Geoffrey R. Stone: David Souter
It would appear from the latest news reports that Justice David Souter is about to part ways with the Supreme Court after a nineteen-year tenure. At the time of his nomination by President George H. W. Bush, David Souter was a virtual unknown. In his long career as a justice on the New Hampshire Supreme Court, a judge on the New Hampshire trial court, and New Hampshire's attorney general, he seldom had occasion to express his views on controversial constitutional issues. Many critics of the nomination complained that President Bush had found a "stealth candidate" who had no "paper trail" but was secretly a rock-solid conservative determined to overturn Roe v. Wade and to outlaw affirmative action. It didn't turn out quite that way.
Although at the time of his appointment Souter had little experience in constitutional adjudication, no one doubted his intellectual credentials. A Rhodes Scholar, Souter was a serious thinker, a prodigious reader, a hard worker, and a scrupulously careful lawyer. One public official in New Hampshire - a Democrat - described Souter as a 135 pound man, with "120 pounds of brain." Before being tapped for the Supreme Court, he lived by himself in a ramshackle farmhouse filled with books. He lived a quiet, somewhat sheltered, contemplative life.
David Souter took the seat previously held by Justice William J. Brennan, Jr., one of the liberal lions of the Warren Court. Souter and Brennan formed a close and even touching friendship, and Brennan, ever the persuader, sought to share with his successor his own powerful vision of the unique responsibilities of the Supreme Court and the fundamental role of constitutional law in the American system of government.
We may never know what influence Brennan, then in his eighties, may have had on Justice Souter. What we do know is that Souter soon showed himself to be not the anticipated right-wing ideologue, but rather a thoughtful, moderate, independent thinker who sought to discern the central meaning of the Constitution. For David Souter, the Constitution was about the rule of law, shaped by a profound national commitment to fairness, justice, equality and individual dignity.
On issue after issue David Souter disappointed those who hoped he would be a Scalia sidekick. Souter rejected the rigid originalism and so-called "strict construction" of Robert Bork and former Attorney General Ed Meese in favor of a more textured commitment to the core values of our Constitution. In case after case, Souter parted company with Justices like Scalia, Rehnquist and Thomas, and made for himself a truly distinguished and surprisingly "liberal" record on such issues as freedom of religion, freedom of speech, due process, search and seizure, racial and gender equality, affirmative action, the rights of gays and lesbians, executive power, cruel and unusual punishment, abortion, and the rights of persons accused of crime. A man of deep civility and understatement, his opinions are soft-spoken and gentle, but they resonate with conviction. His opinions are precise, nuanced, and carefully reasoned. There is no bombast, sarcasm or disrespect in David Souter.
I just said that Souter has a "liberal" record, but that is not quite true. Souter has often appeared to be a "liberal." But appearances are deceiving. Against the background of his brethren - most notably Rehnquist, Scalia, Thomas, Kennedy, Roberts and Alito - Souter is clearly on the more liberal side of the Court on most controversial issues. But as I'm sure David Souter would himself acknowledge, he is no William Brennan or Earl Warren. He is, in fact, a moderate. But because the majority of the colleagues against whom he is judged are among the most ideologically conservative justices to serve in the past seventy-five years, he appears to be "liberal."
It is an old saw that Supreme Court justices often seem to get more "liberal" over time. This was arguably true, for example, of Lewis Powell, Harry Blackmun, Sandra Day O'Connor, and John Paul Stevens, to name only a few. In fact, I think this is a real phenomenon. Those justices who are not rigidly affixed to a particular ideology do tend over the years to drift to the left. This was also true of David Souter.
Why does this happen? My theory is that as justices from widely diverse backgrounds see the endless stream of cases that flow to the Court, they come gradually to appreciate more deeply the injustices that still exist in our society and they come to better understand the unique role and responsibility of the Supreme Court in addressing those injustices.
It is the more open-minded justices, those who can reassess their beliefs, empathize with the outsiders in our society, and learn to appreciate the distinctive capacity of the judiciary to enforce the guarantees of our Constitution, who grow in the depth of their understanding of their responsibilities. David Souter was one of those justices.
It is no secret that David Souter was not always happy as a Supreme Court justice. He was often disappointed in his colleagues, most especially for their decision in Bush v. Gore, which he regarded as a "tragedy." He never warmed to the social whirl and glitz of the nation's capital, and he certainly missed the simplicity and calm of his New Hampshire farmhouse. But he also felt deeply privileged to serve on the Supreme Court. He once told me that he regarded himself as "the luckiest guy in the world" because of the opportunity he had in this way to serve his country.
David Souter has all the qualities of a great justice. He is a voice of reason. He is decent, thoughtful, brilliant, caring, and modest. During his tenure on the Court, he has grown steadily both as a man and as a justice. He has thought hard about the ways in which the law touches individual lives and he has preserved and protected the fundamental principles of liberty, equality and democracy upon which our nation is based. Justice Brennan would be proud of him.
