Freedom Line Blog

Virginia Attorney General Ken Cuccinelli seems destined to lose the next round of his lawsuit challenging the constitutionality of Obamacare, and he can blame South Carolina Republican Senator Lindsey Graham for it.

At the Fourth Circuit U.S. Court of Appeals, Cuccinelli drew a horribly liberal three-judge panel to hear his case. Two of the judges are Obama appointees, and one is a Clinton appointee. The two Obama appointees should not even be on the court — but they are because of failures by, or the outright underhandedness, of Graham.  If Graham had worked harder to force approval of GW Bush judicial nominees for his own Fourth Circuit, the Circuit would remain among the most conservative in the nation, rather than now trending liberal.

Both of the Obama appointees came for seats that stood vacant during the entire eight years of the Bush presidency. Yes, eight whole years. Maryland’s Andre Davis filled a seat to which US Attorney Rod Rosenstein had been nominated by Bush. So solid were Rosenstein’s credentials that even the liberal Washington Post editorialized not just in his favor, but impassionedly in his favor, several times. Yet he never even received a vote.  North Carolina’s James Wynn came from a state that for two of those eight years enjoyed two Republican senators — thus, no “blue slip” problem — while Republicans held a strong 55-45 majority in the Senate. In short, there should have been no reason at all not to fill that seat.

Meanwhile, a South Carolina seat (Graham’s home state!) and a Virginia seat also went unfilled for years, with the Virginia seat also open during the two years of highest Republican ascendancy and with two GOP home-state senators.

Why is this in large part Graham’s fault? Several reasons.

First, he was a key player on the Judiciary Committee. Judiciary Committee members worth their salt will at least usually be able to push through the nominees from their own state, especially when both senators from the state approve. Graham in particular, if his own boasting were to be believed, should have been especially able to secure approval for nominee Steve Matthews — because his vaunted “outreach” to Democrats, via the “Gang of Fourteen” (about which more in a moment) and otherwise, should have given him even more sway with Demo committee members than an ordinary GOP committee member would have had. Instead, for all of his bipartisanship (or actual defections to the Dems), Graham was powerless to gain the approval for Matthews — if he even tried. It is highly possible that he didn’t really try, because he was trying to screw over the Bush administration for not nominating some lackey of his own. Either way, that South Carolina vacancy, later filled by Obama nominee Albert Diaz, can be laid at Graham’s door.

Then there is the Gang of Fourteen in general. The alternative to the Gang of Fourteen deal was to employ a parliamentary maneuver called the “constitutional option” that would have ruled a permanent filibuster out of order if used to kill a judicial nomination (and only if used against a judicial nomination). It was Graham, more than any other single member, who negotiated the Gang of Fourteen deal that killed the constitutional option. After the deal, all nominees were supposed to get final floor votes (without filibuster) unless they represented “extraordinary circumstances.” Gee, that didn’t work. After the Gang deal, fewer Bush nominees made it through the Senate during a time of GOP majority than the number of CLINTON nominees who made it through the Senate while the GOP held a majority. In other words, a Republican Senate was kinder to Clinton than it was to Bush. That’s hardly a triumph for Graham and his Gang.

Then there is the Virginia seat. Not one but three Bush nominees were serially blocked, two of them while Republicans held total sway. (Ironically, one of them, E. Duncan Getchell, is now the Virginia Solicitor General who will argue Cuccinelli’s case before the Fourth Circuit.) One of them was not just a failure of Graham to effectively support, but instead a victim of Graham’s deliberate sabotage. William J. Haynes was a superb nominee and was senior counsel at the Pentagon. Graham joined the Dems in effectively accusing Haynes of being responsible for “torture” of enemy detainees, even though the plain truth is that Haynes was instead responsible for reining in the amount and intensity of “enhanced interrogation” that was used. The real story was that Graham blocked Haynes because of a personal vendetta involving Air Force JAG rivalries against civilian Air Force attorneys. It was a petty vendetta, and one for which Haynes really was a mere stand-in for Graham’s ire, not even a real party to the dispute.

