In the past, the Pakistani military and intelligence (ISI) establishment have allowed the Taliban considerable freedom of operation inside Pakistan, and either turned a blind eye or provided support to Taliban and Al Qaeda forces operating across the border in Afghanistan who are based inside Pakistan, primarily in South Waziristan. The toleration of Pakistani Taliban wore thin in May, when Taliban forces seized control of the Swat Valley, ending a truce with the Pakistani government. That action prompted the Pakistani military to engage in an extended campaign over the Summer to unseat them, leading to a formal declaration of surrender by Taliban forces in September. During the course of that campaign, Pakistani forces massed on the border of South Waziristan, the province that is home to the bulk of the Taliban and Al Qaeda forces, but never actually went in. Invading South Waziristan would be no small undertaking. There are an estimated 10,000 Taliban fighters in that province, and previous military incursions have been beaten back with significant losses. Despite the crackdown on the Taliban inside Pakistan, the military and the ISI have continued to allow Al Qaeda and Afghan Taliban forces to operate with impunity, presumably as a check on Indian influence in Afghanistan. India’s influence is largely in the form of infrastructure investment. Pakistan simply does not have the economic resources to compete on that basis, so it relies on Pashtun proxies. As recently as this past week, in fact, Afghan government sources allege that the ISI was directly involved in a Taliban attack on the Indian Embassy in Kabul. The assumption by most observers has been that the leadership of the Pakistani military and the ISI – whose degree of coordination is unclear at the best of times – believed that they could adequately contain Pakistani Taliban and Al Qaeda forces while still tolerating (or supporting) Taliban, Al Qaeda, and other extremist forces operating in Afghanistan. And not necessarily only in Afghanistan. There were widespread reports of a past relationship between the ISI and Lashkar-e-Taiba and Jumat ad Dawa, the group(s) that launched bloody attacks in Mumbai last year. (The precise relationship between LeT and JaD is unclear.) When and to what extent that relationship was terminated is a matter for speculation; India, for one, continues to assert that these groups have direct ISI support. All of this created significant strains on the US-Pakistan alliance, a relationship that was strained further by allegations by two Pakistani generals that out of $6.6 billion in US military aid to Pakistan, only about $500 million ever reached the army. That allegation, in turn, led directly to the latest straw to strain the back of US-Pakistani cooperation. Last week the U.S. Congress approved yet another aid bill to Pakistan, for $7.5 billion, co-authored by John Kerry and Richard Lugar. This time the idea was to correct past mistakes; the bill included specific benchmarks, oversight of expenditures, and a requirement that the Pakistani military take action against Taliban and other extremist forces. By what may have been an unfortunate bit of timing, the bill arrived at a time when there was already controversy in Pakistan over the increasingly large American footprint, exemplified by the construction of a massive new embassy compound in Islamabad. The response was a political uproar. Military officials publicly condemned the bill as American meddling in Pakistani security, opposition politicians used it to renew their characterization of President Zardari as an American puppet. Much of this is simply internal politics rather than a disagreement over strategic goals. The military’s objections to the U.S. bill, in particular, may be taken as much to be a message to the civilian government not to imagine that it has control over the military as an actual objection to the idea of using U.S. aid to increase operations against the Pakistan Taliban. But the U.S. aid bill specifically called on the Pakistani military to dismantle outposts in southwestern city of Quetta (Balochistan) – where U.S. officials say Afghan Taliban leaders are based – and the eastern town of Muridke (East, near Lahore — see map here.) These are locations far from Waziristan; Quetta has been the base for attacks into Afghanistan, and Muridke is considered the home base of the two groups mentioned above, Lashkar-e-Taiba and Jumat ad Dawa. Thus the military’s objections to being asked to take action against these targets may reflect something deeper and more troubling than a desire to establish a domestic political position. But all of this may have changes this past week. The attack on the military headquarters two days ago was the third attack in the past two weeks – the other two were a bombing of the U.N. food program in Islamabad that killed 5 and a bomb in a Peshawar market that killed 49. These attacks were understood to be warnings designed to discourage the Pakistani government from proceeding with an invasion into South Waziristan. Instead, after the Peshawar bombing Interior Minister Rehman Malik declared that the government has "no choice" but to proceed with its operation. He now describes the operation as "imminent," and supporting air strikes have already begun. In other words, the strategy of containing Pakistani extremist forces while giving free rein to those operating elsewhere has come unraveled. The potential game-changer, then, would be a monumental strategic blunder by Taliban forces that could force the Pakistani military and intelligence forces to look beyond South Waziristan and abandon their strategy of toleration for extremist groups. All along, the question has been whether Pakistan’s military, its intelligence establishment, and its government – each individually and independently – had the will to commit to an all-out conflict with these forces. This week’s attacks may have gone a long way to settling that question, at least in the short term. That does not mean that we can assume that the army or the ISI will become all-out allies in America’s conflict for the long term. One or both may be satisfied with a partial military victory that weakens extremist forces, or a campaign that continues for a period of time and then is allowed to lapse. Nonetheless, right now it appears that the game has significantly changed. This is a moment the Obama administration needs to take advantage of as it conducts its strategic review. It’s not "Afghanistan," it’s the "Af-Pak" theater – if not the "Af-Pak-India" theater — and right now it looks as though Pakistan is about to emerge as its central front.

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Back in the mid-1990s, American seniors were mobilized into action to resist a plan to reform the Medicare system – in fairly modest ways – by scare tactics and misrepresentations.  That time, of course, the losers of the exchange were the Republicans, who wanted to look for ways to cut down on fraud and waste, slow the rate of payment increases, and impose some level of cost-benefit analysis into the process of decision-making for Medicare funded procedures (sound familiar?)  At one point, a proposal to slow the rate of increased spending was being publicly presented as a plan to slash Medicare spending.  Some movies are criticized for being derivative – this kind of argument is a second derivative.

The Republicans called it "Mediscare," and no one did it better than Clinton during the 1996 election.  I vividly remember the outrage of a friend of mine, at the time a Republican Party operative in an East Coast state known for its colorful politics.  He was incensed at the dishonesty, the bare primacy of politics over policy, the use of appeals to raw emotion to stifle any serious discussion of a critically important policy issue.  (Side note:  the friend in question later moved from politics to banking, switched to the Democratic Party, and converted to Judaism.  Um, I think I feel good about it.)  Of course, the Republicans got their turn with Hillarycare, and Harry and Louise.  I just saw a really sad story about the actress who played Louise in those commercials; apparently she later couldn’t get work because directors would say "I’m not hiring the woman who killed health care reform."

And now we have the Obamacare "debate."  In one sense, this is just another chapter of the bipartisan tradition of demagoguing social policy in the name of party politics.  And Americans in large numbers go for it every time.  On a side note, what is it about us?  I’m not actually sure Americans are capable of meaningful rational collective except in the face of imminent and total disaster.  I think it’s part of the anarchic strand of Romantic madness in the American character that comes down to us from Tom Paine and Daniel Shays.  Perfectly sober Bohemian Socialists, well-disciplined Italian Anarchists, long-suffering Slovak peasant farmers, decent, hard-working Irish nationalist – they all came to America, abandoned their Left revolutionary roots, and turned into populist whack jobs.  And then they became Nativists, which is even more miraculous.  I remember a news story about a controversy over a mosque in Hamtramck, Michigan.  One local resident, in particular, complained that the call to prayer being broadcast from the minaret was un-American – "if they’re going to live in America, why can’t they be more American," she asked?  I saw a video of the interview.  While the video shows, that the newspaper interview does not, is that she made this statement standing in front of a church whose lettering was in Ukrainian.  But I digress.

So there is nothing new about Mediscare-style arguments, rambunctious and easily manipulated populists, or Astroturf-style mobilizations.  But there is something about this debate that feels different, something more intense.  I kept trying to put my finger on it, to find a phrase to capture the elusive qualitative difference between these scare tactics and those of political operatives past.  And then Samantha Bee capture the zeitgeist of the moment in a single pithy phrase:  "universal single-payer shamanistic death panels."

Not just an obvious name for a thrash metal band, "universal single-payer shamanistic death panels" captures the quality that differentiates this "debate" from even previous "debates" on the topic.  In those earlier debates, participants misrepresented plans, exaggerated dangers … in short, they described an inaccurate version of the policy debate taking place.  It was as if they were describing a debate taking place somewhere else – in Canada, say, or Mexico – rather than the debate taking place in the United States at that time.  By contrast, the people showing up to disrupt town hall meetings this summer have left the planet entirely. 