Alexander Heffner: Obama’s Law: The Future of the Supreme Court
Obama's Law: The Future of The Supreme Court -- here's the full story on Scoop44.
The President's Supreme Court Short List: Walter Dellinger, Merrick Garland, Elena Kagan, Pamela Karlan, Harold Koh, Deval Patrick, Sonia Sotomayor, Kathleen Sullivan, Cass Sunstein, David Tatel, Kim Wardlaw, Diane Wood -- Woman Nominee A Near Certainty, According to Most SC and Obama Followers
SCOOP44 asked the nation's foremost legal scholars: Based on the initial appointments of Eric Holder as Attorney General, Elena Kagan as Solicitor General, and Cass Sunstein as Director of Information and Regulatory Affairs, the White House's current political posture, and the President's own constitutional law:
(1) What specific reversals of legal policy do you anticipate from the Bush years, (2) What new policies will be implemented swiftly, and (3) What signal is the President sending about potential Supreme Court nominees he would consider?
Interviews with Harvard's Tribe and Tushnet, NYU's Revesz, Yale's Greenhouse and Carter, UVA's White, American's Wermiel, Pepperdine's Kmiec, Georgetown's Lazarus and Barnett, Indiana's Hoffmann, Attorneys Millett and Casey, Chapman's Eastman, and Texas's Powe.
--
Tribe: 'A cautious and pragmatic course' to change recent constitutional law
(Lawrence Tribe, Professor at Harvard Law School)
Revesz: 'Top-flight legal talent' expected with many good options
(Richard Revesz, Dean of NYU Law School)
Greenhouse: Quick movement on legal doctrine reversals: 'regulatory agencies that really regulate'
(Linda Greenhouse, Lecturer at Yale Law School, Former NYT Supreme Court Correspondent)
White: Kagan and Sunstein picks are possible stepping-stones for judgeships, 'Obama most knowledgeable president about the Court since Nixon'
(G. Edward White, Professor at University of Virginia Law School)
Wermiel: Measured change in affirmative action, civil rights enforcement, immigration prosecutions, national security powers, federalism case / Likely SC appointments would be 'moderate progressive justices - more like Breyer and Ginsburg than like Brennan and Marshall'
(Steve Wermiel, Associate Director of Marshall-Brennan Constitutional Literacy Project at American University College of Law)
Kmiec: Obama DOJ more concerned with 'professional ethic' than political polarization / 'Legal rethinking' could affect executive privilege, state secrets, future dismissal of US Attorneys.
(Douglas W. Kmiec, Professor at Pepperdine University School of Law)
Lazarus: Holder, Kagan, and Sunstein are 'three very different people' / Anticipates 'less profound shift' in 'theoretical reach' of executive authority
(Richard Lazarus, Professor at Georgetown Law)
Tushnet: Actions 'likely to be driven by larger political considerations'
(Mark Tushnet, Professor at Harvard Law School)
Barnett: 'Less reluctant to appoint an academic'
(Randy Barnett, Professor at Georgetown Law)
Hoffmann: Illinois collaborative work suggests Obama's 'exceptional' legal acumen / Already new rules 'to protect labor movement' / One 'powerful intellect': Pamela Karlan, Stanford Law Professor and Director of SC Litigation
(Joseph Hoffmann, Professor of Law at Indiana University's Maurer School of Law)
Millett: 'Massive amount of new legislation' to revive economy is opportunity for regulation
(Patricia Millett, Partner at Akin Gump Strauss Hauer & Feld, LLP)
Carter: A few big changes and 'quibbling over details'
(Stephen Carter, Professor at Yale Law School)
Casey: SC appointments are like 'speculating on who will win the Oscar for best picture...only the Academy knows'
(Lee Casey, Partner at Baker Hostetler)
Eastman: Bets on part-Hispanic Clinton appointee Kim Wardlaw
(John C. Eastman, Dean of Chapman University School of Law)
Powe: Obama pressed to appoint a woman / confidence in outsider appointment familiar with understanding of 'the country and how things work'
(Lucas Powe, Law Chair at the University of Texas)
Craig Crawford: My Souter Remembrance
As we hear news of Supreme Court Justice David Souter's expected retirement, I am reminded of those days in 1990 when I covered his nomination by President George H.W. Bush. I found Souter to be a remarkably evenhanded and surprisingly moderate judicial pick in an era when conservatives thought they ruled the roost.
Sure enough, Souter proved to be something of a liberal justice, at least in the context of the rightward leaning court. To his credit, he made no effort to "court" conservatives when seeking Senate confirmation.