Publicly, for a long time, Graham refused to acknowledge responsibility for blocking Virginia’s Haynes (who originally also hailed from his home state of South Carolina, and who attended college in North Carolina, so he had ties to three of the four Fourth Circuit states), but then Graham bragged about it at a primarily liberal event (if my sources are accurate).

The reason all this is important is because a three-judge panel is chosen randomly by computer. But if there are more conservative judges to choose from, the odds of the computer assigning conservative judges to a particular case are obviously much higher. The leftist panel selected for the Cuccinelli case would almost assuredly not have been chosen (heck, two of them would not even have been on the court) if the Fourth Circuit remained a stalwart conservative bench — which it would have if Republicans, led by Graham, had fought harder and smarter to get Bush’s nominees approved.

Instead, the Fourth Circuit now leans left. Even if Cuccinelli appeals a bad three-judge panel decision to the whole circuit court en banc, the odds are at least slightly against him winning at that level. (Of course, he’ll still have a decent shot at winning at the U.S. Supreme Court, but that’s another story.)

And it really is Lindsey Graham’s fault.

Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

Tim again hits a crucially important issue  in his column that ran yesterday. When fewer than half of the population pays income taxes, the balance tips in favor of freeloading. The Washington Times editorial Wednesday laments that half of the equation: Welfare, of various sorts, is out of control.

It’s no wonder that the latest Agriculture Department figures shows one out of every five households received food stamps in February. The assistance provided to 20.8 million homes – up 20 percent in the past year-and-a-half – came at an annual cost of $68 billion. Free lunches were handed out to another 18.4 million, leaving taxpayers with a bill for $12.8 billion…. Instead of punishing enterprise and subsidizing poverty, the country needs to restore the conditions that promote prosperity. America’s corporate tax rate – currently the second highest in the world – needs to be cut. We need to restrain federal spending by scaling back the freebies doled out to far too many people. That’s the best way to restart our economic engine.

Only policies that promote growth will put more people above the income line at which they pay income taxes. Taxes are not a good thing, but making enough money to pay taxes is. Unless people are paying at least a nominal rate of taxes, they will feel no compunction to support the sorts of policies that reduce the need for taxes in the first place. From what they can see in the immediate horizon, at least, they are not at all invested in the health of the private economy, but instead are invested in the idea of bigger government — because bigger government now costs them nothing, and probably subsidizes them directly.

Tim’s quote from Orrin Hatch was good:

“An increasingly smaller group of Americans is shouldering the burden for an increasingly larger group of Americans.”

This is a recipe for ultimate economic collapse.

Veronique de Rugy adds more at NRO. She notes massive empirical research that shows high levels of publicly held debt have the effedct of consistently lowering economic growth. She ends with a quote that itself contains a link to this paper. In that paper comes a line that restates my point: “What is fleeting in economics is politically popular, while what is enduring in economics is politically unpopular.” The author descrivbes this phenomenon as the “shortsightedness bias” inherent in politics. When a majority of the public freeloads, their short-sightedness bias will be in favor of more freeloading, more debt — and, against their long-term interest, less growth. That’s why tax rates should not be raised, but why the tax base must be widened.  Counterintuitively, the way to widen the base is to keep the rates low enough to promote the economic growth that lifts more people into income levels at which they pay taxes. And as more people pay taxes, deficits and debt start to decline. A government that encourages economic growth can therefore be a more stable government than one that tries to soak the rich. A broad tax base thus supports ordered liberty. High tax rates undermine it.

This week’s edition of the Liberty Update, CFIF’s weekly e-newsletter, is out. Below is a summary of its contents:

Hillyer:  To Run DNC, Wasserman Schultz Be Illin’
Ellis:  Gunrunner Scandal Beating a Path to AG Holder’s Door
Lee:  U.S. Tipping Point: 51% of Households Now Pay No Income Taxes
Senik:  Bin Laden and “The End of the Beginning”

Freedom Minute Video:  Justice, At Last
Podcast:  Early Predictions on the 2012 Presidential Field
Jester’s Courtroom:  Momentary Baby Switch Not Grounds for Lawsuit

Editorial Cartoons:  Latest Cartoons of Michael Ramirez
Quiz:  Question of the Week
Notable Quotes:  Quotes of the Week

If you are not already signed up to receive CFIF’s Liberty Update by e-mail, sign up here.