Seriously, on what planet do we imagine an elected leader whose idea of successful politics is to knock off potential voters?  Is this supposed to be something that political consultants tell their clients will play in Peoria?  You can’t have it both ways:  the Dems cannot simultaneously be ruthlessly political, amoral, poll-driven political animals and ruthless ideologues committed to a revolutionary vision of global immolation.  At least, I don’t think you can.  F. Scott Fitzgerald told us that an intellectual is someone who can maintain two opposing ideas at the same time and still function – maybe conservatives are just more intellectual than liberals?  Actually, what’s even more interesting to me is the apparent (although unstated) assumption that all the other industrialized countries that have single-payer health plans are currently engaged in sending their grandparents and babies off to be euthanized.  I’m not even sure what to make of this one, except to go back to my earlier observations about what happens to perfectly sane European revolutionary radicals when they come to  America and turn into wild-eyed, violent conservatives.  I mean, do people really think that Canadian street are littered with the corpses of untreated grandparents?  And that Canadian voters favor those outcomes?  As the writers of South Park would put it, really??

Oh, before  I forget, the obligatory reference:  everyone I disagree with is a Nazi.  Whew, I’m glad I remembered.  Now, universal single payer shamanistic death panels – forward!

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I know I haven’t written in a while, but something has come up.

Sarah Palin, through her attorney, is threatening to sue blogger and radio personality Shannon Moore for reporting the existence of rumors about a pending investigation of Palin’s dealings in connection with the construction of the Wasilla Sports Complex and the Palin residence.

oh please, oh please, oh please The basis for such a suit is clear.  For too long we have witnessed the politics of personal destruction, the bloodsport of smearing a persons’ reputation.  The courts are the last resort, the place where the innocent can avenger her honor, save her reputation, and take some measure of revenge on her tormentors. oh double please, oh double please, I’ll be good for a whole year, I promise Remember the lengthy list of hit jobs on Hilary?  The accusations that Bill hired killers to murder his opponents and ran planes full of cocaine up from Latin America?  Remember black helicopters?  And how about the current President – have you heard any false accusations about him?  Well, Sarah Palin stands ready to ride tall into the sagebrush of the mountaintop … wait a minute, I lost my metaphor. remember that time I was ten and I really wanted a pony?  I want this more.  Much, much more.  Please-please-please.  I’ll never ask for another thing, I promise. Okay, I suppose I ought to make some pretense of a serious point.   Here goes.  The standards for a public figure suing someone for libel are set by New York Times v Sullivan, as modified by Gertz v Welch.  The original Sullivan rule applied to political figures; the gloss extended it to “public figures” generally.  The standard is that for a public figure to prevail in a libel suit, they have to prove that the statement in question was made with “malice,” or at a minimum with “reckless disregard for the truth.”  In practice, that “reckless disregard” standard has been pretty well abandoned; the only way for a public figure to win a libel suit is to show that the party making the statement knew it was false.

The context of Sullivan is interesting.  In 1960 a group of four African-American Alabama clergymen took out a full-page ad in the New York Times describing the brutal suppression of civil rights protests in Montgomery, Alabama.  The ad specifically stated that police had “ringed” the capitol building and had used shotguns and teargas to dispel student protestors, that the entire student body had protested in response, and described the protesting students singing “My Country ‘Tis of Thee” on the Capitol steps just before the police charged them. Commissioner of Police Sullivan objected.  Cops had not actually “ringed” the Capitol; only most, not all, of the student body had protested.  And!  The students protesting on the Capitol steps did not, as the ad said, sing “My Country ‘Tis of Thee”; they sang the national anthem.   That was the background.  The Supreme Court did not want to see libel suits used by powerful politicians to intimidate and silence protestors.  But then Gertz went much further.  Gertz involved a Chicago lawyer who represented the family of a young man killed by the police in their suit against the  policeman involved.  The John Birch Society disapproved; in their magazine, they charged that Gertz was a communist and that the lawsuit was part of a national conspiracy against law enforcement.  In that case the Court applied the same Sullivan standard on the grounds that Gertz’s activities made him a public figure. The Supreme Court’s explanation was that a public figure has access to the media, and is therefore able to respond effectively to any accusations of wrongdoing or assertions impugning their character.   This is a singularly unsatisfactory explanation, particularly in the case of an involuntary public figure.  Think Richard Jewell … or Governor Palin’s children.  Do we really think that Bristol Palin or Chelsea Clinton are “public figures” in the sense that their parents are? Why should the fact that someone’s activities bring them into the public eye mean that they are subject to the same level of rough criticism that we expect our elected officials to endure?  No other country has embraced the Sullivan/Gertz standard; courts in Australia and New Zealand, for example, have explicitly singled out the rule as one they did not want to see at work in their jurisdictions. That American protection for free speech goes farther than that in other countries – whether that speech is by the John Birch Society or Alabama ministers – is a cause for celebration on this July 4th weekend.  But there are serious questions when involuntary public figures, or non-political public figures, or especially the family members of public figures are swept within the ambit of the Gertz rule. But Governor Palin isn’t threatening to sue people who say bad things about her children, or even her husband.  She is threatening to sue a blogger who accurately reported the existence of rumors of an investigation of wrongdoing by her when she was a government official. Now, I haven’t practiced law in a while, and I do not have a current bar membership.  But I will go get one if Shannyn Moore will let me represent her.  The thought of the deposition of Governor Palin alone is enough to make it worth the money, but that’s only the tip of the iceberg; a counter-suit for vexatious litigation is just begging to be heard.  Oh please, oh please, oh please.

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All that being said – with absolute heartfelt sincerity – it is worth looking ahead and thinking about what is likely to come next.  There are two things to think about here.  First, how long can the opposition sustain itself?  Four, five, or six weeks from now, will the protests still continue? Will the world still be watching Youtube videos being recycled on CNN?  Second, if a revolution were to occur, what would it look like?  The catchphrases of this opposition are “death to the dictator” and “Allah u Akhbar.”  Both are religious arguments: a Muslim ruler is expected to rule justly, so a “dictator” cannot be a legitimate Muslim ruler.  But the religious language in which this uprising is being conducted should make us cautious in assuming too much about the consequences of even a dramatic change in the ruling regime.

Start with the cause of the protests, the stolen election. If there was any remaining doubt on that question, this statement by Guardian Council spokesman Abbas-Ali Kadhodaei should settle the matter:  "Statistics provided by Mohsen Rezaei in which he claims more than 100% of those eligible have cast their ballot in 170 cities are not accurate — the incident has happened in only 50 cities” and that no more than 3 million votes  are likely to have been affected.  Ah, well, in that case … (Kadhodaei points out that Iranians are not prevented from voting outside their home districts so that some occurrence of greater than 100% turnout is not impossible.  That argument is not remotely persuasive.  For a very fine statistical analysis confirming the conclusion that the election was fraudulent, see Walter Mebane’ paper here.

But the fact that the election was stolen does not mean that Ahmedinijad lacks widespread support.  There is good reason to think that Ahmedinijad would – or at least could — have won a clean election. There is an unlikely but not impossible scenario in which new elections are called … and the outcome is the same.  (I assume here that the effects of the protests themselves on a subsequent election would be mixed; repeated reports that the basijis being bused into Tehran come from other parts of the country suggest that in this as in all things, “the Iran people” is not a singular, monolithic entity.)

As everyone involved recognizes, however, the protests and the initial government reaction have raised the stakes to the point of a challenge to the legitimacy of the governing regime.  The government’s responding violence should not have come as a shock to anyone.  But it remains the case that that violence is being carefully kept within limits.  Some Western observers are reacting as though there has been slaughter in the streets:  the announcement that European embassies are considering opening their grounds to provide sanctuary to injured protestors reminds me of the “unauthorized acts of decency” that were reported during the massacre at Smyrna in 1922.  But that’s hardly an analogous case:  the massacre at Smyrna involved the murder of tens or hundreds of thousands of Armenians  (150,000 is one common estimate) by Turkish forces.  The current analogy – the one we’re hearing over and over — is Tiananmen Square. 