You could see Souter's leftward bent coming in his 1990 Senate hearing. In particular, I recall his clever and witty responses during a testy back-and-forth with Iowa Republican Charles Grassley, who became quite frustrated with Souter's refusal to toe the conservative line. Souter simply would not provide assurances that he would narrowly interpret individual rights under the Constitution.
"As your testimony hit me on Friday, it seemed to me more the terminology likely to come from a judicial activist," Grassley said, inviting the nominee to "rephrase it in favor of something better."
Souter smiled and said, "I think you're giving me a hint, Senator."
The former New Hampshire judge offered no solace to Grassley; instead he further defended the power of courts to define unwritten rights. He cited the example of Brown vs. Board of Education, the 1954 ruling that outlawed racially segregated schools.
"If you simply read the text of the Constitution and somebody said, 'Where does it refer to school desegregation?' - of course you would not have found anything," Souter said. "But I think that clearly implicit in the text of the Constitution itself was the proper basis for the court's exercise of its jurisdiction."
Grassley then asked Souter to name any case in the court's history where "improper rights were created." The nominee mentioned none.
"Well then, let me see if I can help you where you might think the court improperly acted," Grassley said. He cited rulings during the tenure of Chief Justice Earl Warren, despised by conservatives for provoking decisions during the 1960s that aggressively expanded the rights of criminal suspects.
Souter did not agree that the Warren Court rulings went too far, describing them as a "pragmatic implementation" of the Bill of Rights.
Further aggravating conservatives, Souter praised the Warren Court rulings for teaching law enforcement officers how to protect the rights of suspects.
"We have learned to live with those rulings and we live with them pretty well today," Souter said.
One of Souter's statements during his Senate grilling has always stuck with me. Pressed for his views on individual rights, Souter offered a gem of wisdom that struck me as a delightful distillation of what our country is all about: "I'd rather have a right to do something than a right to stop someone else."
In tribute to this fine Justice, let's repeat that line in larger text:
"I'd rather have a right to do something than a right to stop someone else."
Craig blogs daily at craigcrawford.com on CQ Politics.
Andy Borowitz: Obama Orders Emergency Quarantine of Biden
Taking his most urgent action to date since cases of swine flu were first reported, President Barack Obama today ordered an emergency quarantine of Vice President Joe Biden.
Mr. Biden was in the middle of giving a wide-ranging television interview on swine flu preparedness when he was seized by representatives of the Department of Homeland Security and placed in quarantine.
"I'll tell you this, if I thought I might catch swine flu by going to work or a movie or the mall or something like that, I sure as heck wouldn't -" Mr. Biden was saying when he was abruptly yanked away from the microphone.
According to President Obama, the vice president will be kept in a sealed box away from television cameras and microphones "until we are certain that the danger is passed."
"There is no clear scientific proof that swine flu can be spread by television cameras or microphones," Mr. Obama said. "But it's better to be safe than sorry."
Elsewhere, actress Kirstie Alley said that she wished she had Michelle Obama's arms, adding, "for lunch."
Patricia Zohn: Culture Zohn: Costa Gavras: Eden Is West, Not Hollywood
Credit: Reel Sessions
Hollywood is littered with stories of good projects gone south, noble intentions gone awry. Just as you are shoring up one dike, another busts loose. When people ask what producers do, this is what I tell them: you are a one person FEMA, running interference, pleading, cajoling, yet trying to maintain a modicum of creativity in the thing which you are preventing from capsizing (Read William Goldman or Larry Turman for details.) When you are in the middle of what feels like a category three hurricane, you cannot breathe for wondering where the next swell is coming from.
In the beginning, I didn't know this. I followed (mostly European) directors around while I worked as liaison for the New York Film Festival. That meant I got to pick up Francois Truffaut at the airport, make sure Alain Tanner got back to his hotel, and sit complacently on my desk as Marty Scorcese begged for more comps to the premiere of Mean Streets. Nice, huh?
Then I went on tour with a package of French films for the French government, mostly to universities and festivals, often with a director in tow, e.g. Bertrand Tavernier or Michel Drach, who was hoping to sell his (yes, his) latest film in the US.
These men were all "auteurs", in other words, they might not have had untold sums of money, but they, and everybody else, believed that they were the inviolate captains of ship. They were the "deciders" long before George Bush claimed the title. They saw the world a certain way and made films about precisely how.
When I got to Hollywood, I began seeking out projects that might marry the European sensibility, the one I had been weaned on, with more commercial Hollywood values.
This turned out to be next to impossible, but that didn't stop me from trying. The closest I came was a project with Costa Gavras, the world-class, born-Greek-but-lives-France filmmaker whose whole career has been about making dynamic films -- Z (Oscar), The Confession, State of Siege, Missing (Oscar), Music Box -- with a political point.
