Don’t Look Now! They’re making Sausage…

You’ve heard the old saying, about how the meat packing industry makes sausage right?  If not look it up, Google is good for that.  Politics is a uniquely human enterprise.   Our institutions which we revere and hold in high esteem are filled with humans, people who are fallen, broken, and selfish.  There are obviously exceptions. But a quick look down the halls of Congress it doesn’t take long to see that the men and women serving there are more interested in their reelection and their cozy relationships with special interest to be concerned with what’s right and wrong.  In fact and in fairness to Congress who is equipped to lead a morally just and ethically centered life?  I will admit those terms are loaded so let’s unpack them for a moment…

Morality on an anthropological level is a universal code that all reasonable people agree to follow.  What’s interesting about this is there is no value judgment here.  There is no good versus evil, or right versus wrong.  It is simply a code that reasonable people agree to live by.  Much like John Locke’s Social Contract we give up some things to live in an ordered society.  Now morality is also understood to be normative, i.e. it has a specific code of conduct attached to it.  In this case again reasonable individuals agree to order their lives and priorities around this set of normative rules.  These can come from Religion, parents, schools, any institution that socializes its’ citizens.  If we has Westerner who hold a dominate place in the global community agree to a certain set of norms we left those up as MORAL.  We embrace a certain right and a specific wrong.  We socialize our children through various mechanisms to hold to these “right and wrong” ideas.  We expect others to also hold their offspring to the same standards, the idea of universal morality, and the idea that we all have a stake in an ordered society.  By way of an example I would like to try and illuminate this point…

The news outlets are crucifying Joe Paterno and 5 other administrators at Penn State College who had knowledge of a sex abuse scandal committed by one of their former employees.  The former employee has been indicted for sex crimes involving minors.  I know we can all agree that the perpetrator of these horrific actions should be held accountable for his heinous crime.  Now comes the moral question…The 5 men who knew about this 10 years ago and didn’t report it are morally accountable and some may even be legally responsible BUT let’s for a I moment look at the actions of one of these men in particular.  There was a former PennStatefootball player who was serving as a graduate assistant at the time when he walked in on his former coach and mentor molesting a 10 year old boy.  The graduate assistant took no physical action at the time and reported it to his superior Joe Paterno shortly their after.  Joe Paterno filed a report to the AD and President of the College the next day.  Now there are people in the media, particularly the sports media who believe the graduate assistant should have physically intervened on behalf of the child.  And from a moral perspective it seems the high moral answer is for someone to advocate physical involvement at the time.  I believe it is this “I would have do this” attitude that is causing me some hesitation.  It is no doubt that those five men acting immorally, but it seems too easy to sit back and play Monday morning quarterback and attack them for their lack of action.  It’s akin to someone saying today that 60 years ago they would have stood up to Hitler and not allowed him to commit the Holocaust.  When in truth our human history is full of people who sit on the sidelines.  Here in lies the problem…

Anthropologist Louis Leakey termed two distinct types of people, “Lumpers and Dividers”.  Lumpers are big picture people.  They see connections quickly and easily and thus draw large comprehensive theories that often bring together dissimilar parts.  Dividers are the opposite they see specific detail and want smaller and smaller distinctions.  Dividers want smaller and smaller associations.  An example in the natural sciences would be the classification of animals.  My daughter watches nature shows with me all the time and the other day asked why some sharks are different then other sharks, for her a shark is a shark, whether it is a Great White or a Lemon shark, for Hayden there is no difference.  She is a “lumper”.  I think this principle can be transferred to politics relatively easily.    I would argue most of the members of Congress are “dividers” they become consumed with one or two pet issues losing focus on the larger universal principle that we all claim to hold to.  The tragedy atPennStatehas made a large section of the public into lumpers.  We all want to be judge and jury and then claim we are as brave and moral as John Wayne and no protocol and psychological trauma will stand in our way.

It is somewhat disingenuous to be indignant about a child being molested and completely ignore the equally heinous conditions thousands of children are mired in.  I will stand front and center and yell my loudest in defense of children who are molested, BUT where IS the righteous anger and moral high ground when there are thousands of kids living in extreme poverty and attend public schools that are literally falling apart and are using dated books.  See if it wasn’t obvious I am a lumper children suffering IS WRONG PERIOD.  The politicians and analyst want to attack a certain strain of injustice they want to address specific wrongs.  Could we address wrongs holistically and if we did would our outcomes be better?  As tragic as sex molestation is and is horrific as thePennStatemans actions are aren’t we just as responsible to the children living in extreme poverty?  Are our politicians making sausage?  Are they making policy that fits awkwardly with other policies patching the dike right before it explodes?

 

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Does Race Matter too Much….

Please read, digest, and comprehend this DISCLAIMER!  My graduate school was part of a consortium.  Meaning that I could attend and get credit for classes at any of the 13 participating member schools, one of those schools was Howard.  Howard is a Historically Black College (HBC).  While there I took a class called Sociology of Religion, by Ron Hopkins.  THE FOLLOWING IS A SUMMATION OF HIS ARGUMENT ABOUT SOCIETY AND PARTICULAR AMERICAN POLITICS IN THE LAST HALF OF THE 20TH CENTURY.