In this week’s Freedom Minute, CFIF’s Renee Giachino comments on the death of Osama bin Laden.  “Bin Laden’s death is a truly momentous moment in American history,” says Giachino. “But while we should all celebrate his demise, we must also remain vigilant in our continuing war against Islamic extremists.”

In an interview with CFIF, Bill Whalen, a fellow at the Hoover Institution, analyzes the field of potential 2012 presidential candidates, focusing particularly on political apprentice Donald Trump and Tea Party favorite Michelle Bachmann.

Listen to the interview here.

The New York Daily News carries a shameless story today seeking to sow controversy over President Bush’s decision not to join President Obama for today’s ceremony at Ground Zero:

WASHINGTON – George W. Bush won’t be at Ground Zero with President Obama Thursday in part because he feels his team is getting short shrift in the decade-long manhunt for Osama Bin Laden.

“[Bush] viewed this as an Obama victory lap,” a highly-placed source told the Daily News Wednesday.

Bush’s visit to the rubble after the 9/11 attacks was the emotional high point of his presidency, but associates say the invitation to return with his successor was a non-starter.

Those of us who served President Bush know that the NYDN’s account has nothing to do with reality. The former president’s ethos, particularly in retirement, has always been to put the needs of the current president — and the nation — above his own. His decision not to attend the ceremony was a gesture of respect toward the president who caught Bin Laden, not a snub born of petulance. The Daily News’ anonymous source is unnamed for a reason: he or she is unreliable. The paper should be ashamed.

Sorry to coin an awful word such as “lossful,” but in this case it fits. I wish to associate myself with Tim’s excellent post below about the Obamites advancing what he calls a “toxic” rule to undermine private, usually for-profit colleges. In addition to Tim’s history of excellent reports on this subject (and Renee’s), Mark Hyman has done several on-target pieces on the same subject. It’s also worth noting that this is not a typical, right-vs-left battle. As The Washington Times noted in an editorial, Marc Morial of The Urban League has joined a number of other left-leaning outlets in denouncing the administration’s outrageous policies. Mr. Morial told me the rule “would have disastrous consequences for those who are at greatest risk of a life in poverty if they don’t obtain a college education.”

As Linda Chavez wrote, “Shouldn’t the Education Department devote its resources to expanding opportunities for Americans to receive schooling, not restricting them?”

As President Barack Obama meets with family members of 9/11 victims in New York today, I hope his press operation back in Washington, D.C. is deciding how to get out of its own way.

Since news leaked of bin Laden’s death on Sunday, the White House communications shop has had to revise, rephrase, and walk back several details of the raid.

Was Osama using one of his wives as a human shield?  No, apparently she voluntarily rushed a Navy SEAL and was wounded.

Was Osama waving a gun at the SEALs?  No, he was unarmed.

Then, pictures of the dead Osama were promised to prove his demise.  Now, we’re told that no pictures will be released and to focus instead on “[t]he broader point…that a group of extraordinary US personnel flew into a foreign country in the dead of night and…flawlessly executed a mission…”

Had fumbling White House Press Secretary Jay Carney and the rest of the Obama Administration focused themselves on such a tight version of events, we probably wouldn’t be distracted with all the post-op corrections.

This kind of ineptitude not only makes Team Obama look incompetent; it makes them look like they can’t tell a good story without ham-handedly putting themselves in the middle of it.

At least one congressman is using the death of terrorist leader Osama bin Laden to draw attention to what may sound like an oxymoron: a “good” earmark.

Former House Appropriations Committee Chairman Jerry Lewis (R-CA) reminded reporters that it was his decision to dramatically increase funding for predator drones – the unmanned airplanes directed to kill targets halfway around the world.

Previously used only for clandestine or “black ops” missions, the U.S. Air Force was in the process of developing unmanned spy drones for expanded military use in the early 1990s, but Lewis felt the process had been moving too slowly.

From his seat on the Defense Appropriations Subcommittee, Lewis, who later rose to the chairmanship of the full committee, attached the funding boost and language requiring the Air Force to speed up development of the drones to a spending bill that ultimately became law.