Credit: Reel Sessions
Taking meetings with Costa was incredibly exciting and reminded me of the earlier days; he is debonair, well-spoken and a true multi-lingual intellectual. We would sit for hours parsing the motivations of characters and the nuances of dialogue. Having meetings in Paris? I was jealous of myself.
It was a year of incredible highs and lows, of great expectations that soured. There were studio heads who did not see eye to eye with their production presidents, three sets of screenwriters and a flotilla of agents and lawyers who could not manage to help us to keep the body and soul of the project together.
In the end, I blame myself: I was not able to marry the sensibilities and he ultimately abandoned the project only to make another film with a similar theme a few years later that seemed also to compromise his vision.
Since then, he has been making films back in Europe, smaller, finely wrought, intelligent, with marvelous actors. He has gone back to his roots and they are serving him. Just this past week, the LA Film Critics voted his film Eden is West as best in the Colcoa film festival of new French films.
The film is the story of an illegal immigrant -- a very good looking, sexy one -- who is forced to jump as he and a boatful of others are about to be captured. He makes his way with a succession of women and families who take him under their wing to get him to Paris, the city he has somehow fixed on as the answer to his dreams. All take advantage of him one way or another, both his language and naivete imposing class barriers that even the most unsophisticated can pick up.
EDEN IS WEST (Eden à l'ouest). Riccardo Scamarcio. KG Productions © Pathé Distribution
As he journeys from a nudist Club Med-style resort through markets and truck stops, people exploit him in various ways: sex, work, child care, but through it all he never really breaks down. Sometimes, there is a bit of pangloss and he seems more like a lucky lost penny that keeps finding a cozy pocket. He hones some street skills but is confronted daily with new challenges to his sense of fairness. The very darkest side of what it must like to be a less attractive illegal is not entirely explored until a small revolt at a factory.
But the film has Costa's signature combination of politics, humor, fable, and deep incisiveness into what makes people aspirational, as well as a hint of magic. It participates in the conversation about immigration, one we are having the world over, not very well.
EDEN IS WEST (Eden à l'ouest). Riccardo Scamarcio. KG Productions © Pathé Distribution
Of course, Hollywood is changing yet again -- the business is strong, but downsized, and the movies that are doing well are not always the blockbusters but the genre films that were once the B pictures of studio history. Sometimes they are even the indie slash formerly known as European style films so prevalent in the sixties and seventies.
Take a look at Costa's films if you haven't seen them. There should be room for filmmakers like Costa who have spent their lives dedicated to a vision of the world, and for you to see the work -- thus far, this film has not been picked up for US distribution.
Isn't our world supposed to be shrinking?
Souter Replacements: Obama’s Five Likely Picks (SLIDESHOW)
News of Justice David Souter's plan to retire at the end of the Supreme Court's current term immediately set off one of Washington D.C.'s most cherished parlor games: speculating who will take his place.
Long before Souter's decision was known, legal eagles and political observers were taking stabs as to who would be an ideal fit for a Barack Obama Court. Observers believe the Obama is likely to choose a woman, with only one currently serving on the bench. The president's thoughts on judicial philosophy, developed during his years as a law review editor and professor, will also shape his thinking. With that in mind, law blogs, speculative reporters, and (in private) elected officials had already begun bandying names about.
Among those most often mentioned:
Sonia Sotomayor: An Hispanic with 16 years of court experience who currently sits on the U.S. Court of Appeals for the 2nd Circuit, Sotomayor is a graduate of Yale Law and considered a legal liberal. She also shares a biographical footnote with Souter: they both were appointed by George H. W. Bush -- Sotomayor to the U.S. District Court for the Southern District of New York in 1992.
In a recent Columbia Law School Magazine, Professor Jamal Greene and legal affairs reporter Joseph Goldstein had the following exchange about her prospects.
Greene: I think we all agree it's fairly likely that [Obama's] first appointment will be female. And given the additional qualification that he might want a [racial] minority, there is one female, Hispanic Court of Appeals judge, who is a Democrat, [likely to be considered].
Goldstein: Sonia Sotomayor.Greene: She's probably on the short list.
Elena Kagan: The first woman to serve in the post of Solicitor General, she arrived at the Department of Justice from her post as Dean of the Harvard Law School. She served as Associate Counsel to President Bill Clintonand as a clerk to Supreme Court Justice Thurgood Marshall. Should Obama choose her, it would mean his White House would have to fill another vacancy. But her academic and judicial pedigree seem almost better suited for the Court than as a lawyer arguing before it. Plus, she's already been through the confirmation process.
Seth Waxman: The 41st Solicitor General of the United States, Waxmnan is 58-years old and a graduate of Yale Law School. Perhaps his greatest claim to legal fame was arguing Boumediene v. Bush before the Supreme Court, which upheld habeas corpus rights for detainees at Guantanamo Bay.
