to let people know that they’re moving to the right.”