             Race is the driving force in the American political system.  Prior to 1964 Civil Rights Act and 1954 Brown decision, what separates politicians in DC, primarily race.  The Rights revolutions of the 60’s (women, gays, blacks) all sparked an upheaval and discontent among white men who feared a loss of power.  As more and more minorities gained power and influence in the American political system the more white men pushed back.  The Christian Coalition is an example of white men invoking God and Religion to back up their claims that place women and minorities in subservient roles.  Dr. Hopkins would argue that race doesn’t cease to be a driving force in American Politics because suddenly blacks can vote, or women gain equal rights, or the buying of houses must be dealt without prejudice or preference.  White men behavior like any threatened or frightened animal would they attack at what they see as threatening them, i.e. minorities.  The rights revolutions were monumental in the American political landscape.  They brought forth tectonic change that forever altered the American experience.  The response to those changes brought forth a change that has reverberated throughout the American experience.  White men (particularly) those who held to the beliefs of blacks as being inferior latched on to whatever they could to continue their political dominance. 

            Political conservatism use to mean small government (think Anti-Federalist).  With the Right’s Revolutions political conservatism went through a reshuffling a redefining of self.  Conservatism became more about defining and ending programs that disproportionately aided the poor, the tired, and hungry.  Is the Right-Wing stance on abortion really about protecting life or is it about controlling women?  If it’s the first then why not protect life in all its form and manifestations?  Again if race is not important why create a character to embody and demonize welfare (the welfare Queen) when in fact more whites are on welfare?  To make a percentage argument here still proves that point.  Characterizing welfare as something Black in fact makes race the dominant issue.  Mandatory minimums (different penalties for essentially the same crime) again make race the dominant issue.  Crack is cocaine, why does a person with crack get more jail time then a person with powder cocaine.  The answer crack cocaine is used by blacks, powder cocaine by Wall Street brokers.  Race is the issue. 

             These thoughts are an approximation of what my professor argued.  I would like to know do you agree/disagree? But more importantly I want to know if you can understand and see his point.   Race is important, particularly to people of a certain age.  I know many of you feel like race is a dead issue but is it really?  Think about your life at Central and beyond…

 

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Teachers, parents, and the fate of the entire world…

http://www.cnn.com/2011/09/08/living/ron-clark-reactions/index.html

You must read this link to understand this blog.

I believe wholeheartedly in parental involvement.  I have seen it to many times to ignore it.  Two kids same or similar skill set the one whose parents are involved will succeed.  That being said how much involvement is to much particularly in the realm of school.  Let’s all agree that parental involvement in Elementary and Middle school is of primary importance.  Let’s even grant that some involvement in 9th grade is acceptable.  How much involvement should exist for Juniors and Seniors?  Let’s focus on those who are in AP classes at this point.  Is there a point when parents begin to “baby” their children?  I have a wonderful daughter one I speak about often I am sure if things stay the same she is on track to be a pre-AP and AP student in no small part because her mom and I spend time with her at home reading and encouraging learning.  We also are both room parents and are involved in PTA.  My daughter is in Kindergarten and so she sees us taking school seriously so she takes it seriously.  At some point however do we become a hindrance to her performance or worse still maybe detrimental to her school career because we become too involved?

 

Reading through that story it is obvious that teachers who once held a position of honor and respect in our society no longer do so.  Parents do have had to many experiences with poor teachers to see past the bad apples and so they throw the baby out with the bath water (to mix some metaphors).  Has the ship sailed on parents and teachers ever being able to trust one another and work together as a team to improve the life of a child?  See ultimately kids need both but at what point should teachers be allowed to teach and parents be expected to parent?  Is there crossover between those two roles?  I guess what struck me most about the above article was the bitterness.  It seems that parents (certain) parents will always side with their kid, even when common sense and sound logic say they shouldn’t.  I am father I love my daughter and because I love my daughter I need to be willing to see when she is wrong and when she is lying and when in fact she has done something to harm her own intellectual growth.  My parents loved me more then I deserved often times, but the thing is they never failed to side with a teacher if in fact there was “just cause” to do so.  I case this is what it comes down to.  I think “just cause” has changed.  I think during my childhood “just cause” was any easier sell for teachers.  Now I would be hard pressed to convince a parent their child is wrong.  Why?

 

For me this isn’t just a school problem.  We are creating a bunch of ninnies.  Our society has fundamentally shifted and it is a scary shift if we don’t do something about it.  After you graduate from high school and go to college will you only attend a school that fits nicely into your perceived ideas and expectations?  And if that school/college varies in anyway from your perceived notions will you bail out citing the college as being at fault?  What happens when you get a job?  Will you only stay employed with someone as long as they only tell you the good things about your performance?   While avoiding any critique of you job performance because they would get a phone call from you parents berating them for having the you know what to critic their child?  This shift in societal attitudes towards teachers is the first step in what will become an epidemic if we are not careful.  Already there are a growing number of people in the job market who feel entitled and are offended that managers and bosses would critique their performances.  Look parents are the primary agent of socialization in our lives.  However teachers, employers, colleges all play vital roles as well.  And as a parent we need to love our children enough to sometimes let them fail.

 

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Are you a thinker or stinker???

Let me rant today about Postmodernism and the lack of critical thinkers it is producing…

The idea that merging ideas to form better ones in and of its self is not bad, in fact often times it’s in that combining of ideas that truly great ideas happen.  Here’s the problem…(you knew there had to be a problem didn’t you)

 

The merging of the ideas only really works if you understand fully the two ideas you are merging.  Most people don’t have this ability.  They are intellectually lazy.  This is part of my problem with independents.  If you just take a little from each side or just pay attention to one side then you ultimately are going to not be fully informed on anything.  Example…independents and others are furious over the debt ceiling debate.  They think our spending and our increasing debt is a bad thing because that’s what’s being sold to them.  Some economist like Paul Krugman think we should spend to get out of our recession see his letter to Obama at this link  http://www.huffingtonpost.com/2009/01/18/paul-krugman-letter-to-ob_n_158852.html

 

Look I only want informed debate, not half-baked, poorly thought out platitudes that do nothing to move the country forward.  Postmodernism has, I believe taken over our political debate (for a good primer on Postmodernism go to http://plato.stanford.edu/entries/postmodernism/

 

I think the best way to say this is there are certain epistemological certainties.  In other words there are political truths, scientific truths, and cultural truths.  There are certain things we can not question their legitimacy.  No one is going to argue against gravity, no one is going to question that democracy allows for more freedoms then dictatorship.  Postmodernism is making us question the validity of our own epistemological realities.  It is important to understand and take into account perspectives from all around the world and from all perspectives.  But does that open us up to losing site of our truths?  In other words if you open the door will everything fall out?