Diane Wood: Wood, a 58-year-old Chicagoan, has served for 14 years on the city's 7th Circuit Court of Appeals. She has made a reputation as a strong liberal voice on an otherwise conservative bench and her name was decidedly in the mix when speculation first arose that Justice Ruth Bader Ginsburg would retire due to medical issues. The one downside: her position on abortion rights has already sparked the ire of conservatives and pro-life groups, portending a potentially contentious confirmation process.
Harold Koh: The Dean of Yale Law School, Koh is perhaps the highest-profile Asian-American legal mind in the country. He clerked for Associate Justice Harry Blackmun on the Supreme Court, and worked for the Office of Legal Counsel in the Reagan Justice Department. But if Obama wants a smooth confirmation battle, Koh might not be the pick. Nominated to be the State Department's legal adviser, he has attacked by conservatives who claimed that he values foreign law over the U.S. Constitution.
Dark horses: Some names offered by legal observers who have followed Supreme Court politics a bit more closely:
Teresa Wynn Roseborough: A one-time colleague of Roseborough's, in an email to the Huffington Post, described the Clinton-era Deputy Assistant Attorney General as such: "She's late 40s, super smart and kind, decent, moderate; and was Editor in Chief of UNC law review. She clerked on the 4th Circuit and for Justice Stevens; worked in Department of Justice, was a partner at a private Atlanta firm; and now at a private counsel for MetLife. And, she's African-American. A perfect choice. Unimpeachable and perfect."
Leah Ward Sears: Chief Justice of the Georgia Supreme Court.
Kathleen Sullivan: Former Dean of Stanford Law and a protege of Harvard's famed professor, Laurence Tribe.
William Fletcher: A U.S. federal appeals court judge on the Ninth Circuit Court of Appeals (the same circuit as one Jay Bybee, who will definitely not be an Obama Supreme Court nominee).
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Chrysler’s bankruptcy path uncharted, but GM could follow
Obama calls his decision to push a Chapter 11 filing on the automaker unfortunate but necessary. The move sends a sharp message to General Motors and its stakeholders as their deadline looms.Reporting from Los Angeles and Washington Martin Zimmerman -- President Obama's decision to save Chrysler by pushing it into bankruptcy Thursday puts the major U.S. automaker in risky, uncharted territory and could portend a similar outcome for General Motors Corp. as it races to meet its own government restructuring deadline.
Leo W. Gerard: More than “no,” Republicans are the party of nowhere, nothing, nonsense
"He's a real nowhere Man,
Sitting in his Nowhere Land,
Making all his nowhere plans
For nobody." -- Nowhere Man
These lyrics to "Nowhere Man," written and recorded in 1965 by John Lennon and Paul McCartney, describe the Republican Party of 2009. Pennsylvania Sen. Arlen Specter rejected that party and returned to his Democratic roots because, even at the age of 79, he's got plans that go somewhere.
The GOP's leaders and their inactions have placed the party at the corner of Unpopular and Nowhere. GOP voter registration fell in every western state in 2008, including Colorado where it dropped a whopping 9 percent. That year, the Pew Research Center found that voters calling themselves Republicans declined six points over four years, for the lowest percentage of self-identified Republican voters in 16 years of Pew polling.
Pennsylvania voters, not always in step, were this time. More than 200,000 Republicans switched registration to Democrat in 2008. Arlen Specter, who was a Democrat the first 16 years of his adult life, this spring joined those fellow Pennsylvania Republicans and returned to his Democratic roots.
The Republican response typifies why voters continue to convert the GOP to D on their party membership cards. The Republican National Committee posted on its web site nasty automatic e-mails to Specter that can be sent with the click of a mouse. Mean spirited is bad enough, but these lack a certain introspection.
One is supposed to be the White House teleprompter welcoming Specter to the Democratic Party. The text says, "Welcome to the Democrats. I look forward to working together to borrow more money from China." Another is supposed to be a welcome from Senate Majority Leader Harry Reid, saying, "You'll love how much we can spend taxpayer money." Both are blind to a fact that taxpayers clearly see - Republican majorities during the Bush administration spent so much that they created the largest budget deficits known to man or nation, compelling excessive borrowing from China.
He's as blind as he can be,
Just sees what he wants to see,
Nowhere Man can you see me at all? - Nowhere Man
The leader of Specter's new party - President Barack Obama - stood before the American people on his 100th day in office, assessing progress and promising to press forward to aid people in need during the worst recession since the Great Depression.
He spoke of accomplishments, such as the stimulus bill that will create or save 3.5 million jobs, the extension of health insurance for 11 million children whose parents work full-time, and a measure to help homeowners refinance their mortgages. He talked of changing the tone of foreign policy from threats to diplomacy, forbidding torture and closing the detention center at Guantanamo Bay.
This Democrat has his sights set on the next hundreds and hundreds of days and pledged to continue working on priorities he established during his campaign, including health care reform and clean energy development.