The problem is that that, too, is a weak analogy.  Tiananmen Square started with a million people occupying a central location on April 15; thousands participated in a lengthy hunger strike; tens of thousands remained there seven weeks later when the tanks rolled in on June 4.  The Chinese Red Cross estimated that 2,600 people were killed in a matter of hours. The issue at Tiananmen was stark:  particularly against the background of the ongoing collapse of the Soviet Union, the future of Communism itself seemed to be in the balance.  And the world was watching closely, fed reports and images by western correspondents right up to the end.

The Iranian protests don’t seem to be going that way.  First, neither the protestors nor the government – especially the government — seem to be looking for a pitched confrontation.  After the biggest marches, on Monday, everyone went home.  Day after day the protestors have come back for more in the face of teargas and batons and frequent live fire … but there has been nothing like the sustained seizure of public space that set the battle lines at Tiananmen Square.  Saturday would have been an opportune moment for an all-out confrontation:  many protestors were ready to face death, and in some cases the government obliged, making the tragic death of a young woman named Neda the signature moment of the conflict thus far.  But even on Saturday the government forces did not unleash full-scale military repression.

The government’s strategy appears to be Tiananmen in slow motion:  the application of low-level but steady violence in the hopes that the protestors will eventually give up. There are some signs that the strategy is working.  Protests continued Saturday night and Sunday, but the numbers are down.  Tactics like using the police to bar access to public squares and forcing people to keep moving are making it much harder to mount large-scale sustained marches.  Using police and basiji forces to prevent gatherings or disperse them before they grow too large – rather than trying to disperse them by force after the fact — and the widespread arrests of perceived or potential leadership figures are strategies aimed at turning a flashpoint confrontation into a sustained low-level counterinsurgency operation, a strategy should sound familiar. 

The Iranian government is dominated by a generation that remembers not only the Revolution of 1979, but more immediately the Iran-Iraq War with its million Iranian dead.  The basijis who are doing the skull-cracking and shooting now are the same force that launched suicidal human wave attacks against much better (American) armed Iraqi forces in the marshes.  In other words, this is a regime that has no trouble accepting casualties and has the forces available that are ready to both inflict and absorb much, much more.

Meanwhile, the extensive efforts to curtail the use of cell phones and cameras, the government’s Youtube propaganda strategy, the effective exclusion of direct reporting by Western agencies, in turn, are aimed at preventing the world’s attention from focusing around a symbolic object like the Lady Liberty statue.  (What a triumph Nico Pitney’s live blog has been for Huffpo; and how pathetic has the MSM been in comparison?  Is anything sadder than CNN’s putting up videos they got from Youtube?)  The world is trying to watch what is happening.  Will they still be trying just as hard after a month without direct news reporting?

We hear that there is a fierce power struggle going on in the meantime, between clerics aligned with Rafsanjani – these are real ayatollahs, which Khamenei is not – and others loyal to the regime, but nothing thus far suggests that a revolution will emerge from Qum. The move are complicated, and hard to read – presumably Rafsanjani and Khamenei are each trying to line up support.  Khamenei recently spoke well of Rafsanjani, suggesting the he wants to avoid an outright split.  At the same time, The New York Times has a story today detailing  efforts to discredit Moussavi as an agent of foreign powers in the government press, a move described as suggesting “that the government may be laying the groundwork for discrediting and arresting Mr. Moussavi.”  The story also quotes Iranian politicians calling for retrenchment and “reconsidering relations” with European nations.   The worst outcome could be a power-struggle that Ravsanjani loses, leading to retrenchment and reconsolidation.  The best outcome appears to be some incremental steps or revisions in power-sharing arrangements, at the most; nothing to turn the unrest in the streets into a top-down revolution. 

Finally, even if revolutionary change does come, it might be well to be cautious in predicting its consequences.  As I noted previously, the language of the protests has become religious.  Some of this is an attempt to enlist popular support rather than a reflection of the protestors’ underlying beliefs, but the result is the same:  they are protesting in the name of Islam.  That is part of what makes the opposition’s appeal so powerful, which should be yet another reminder of the simplistic American public understanding of Islam – particularly Shiite Islam — in the Middle East.  But as we have learned time and again, “democracy” does not necessarily equal “Western,” let alone “secular” or “liberal” (this is as true in the U.S., Israel, and Europe as anywhere else.)  And certainly “democratic” does not mean “pro-American.”  Khamenei’s government earned its unpopularity by staggering economic incompetence, not by its belligerent nationalism; very broad support for that nationalism remains.  In other words, a new or revised regime might be one that features considerable reforms internally but that is no less eager to be involved in regional affairs, particularly with respect to Shiite Iraq.  It is ridiculous to assert that Mousavi would not govern Iran differently than Ahmedinijad in terms of its internal affairs, but it is far less clear that Mousavi would be an Iranian Gorbachev, as some have suggested.  (Ironically, this is a fear that has been expressed by both Israeli and Palestinian leaders:  officials in Netanyahu’s government fear that a reformed government would be just as ambitious but less isolated, while Palestinians fear that a reformed government would be less inclined to make their cause a central concern in its dealings with Western nations in order to maintain good relations.)

Most likely the protests will continue through this week, and so will the low-level violence and the clampdown, the obvious acts of violence by government provocateurs, and the equally obvious propaganda.  Down the road?  Something powerful is moving in the streets of Tehra, but (to mix my metaphors) it is not clear that this new bird will be ready to hatch and take flight for some time yet.  And we can have only the dimmest idea as to what kind of bird it will be turn out to be.

[cross-posted at Huffingtonpost.com] 

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As President Obama considers his nominee for the position of Associate Justice of the Supreme Court, a lot of the talk is about the desirability of appointing a woman or an Hispanic to the Court. There are two very different arguments that might be behind such an idea. The first is the idea that the Court should be in some way a representative body, reflecting the make-up of the American polity. The problem with that idea is that from the outset, the Court was intended to be a non-representative body. The different branches of government are not only designed to check one another through the exercise of overlappin powers, they are also intended to be different in kind from one another. Membership in the House and the Presidency, in different ways, are representative offices; the Court and (prior to the XVIIth Amendment) the Senate were not. Those institutions were intended to be elitist. The classic story is from the early 1970s, when President Nixon nominated G. Harold Carswell for a position on the Court. It was widely agreed that Carswell was unqualified, in fact mediocre, but that did not dissuade Sen. Roman Hruska (R Neb.). Hruska gave us this famous appeal to the principle of representation: "Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?" Russell Long (D La) added his own academic spin to the populist position: "Does it not seem that we have had enough of those upside-down, corkscrew thinkers? Would it not appear that it might be well to take a B student or a C student who was able to think straight, compared to one of those A students who are capable of the kind of thinking that winds up getting a 100% increase in crime in this country?"

On the other hand, there is an entirely different argument in favor of representation on the Court, one that is directly connected to Obama’s desire for a justice with a demonstrated capacity for "empathy." This is the idea that a woman, an Hispanic, or a member of some other presently underrepresented group will bring a particular perspective to the task of judging that is relevant to the work of the Court. That is a perfectly valid argument, and it appears to be the one motivating Justice Ginsberg. In Ginsberg was visibly upset by her male colleague’s lack of empathy for a 13-year old girl who was subjected to a strip search by school officials based on an unsubstantiated tip that she was in possession of Ibuprophen. Dahlia Lithwick, writing on Slate, describes part of the colloquy. "Nobody but Ginsburg seems to comprehend that the only locker rooms in which teenage girls strut around, bored but fabulous in their underwear, are to be found in porno movies. For the rest of us, the middle-school locker room was a place for hastily removing our bras without taking off our T-shirts. But Breyer just isn’t letting go. "In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear."

Issue like the degree to which an action by state authorities is traumatic or violate accepted social norms come up all the time, which is exactly why empathy is such an important quality in a Supreme Court justice. The classic case is Justice Powell. Powell cast the deciding vote with the majority in Bowers v. Hardwick in 1986; according to Edward Lazarus’ book Closed Chambers, during conference, Powell informed his colleagues that he "had never met a homosexual," and gave the impression that he might have voted against the law – as he originally intended to do – but for this lack of exposure to a member of the affected class. After the vote, Powell’s long-time chief clerk informed the Associate Justice that he was, in fact, gay; in later speeches Powell declared that he regretted his vote. But a Supreme Court justice’s ability to recognize harm being done to someone by an action of the state should not depend on his or her being personally acquainted (and aware that they are acquainted) with a member of the same group. That’s what empathy – what Martha Nussbaum calls "narrative imagination" – is all about, the capacity to recognize the reality of others’ situation.