 

Look some people on the right get dinged for being to beholden to absolute truths.  They have gone in the other direction and shut out the maddening voices of the postmodern revolution.  I am not arguing that we do that; I am arguing for some critical thinking and understanding of the issues.  Some reflective and substantial study on the political issues that face us, not everyone has to be a political genius and work at a think tank.  But by your presence in this class you are expressing an interest in being one of those people who I believe should not solidify your own stance, to the determent of other views.  You should not become rigid instead hold firm to your truths but allow other views to reach you and roll around inside you for awhile.  This is not to say you are weak or feeble in your intellectual stance.  Example…I don’t think anyone who knows me would call me weak are ineffectual in my political stance.  I am not only firm in what I believe, but I am able to articulate and understand the opposing views.  I will read editorials from Gerson and Parker two mainstay political conservatives who often challenge my assumptions in a good way.  I am not going to run out and join the Tea Party, but I find reading the conservative columnist makes me rethink my beliefs and in so doing I become stronger in them.  The views I hold in the realm of politics are an absolute truth for me.  The views Kathleen Parker holds are an absolute truth for her.  We do not let the muddiness of Postmodernism cloud our thoughts making them some lame semblance of a policy idea.  No, instead we read and discuss ideas held by others and challenge each others assumptions.

 

Postmodernism is only good if we become critical thinkers, men and women engaged in the art of learning.  To become a critical thinker we must be well read, and allow for growth of our own ideas as well as allow us to be effected opposing ideas.

 

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Adam Hope Smells like yesterdays nasty socks

Only 13 percent of the American public approves of how Congress is doing its job, according to a new Galluppoll. That ties the all-time low set this past December. But even fewer independents — 9 percent — approve of Congress right now. NPR 8/16/11

 

This snippet was taken from a summary paragraph detailing an NPR story on Congress’s “plummeting” approval ratings.  As I read this a thought hit me.  How freeing?  If you are a hardcore ideologue then these numbers couldn’t get any better.  Independents are fence sitters, people who sit on the sidelines attempting to claim the moral high ground while not committing to a certain ideology.  I will freely admit I am an ideologue (just not the kind that can get elected to congress).  The partisan bickering that is taking place in Congress is “turning off” the independents who like their politics nice, neat, and bland.  This includes not only the demeanor of Congress but also the policies they put out.  The history of major legislation has skipped about forty years.  LBJ passed truck loads of legislation most of it stuff some people see as vital to our Constitutional obligation (promote the general welfare).  From Nixon to the second Bush the amount of meaningful, impactful legislation that came from the United States Congress was minimal.  Barack Obama signed more significant legislation (whether you agree with it or not) into law his first two years then the previous 7 Presidents ever did.

 

Independents claim a non-confrontational attitude.  They claim to be above the fray.  I call bologna sandwich on that.  Independents if put to the test are ideologues.  Think of the Ideological survey we did in class.  Once discussion started on the topics people inside the box would move or rethink their positions.  Independents aren’t really independent if confronted with a choice they will choose they won’t sit on the sidelines and say “O’ well I am an independent I can’t really take a position on that.”  Independents who claim to see both sides of an argument are intellectual cheese puffs.  I believe that there are people who can and do see both sides of the issue.  However those people are usually ideologues themselves.  To understand an argument one must be passionate about something before hand.

 

Every couple of years I get in a heated discussion with an APGOPO teacher from OK.  He argues that low voter turnout and a high rate of independents means that people have enough faith in the American political system that they disconnect.  I say that is ridiculous.   The idea that apathy equates to comfort and stability is juvenile.  The American public is apathetic because our politics, and our politicians have become bland.  SinceClintonthe Democrats have run to the middle trying to bring in these independents.  While doing this they have forgotten their history.  During the 20th century the New Deal and The Great Society programs served as reminders of the power of the American Spirit.  During the New Deal FDR used work programs, and entitlements to safeguard middle to low income families.  WWII the economic boom that followed would establish a large middle class.  FDR’s programs in particular Social Security would become a sacred cow (this means that it is untouchable) to many Americans.    LBJ and his “new deal” did much the same thing it protected middle and lower income families.  The 20th Century is completely different without these two major legislative periods, our country is completely different.  The Democrats back in the day use to embrace their ideology (that of change and progression) now they run scared to the middle trying to win over these self absorbed power mongers, otherwise known as independents.  Democrats should turn back to their roots and embrace the constituents that allowed them to influence the 20th century in such a dramatic and profound way.  There are as many people out there who don’t vote because the Democrats are to moderate then the Democrats get with these loosey-goosey independents.