Even those who disagree with him know he's got plans. He's going places. This guy's definitely not at the corner of Unpopular and Nowhere.
He has offered to bring Republicans along with him, to negotiate with them, to include them in the process. But they've smacked him down at every turn. They're not just fighting with him, either. They're also bickering among themselves. And it isn't pretty.
There was the infamous back and forth between GOP mouthpiece Rush Limbaugh who is calling for the president of his country to fail, and GOP chairman Michael Steele, who made himself famous by promising an "off the hook" public relations blitz "to uptick our image with everyone, including one-armed midgets." After Obama's chief of staff said Limbaugh was the representative of the GOP, Steele shot back saying he was the head of the party, adding that Limbaugh was incendiary and "ugly." Limbaugh responded with a rant on radio that Steele was unfit to lead, to which Steele responded by crawling on his belly to apologize to the "ugly" one. There's some inspiring leaders for you!
Now a group of Republicans has split from the RNC, calling itself the National Council for a New America. They contend they are upset that the GOP has failed to provide alternatives to the Democrats' plans. The group includes former Florida Gov. Jeb Bush, Louisiana Gov. Bobby Jindal, Mississippi Gov. Haley Barbour and former Massachusetts Gov. Mitt Romney. "It's no secret that we're in a seriously troubling time for the Republicans," said Mike Murphy, a strategist who has advised Romney and Sen. John McCain.
It's also seriously troubling that this new cabal, supposedly trying to solve the old group's problems, called itself National Council for a New America. Clearly they are not satisfied with the current America, the America that is rejecting Republicans. So their plan is to remake America rather than to remake themselves. Good luck with that.
Actually, there's a much easier option. Obama described it to Republicans during the press conference on his 100th day in office. Even with Specter in the Democratic fold and the potential of a 60-vote supermajority for Democrats in the Senate, the President said he would like to work with Republicans. He said the majority will likely rule on core issues. But there are many matters on which Republicans could exert influence if they would come to the table and negotiate in good faith.
Republicans can continue to simply vote NO on everything. They can bicker among themselves and look ridiculous to the American people. They can get nothing done and be the party of "I'm-in-control-NO-I'm-in-control" nonsense. They can continue to lose members and statesmen like Specter. Obama suggested that would be an unwise strategy.
That would be a nowhere strategy.
Art Brodsky: New FCC Appointee Could Face Choice Between Obama’s Agenda and AT&T’s
House Majority Whip James Clyburn (D-SC) may not have done his daughter, Mignon, any favors by getting her appointed to the Federal Communications Commission (FCC).
Mignon Clyburn has served on the South Carolina Public Service Commission since 1998. When confirmed, she would join Julius Genachowski, the Administration's stalled nominee for chairman, and a Republican to be named later as the core of a future FCC.
Mignon Clyburn will come into office faced with a very delicate political balancing act, which she no doubt recognizes from growing up in a political family. Her father is the House Majority Whip, the third-ranking position in the leadership; he is the highest-ranking African American.
Over the past 10 years, as a member of the PSC, Clyburn has gone along with the normal pro-Bell tilt to the Commission. As one telecom attorney with experience in southern state put it, if a competitive carrier went to the South Carolina commission to argue that the sky was blue, and AT&T (the former BellSouth) argued the sky was purple, the PSC would rule in favor of purple. The Bell companies have an unrivalled story of success in the South Carolina regulatory system and legislature, as they do in many southern states. For example, in 1997, the year before Clyburn joined the Commission, the PSC approved BellSouth's application to provide long-distance service within the state. The Justice Department and FCC each rejected it. BellSouth tried again in the friendlier atmosphere of 2002, again supported by the state, and this time was approved.
Through 2003 and 2004, " Questions of integrity and incompetence" swirled around the PSC," the Columbia, S.C., State newspaper reported on April 13, 2003 as state lawmakers debated how to reform the institution after severely criticizing the competence and effectiveness of the current commissioners, including Clyburn, who had served as chairman from 2002 to 2004. The newspaper, reported on April 16, 2003, that, "Failure to properly regulate one South Carolina utility was simply a mistake, not a sign of staff problems at the Public Service Commission, agency officials said Tuesday. 'It's something that can be remedied,' commission chairwoman Mignon Clyburn said."
AT&T is a politically potent force, as Mignon Clyburn and her father well know, and there will doubtless be pressure on her to follow the policies that veteran telecom attorneys from the region acknowledge she has long supported.