So if being a woman or an Hispanic is a requirement for the ability to empathize with female or Hispanic members of the population, the argument for including representatives of those groups on the Court makes sense. The problem is knowing how far to take the principle.

Here’s a tricky case: religion. Our current Court has gone to great lengths to relax the separation of Church and state by insisting that religious discourse be included in public discussion and religious groups be given access to public facilities on the grounds that religion is a form of viewpoint. In Rosenberger v Rectors of University of Virginia (1995), Jutice Kennedy put it this way: "Religion may be a vast area of inquiry, but it also provides, as it did here, a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered." The move involves shifting the focus away from the Religion Clauses of the First Amendment toward the Free Speech Clause: if, as Justice Kennedy eloquently told us, religion is a viewpoint as well as a content, then failing to use public resources to support religious expression on the same basis that secular expression is supported constitutes the suppression of expression.

Well, either one believes Kennedy’s argument or one does not. If the argument is accepted – that is, if we agree that religion is a specific viewpoint – then what are we to make of the fact that there are presently five Catholic justices on the Court, and may be a sixth shortly? Personally I don’t buy the argument. Of course many people’s views are shaped by their religious faith, but that’s not the same thing as saying that religion is in and of itself a viewpoint; by the same token, I do not assume that anything at all follows from the fact that the majority of the Court is presently drawn from a particular religious minority (24% of the population, which makes them either a minority or the largest community among a plurality, depending on whether one disaggregates "Protestant.") But if Kennedy is right, then of course a predominantly Catholic Court must be expected to reason differently – from a different "viewpoint" – than the old all-Protestant Courts of yore, or the variously mixed Courts of the modern era. In which case there is a problem if one believes in the idea of a representative Court.

The point is that any argument in favor of choosing a woman, an Hispanic, or a Wiccan (the fastest-growing religion in America!) should be made in terms of an expectation that such a justice will display a level of knowledge or imagination of social realities that would otherwise be unavailable. That’s not an argument about representation, that’s a perfectly valid (if debatable) argument about qualifications. In fact, that’s the real point of the argument about empathy. I hope to hear the Obama people make it.

[cross-posted at Huffingtonpost.com] 

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A year ago, in a blog post at Balkinization.com, Mark Graber discussed John Yoo’s role as an example of what he has called "the problem of Constitutional Evil." Graber’s point is that the assumption that anything that is "evil" is therefore contrary to the dominant understanding of the Constitutional is simply wrong. This is not an argument he makes lightly; Graber is the author of Dred Scott and the Problem of Constitutional Evil, a magisterial work that makes the case in historical context; orthodox, authoritative, widely accepted understandings of the Constitution may nonetheless permit actions that deserve to be described as "evil."

We may, in fact, be about to see a small example of the phenomenon in action; based on the oral arguments, it appears that the current Court is inclined to accept the proposition that an 8th grade girl can be strip searched by school officials based on nothing more than an unsubstantiated tip that she might have Ibuprophen on her person. If the link between that case and questions like torture seems far-fetched, consider the fact that in Fredrick v. Morse — the "Bong Hits for Jesus" case — the brief on behalf of the school district argued that the courts should give school officials unfettered discretion to determine the limits of students’ free speech on the grounds that such officials "operate daily on the front lines of public education." Truly, nothing is more dangerous to liberty than the abuse of language for political ends. George Orwell warned us about that danger; so did Thucydides.

I am a great admirer of Graber and Balkin. And a few months ago I wrote a post presenting the case against prosecution of Bush administration officials for violations of the Constitution per se. Recognizing the possibility that a perfectly orthodox constitutional interpretation can nonetheless lead to evil results would seem to support an argument for accepting John Yoo’s (in)famous assertion that his work in the Bush administration and that of Bybee, Addington, and others, was nothing worse than creative constitutional interpretation. "Creative lawyering" is considered high praise in the law business. And after all, John Yoo’s assertion of unlimited executive authority in a time of crisis is not entirely dissimilar to Truman’s assertion of an inherent executive power to seize control of the steel industry during the Korean conflict. That action was ruled unconstitutional, but of course the Court might have ruled the other way. Finally, it was no less a authority than Chief Justice Charles Evans Hughes who told us that "We are under a Constitution, but the Constitution is what the judges say it is."

In light of all that, I stand by the proposition that neither the conclusion that an administration has done evil nor even the conclusion that an administration has acted in violation of the Constitution is a warrant for criminal prosecution.

But there’s more. There is also the whole idea of the special role of lawyers. A few months ago I attended a conference in Jerusalem at which Natan Sharansky gave an address. During the question-and-answer period that followed, he was asked a question about the role of law. His answer was entirely dismissive: "we have lawyers," he said (I am paraphrasing from memory) "and they can justify anything." Sharansky’s view is widely accepted in many law schools; in fact, distinguished American law and society scholars in the room chimed in to lend their support to the idea that "law" has no meaning independent of the actions of lawyers. And President Obama has indicated that government agents who acted on the advice of legal counsel should not be subject to prosecution for their acts, presumably based on the assumption that accepting the advice of a lawyer is evidence that the agent had no intent to violate the law.

So there’s the argument against prosecutions in a nutshell: acts which are morally repugnant are not necessarily unconstitutional, acts which are unconstitutional do not necessarily warrant prosecutions, the intervention of lawyers provides cover against accusations of lawless conduct. It is also quite true that some of the Democratic members of Congress who are grandstanding these issues today were at least partially aware of the interrogation tactics that were being employed, and found no reason to complain at the time.

Is that it? Is that all there is? I hope not, because somewhere in this discussion I have developed an overwhelming urge to throw up. But how do we move forward without ignoring the realities of constitutional evils, the wrongheadedness of equating all constitutional violations with criminally culpable conduct, or the special role of lawyers in our legal system? How do we deal with the issue of torture?

The way forward, I think, is to get out of talking in terms of a single category of analysis. There are at least three distinct categories of issues involved here: there are technical legal issues, there are political issues, and there are deep questions about the relationship between "law" and "lawyers" in the American system. And there are at least three distinct categories of actors, too: the interrogators, the policymakers, and the lawyers. And then, there are at least three distinct audiences whose reactions we should care about: the legal professionals, the American public, and the rest of the world.

Let’s talk about the lawyers, first. I have read all the memos as they have come out, going back to the very first unauthorized releases of the memos outlining a theory of inherent executive authority drawing on Justice Sutherland’s 1936 opinion that described the president’s authority in wartime as directly inherited from the King of England. I still don’t know whether any of the authors of these memos can be reasonably charged with conspiracy to overthrow the Constitution or to commit torture. But if "the rule of law" is to mean anything, the term "lawyer" cannot simply mean "one who justifies any action" in the ultimately cynical way that Sharansky described it. We give lawyers special privileges, special immunities, and special authority, and we allow non-lawyers to rely on legal advice and to claim that advice as a protection. That is as it should be, but the consequence is that lawyers are supposed to be held to standards of ethical and professional responsibility. It is exactly the same equation that we make when we allow charitable institutions to operate without paying taxes: the benefit goes with the assumption that the public good is being served.

Based on the evidence that is publicly available, I have no hesitation in asserting that Judge Bybee should be subjected to impeachment proceedings, and that Bybee, Yoo, Addington et. al. should face disbarment proceedings to determine whether they have violated their fundamental professional responsibilities. Not because the actions they justified were evil, and not even because the actions they justified were unconstitutional, but because they used their art to creatively discover hitherto unknown ways to find justifications for evil and unconstitutional actions. To quote the motto of my alma mater, "law without morality is vain"; a person who is incapable of assuming the responsibility for that proposition is unfit for the legal profession. There’s a movie about this: it’s called Judgment at Nuremburg.

What about the interrogators? I believe that we need a Truth Commission, to be called just that. The connection to previous Truth Commissions in Guatemala, South Africa, and elsewhere is deliberate. The world no longer take seriously any claim of American moral exceptionalism; at this point we must strive to reassure the world that America seeks to be a member of the family of civilized nations. That requires historical memory, a uniquely public and uniquely political form of knowledge. Peggy Noonan’s call for unknowing, the suggestion that "sometimes in life you want to just keep walking" is anathema to the fundamental premise of a democracy. Like a free press and open elections, public knowledge and public acknowledgment of recent history is a basic precondition for the exercise of popular sovereignty. If the results of such a Truth Commission are to be criminal prosecutions, these should be reserved to commanders who are shown to have given or obeyed orders they knew to be illegal. "Illegal orders" is not a new or strange concept, it is a mainstay of military law.