 

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Judicial Branch reading, vocab

Important Terms

Administrative Procedure Act A law passed in 1946 requiring federal agencies to give notice, solicit comments, and (sometimes) hold public hearings before adopting any new rules.

annual authorization The practice of a legislative committee determining the amount an agency can spend on a yearly basis. This practice is a recent one and curtails the power of the appropriations committees.

appropriation Money formally set aside for a specific use; issued by the House Appropriations Committee.

authorization legislation Legislation that originates in a legislative committee stating the maximum amount of money that an agency may spend on a given program.

buddy system A job description by an agency which is tailor-made for a specific person. These appointments occur in middle- and upper-level positions in the bureaucracy.

bureaucracy A large organization composed of appointed officers in which authority is divided among several managers.

bureaucratic culture An informal understanding among fellow employees of an agency as to how they are supposed to act.

committee clearance A request made by congressional committees to pass on certain agency decisions. Although usually not binding, it is seldom ignored by agencies.

competitive service The set of civil servants appointed on the basis of a written exam administered by the Office of Personnel Management or by meeting certain selection criteria.

conflict A bureaucratic pathology in which some agencies seem to be working at cross-purposes to other agencies.

discretionary authority The ability of a bureaucracy to choose courses of action and make policies not spelled out in advance by laws.

duplication A bureaucratic pathology in which two government agencies seem to be doing the same thing.

Freedom of Information Act A law passed in 1966 giving citizens the right to inspect all government records except those containing military, intelligence, or trade secrets or material revealing private personnel actions.

imperialism A bureaucratic pathology in which agencies tend to grow without regard to the benefits their programs confer or the costs they entail.

iron triangle The policy-making network composed of a government agency, a congressional committee, and an interest group. This network is less common today because of the variety of interest groups that exist and the proliferation of congressional subcommittees.

issue network Members of Washington-based interest groups, congressional staffers, university faculty, experts participating in think tanks, and representatives of the mass media who regularly debate government policy on a certain subject. Such networks are replacing the iron triangles.

laissez-faire A belief in a freely competitive economy that was widely held in the late nineteenth century.

legislative veto Congressional veto of an executive decision during the specified period it must lie before Congress before it can take effect. The veto is effected through a resolution of disapproval passed by either house or by both houses. These resolutions do not need the president’s signature. In 1983, the Supreme Court ruled such vetoes were unconstitutional, but Congress continues to enact laws containing them.

name-request job A job in the federal bureaucracy that is filled by a person whom an agency has already identified.

National Environmental Policy Act A law passed in 1969 requiring agencies to issue an environmental impact statement before undertaking any major action affecting the environment.

non career executive assignments A form of patronage under the excepted service given to high-ranking members of the regular competitive service, or to persons brought into the civil service at a high level who are advocates of presidential programs.

Open Meeting Law A law passed in 1976 requiring agency meetings to be open to the public unless certain specified matters are being discussed.

oversight Congressional supervision of the bureaucracy.

patronage Bureaucratic appointments made on the basis of political considerations. Federal legislation significantly limits such appointments today.

Pendleton Act A law passed in 1883 which began the process of transferring federal jobs from patronage to the merit system.

Privacy Act A law passed in 1974 requiring government files about individuals to be kept confidential.

red tape A bureaucratic pathology in which complex rules and procedures must be followed to get things done.

Schedule C job A form of patronage under the excepted service for a position of confidential or policy-determining” character below the level of the cabinet and sub cabinet.

Senior Executive Service A special classification for high-level civil servants created by the Civil Service Reform Act of 1978. Members of this service can be hired, fired, and transferred more easily than ordinary civil servants. They are also eligible for cash bonuses and, if removed, are guaranteed jobs elsewhere in the government. The purpose of the service is to give the president more flexibility in recruiting, assigning, and paying high-level bureaucrats with policy-making responsibility.

spoils system Another phrase for political patronage, that is, the practice of giving the fruits of a party’s victory, such as jobs and contracts, to loyal members of that party.

trust fund Money outside the regular government budget. These funds are beyond the control of congressional appropriations committees.

waste A bureaucratic pathology in which an agency spends more than is necessary to buy some product or service.

Whistleblower Protection Act A law passed in 1989 which created an Office of Special Counsel to investigate complaints from bureaucrats claiming they were punished after reporting to Congress about waste, fraud, or abuse in their agencies.

The History of the Federal Judiciary

The power of the Supreme Court evolved slowly. In the first three years of the nation’s existence, the justices did not hear any cases at all. The Supreme Court’s immediate priority was to establish its institutional legitimacy. This goal was accomplished in a series of developments under the leadership of Chief justice John Marshall:

(1) defeat of the impeachment proceeding, based purely on political charges, against justice Samuel Chase that validated the doctrine of judicial independence;

(2) the issuance of a single majority opinion that enabled the Court to speak with one authoritative voice in lieu of each justice writing separately; and

(3) assumption of the power of judicial review in Marbury v. Madison (1803), making the Supreme Court an equal partner in the governing process with Congress and the president.

Once secure in its position, the Supreme Court turned to the task of adjudication. The history of Supreme Court decision-making falls into three eras differentiated by the type of issue that dominated judicial attention during a particular period of time.

1 . From 1787 to 1861, federal-state relations and slavery were the great issues. In Martin v. Hunter’s Lessee (1816), the Court asserted its right to impose binding interpretations of federal law upon state courts. Three years later, McCulloch v. Maryland (1819) upheld the supremacy of the federal government in a conflict with a state over a matter not clearly assigned to federal authority by the Constitution. Although federal preeminence was written into constitutional theory, it was not until after the Civil War that the theory applied in practice. In fact, the Court played an important role in intensifying regional tensions through its decision in Dred Scott v. Sandford (1857), in which federal law (the Missouri Compromise) prohibiting slavery in northern territories was ruled unconstitutional. This decision, moreover, was only the second time that a federal law was declared unconstitutional by the Supreme Court. The Court’s reluctance to use judicial review attests to its still uncertain status in the early part of the nineteenth century.