In the years since, the program has become a staple in the United States’ intelligence-gathering efforts overseas and has been incorporated as a regular component of the Defense Department’s annual budget.

Predator drones weren’t responsible for killing bin Laden, but they are the Obama Administration’s favorite means for hunting terrorists.

Currently, House Republicans have banned the practice of earmarks like Lewis’ $400 million boost to the predator drone program.  When the policy gets revisited after the 2012 elections, it will be interesting to see if Lewis and others will be able to change their colleagues’ – and fiscally conservative voters’ – minds.

H/T: Riverside (CA) Press-Enterprise

There’s new political malfeasance from the Obama Administration.  Its Department of Education has sent the destructive so-called “Gainful Employment Rule,” which unfairly persecutes and effectively eliminates private college competition in higher education, over to the Office of Management and Budget for final review.

In addition to its harmful effects, the Rule is also riddled with corruption, from allegations of insider trading to defective Government Accountability Office reports.  The Education Department’s handling of this issue has been simply appalling.  Even more outrageous is the fact that the Department has not made the most recent version of the Rule – the one that was just sent to OMB for final review – available to the public.

In February, we applauded the House of Representatives when it passed a bipartisan amendment to H.R. 1 that stated that “no funds may be used to ‘implement, administer or enforce’ the U.S. Department of Education’s proposed Gainful Employment rule, nor may the Department ‘promulgate or enforce any new regulation or rule’ that would have the same effect as the Gainful Employment rule.  Unfortunately, however, that amendment was not included in the final budget.  But the battle to preserve student choice and market freedom in higher education is far from over.

At a time when our country has fallen behind in the rate of college graduates, we need competition in higher education now more than ever if we want to survive in an increasingly competitive world economy.  The Rule is clearly not close to being ready for final review, and the Department of Education must  reconsider its implications.  Most particularly, its harmful impact on less wealthy and working students who rely on career colleges and ultimately on our economy.

In the wake of Osama Bin Laden’s demise, it may be all too easy to forget about the other poweful madmen who continue to be the authors of human suffering throughout the world. One prime example: the leaders of North Korea. Slate reports the disturbing news from the hermit kingdom:

Jon Huntsman has the looks, money, and credentials to be a top-tier Republican presidential candidate – if he can stop getting endorsements from the two most liberal presidents of the last 35 years.

President Barack Obama praised Huntsman for the latter’s “enormous skill, dedication and talent” to the job of being Obama’s ambassador to China the last two-plus years.  In acknowledgement of Huntsman’s rumored presidential campaign, his former boss said, “I’m sure that him having worked so well with me will be a great asset in any Republican primary.”

Jimmy Carter likes what he sees too.  Telling CNN that Huntsman is “very attractive to me personally” and an “attractive” candidate, Carter is giving the former Utah governor’s moderate positions on social issues, immigration, and the environment a very liberal hue.

If this keeps up, Huntsman may be tagged with the worst label for a GOP presidential contender: the kind of Republican Democrats will feel bad about voting against, but will do so anyway.

None of which helps with the GOP base.

After all, being Obama’s former ambassador to China is already a tough sell for conservative voters.  Getting praise from Jimmy Carter may be the kiss-of-death.

At NRO today, Yuval Levin takes yet another liberal to task for conflating taxes with earnings, for confusing what belongs to government with what belongs to individuals. Indeed, one of the most disturbing trends among lefties these days is the assumption that virtually everything — money, property, civil rights — start with government and are the government’s to dole out or withhold as the government sees fit. The Washington Times did a good editorial on this last month:

When President Obama outlines his tax-increase plan on Wednesday, it’ll be based on the liberal assumption that all money belongs to the government, with Americans retaining only what bureaucrats allow. That’s the dangerous argument Supreme CourtJustice Elena Kagan, an Obama appointee, made last week in a case on education funding…. Justice Kagan, joined by three other liberal justices, dissented, arguing there is no functional difference between a tax credit and a government appropriation. Justice Anthony Kennedy, writing for the majority, shot this down. “[Justice Kagan‘s] position assumes that income should be treated as if it were government property even if it has not come into the tax collector’s hands,” he wrote. “That premise finds no basis in standing jurisprudence. Private bank accounts cannot be equated with the Arizona State Treasury.”