And the policymakers? The Rumsfelds and Wolfowitz’s who formulated the policies and gave the orders? It may well be that the law cannot reach those officials directly. But there should be investigations into lying to Congress, among other possible offenses, to be conducted under independent, non-partisan auspices; Carl Levin’s suggestion of using retired federal judges might be a good place to start.

The case against prosecutions for evil actions or for violations of the Constitution per se stands; that is the problem of constitutional evil. The case for a public accounting and acknowledgment of those same actions gains weight by the day; that is we owe to ourselves, and what we ought to want to show to the world. And the case for some kind of action being taken against the lawyers who were involved is inescapable. These are the beginning of a way forward.

The post Torture and the Problem of Constitutional Evil appeared first on Jewcy.

Here are the basic terms of the proposal, as reported on the Obama-Biden web site. “Obama and Biden will set a goal that all middle and high school students do 50 hours of community service a year. They will develop national guidelines for service- learning … Obama and Biden will establish a new American Opportunity Tax Credit that is worth $4,000 a year in exchange for 100 hours of public service a year… Obama and Biden will ensure that at least 25 percent of College Work-Study funds are used to support public service opportunities instead of jobs in dining halls and libraries.”

So every American child starting at around age 11 or so will be required to participate in a national service program for the seven years of middle and high school.  And then comes college.  In college, every student who finds the prospecte of a $4,000 per year grant to his or her family irresistable — that’s $16,000 over four years, $20,000 over five, toward the cost of college — every student in that position will be putting in 100 hours of service work per year, defined (apparently) as work outside of the operations of the college itself. Let’s just focus on that college part for now.  100 hours per year is the equivalent of 3.3 hours per week in a 30-week school year; in other words, it is the equivalent of requiring every college student to add another course (with no homework) to their schedule.  What are the likely effects of such a requirement, spread over 12 million or more college students?

First, some potential benefits. To begin with, this program can be viewed as one of many elements of a general stimulus plan. Giving every college student in America $4,000 a year is an age- and socioeconomic-category-specific way of funneling cash to the middle class. (The lower classes are less likely to show up in college, the wealthy are less likely to find the refundable tax credit irresistible.) According to the U.S. Census, there will be approximately 16 million American college students next year. Let’s arbitrarily assume that 12 million of them will want to take advantage of this program; that’s a $48 billion program of stimulus checks right there, directed at a group about whose economic prospects we have all been very concerned of late. And college students will spend that money, if only on tuition and books . . .but more likely also on pizza and beer.  So in the first place this is very directed, very impact-intensive stimulus spendng.

Presumably, though, the economic benefits are only a part of the story. There is also the hope that the experience of service work will inspire attitudes of idealism and public engagement. (One can even argue that the predictable mobilization of *opposing* political voices will contribute to college students’ democratic participation; a double gain in civic education.) We can hope that a significant number of these students will experience character-shaping events producing a sense of commitment that they will carry forward into the future; numerous studies attest to the fact that experience of political and social activism at a young age tends to carry forward through later life, although there are obvious preselection problems with those studies.  Still, for at least some of these students, we can hope for a positive form of character education as a result of the service requirement.

Let us also not forget the potential for good works, here. The scale of this thing is monumental: 100 hours a year times 12 million students = 1.2 billion man-hours a year … and that’s not including the middle and high school students involved. If any significant fraction of those hours are actually spent in meaningful ways, we are talking about an army of workers that can do a hell of a lot of good things. My own suggestion: mobilize an army of college student tutors for underperforming primary school children. But picking up trash, renovating or building low-income housing, and all those other WPA-style projects have enormous potential for good, as well. In all the revisionist attempts to tar the New Deal as a failure, one of the conspicuous omissions is the lasting benefits that accrued to the country as a result, in the form of everything from mountain trails to logarithm tables.

As for the effects on the participants, make no mistake, this program would fundamentally change the nature of the college experience. It is an exercise in social engineering that goes far beyond the GI Bill; a better analogy is probably the creation of the community college system.

So what could possibly go wrong?

Rather a lot of things, actually. Recognize that these jobs effectively pay $40 an hour. The distorting effect of that wage on local economies can only be guessed at.  But just looking at the effects within the colleges, let’s consider two cases: a small, rural private college called Cloverfield College, and a big, urban state university called Flagship U. Cloverfield probably depends on work study students to run its library and its cafeterias; diverting 25% of that workforce away from campus operations may pose a real hardship, or at a minimum require significant additional staffing that will translate into tuition increases. Surprisingly, perhaps, Cloverfield will probably not have trouble finding service projects for its students; rural poverty is endemic, and with that poverty come a host of projects that could use staffing. The administration has not given us much in the way of guidance as to what will count as “service,” but in rural areas undoubtedly some of this would take the form of things like internships at woefully understaffed social services offices. In rural areas in particular, the program may have an entirely secondary benefit of providing staff to government offices that have historically operated at vestigial levels. The staff, to be sure, will be college students, but they work for free.

Now consider Flagship U. They are located in a large or medium-sized city. Their problem is to find 100 hours of service work for each of 35,000 students all at once, every year. For starters, they need a whole new administrative unit – particularly since the federal money will undoubtedly be accompanied by compliance requirements that necessitate considerable record-keeping and auditing functions. Local NGOs will be eager to absorb as much free labor as they can, but that will not be remotely enough; Flagship U. is about to get into the public service business on a very large scale.  The huge temptation will be to combine serivce work with credit-earning opportunities, on the model of internships and service-learning courses; this means that the entire faculty will be drawn into this operation to one degree or another.  This will affect everything from admissions (“we need more students who can read a wiring diagram”) to faculty hiring priorities. Existing service learning programs will be vastly expanded, and likely provide the nucleus for the new, extraordinarily powerful center of campus planning.

The results are predictable. First, this is a system that positively begs to be gamed. Much of the “service” will be make work, and in other cases the work will likely be political or of highly questionable value. Instead of learning idealism, students may learn a whole new layer of cynicism as “service work” joins “ethnic studies” in the litany of meaningless but easily evaded ritual required elements of a college education. There will be significant opportunity costs; many students will be dissuaded from participation in highly time-consuming extracurricular activities because of the time spent doing service, others will look to expand service into an entire form of extracurricular (resume-building) life in its own right.  Will students also be dissuaded form pursuing more demdanding academic efforts because of the extra serivce “course” they are required to take, semester in and semester out through their entire college career?  Will socializing be sacrificed, or other extracurricular activities… or just reading for class?  How far will faculty go to accommodate these extra demands?

Make no mistake, there will be administrators, faculty, and students who disapprove of the system and who will actively work to undermine its operations. Conversely, there will be an enormous growth of organizations whose entire purpose is to get hold of some of these funded students and make use of their free labor. Colleges will undoubtedly take the availability of this tax credit into account in determining financial need. And the fantasy novel quality of student resumes can only be enhanced by the fact that essentially everyone has 400 hours (or 500 or 600 depending on how many years they spend in college) of university-approved “service” documented in their record.

There are a myriad other questions. For starters, working out what counts as “service” is an incredibly thorny problem. Does political work count? How about working with organizations that engage in routine discrimination, like the Boy Scouts or some churches? You really want to improve college education? Put the best students to work tutoring those that are struggling. Would that count as “service”? Presumably, each individual college would be independently authorized to create its own program within federal guidelines; the variation would be huge, and that variation would become a recruiting draw, an element of rankings, another division between the have and the have-not colleges. What about insurance coverage for students while they are engaged in service work; will existing university group health plans simply pick up all of that risk? Will schools find a way to exempt football players? And one can only presume that any time a program is excluded from participation by a college, a lawsuit will entaile: the whole program, without doubt, would be yet another chapter in the ongoing saga of the American Lawyers’ Full Employment Act.