Those philosophies, however, could come into sharp contrast with the expected progressive policies espoused by the President Obama's campaign, many of which were drafted by Genachowski and supported in the $787 billion stimulus law which requires open networks and non-discrimination policies in broadband networks built with stimulus funds. It will be an interesting exercise in political realpolitik. If Mignon Clyburn or other family members have future political ambitions in South Carolina, would she have to toe the AT&T line at the FCC? Or will she betray the Administration that appointed her? Mignon Clyburn certainly stands out from the other tech/regulatory luminaries who have been appointed or nominated for positions in the Administration as the only one who has a hint of support for old-line, big business telecom. The rest are tech-friendly and forward-looking.
AT&T Changes Google Tune
Recently, AT&T was forced to acknowledge some realism of its own. Earlier in the day, before Clyburn's appointment was made public, an AT&T era ended at the Media Access Project's (MAP) April 29 forum on Mapping Change. Thank goodness.
Call it the end of the "Ed Whitacre Era" (despite the ascension of Randall Stephenson as chairman in 2007, succeeding Whitacre.) In 2005, after the FCC approved SBC's takeover of AT&T, the then-chairman of reconstituted AT&T, the aforementioned Mr. Whitacre, accused large Web companies of being freeloaders: "They don't have any fiber out there. They don't have any wires. They don't have anything," he argues. "They use my lines for free -- and that's bull. For a Google or a Yahoo! or a Vonage or anybody to expect to use these pipes for free is nuts!"
That notion has echoed through the industry, Congress and regulatory world ever since. Rural telephone companies railed against Google as the source of traffic on their networks that was raising costs. Congressional lackeys of the telecom industry railed at large Web companies, particularly Google in more recent months) as freeloaders as part of the diversionary tactics to pull attention away from the activities of AT&T or Verizon (depending on the issue). The same idea percolated through the FCC.
The idea that Google, or any Web company, was using anything for free, was of course laughable. Big Web companies pay millions of dollars for access on their end, to connect to the Internet. Customers of telecom customers generate their own requests and data, whether for search or video such as YouTube.
Now Robert W. Quinn, Jr., AT&T senior vice president - Federal Regulatory, finally, put the Google-as-freeloaded meme to rest. At the MAP event, Quinn was seated on a panel next to Richard Whitt, Google's Washington telecommunications counsel. Quinn was asked (full disclosure: I asked the question) whether Google was using his lines for free. He turned to Whitt, to ask whether AT&T was using lines for free. Whitt allowed that Google was paying lots of money to connect to the Internet. Asked as a follow up whether Google was using AT&T's lines for free, Quinn put the canard out of its misery by conceding that Google was not using the network for free.
Hallelujah! Let the angels sing and huzzahs be heard throughout the land. AT&T has recognized reality, at least in this instance. Quinn's admission should shut down the absurd freeloader argument once and for all. Let the rural companies which want Google to shovel money their way and the Congressional lackeys doing AT&T's bidding find some other bogus arguments.
Let Mignon Clyburn take note.
Arianna Huffington: Why Are Bankers Still Being Treated As Beltway Royalty?
During Wednesday night's press conference, President Obama said that he's been "sobered by the fact that change in Washington comes slow" and "humbled by the fact that the presidency is extraordinarily powerful, but we are just part of a much broader tapestry of American life and there are a lot of different power centers."
Well, one of those different power centers -- the entrenched special interests that continue to call so many shots on Capitol Hill -- is the main reason change in DC comes so slow.
This, of course, will not come as news to anyone who has paid even the briefest attention to Washington over the last 30 years. Indeed, I've been writing about it for over a decade.
But despite all that I know about the reform-killing power unleashed by the nexus of lobbying, campaign cash, and legislation, I have been flabbergasted by the amount of behind-the-scenes influence recently being wielded by the banking lobby.
Just this week, the bankers and their lobbyists -- who you might have reasonably thought would be the political equivalent of lepers in the halls of power these days -- have kneecapped substantive bankruptcy reform in the Senate, helped pull the plug on a government-brokered deal with Chrysler, and tried feverishly to throw up a roadblock in the way of credit card reform in the House.
You heard me right. America's bankers -- those wonderful folks who brought us the economic meltdown -- are still being treated as Beltway royalty by those in Congress.
According to Sen. Dick Durbin, the banks "are still the most powerful lobby on Capitol Hill. And they frankly own the place."
When it comes to reforming our financial system, we are truly through the looking glass. I mean, since when did it become "to the vanquished go the spoils"? How do the same banks that have repeatedly come to Washington over the last eight months with their hats in their hands, asking for billions to rescue them from their catastrophic mistakes, somehow still "own the place"?
But the banks continue to be rewarded for their many failures.
Let's start with bankruptcy reform. The banks scored a lopsided victory on Thursday when the Senate rejected an amendment that would have allowed homeowners facing foreclosure to renegotiate their mortgages under the guidance of a bankruptcy judge. The measure would have helped 1.7 million homeowners keep their houses, and preserved an additional $300 billion in home equity.
