KSM Decision: Place The Blame Where Blame Is Due
Many in the media, and many more of President Obama’s detractors from the left, are hitting his administration pretty hard today for this reversal. The development is obviously disappointing, but if we’re assigning blame, let’s at least direct at those responsible.
In a major reversal, the Obama administration has decided to try Khalid Sheikh Mohammed for his role in the attacks of Sept. 11 before a military commission at Guantanamo Bay, Cuba, and not in a civilian courtroom.
Attorney General Eric H. Holder Jr. is expected to announce on Monday afternoon that Mr. Mohammed, the self-described mastermind of the attacks, and four other accused conspirators will face charges before a panel of military officers, a law enforcement official said. The Justice Department has scheduled a press conference for 2 p.m. Eastern time.
Mr. Holder, who had wanted to prosecute Mr. Mohammed before a regular civilian court in New York City, changed his mind after Congress imposed a series of restrictions barring the transfer of Guantanamo detainees into the United States, making such a trial impossible for now, the official said.
Even that last sentence is awkward — the Attorney General “changed his mind” after Congress “imposed a series of restrictions”? That’s a bit like saying I changed my mind about getting up after I was tied to my chair.
Holder told reporters this afternoon that his original decision was still the right one, but blamed Congress for “tying our hands.”
He happens to be right. Even today, Holder wants to do the right thing, and so does President Obama. And yet, Gitmo is open today, and KSM will be subjected to a military commission in the near future, not because of an administration that backed down in the face of far-right whining, but because congressional Republicans orchestrated a massive, choreographed freak-out, and scared the bejesus out of congressional Democrats. Together, they limited the White House’s options to, in effect, not having any choice at all.
There’s plenty of room for criticism of the administration, but those slamming Obama for “breaking his word” on this are blaming the wrong end of Pennsylvania Avenue.
By: Steve Benen, Political Animal, Washington Monthly, April 4, 2011
A SUCKER’S BET: Are Republicans Really Prepared To “Gamble On Entitlement Reform”?
The effort to pass a budget for the remainder of the fiscal year will be the principal challenge for policymakers over the next few days, but while that work continues, congressional Republicans will also start a massive fight over the next budget.
We’ll have more on this later — sneak preview: the GOP wants to gut entitlements — but as the process gets underway, it’s worth pausing to appreciate the politics here. The Weekly Standard‘s Stephen Hayes has a lengthy new report, arguing that Republicans are prepared to “gamble on entitlement reform,” and the GOP thinks it can win this time.
If there is one thing that political strategists, pollsters, and elected officials of both parties have agreed on for decades, it’s that entitlement reform is a sure political loser. Social Security is the “third rail” — touch it and you die. Suggest changes to Medicaid and you don’t care about the poor. Propose modest reforms to Medicare and you’re the target of a well-funded “Mediscare” campaign that ensures your defeat.
No longer.
“People are getting it that these things are unsustainable,” says Karl Rove. “For so many people, debt is no longer abstract. It’s more concrete. I don’t know if it’s seeing Greece on TV or what. It’s still tough, but it’s not the political loser it used to be.”
Other influential Republicans go further. They believe that getting serious about entitlement reform can be politically advantageous.
“I think it can be a real winner for Republicans if we handle it the right way,” says South Carolina senator Jim DeMint.
The piece goes on to quote all kinds of Republicans, all of whom genuinely seem to believe there’s a public appetite for their entitlement agenda. GOP officials have been too scared to tackle this in earnest before, the theory goes, but bolstered by public support, this time will be different. This time, they say, Americans want entitlement cuts, and Democratic criticisms will fall on deaf ears.
Time will tell, I suppose, but all of the available evidence suggests these folks have no idea what they’re talking about, and are poised to pursue one of the most dramatic examples of political overreach we’ve seen in a very long time.
Republicans can presumably read polls as easily as I can, but let’s focus for a moment on the latest CNN poll, released late last week. Asked, for example, about Medicaid funding, a combined 75% want funding levels to stay the same or go up. For Social Security, 87% of Americans want funding levels to stay the same or go up. For Medicare, 87% want funding levels to stay the same or go up — and most want funding to increase, not stay the same.
For some reason, Hayes and his allies look at numbers like these and think Republicans will benefit from pushing entitlement cuts. No, seriously, that’s what they think. GOP leaders are not only arguing this, they’re actually counting on it as part of a larger political strategy.
Karl Rove, ostensibly the GOP’s most gifted strategist, believes Americans may be “seeing Greece on TV,” and suddenly find themselves favoring Medicare cuts.
I don’t think he’s kidding.
Hayes noted in his piece, “So have things really changed? We’ll soon find out.”
On this point, we agree.