A lot of these complications derive from the fact that here, as in so many areas, the Obama administration eschews the direct and radical approach. The direct approach would be to declare a national service draft: every American must spend two years following his or her 18th birthday in either the military or a National Service Corps operated under direct government command and control.  That would be entirely separate from college. Colleges, after all, are not designed to administer a program of national service, have priorities that arguably compete with the demands of national service, are not organized around a primary goal of promoting serivce.  Asking colleges to become the locii of a national service plan is neither demanding a full-fledged national service plan of the kind familiar from many other countries, on the one hand, but at the same time involves a radical and experimental intervention in our system of higher education, probably the most successful American institution there is in terms of global prestige and competitiveness.  It can reasonably be argued that this is an approach that tries so hard to do two things at once it risks not doing either effectively.  But the Obama administration prefers to form partnerships with existing private and public institutions, to rely on incentives rather than coercion, and to keep control of operations decentralized. So it will be up to the administrators of Cloverfield College and Flagship U. — and every technical college and community college and branch campus in the country —  to find service projects for all their students, against the background of all the competing constituencies and the noise of local politics.  Imagine the future college catalogues that recruit students by promising the most prestigious, least demanding, most interesting service options available anywhere. . .

All that being said, there is no doubt that many students would find the experience of service work educative and valuable, and some number would find that experience transformative. I do not doubt that much good and valuable work would be done in addition to the make-work and the manipulation. Over time, would we see a rise in general levels of engagement and participation among new cohorts of college graduates? Maybe.

To summarize: 1) this is an enormous undertaking and a huge intervention in American society; 2) a lot of things will certainly go wrong; but 3) some good – maybe a lot — will be accomplished, measured on three distinct metrics: cash will be delivered into the hands of a population that both needs it and is likely to spend it (the precise test for an effective stimulus effort); students’ experiences will be enriched at least in many cases, and in some cases the experience of service will shape their characters; and 3) the work will do some good, perhaps considerable good. The main potential losses here are difficult to quantify or define: “college” will never be the same again, in ways – potentially good and bad – I can only dimly begin to appreciate.  And when one considers the potential long-term consequence of that transformation for American society as a whole, the scale of this undertaking suddenly appears positively breathtaking.

The post Obama’s Biggest Initiative of All – Service Learning appeared first on Jewcy.

Start with a legal point. There is no theory of which I am aware – and none that I have heard that is remotely plausible – under which abrogating the existing contracts with AIG employees would have been legal. To be sure, the situation would have been different had the company been put into receivership (more on that in a minute), but as long as a corporate entity called "AIG" was up and running, the fact that said entity accepted government money and allowed the government to become a majority shareholder does not do anything to justify its abandonment of existing contractual obligations under any theory with which I am familiar. The counterargument goes basically like this: if the government gives money to bail out a business, the government has a legitimate interest in how that money is spent, and should be able to prevent the managers of the business from wasting the money or spending it in a way that is contrary to the purpose of the grant. (Remember, again, that we are not talking about a situation of receivership.) As a general proposition, my reaction is. . . really? Is there any other situation in which people would be willing to see the same rule applied? Let’s try a few. If a college receives federal funding, can government officials order faculty to be fired or students to be expelled or programs to be cut on the grounds that the expenditures involved are not consistent with the government’s purpose? (Remember, the claim here is not that paying the bonuses does not serve the interests of AIG.) If a charity receives a government grant, can a bureaucrat not only order the charity to return the trucks it rented for its food drive — on the grounds that "the money would be better spent on food" — but also declare that the rental company cannot collect the fees that are due up to that point? If an artist accepts an NEA grant, can NEA officials order him or her to find a new studio, and then tell the landlord of the current space that they cannot collect any back rent because the enforcement of those contract obligations would contradict the government’s idea of the best use of the grant money?

I have been reading blogs and listservs, and listening to arguments, and I have yet to hear any legal theory that comes within a light year of making sense of the proposition that when a private business accepts government funds, every contract that business has entered into is subject to revocation by the government. Some people say, "So what? Cancel the bonuses and let ’em sue!" Ah, yes. The old "badges? We don’t need no stinking badges" school of executive authority. Personally, I had rather enough of that over the past eight years. "The rule of law" means, among other things, honoring contracts. Remember, it is not the case that the U.S. government is being asked to honor AIG’s contracts; AIG is being asked to honor AIG’s contracts. Which every business and individual is supposed to do as a matter of the Rule of Law, unless of course they go into bankruptcy. What about that? Shouldn’t Geithner have forced AIG into receivership, then paid off existing obligations at, say, 30 cents on the dollar? The answer is "no," for two independent and adequate reasons. Reason 1: it would have required the cooperation of Congress. I have to say that Congress over the past few weeks has demonstrated itself to be even more incompetent, more basically dishonest, more strikingly reminiscent of those clowns who pile out of an incongruously small car in the circus, than at any time in the past few years. That would take a whole additional post (or seven), but let’s just say that Congress’ frankly incredible performance in dealing with the original TARP package gave everyone very good reason to believe that anything that went through Congress would happen slowly, be anchored to a thousand local interests, and probably end up verifying the old saw that says "an elephant is a mouse built by committee." But there is another, independently adequate, ground for avoiding receivership. The point, we all recall, was not to rescue AIG because we are so deeply fond of AIG. The point was to avoid further seizing up in the credit market, further collapse of investor confidence, and damage to AIG’s "counterparties" foreign and domestic. A promise of eventual — after long and complex litigation — partial payments of outstanding obligations would have done exactly nothing to further the goals of the program.

But those very same goals are now being undermined by the desire of members of Congress to use populist rage as a political tool.  GOP congressmen who steadfastly resisted any limits on compensation are now using the payment of AIG bonuses to attack Democratic incumbents who are viewed as vulnerable in the next election cycle.  Democratic congressmen who knew of and accepted the arguments for allowing the bonuses to be paid are suddenly filled with righteous anger.  These are the same clowns, don’t forget, who insisted on loading down the TARP proposal with pork before they could be persuaded to approve it.

Now, don’t get me wrong. I think the whole idea of indirectly stimulating credit by funneling money to financial institutions is questionable. But given that basic strategy, the decision of what to do about AIG — with the lessons of Lehman Brothers’ collapse fresh in the historical consciousness — was a no-brainer. And once the decision was made to avoid receivership, honoring existing contracts — whether it was payments to Goldman Sachs or bonuses to executives — was exactly what Obama promised his administration would deliver: the Rule of Law. Meanwhile, I am becoming increasingly concerned. Poll data suggests that public support for the entire program of stimulus spending is slipping, and that the AIG bonuses are being used by people who oppose any government action to make common cause with people who are suspicious that the government is not doing enough, or acting boldly enough to punish the business interests that got us into this mess.  Meanwhile, as the Washington Post reports, banks are starting to have doubts about participating in the government program at all:  better to sit tight, hunker down, and wait for things to get better.  Which defeats the entire purpose of the bailout program in the first place:  to release credit.  Remember?  This is really important. However you feel about the AIG bonuses, and whatever you think of the arguments I just made, to allow this issue to be used to derail the administration’s efforts to blunt the effects of the worst economic crisis since the 1930s would be a disaster of the first order. Obama does, indeed, need to show more strength here: he needs to tell congressional Democrats to shut up and get in line, he needs to call out the Republican leadership on their hypocrisy, and he needs to do the hard job of using his position to sell an angry American people on the proposition that abiding by the Rule of Law is exactly what they ought to want from him. But meanwhile we need to put down the damned pitchforks before somebody gets hurt!

The post Put Down the Damned Pitchforks! appeared first on Jewcy.

Okay, here I go saying the unthinkable: management has a point. If a nuclear reactor fails, it is probably not a good idea to fire all the nuclear engineers and bring in civil engineers to fix the problem. Which leads to a more general point that needs to be kept in mind. Everyone I talk to in the banking industry makes the same argument: government does not have the talent that one finds in the overcompensated private sector. Nothing complicated about this – the smartest and most skilled operators follow the money, and the private sector pays better. Much better. Partly through bonuses. Do we really want to try to change that situation? It is not feasible for government to pay the kinds of salaries that would be necessary to compete with the profit-making opportunities available at the commercial banks and hedge funds. (You feel outraged about taxpayer money going to these executives now? How would you feel if taxpayer money went to these guys at that rate all the time?) What about the opposite approach: using the power of government to prevent such high salaries being paid, especially by firms receiving bailout money? The problem, obviously, is talent drain, at a time when the firms receiving bailout money are exactly the firms where we most desperately need our best nuclear engineers on the job. So what, we’re stuck with this system of super-compensation for insane risk-taking backed by a promise of public funds in the case of failure? The infamous "privatize profit, socialize risk" approach? No, but in the short term we are stuck with the consequences of having adopted that system over the past decade. In other words, there are obviously some things we need to do to correct the system of incentives going forward, but until the reactor stops leaking radioactive steam into the atmosphere we have to keep the nuclear engineers on the job.