Now comes Levin to note almost the exact same sin by Slate’s Simon Lazarus:

In other words, Lazarus argues that a tax credit that could be used toward the purchase of health insurance (even a refundable credit that would provide money for health coverage for people who don’t pay taxes) is the same thing as a penalty for failing to purchase health insurance. This is an even more contorted argument than the one now being made in federal court in defense of the individual mandate (that the mandate is just a tax).

As the WashTimes noted, this attitude is pervasive on the left, especially in the lefty legal circles from which Justice Kagan (and Justice Sotomayor) came — and it extends to God-given rights, too:

Justice Kagan pushed similar fallacies for years. In a 1992 essay for the Supreme Court Review, she argued that a “nonsubsidy” by a government is legally indistinguishable from a “penalty.” In that article, she was discussing the funding of abortion referral services. “In choosing a stance from which to view government action,” Justice Kagan wrote, “we instinctively consider how the world looked prior to the action.” Thus, “If the starting point assumes funding for all family-planning services, including abortion referral, then the government decision is a penalty.”

Note where her “starting point” is. Justice Kagan always starts with government power and prerogatives. It was in that same 1992 paper that she described First Amendment free-speech rights as something “dol[ed] out” as “a favor” by government.

The WashTimes then offered this important corrective:

[C]ontrary to the worldview of Justice Kagan and her sponsor in the Oval Office, government is a creation of individual citizens and derives its powers from the people rather than doling out privileges to them.

Again and again, the Obama administration and its fellow travelers will argue not only that government knows best, but that it enjoys the power to impose the fruits of that “knowledge” on the rest of us. Obamites think government has the right to compel us to engage in a particular form of commerce (health insurance), whether we want to or not. It thinks the government can determine better than the voters themselves who qualifies as a community’s “candidates of choice” (hint: If it is a black community, only Democrats qualify, regardless of what the black citizens themselves say). Obamites likewise think government can compel senior citizens to accept Medicare benefits they don’t even want.

And so on.

This attitude, in all its forms, is anathema to ordered liberty. Simon Lazarus may have intended to be making a fairly technical (albeit highly politically charged) point about health-care proposals, but it is his underlying assumptions that are so execrable. Yuval Levin is right to call him out.

Former Department of Justice official John Yoo is helping set the record straight on how much credit the Obama Administration should be sharing with its predecessor.

Writing in today’s Wall Street Journal, Yoo makes the case that the raid on Osama bin Laden’s compound would have been impossible without Bush era policies such as warrantless wiretapping and enhanced interrogation techniques – both critically important to finding the terrorist mastermind.

And the credit-shifting doesn’t stop there.  When asked by NBC News’ Brian Williams whether waterboarding was used to extract information from detainees, CIA chief Leon Panetta evaded answering.

Here’s the relevant excerpt, courtesy of RealClearPolitics:

BRIAN WILLIAMS: I’d like to ask you about the sourcing on the intel that ultimately led to this successful attack. Can you confirm that it was as a result of waterboarding that we learned what we needed to learn to go after bin Laden?

LEON PANETTA: You know Brian, in the intelligence business you work from a lot of sources of information, and that was true here. We had a multiple source — a multiple series of sources — that provided information with regards to this situation. Clearly, some of it came from detainees and the interrogation of detainees. But we also had information from other sources as well. So, it’s a little difficult to say it was due just to one source of information that we got.

WILLIAMS: Turned around the other way, are you denying that waterboarding was in part among the tactics used to extract the intelligence that led to this successful mission?

PANETTA: No, I think some of the detainees clearly were, you know, they used these enhanced interrogation techniques against some of these detainees. But I’m also saying that, you know, the debate about whether we would have gotten the same information through other approaches I think is always going to be an open question.

WILLIAMS: So, finer point, one final time, enhanced interrogation techniques — which has always been kind of a handy euphemism in these post-9/11 years — that includes waterboarding?

PANETTA: That’s correct.