By: Steve Bensen, Washington Monthly, April 4, 2011
Lawmakers And Lobbyist: Cutting Out the Middleman
For six years, Doug Stafford was a lobbyist for the National Right to Work Committee, an anti-labor group financed by business and conservative interests. His job changed last year but his duties did not when he became the chief of staff to Senator Rand Paul, Republican of Kentucky. Mr. Paul is a chief sponsor of the National Right to Work Act, which he said would end forced unionization and “break Big Labor’s multibillion-dollar political machine forever.”
Brett Loper’s career path is a similar one. When he was an executive for the Advanced Medical Technology Association, an industry group, he lobbied hard against President Obama’s health care reform. Now, as the chief policy adviser for Speaker John Boehner, he is helping to organize the effort to repeal the health care law. The only difference is that the taxpayers are paying his salary.
There has long been a regular shuttle service between Capitol Hill and Washington’s K Street, but the numbers now are striking. Since last year’s Republican victories, nearly 100 lawmakers have hired former lobbyists as their chiefs of staff or legislative directors, according to data compiled by two watchdog groups, the Center for Responsive Politics and Remapping Debate. That is more than twice as many as in the previous two years.
In that same period, 40 lobbyists have been hired as staff members of Congressional committees and subcommittees, the boiler rooms where legislation is drafted. That again dwarfs the number from the previous two years.
While some of those lobbyist-staffers were hired by Democrats, the vast majority are working for Republicans. Representative Raul Labrador, a freshman from Idaho, hired John Goodwin, previously a lobbyist for the National Rifle Association, as his chief of staff. Representative Fred Upton, chairman of the Energy and Commerce Committee, hired Howard Cohen, a longtime lobbyist for the health care industry, as his chief counsel.
In many cases, those hiring lobbyists were Tea Party candidates who vowed to end business as usual in Washington. As The Washington Post reported, when Ron Johnson ran against Wisconsin’s Senator Russ Feingold, he accused Mr. Feingold of being “on the side of special interests and lobbyists.” Now that he is a senator, Mr. Johnson has hired as his chief of staff Donald Kent, whose firms have lobbied for casinos, defense industries and homeland security companies.
Ethics laws put limits on elected officials who move to lobbying firms. But there is nothing to stop lobbyists from getting immediately hired on Capitol Hill. This year’s class of staffers argues for a tough ban. After collecting millions from industries or unions or others, lobbyists should not be allowed to turn around and write laws that favor these special interests.
By: Editorial, Opinion Pages, The New York Times, April 2, 2011
Under The Supreme Court, Women May Get The Shaft In Walmart Suit
A class action suit that may include as many as 1.5 million women who claim sex discrimination on the job by Walmart is the biggest in U.S. history — though there are signs it won’t remain so for much longer.
The class action already has been approved by a federal judge and a federal appeals court, but it took a beating during argument at the U.S. Supreme Court last week.
Some analysts had said if the high court even accepted the case for review, instead of letting the lower-court verdict stand, it would be a sign that the 5-4 conservative majority wanted to strike the class certification.
Professor Deborah Hensler of Stanford Law School told the Chicago Tribune last year, “If the Supreme Court takes this case, it will signal this business-friendly court is hostile to class actions against corporate defendants.”
“This is the big one that will set the standards for all other class actions,” Robin S. Conrad, executive vice president of the National Chamber Litigation Center, an agency of the U.S. Chamber of Commerce, told The New York Times. The center filed several friend of the court briefs supporting Walmart at the Supreme Court.
The implication is that Walmart, headquartered in Bentonville, Ark., and one of the world’s largest corporations, is just too big to be the target of a class action.
The company tried to emphasize the massive nature of the class in its petition to the Supreme Court asking for review.
“This nationwide class includes every woman employed for any period of time over the past decade, in any of Walmart’s approximately 3,400 separately managed stores, 41 regions and 400 districts, and who held positions in any of approximately 53 departments and 170 different job classifications,” the company’s petition said. “The millions of class members collectively seek billions of dollars in monetary relief under Title VII of the Civil Rights Act of 1964, claiming that tens of thousands of Walmart managers inflicted monetary injury on each and every individual class member in the same manner by intentionally discriminating against them because of their sex, in violation of the company’s express anti-discrimination policy.”
The Supreme Court review does not involve the merits of the suit — whether Walmart is guilty of discrimination against women — but whether the enormous class action, driven by statistics, should be allowed to proceed or whether the women must sue individually or in small groups.
The case started in 2001 in San Francisco when six women filed suit claiming Walmart discrimination, in part because they were passed over for promotion in favor of men. One of the six says she was told, “It’s a man’s world.”
Washington attorney Joseph Sellers, who argued for the women before the Supreme Court last week, told United Press International last year, “There’s a substantial body of evidence that comes from Walmart’s own workforce data,” including “very sophisticated analysis” to show what company policy was. Despite the size of the class, Walmart can use that evidence in an attempt to show that there was no company-wide discrimination, just as plaintiffs can use the same evidence to show there was, he said.
“We have evidence that there is a culture at the company that condones or says women are second-class citizens,” Sellers said, some of it surfacing at managers’ meetings at strip clubs or at Hooters restaurants.