Given the tidal wave of foreclosures that have so destabilized our economy, this seems like a no-brainer piece of legislation. There were over 800,000 foreclosures in the first three months of 2009 -- more than 341,000 in March alone.
But the banking lobbyists went after it with guns a-blazing - even after Durbin and the measure's other backers seriously diluted the bill. These concessions did nothing to sway the Mortgage Bankers Association (whose members' subprime schemes have helped bring us to the point of collapse), the Financial Services Roundtable, and the American Bankers Association, among other hired guns (check out this video of the Mortgage Bankers Association's annual meeting, held the night before the cramdown vote, and note the overpowering scent of self-congratulations).
And their aim was true -- and deadly. Heading into the vote, those pushing for reform hoped to gather the 60 supporters needed to bring the cramdown amendment to a final vote. Instead, Durbin struggled to find 45 Senators willing to side with consumers. The final tally: Bankers 51, Consumers 45.
Twelve Democrats sided with the banks -- Max Baucus, Michael Bennet, Robert Byrd, Tom Carper, Byron Dorgan, Tim Johnson, Mary Landrieu, Blanche Lincoln, Ben Nelson, Mark Pryor, Arlen Specter, and Jon Tester -- as did every Republican who voted.
As HuffPost's Ryan Grim reported, some of the key Democrats who voted against the measure have been on the receiving end of major banking industry campaign contributions:
The banking and real estate industry have funneled roughly $2 million into Landrieu's campaign coffers over her 12-year career, according to data from the Center for Responsive Politics. The financial sector is Nelson's biggest backer; he's taken $1.4 million from banks and real estate interests... Tester has fielded roughly half a million in his two years in office. Lincoln has taken $1.3 million from banking and real estate interests.
In the run-up to the vote, Durbin called it a "test": "Who is going to win this debate?" he asked. "The mortgage bankers and the American Bankers Association or the consumers across America?"
We just got our answer.
The shocking swagger of those in the financial sector was also evident in the negotiations that resulted in Thursday's announcement that Chrysler would file for Chapter 11 bankruptcy.
For much of the back-and-forth between Chrysler, its lenders, and the Treasury Department, those lenders (comprised of banks, including Goldman Sachs, Citigroup and JP Morgan -- all recipients of bailout money -- and private equity firms) were playing hardball. They repeatedly rejected attempts by Treasury to get them to lower the amount of Chrysler's debt.
The car company owes its creditors $6.9 billion. Treasury proposed that the banks and private equity firms accept 15 percent of what they are owed. The creditors scoffed at that and suggested they'd settle for getting 65 percent of what they are owed (around $4.5 billion), plus a 40 percent stake in Chrysler and a seat on the company's board.
Picture this for a moment. On one side you have the Treasury, which has helped funnel tens of billions of dollars to these banks, making what it considers an equitable proposal. On the other side, you have the bankers, the recipients of that government largess, showing their gratitude by scoffing at Treasury's proposal and demanding a much, much better deal. Clearly, Goldman has gotten way too used to sweetheart deals like the 100-cents-on-the-dollar payout it received as part of the AIG bailout.
Treasury eventually upped the proposal to $1.5 billion (22 percent of what the creditors were owed) and a 5 percent equity stake in the carmaker. Again the bankers scoffed, before finally, at the 11th hour, agreeing to accept $2 billion (around 29 percent) and a small equity stake.
A Treasury official took a victory lap, calling the deal "an exceptional accomplishment in line with the President's firm commitment that all stakeholders sacrifice to make this deal succeed."
Then the 12th hour arrived and the hedge fund managers, who hold around 30 percent of the Chrysler debt, decided they didn't want to sacrifice that much after all and refused to sign off on the deal -- even after the offer was sweetened with an additional $250 million. At least the hedge funds had not improved their balance sheets with billions in taxpayer dollars and government loan guarantees before scuttling the deal.
As for credit card reform, the House's resounding 357-70 passage of Carolyn Maloney's Credit Card Holders' Bill of Rights would seem like a rare defeat for the banking lobbyists who furiously opposed it. But a number of elements of the legislation demonstrate that even when the bankers lose, they still win. For instance, despite the desperate urgency of the situation, all but one of the consumer-friendly provisions of the bill won't take effect for a year. And the bill doesn't contain any cap on credit card interest rates -- an amendment to cap rates at 18 percent never got any traction. And, of course, the bankers will get another crack at derailing credit card reform when the Senate takes up its version of the bill, sponsored by Chris Dodd, later this month.
So no matter how badly the banking industry fails and how much its failures cost us, it continues to be Washington's 800 lb gorilla -- and the greatest risk to Barack Obama's presidency.
At his press conference, Obama bemoaned the fact that he "can't just press a button and suddenly have the bankers do exactly what I want."
It's too bad the same can't be said for the bankers, who keep pressing Congress's buttons, and getting pretty much what they want.