President Barack Obama may not have to defend the chasm between his campaign rhetoric denouncing the Bush Administration’s policies and his use of those same tactics to find and kill bin Laden.  Don’t expect Panetta, his nominee to be the next Secretary of Defense, to be so lucky in his Senate confirmation hearings.

The Daily Caller confirmed that Rep. Dennis Kucinich (D-OH) is seriously contemplating a move to Washington State to run for Congress.  Kucinich’s current Cleveland area seat is rumored to be on the chopping block since the 2010 Census revealed Ohio losing two seats due to population decreases.

Interestingly, Kucinich’s communications director says that the anti-war congressman has received requests to move and campaign from groups in twenty states; including Washington which will gain a seat in reapportionment.

Kucinich is already visiting the state to gauge his chances.  If successful, he’ll almost be as far to the left geographically as he is politically.

Rasmussen Reports says that 40% of Americans are still undecided on whether to support the “Path to Prosperity” budget plan by Rep. Paul Ryan (R-WI).  CFIF strongly endorses the House Budget Committee Chairman’s attempt to rein in federal spending, while giving Medicare beneficiaries more choices in their health care decisions.

According to the poll, 26% of likely voters support Ryan’s plan, while 34% oppose it.  That leaves 40% who still don’t know enough about Ryan’s proposal to have an opinion.

The liberal media is already waging a misinformation campaign against Ryan and other sensible fiscal conservatives.  For a primer on the “Path to Prosperity” go here.

In order to change the culture in Washington, voters need to change the terms of the debate.  Educating yourself and others on Ryan’s plan gives fiscal conservatives the ammunition they need to win the hearts and minds of the 40% still undecided.

In a new commentary on the death of Osama Bin Laden out today, I wrote:

Bin Laden’s death also reminds us of just how intemperate the climate is amongst our fair-weather friends in the War on Terror. Consider: Pakistani officials were not notified of the operation until its completion, despite the fact that American forces were opened up to the prospect of attack as a result. The only calculation that could justify such a risk? That elements within the Pakistani government may have tipped off Bin Laden if they had the relevant intelligence.

No sooner had the piece been published than Politico reported this nugget from Langley:

The Obama administration didn’t tell Pakistani officials about its plans to raid Osama bin Laden’s compound out of fear that they might warn the Al Qaeda leader or his supporters about the mission, according to CIA director Leon Panetta.

Early on in the planning of the attack, “it was decided that any effort to work with the Pakistanis could jeopardize the mission” because “they might alert the targets,” Panetta told Time Magazine, which on Tuesday morning published Panetta’s first interview since bin Laden was killed.

For the past decade, America has spared the rod in its relationship with Pakistan because of the conviction that the country’s shortcomings were outweighed by its partnership in the War on Terror. If the leadership there couldn’t be trusted to assist tracking down the biggest target in that war, it would represent a failure. But if it was actively abetting the enemy, it represents a betrayal. America should respond accordingly.

When I wrote last week on the coming stagflation, I didn’t know that by formerly used official US inflation measures, current inflation is running at 10%. Niall Ferguson says it is. His terrific column is here.

This Ferguson paragraph mirrors one of mine from last week:

To ordinary Americans, however, it’s not the online price of an iPad that matters; it’s prices of food on the shelf and gasoline at the pump. These, after all, are the costs they encounter most frequently. And with average gas prices hitting $3.88 a gallon last week, filling up is now twice as painful as when President Obama took office.

(From my column last week: “The Fed economists may discount food and gasoline prices as unstable indicators that aren’t part of “core” inflation, but for most Americans food and gas cost hikes are the very definition of inflation. These are the things they pay for every day; they are the items closest to their psyches. Those gas prices on the big billboards at every filling station have an outsized effect on American psychology.”)

Here’s the Ferguson bit about how the inflation measure has changed:

And the reason the CPI is losing credibility is that, as economist John Williams tirelessly points out, it’s a bogus index. The way inflation is calculated by the Bureau of Labor Statistics has been “improved” 24 times since 1978. If the old methods were still used, the CPI would actually be 10 percent. Yes, folks, double-digit inflation is back. Pretty soon you’ll be able to figure out the real inflation rate just by moving the decimal point in the core CPI one place to the right.

Good stuff. Read the whole thing.