Sellers had to think fast on his feet last Tuesday — ironically during Women’s History Month — as justice after justice tried to shred his argument from the bench.
Four of the court’s five-member conservative majority — Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia and Samuel Alito — were expected to give Sellers a tough time, with Justice Clarence Thomas asking no questions, as is his custom.
The four-member liberal bloc was expected to give him help. The female members of the court, Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan did their best to steer the argument in favor of the class action. Ginsburg argued the concept of gender discrimination into law in a series of brilliant cases in the 1970s.
But the fourth member of the bloc, Justice Stephen Breyer, barely spoke Tuesday, and kept his cards close to his vest.
The time allotted for Walmart’s lawyer, Los Angeles attorney Theodore Boutrous Jr., was relatively calm except for pointed questions from the women, but Sellers got a grilling.
Roberts was the first to strike, asking Sellers, “Is it true that Walmart’s pay disparity across the company was less than the national average” for similar retailers?
“I don’t know that that’s a fair comparison,” Sellers replied, adding Walmart was making that comparison “with the general population, not with people in retail.”
Kennedy was more acerbic. “It’s not clear to me: What is the unlawful policy that Walmart has adopted,” he asked Sellers, “under your theory of the case?”
“Justice Kennedy, our theory is that Walmart provided to its managers unchecked discretion,” Sellers said, with women getting fewer opportunities and less pay even with more seniority and higher performance reviews.
“Your complaint faces in two directions,” Kennedy said from the bench. “No. 1, you said this is a culture where … the headquarters knows everything that’s going on. Then in the next breath, you say, well, now these supervisors have too much discretion. It seems to me there’s an inconsistency there, and I’m just not sure what the (alleged) unlawful policy is.”
“There is no inconsistency any more than it’s inconsistent within Walmart’s own personnel procedures,” Sellers replied. A federal judge “found specific features of the pay and promotion process that are totally discretionary. There’s no guidance whatsoever about how to make those decisions. … But the company also has a very strong corporate culture … what they call the ‘Walmart way,’ and the purpose of that is to ensure that in these various stores that, contrary to what Walmart argues, that these are wholly independent facilities, that the decisions of the managers will be informed by the values the company provides to these managers in training.”
“Well, is that disparate treatment?,” Kennedy asked. “Disparate” or unequal treatment is a necessary element for discrimination.
“It is disparate treatment,” Sellers insisted. “It is a form of disparate treatment because they are making these decisions because of sex.”
Scalia echoed Kennedy.
“I’m getting whipsawed here,” he said. “On the one hand, you say the problem is that (local managers) were utterly subjective, and on the other hand you say there is … a strong corporate culture that guides all of this. Well, which is it? It’s either the individual supervisors are left on their own, or else there is a strong corporate culture that tells them what to do.”
Sellers replied that managers have broad discretion, but don’t make their decisions in a vacuum.
Scalia kept charging ahead.
“What do you know about … the unchallenged fact that the central company had a policy, an announced policy, against sex discrimination,” he asked, “so that it wasn’t totally subjective at the managerial level? It was, ‘You make these hiring decisions, but you do not make them on the basis of sex.’ Wasn’t that the central policy of the company?”
“That was a written policy,” Sellers said. “That was not the policy that was effectively communicated to the managers.”
Post-mortem evaluations of the argument were almost uniformly pessimistic for the class’s survival.
Lyle Denniston, dean emeritus of the Supreme Court press corps, wrote on SCOTUSBLOG.com that it took only a few minutes of argument “for a potentially fatal flaw … to stand out boldly.”
The basic claim in the suit is that Walmart maintains a common culture — “the Walmart Way” — to ensure uniformity in its 3,400 stores, Denniston wrote, but the corporate headquarters gives local store managers unlimited discretion to decide pay and promotions — resulting in lower pay and fewer promotions for women.
Kennedy’s point was those factors may seem contradictory.
But for a class action to survive under the Federal Rules of Civil Procedure, “the legal and factual issues must share commonality” at a minimum, Denniston wrote. Much of last week’s argument focused on that key requirement.
In the Los Angeles Times, an article partly written by veteran Supreme Court correspondent David Savage said the statistics may support the women. Lawyers say two-thirds of Walmart’s employees were women though men made up 86 percent of store managers when the stats were gathered five years ago.
But the article said “the tenor of Tuesday’s argument suggested that the massive, decade-old suit may run aground before it can move toward a trial.”
The Times said even though the male conservative justices were more aggressively negative, all of the justices expressed at least some reservations.
The justices should rule before the summer recess.
Bottom line from UPI: Justices could certainly change their minds, but based on their behavior during argument, look for the class to be struck down by at least a 5-4 vote, and a larger margin, 6-3 or 7-2 or more, is certainly within the realm of possibility.
By: Michael Kirkland, UPI.com, April 3, 2011
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