2. From the Civil War to 1937, the dominant issue was the relationship between government and the economy. The Court acted to support property rights and held that the due process clause of the Fourteenth Amendment protected commercial enterprises from some forms of regulation. The justices were merely reflecting the prevailing laissez-faire philosophy of the time. The Court, however, was not blind to the injustices of capitalism and upheld state regulations in over 80% of such cases between 1887 and 1910. As the justices attempted to balance the public interest against private property rights, their decisions became riddled with inconsistencies in distinguishing reasonable from unreasonable regulation or in separating interstate from intrastate commerce. According to justice Holmes, the Court had lost sight of its mission by forgetting that “a Constitution is not intended to embody a particular econon-dc theory.” The necessities of the Great Depression would compel a revision in constitutional theory on economic issues.

3. From 1938 to the present, the Court has switched its focus to the protection of personal liberties. This change was partially prompted by the political pressure generated by Franklin Roosevelt’s unsuccessful effort to pack the Supreme Court with justices favorable to his New Deal economic package. As the Court allowed the government a freer hand on economic regulation, it took up the challenges presented by social and political upheaval following World War 11, such as free speech and racial integration. Only recently has the number of civil liberties cases in the Court’s docket begun to shrink, perhaps as a reaction to the conservative majority appointed by Presidents Reagan and Bush.

The Supreme Court in Action

The Supreme Court hears oral arguments beginning at ten in the morning, with each attorney typically allocated a half-hour. Justices are permitted to interrupt attorneys to ask questions at any time, and the clock is not stopped no matter how long the question. Attorneys are not allowed to read but may use notes. Lights indicate how much time is left-a white one signaling five minutes and a red light notifying attorneys to stop. The proceedings are taped but are not aired on radio or television.

The justices meet in secret conference to discuss and vote on cases. No one is permitted in the room. The associate justice with the least seniority has the responsibility of running errands to obtain books or answering knocks at the door. The conference by tradition commences with a handshake. The chief justice speaks first on cases and is followed by justices in order of seniority; votes are taken in reverse sequence on the assumption that junior members may be intirriddated if voting last. During the tenure of Chief Justice Burger, a pattern began in which formal votes were often not taken and the chief interpreted the outcome of the case. If in the majority, the chief justice assigns the writing of the opinion; if in the minority, the associate justice with the most seniority has the duty of assigning the writing of the Court’s opinion. The opinion is circulated in draft form to the other justices who may suggest changes, even on the threat of changing their vote. It sometimes happens that what began as a majority opinion may lose enough support to end up as a dissenting opinion. A justice is permitted to change his or her vote until a judgment is announced in open session.

The entire Court is not required to be present to vote on a case. A quorum exists so long as six justices are participating. In a tie vote, the decision of the last court to hear the case prevails but it does not mean that the justices are expressing agreement with the ruling; the vote of each justice is not publicly revealed in such situations.

The recent trend on the Supreme Court is greater fragmentation in voting. Far fewer decisions are decided unanimously, declining from close to 90 percent in the nineteenth century to 38.7 percent in 1995. justices are more willing to articulate their own views and are producing a higher rate of both concurring and dissenting opinions. Concurring opinions are important in establishing whether the Court’s decision is creating precedent. “Occasionally,” Lawrence Baum explains, “because of disagreement about the rationale, no opinion gains the support of a majority of judges; in this situation, there is a decision but no authoritative interpretation of the legal issues in the case.”

The Power of the Federal Judiciary

Courts play a large role in public policy in the United States. The Supreme Court’s chief weapon in the constitutional system of checks and balances is judicial review, the power to declare laws of Congress and acts of the executive branch unconstitutional and therefore void. There are two competing views of how judicial review should be exercised. The strict constructionist approach holds that judges should confine themselves to applying those rules that are stated in or clearly implied by the language of the Constitution. The activist approach argues that judges should discover the general principles underlying the Constitution and amplify those principles on the basis of some moral or economic philosophy. Today judicial activists tend to be liberals, and strict constructionists tend to be conservatives, but fifty years ago just the opposite was the case.

The Founders would be surprised to find the courts so activist. They believed that judges should find and apply existing law, not make new law. Alexander Hamilton wrote in Federalist No. 78 that “liberty can have nothing to fear from the judiciary alone,” because the courts have neither the power of the purse (which Congress has) nor the use of the military (since the president is commander-in-chief).

To use the courts to influence public policy, one has to get to court. To do this requires resources and it requires standing. The average citizen has no chance of paying the high costs necessary to take a case all the way to the Supreme Court. However, there are numerous ways in which plaintiffs who are of average or even low income can have their interests represented in court. First, indigent persons can file petitions in forma pauperis and be heard for nothing. The Gideon case was an example. A variety of interest groups (such as the ACLU or the NAACP) will take cases that promote their purposes. State and local governments often raise important issues, and they have their own attorneys. Although the traditional practice in American courts is that parties to a lawsuit pay their own legal expenses, Congress increasingly has been passing laws that allow individuals to sue government and corporations and have their legal fees paid by the defendant. Finally, class-action suits allow a plaintiff to sue someone, not merely on his or her own behalf, but on behalf of all persons in similar circumstances. Some cases of this sort are not profitable to bring: The NAACP got no money for winning the Brown case. However, when money damages can be won on behalf of a large group of people, lawyers can reap huge rewards, so lawyers willing to take on such cases are readily found. The Supreme Court has restricted class-action suits since 1974.