What are the steps for the future? We have to think structurally, not functionally. People react to incentives, smart ambitious people often seek to make as much money as they can, in a global financial system making money involves risk-taking, within limits risk-taking is a good thing that we want to encourage. Theoretically, the mechanism for rewarding and punishing risk-taking was supposed to be "the market," but there are publicly necessary functions that should be shielded form the operation of that system. As a recent NYTimes editorial put it, you don’t want a utility and a casino in the same building, but that does not necessarily mean that you want to abolish casinos. So . . . 1. We do not want to nationalize the banking system. We really don’t. No, not because of the idiotic analogy to Soviet communism – the USSR didn’t have a nationalized banking system, it had a nationalized economy, which is not the same thing. But other countries have experimented with nationalized banking systems in capitalist economies (France, South Korea), with less-than-ideal results. There are other problems with a nationalized system, as well. Globally, it creates opportunities for arbitrage by international investors that can work to the significant disadvantage of the national bank. It is also the case – as unpopular as it may be to say at this moment – that government are not efficient allocators of resources. You do not want the political branches controlling the availability of investment capital, for starters. Privately controlled investment that makes money on its successes and loses money on its failures is still the best way we know to keep capital flowing. Which means that the risk of failure has to remain in place. What we do want to do is identify those banking functions that are socially necessary – the utilities – and separate them from the risk-taking, purely profit-driven enterprises. Call it the Enron principle: we want to diminish the extent to which a system can be gamed in proportion to the extent that the consequences of gaming the system could be disastrous for our society. For the very same reasons that complete nationalization would be a very bad idea, partial nationalization might make some sense, so long as it is restricted to areas where we don’t care so much about the inefficient allocation of resources – there are other goals besides efficiency – and do not need or want the services of the quants. 2. We do not really want the government – even at this moment – to be in the business of rewriting contracts. The behavior of the financial markets is all about confidence; the problem with the credit freeze, remember, is not that banks have no money to lend, it is that they have no confidence in seeing a return on those loans. The specter of the government using its power to undo transactions that people entered into in the hope of making money can only diminish global confidence in the system as a whole. 3. Where the consequences of failure are intolerable, the opportunities for profit need to be limited; that’s the converse of the basic premise that smart risk-taking should be rewarded. Back in the Depression, the Glass-Steagall law tried to separate the utilities from the casinos by prohibiting bank holding companies from owning other financial institutions. That law was repealed in 1999 by a bill sponsored by Phill Gramm, the same economic genius who gave us the Commodities Futures Modernization Act of 2000 that deregulated the derivatives market. That Act included the notorious "Enron loophole" deregulating energy-related trades, specifically crafted by Enron lobbyists working for Gramm. The story is too good not to repeat: the bill was passed two days after the Supreme Court’s decision in Bush v. Gore, was never debated in either the House or the Senate, and was signed into law as part of an omnibus spending package. In other words, an awful lot of good can be done just by undoing the spectacularly stupid and corrupt things we – our government representatives — did recently. Laissez-faire capitalism did not work well in an industrial economy; it works even less well in a post-industrial finance-driven system of capitalism. But restoring sanity to the regulatory system may not be enough. People are right to be thinking about the need for structural changes. Toward that end, we may want to nationalize certain aspects of the banking system, or at least to regulate their operation to the point where they are effectively separated from the private financial markets. Such sectors would not attract the best of the "quants," but that’s okay – the point is to create sectors that do not have the potential for nuclear meltdown even though hey will not produce nuclear power. It’s the utility model again. So what functions that the banking system serves are analogies to clean water and electricity? Start with private mortgages. It was a really dumb idea to turn Fannie Mae ove to private shareholders back in the 1968. That program was created in 1938 in response to a lack of liquidity in mortgage markets. The reason for change in 1968 was to get the costs of the programs off the government’s balance sheets in order to help pay for a war — something simultaneously classical and contemporary about that move, isn’t there? Then in 1970 we created Freddie Mac to expand the secondary mortgage market. Both steps were essentially ways to raise revenue — to pay for our wars — by allowing utility-style function (enabling people to buy homes) to mix with casino-style functions (speculating on the future of those mortgages). Let’s start by undoing those moves. It is worth remembering that the asset-backed securities on which AIG was writing insurance policies were not unregulated; at that stage of the transactions all the underlying valuation information was availablt. It’s just that the form of the security (bundles of huge numbers of mortgages) and the system of trading created overwhelming incentives to ignore the underlying valuation information and rely on historical trends. So the ratings agencies and the bond underwriters and everyone else screwed up. That’s what "risk" is all about, and it’s why you don’t want it in your living room. On the other hand, you don’t necessarily want the government to be in the business of supplying credit for real estate speculators like the folks buying up hundreds of properties in Detroit for a song. How about a public mortgage guarantee program that is limited to a single property that is used as a primary residence, and restricting the secondary mortgage-based investment market to other loans? How about offering rates that, while good, can still be undercut by private lenders willing to take on riskier loans, with assurances that in the event those riskier loans go bad those entities will not be "too big to fail"? It is an equally bad idea to have private providers of student loans. That one should simply be nationalized outright. Which would not prevent any lender from offering a loan that could be used to pay for college, it’s just that those loans would not come with any governmental support or guarantees. Conversely, a nationalized student loan program should define its mission as giving as many students as possible the opportunity to go to college; in terms of long-term returns, there is simply no better investment that the government can make. What about commercial paper – the short-term credit that keeps our small businesses in operation? There is a good argument that the current crisis demonstrates the desirability of a permanent version of the instruments Geithner promoted at the New York Fed and now at Treasury, a backup system of government-provided short-term credit available in case the private system fails. Such a system has to be designed carefully to avoid creating structural incentives that make the government financing always the more attractive option; the idea is that publicly financed credit should be a last resort, not an entire competing system. The credit card industry is a disgrace. One reason to avoid incentives for seeking rewards by taking on excessive risk is to avoid encouraging predatory behavior. A national usury law limiting interest rates on private credit agreements to 10% would mean that some people cannot get credit cards, but it would do a tremendous amount of good in reducing the chance of triggering yet another crisis that many forecasters see looming on the horizon. If you can’t make a profit lending money at 10% interest, you’re in the wrong line of work. 4. We have to use the power of government to reduce – not abolish, merely tame the excesses – of the risk-reward relationship in the private financial markets. We need to restore or invent limits on the level of leveraging. By ""we" I am talking about a global effort, not a local one. The only alternative would be some kind of weird financial protectionism that tried to limit the interactions of the American and global financial markets. Which would not work: any such system simply begs to be gamed. Some kind of an antitrust principle to limit the size of any single fund or coordination among funds might be a good idea, and the same goes for commercial banks and other financial institutions. Basic premise: in the private sector, no business should ever be allowed to become too big to fail, as a basic matter of preserving the risk-reward relationship. 5. We do not want to abolish all "derivatives," a term that covers a multitude of different kinds of instruments ranging from currency futures to, well, credit default swaps. Derivatives were created to reduce risk – basically, they are various forms of side bets — and they often work in just that way. When they fail, they can fail badly, but the solution is to ensure that the consequences of those failures do not endanger the "utility" side of the operations, not to prevent side-bets in our casinos. I recently wrote a post arguing that the sheer size of the derivative market and the relative opacity of at least some categories of those instruments makes them a danger – I called them the dragon in the living room. But the solution is not to kill the dragon, it is to get it out of the living room. Dragons, after all, keep the pterodactyl population in check. I should note that my previous post resulted in a fairly outraged e-mail from someone at the International Swaps and Derivatives Association, who argued that I was looking at the wrong numbers. I remain unconvinced – the role of CDS’s and asset-backed securities in creating the current crisis cannot be denied – but he made some good points about other categories of derivatives. The real point is that if you want to talk about restructuring a nuclear reactor, you had better have some nuclear engineers in the room. All of this may seem awfully obvious and old hat by now. In fact, I am pretty sure that what I am articulating here is close to the thinking of Geithner and others in the Obama administration. But lately the torches-and-pitchforks voices have begun to drown out serious discussion. Time to take a deep breath or two: populist rage is a rotten basis for policy-making.