The concept of standing is not a constitutional requirement. It was created by judicial interpretation of a provision in Article III that restricts federal courts to “cases and controversies.” The problem is defining what constitutes a “case” or a “controversy.” According to Chief justice Warren, “those words limit the business of the federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.” Standing is the term used to embody these principles. As currently construed by the Supreme Court, it means a court will decline to hear a case unless the complaining party (plaintiff) proves that a genuine conflict exists between the parties and that he or she has suffered a personal injury to a legally protected right. In other words, federal courts will not hear hypothetical issues. A conflict must be genuine. Moreover, the injury must be a personal one, not a remote injury. However, since standing is largely a product of judicial invention, it is sometimes ignored when a situation warrants settlement by a court. For example, every abortion case would technically be moot because the pregnancy would long be over by the time an appeal reached the Supreme Court; the doctrine of standing has been relaxed in these appeals on the ground that the issue was “capable of repetition yet evading review.”

Another traditional barrier to the citizen’s right to sue is the doctrine of sovereign immunity, which refuses standing to citizens seeking to bring suit against the government for damages. “The doctrine of government immunity,” Harold Grilliot has written, “. . . originated from the English notion that ‘the king can do no wrong.’” This restriction has been eased in two ways. On the one hand, Congress has waived federal immunity from certain lawsuits, including most claims involving torts (since 1946) and contract violations (since 1855). On the other hand, federal officials are not protected by sovereign immunity for conduct that exceeds their lawful authority. In addition, the Eleventh Amendment prevents a state from being sued in federal court without its consent.

Once a case is taken by a federal court, the outcome can exert profound influence over public policy. Federal judges have at least four avenues for making policy decisions. First, a congressional statute or presidential action can be ruled unconstitutional. The Supreme Court has voided over 120 federal laws under its power of judicial review. Second, national policy can be changed whenever the Supreme Court opts to decide an issue differently. The doctrine of stare decisis, or the practice of following precedent, is not inflexible and can be repudiated whenever justice demands a break with prior decisions. As justice Frankfurter eloquently put it, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” Third, the Supreme Court has become less likely to leave certain questions (such as apportionment and contraception) to other branches by declaring them political questions and therefore not proper subjects for judicial resolution. The result has been to place the federal judiciary in the midst of numerous controversial disputes. And fourth, judges retain a great deal of power in fashioning remedies, sometimes to the point of micromanaging what is needed to accomplish justice. For example, federal judge Frank Johnson, in correcting conditions at an Alabama mental health institution, went so far as to require that toilets must be “free of odor” and that each patient must have a .comfortable bed.”

Those who favor judicial activism point to outcomes of which they approve and say that courts provide representation to the poor and powerless. Opponents say that courts have no special expertise in managing complex institutions and have difficulty balancing competing interests in complex cases. Further, if judges make (rather than merely interpret) law, they become unelected legislators, contrary to the intent of the Constitution.

The reasons for judicial activism are many. It is not the case that the courts are powerful because we have so many lawyers. America had more lawyers per capita in 1900, when the courts played a more limited role. Due to class-action and Section 1983 suits, it has become easier for persons to get into court. Increasingly, Congress has passed vague laws that require bureaucratic interpretation. Laws outlaw discrimination or require that agencies operate in the public interest without defining either. Parties adversely affected by decisions under vague laws challenge them in court. If courts once existed solely to settle disputes, today they also exist, in the eyes of their members, to solve problems. Finally, courts have become more powerful as government in general has become more powerful.

There are checks on judicial power. A judge has no police force or army, and a person can disobey if the act is not highly visible and if he is willing to risk being charged with contempt of court. The Senate must approve judicial nominees, and Congress has the power to impeach federal judges. Neither of these powers amounts to much, because simple policy disagreements are not considered sufficient to warrant the exercise of either of these prerogatives. Congress can change the number of judges either on the Supreme Court or in the lower federal judiciary. Congress and the states can amend the Constitution. Congress can alter the jurisdiction of the federal courts and prevent them from hearing certain kinds of cases. All of these checks have their limits. Amending the Constitution is difficult. Attempts to change the size of the Court, like the Roosevelt court-packing plan, are likely to run into opposition from a public that still accords considerable prestige to the Court. The Supreme Court might rule attempts to limit the jurisdiction of the courts unconstitutional. Presidential attempts to produce a less activist Supreme Court have largely failed.
Executive Privilege

Although executive privilege-the right of a president to claim confidentiality in communications with principal advisers-was always viewed with some disfavor by the Congress, it was not directly challenged until 1973. In that year, a congressional investigation of the Watergate break-in led a special investigator to request tape recordings of Oval Office conversations. President Nixon refused to comply with this subpoena, citing executive privilege. The federal district court, although viewing the tapes as presumptively within the realm of executive privilege, nonetheless concluded that the arguments of the special prosecutor were sufficient to rebut such a position. The case, U.S. v. Mxon (418 U.S. 683 [19741), was then taken to the Supreme Court.

The Court ruled, by a vote of 8-0, that executive privilege did not protect the president in this instance. The crucial passages of the opinion follow.

[N]either the doctrine of separation of powers, nor the need for confidentiality of highlevel communications … can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President’s need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in ca?nera inspection….

We conclude then when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. (pp. 706, 713)

Nixon did surrender the tapes, which ultimately provided evidence of his knowledge of the Watergate break-in. In 1975, the House voted for his impeachment; Nixon subsequently resigned rather than face a Senate hearing.

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Executive Branch Reading

The Power of the President Versus Other Institutions

Two models of executive leadership exist in representative democracies, prime ministers and presidents. A prime minister is chosen not by the voters, but by members of Parliament. In Britain’s parliamentary system, for example, the prime minister is a party leader, chosen by elected officials of the party, and selected on the basis of the ability to hold the party together inside Parliament. Once in power, the prime minister appoints other ministers (cabinet officers) from among members of his or her party in Parliament, a fact that gives the prime minister great leverage over party members. In addition, the prime minister is assured of a great deal of loyalty from ministers because of the tradition of collective responsibility, which requires ministers publicly to support all government policies or, if in disagreement, to resign from office. Moreover, the prime minister is shielded from bearing personal blame for policy failures through the doctrine of ministerial responsibility, which obliges the minister with responsibility for a department with a failed policy to resign. A prime minister is quite likely to have had high-level administrative experience in the national government as well as in Parliament itself.

Presidents, on the other hand, are chosen by conventions in which party professionals are a minority; they are chosen in election years with an eye to appealing to a majority of the voters and are unlikely to have had administrative experience in Washington. They often lack a majority in one or both houses of Congress, and they select cabinet members to reward personal followers, recognize interest groups, or gain expertise in the cabinet.

The president’s constitutionally defined powers, found mostly in Article 11, are not impressive. The power of commander-in-chief was, at first, not considered to entail much authority; the main military force was expected to be state militias, and the president, according to Arthur Schlesinger, Jr., was thought to lack any independent offensive capability without prior congressional approval. When the navy captured a pirate vessel, for example, Thomas Jefferson ordered the ship released because the president “was unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.” The president also possesses the power to “take care that the laws be faithfully executed.” The wording seems to imply that the president is allowed to do no more than carry out the laws of Congress, but subsequent Supreme Court interpretations of this clause, notably In re Neagle (1890), have expanded the scope of presidential authority to act without a specific congressional mandate in domestic affairs. Nonetheless, the chief source of increased presidential power can be found in politics and public opinion: the American people look to the president for leadership and hold him responsible for national affairs. In an influential book, Richard Neustadt has argued that the president’s success depends not on any formal power but on his ability to persuade, especially the people within the Washington establishment. From a few vague and unimpressive powers in Article II, the issue is now whether the president has grown too powerful and the presidency too imperial.

Under the constitutional system of separated powers and checks and balances, the Congress is one of the strongest checks on the president. Building unity across the branches is therefore one of the greatest challenges confronting presidents, who often propose ambitious legislative agendas to the Congress. Party alliances are therefore extremely important.

The institutionalization of the Presidency

Since the New Deal era, the president has headed a vast bureaucracy responsible not only for implementing government policy but also for providing policy initiatives. The job became too big for any single person to manage and culminated in a report from the Brownlow Commission in 1937 bluntly declaring that “the president needs help.” The result was the creation of the White House Office and the Executive Office of the President.

The White House staff was initially quite small, with presidents often personally answering the telephone and their own mail. The president did not even have a paid secretary until 1857. Rapid growth followed the 1937 recommendation. The staff numbered 51 persons in 1943 and spiraled to 583 in 1971; after this swelling of White House personnel President Carter reduced the staff to 351, a number that increased only slightly by 1990, to 386.

Presidents have developed three strategies for organizing the White House Office. In the circular structure, several assistants have direct access to the president. This arrangement maximizes the flow of information to the president but produces internal confusion over lines of authority. In the pyramid structure, a chief of staff controls access to the president and positions are organized in a hierarchical formation. This arrangement is more orderly but frequently isolates the president from needed information. Presidents have generally preferred the pyramidal structure, with Carter and Reagan shifting to this mode to cut back on the demands on their time imposed by the circular model. According to Thomas Cronin, presidents have begun to rely more heavily on White House staff for policy proposals than cabinet departments, a fact that creates a stressful relationship within the executive branch. In the ad hoc structure, the president employs task forces and informal groups.

The Executive Office (EOP), which technically includes the White House Office and Office of the Vice President, consists of agencies that perform staff services for the president but are not located in the White House itself. Fourteen separate agencies existed in the EOP in 1990. Unlike the White House Office, most of these agencies have a specific function outlined in law, and their heads must receive Senate confirmation. The two most important units in the EOP are the Office of Management and Budget and the National Security Council.

The cabinet consists of the heads of the federal departments. Occasionally, under Eisenhower, for example, the cabinet has come close to being a truly deliberative body. But cabinet members are heads of vast organizations that they seek to defend, explain, and enlarge. Only a tiny proportion of employees in cabinet departments (typically under 1 percent) can be appointed by the president. Whereas cabinet members once had strong independent political followings, they are now likely to be appointed for their administrative experience or policy connections. The president is fortunate if most cabinet members agree with him on major policy questions, and there is an inevitable rivalry between the White House staff and the department heads.

Given the president’s lack of constitutional powers and his inability to depend on cooperation from Congress or even support from the executive branch, he must necessarily rely on persuasion if he is to accomplish much. His persuasive powers are aimed at three audiences: (1) his fellow politicians and leaders in Washington, (2) party activists and officeholders outside Washington, and (3) the public-really many different publics, each with a different view or set of interests. Any statement the president makes will be carefully scrutinized (and perhaps attacked); therefore, recent presidents have had fewer and fewer impromptu discussions and press conferences and have made more and more prepared speeches. The purpose is to generate personal popularity, which will translate into congressional support; the more popular the president, the higher the proportion of his bills that Congress will pass. Any popularity the president succeeds in gaining is temporary, however. Every modern president except Eisenhower has lost popular support between his inauguration and the time he left office.

In addition to the ability to appoint people to office and to persuade the public, the president has three additional prerogatives (two of them quite controversial) with which to influence policy.

1. The veto. The president can exercise this constitutional power of the office by sending a veto message back to Congress or by doing nothing if Congress adjourns within ten days of sending the bill to the president: this is called a pocket veto. The veto is nevertheless a powerful weapon, because historically less than 4 percent of presidents’ vetoes have been overridden. In 1996, Congress enhanced the veto power of the president by enhancing the president’s recission authority. This allows presidents to cancel parts of a spending bill. Overturning such a decision requires a two-thirds vote in both houses.