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The hamentasch is the embodiment of artistic endavor. The hammentasch is a prescribed form that leaves the artist free to imbue its filling with meaning. Like all great art, its liberating potential lies is the wild creativity that expresses itself within the stern confines of technical mastery. To see this truth, let us consider the object in its material and its form.

First, its material essence. The crust is the most demanding of all, and most rarely realized in practice. How often have we cringed at a dry, chalky, cakey shell? Indeed, in a thousand years of efforts, how rare is true mastery of this excruciatingly demanding art form? Yet we as consumers experience each moment of discomfort as a reminder of the aspiration of the culinary artist.  Our very dissatisfaction calls us to exercise our critical faculties and declare that this crust is less than ideal because we are capable of ideals. 

It is precisely in the difficulty of making good hamentaschen, and even more in the all-too-common experience of failure, that we are reminded of the role of Philosophy in its post-Nietzschean phase. Not to discover an underlying reality hidden in the brute objectivity of existence but to create meaning through an assertion of our subjectivity into the world. To make hamentaschen is an act of moral imagination. Each bite of a tasteless, dry, unsatisfying hamentasch is a call to critical reflection on the ideals that the pastry should have contained. Not a reference to some presumed Platonic form; there are no hamentaschen in nature, and we have outgrown our childish faith that inherited myths point toward perfection. To make a hamentaschen is a challenge; in embracing that challenge we enter the Age of Reason.

Beyond the crust there is the filling. The filling of Hamentaschen demonstrates the freedom that creative genius achieves within the constraints of form. The choices are legion: the lascivious intoxication of the poppy, the exotic desert dates and almonds, the pure aesthetic pleasures of sweet fruit jellies.  Moreover, these are complex flavors, each itself  a mixture of many elements that have been cooked and treated and combined by the application of art to matter — in Bacon’s words, it is in "Nature vexed" that the truth of things is revealed to the scientific mind.  To make a hamentasch is thus once again to take on a challenge, to attempt to be a creative artist, to impose one’s will upon the ingredients and cause them to become something that transcends their individual characters. Its ends are human ends deduced from principles, not the inductive taxonomies of Aristotelean observation. The hamentasch is philosophical without being Hellenistic, a Jewish affirmation of the primacy of law and reason over the illusion of the age-old naturalistic fallacy. 

Now, by contrast, consider the latke. The latke is the least demanding of foods, to make or to eat. It is the most lumpen of objects, made from the lumpiest of ingredients.  Fried bits of potatoes – "dirt apples" is an apt translation – with no clear shape, an homogenous blob whose content is always the same and whose form is undefined, is this the stuff of transcendence?  There is no liberty here, only the illusion of freedom that comes with the denial of differences.  The content of a latke is fixed, its flavor bland and unchanging.  Nor do the toppings alter this drab equation:  applesauce or sour cream.  Certainly some of you will say "I used mango chutney," proud of your coy transgressions.   But transgression is not in itself creativity any more than Rousseau’s skulking about in Paris coffee houses in a peasant’s smock challenged the code of bourgeois dress. The true challenge to oppressive tradition comes in the creative effort to achieve greatness in a new way, a way that defines an approach that others might follow and build upon.  The latke does none of these things; instead, it denies the possibility of meaning.  The latke is to cuisine what Andy Warhol’s soup cans were to art; a self-referential denial of the possibility of intrinsic value. 

Worse is the effect that the latke has on the consumer.  The latke infantilizes; like the Dr. Seuss books read by college students, the latke is enjoyed because it makes the eater feel good and supplies needed calories.  The latke is mother love where the hamentaschen aspires to philosophical eros.  Mother love is essential for children so that they can grow to pursue something greater. 

The difference between the latke and the hamentaschen lies not only in the fact of the latter’s form, but also in the specific shape that form is required to take. Let us consider, then, the implications of the shape of hamentaschen in comparison with the shapelessness of the latke. 

The hamentaschen is a stylized triangle, each of its three sides an arc symbolizing movement, together forming three points that indicate opposing directions.  The significance of the shape form is clear:  it indicates the necessity of making a choice among directions.  Not only does the hamentasch imply choices among directions, it specifically uses the number three in its evocation of diversity.  Hamentaschen reject the simplistic Manicheanism of the primitive tribalist as they reject the call to return to the thoughtless unity of the primitive ontology.  But three is more specific than "more-than-two."  The three points of the Archimedean plane, the three elements of Polybius’ mixed government, the three movements of the sonata form and the three parts of Aristotelean drama all reflect the combination of complexity and balance inherent in the tripartite. And we need not appeal to these other sources:  do not the Sages tell us that on three things the world stands? 

Freedom in the act of choosing is the condition of creativity.  As the creation of the hamentasch is creative and artistic, the message of its shape is one of creativity.  We choose our direction.  Moses Mendelssohn, asked to define enlightenment, declared "I posit at all times the destiny of man as the measure and goal of all our striving and efforts."  In this vein he rejected what he called "superficial culture" that is the result of comfort or habit rather than a self-conscious search for enlightenment. Kant put the matter even more strongly:  "Enlightenment is man’s emergence from his self-imposed immaturity.  Immaturity is the inability to use one’s understanding without guidance from another. . . It is so easy to be immature. If I have a book to serve as my understanding, a pastor to serve as my conscience, a physician to determine my diet for me, and so on, I need not exert myself at all. I need not think, if only I can pay: others will readily undertake the irksome work for me." 

But Kant only glimpsed the danger that Nietzsche named, the horrifying abyss that is the latke beheld  by the Last Man.  Beyond thinking for one’s self and accepting the dictates of others, there is the danger of not thinking at all.  The latke conveys a comforting sense of undifferentiated unity with all things, an escape from the categories and imperatives of the reasoning mind into the blob-like happinessof the child, the uncritical absolutes of the primitive tribalist, the amoralgratification of the sensualist.  The latke reflects an ill-formed nostalgicyearning for an imagined pagan unity between subject and object.  Freed from the confining strictures of cooking technique and prescribed forms, the latke appeals to a desire to return to animagined age of peace, an expression of rebellion against the separation of mind and crude animal matter. The shape of the latke denies the possibility of meaningful choice, and consequently of the necessity of choosing. It reassuringly calls us back to the primitive and given rhythms of land and harvest, purged of the dreadful fears of divine signification.  The latke’s  primitivism is the Rousseauian myth in which we need not seek direction because of our innate and natural compassion, uncorrupted by art, science, and culture. 

But as Rousseau warns us, there is no going back, there are only the pale and sickly imitative forms spawned by crippled nostalgia for a non-existent prehistory.  Sure enough, the latke is a carefully denatured version of that earlier stage.  Pan is dead; the children of Israel are not wreathed in myrtle, they cavort in plastic garlands sold at Target.  The ancient horror of human sacrifice becomes the rueful satisfaction of the  knuckles skinned on the homely grater – see how I sacrifice!  Envision my reality! — the cheap authenticity of sensationis called upon to justify the mild pleasures of faux frenzy.  Denatured does not mean harmless.  Ideologically, this is the move that can make the most virulent identity politics seem comforting by denying its essence while at the same time claiming its reassurance that we are of the earth and the earth sustains us "that is all you know and all you need to know," a parody of the poem.  

Here, too, the latke reveals itself as pagan rather than Jewish.  Judaism takes its beginning in the ideal of direction:  first from God, in its Hebraic phase, and then through the exercise of Reason in its rabbinic form in which the Talmud displaces the crude barbarism of the early books. The latke promises to relieve us of the burden that demanding tradition, to replace the stern demands of critical questioning with the lazy warmth of a carefully packaged identity.  Yet the Jewish people should heed the warning of Theodor Adorno:  ‘The fear of yawning meaninglessness makes one forget a fear which once upon a timewas no less dreadful: that of the vengeful gods of which Epicurean materialism and the Christian ‘fear not’ wanted to relieve mankind. The only way to accomplish this is through the subject. If it were liquidated rather than sublated in a higher form, the effect would be regression–not just of consciousness, but a regression to real barbarism.’ 

I call upon us all to eschew that reversion to barbarism.  Put aside the camp paganism that promises easy affirmation of thoughtless tribalism!  Abandon the barbarism of subject-less materialism that is embodied in the latke’s mud-food.  Take up the higher, harder challenge of the hamentaschen and let us find our way together!"

At this point, Professor Nadler brought out a banjo.  That’s not a metaphor, he actually brought out a banjo. 

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