2. Executive privilege. The president has traditionally claimed the right to keep secret communication within the executive branch, based on the principle of separation of powers (which would be compromised if the internal workings of one branch could be scrutinized by another branch) and on the president’s need to obtain confidential and candid advice from advisers (who could not be frank if their communications were made public). In the Watergate tapes case (United States v. Nixon) the Supreme Court held that executive privilege did not allow the president to withhold evidence from a criminal investigation.

3. Impoundment. Many presidents have refused to spend money appropriated by Congress for programs they did not like. Nixon was particularly aggressive in doing this and eventually provoked Congress to pass the Budget Reform Act of 1974, which severely limited presidential impoundment. It is not clear that this matter is settled, however, because the Supreme Court has declared the legislative veto unconstitutional.

Immediately on taking office, the president is faced with the need to present a State of the Union address and to formulate a program of policy changes. The president must also fill hundreds of appointive posts and submit a new budget. His campaign proposals are usually quite general (to avoid alienating any voters) and his program is expected to have something for everyone. There are essentially two ways for a president to develop a program: have a policy on almost every topic (Carter) or concentrate on only a few major initiatives or themes (Reagan). For help in formulating his program, he can draw on his aides and campaign advisers, federal bureaus and agencies, academic and other outside specialists, and interest groups. A controversial proposal may be leaked to the press, or floated as a trial balloon to test possible adverse public reaction. The president’s ability to plan is constrained by his limited time and attention span, the likelihood of an unexpected crisis, and the fact that most federal programs can be changed only at the margin.

Presidential Succession

The key problem in presidential succession is to establish the legitimacy of the presidency itself: to promote public acceptance of the office, its incumbent, and its powers, and to establish an orderly transfer of power from one incumbent to the next.

No president except FDR has ever served more than two full terms. Assassination, death, and inability to be reelected have all taken a toll. Accordingly, the vice president has become president eight times as provided for in the Constitution. The Twenty-fifth Amendment, approved in 1967, provides for the vice president to take over in cases of presidential disability; it also provides for the nomination of a new vice president.

The president may leave office through death, disability, resignation, or impeachment. An impeachment is like an indictment: a set of charges. For the president to be removed from office he must be impeached by the House and convicted by a two-thirds vote of the Senate. Andrew Johnson was impeached in 1868 because of policy differences with Congress over Reconstruction, and he escaped conviction in the Senate by only one vote. Richard Nixon resigned when faced with impeachment for the Watergate cover-up.
The Increasing Importance of the Vice Presidency

Until the last few decades, the vice presidency was seen as an insignificant job by most politicians. A plethora of political quotes attest to this fact. Thus, in 1848, Daniel Webster, when offered the vice presidential nomination, replied, “I do not propose to be buried until I am really dead.” John Nance Garner, FDR’s vice president, once characterized the office as not being worth a bucket of “warm spit.” John Adams termed the office “insignificant” and Woodrow Wilson (as a professor) asserted “how little there is to be said about it.” Such assessments, however, no longer square with the office’s growing significance.

Due to the increasing threat of assassination, death, or resignation, recent presidents have tried to involve their vice presidents in the affairs of the state. Presidential Leadership by George C. Edwards and Stephen J. Wayne (St. Martin’s Press: 1997, pp. 198-202) explores this trend. The authors acknowledge that a vice presidential nomination can be valuable preparation for later accession to the presidency (building up party credibility, contacts, and national media exposure). Furthermore it may, in and of itself, allow the individual to train for the chief executive slot, provided that the vice president is given the opportunity to do so by the incumbent president. Vice President Gore, for example, has had considerable influence in the Clinton administration.

He participated in the personnel selection process for cabinet and subcabinet appointments at the beginning of the administration, reviewed the drafts of presidential speeches, and, in his most important role, directed the National Performance Review project, the administration’s effort to “reinvent government” by making it more efficient and less costly…. As an important Clinton adviser, Gore lunches regularly with the president, attends political strategy sessions, and has had regular input into most major policy decisions. In such areas as the environment, high technology, and matters of science, he has had the most influence. A principal link to organized labor, to Senate Democrats, and to the Democratic party in general, Vice President Gore has also played a prominent role in foreign affairs as a personal representative of the president. (p. 201)

These roles have led some to observe that Gore may become the most credible Democratic candidate in the next presidential election.

Vice presidents are more likely to have their importance maximized when they follow certain unwritten rules. A president must trust his vice president not to upstage him or his programs. This trust may be difficult to build because of the way vice presidents are placed on the national ticket to balance the ticket’s voter appeal politically, geographically, and often ideologically. Often the two men are rivals at the convention or incompatible personally. Once elected, a president may shunt his vice president aside as a natural outgrowth of the earlier primary campaigns. (John F. Kennedy’s staff apparently did this to Lyndon Johnson, despite JFK’s own attempts to involve his vice president in important domestic and international activities.) Other unwritten rules, according to Edwards and Wayne, involve never complaining to the press; never taking credit away from the president; always supporting the president’s final policy even if privately opposed to it; and sharing the dirty work, such as traveling extensively on what may often be boring ceremonial and/or political fence mending events. (p. 202)

The growth of the vice presidency has not only benefitted the vice president but has also worked to the presidency’s advantage. It has provided the institution with additional resources for the performance of ceremonial and symbolic functions.

Each of these advantages, however, can become a disadvantage if the vice president rivals the president for political influence, policy direction, or personal power. Presidents want strong and loyal support, but they do not relish internal opposition, particularly from those who are a heartbeat or an election away from replacing them. That is why the vice president’s influence is still dependent to a much larger extent on the president’s personal needs than on the institutional responsibilities of the office. (p. 202)

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