Monday, August 08, 2016

Cruising the Web

Hillary Clinton thinks she can pick up Republican votes on the cheap, without having to make any feints to the middle. Instead she's figuring that disgust with Trump will lead those #NeverTrumpers to vote for her without her giving in on any policy issue.
Usually at this stage of a presidential race, the major-party nominees would have consolidated their core supporters and would be reaching out to attract undecided voters. The polls show Democrats are coalescing behind Mrs. Clinton since the election, including Bernie Sanders voters. Yet her appeal to the middle so far has been limited to trying to disqualify Mr. Trump on temperament and national security. She’s not budging at all on policy.

This is highly unusual in presidential elections, or at least it was until the Obama era. Richard Nixon moved to the middle on economic policy to attract Democrats upset by the New Left in 1968 and 1972; Bill Clinton campaigned on welfare reform, reducing the budget deficit and getting tough on crime in 1992; and George W. Bush touted his education reform and Medicare drug benefit in 2000.

Mrs. Clinton is doing nothing of the kind, even after her sharp left turn in the primaries to neutralize Mr. Sanders. Her economic plan is further to the left of President Obama’s on trade (opposition to the Pacific deal), taxes (higher), regulation (more), health care (price controls), spending (more) and energy (hostility to fracking for natural gas).
Such a lack of appeal to disenchanted Republicans could be for two reasons. Perhaps she's still unsure of her own base and fears losing Bernie Sanders voters if she moves to the center. Or she's so sure she's going to win that she's happy to campaign on what she truly believes. Either way, her behavior provides little comfort to Republicans hoping that she will compromise with them once in office.
New Presidents tend to do what they promise. Mrs. Clinton’s refusal to make even a policy gesture to the middle suggests she thinks Mr. Trump gives Democrats an opening to retake Congress and revive the progressive glory days of 2009-2010. That’s a warning for Republicans not to stay home on Election Day even if they can’t vote for Mr. Trump.

Matthew J. Franck has a post over at The Public Discourse outlining why he won't vote for either Hillary Clinton or Donald Trump. This is in perfect accord with my thoughts.
After a lifetime of studying politics, I have finally, thanks to the electoral annus horribilis of 2016, arrived at an ethic of voting that I can defend against all rival ethics. It is simply this: Vote as if your ballot determines nothing whatsoever—except the shape of your own character. Vote as if the public consequences of your action weigh nothing next to the private consequences. The country will go whither it will go, when all the votes are counted. What should matter the most to you is whither you will go, on and after this November’s election day. (h/t Ramesh Ponnuru)

George Will answers
those conservatives who say that we must vote for Donald Trump in order to protect conservative votes on the Supreme Court.
In a Republican candidates debate, Trump complained that Ted Cruz had criticized Trump’s sister, a federal judge. Trump said: “He’s been criticizing my sister for signing a certain bill. You know who else signed that bill? Justice Samuel Alito, a very conservative member of the Supreme Court, with my sister, signed that bill.” Trump, the supposed savior of the Supreme Court, thinks federal judges sign bills.

The mast-clingers say: Well, sure, he knows nothing about U.S. government, including the Constitution, which he vows to defend all the way to “Article XII.” He will, however, choose wise advisers and humbly defer to them.

This does not quite seem like him, but the mast-clingers say: Don’t worry, he already has compiled a list of admirable potential nominees, and, stickler that he is for consistency and predictability, he will stick to this script written by strangers. This, too, does not quite seem like Trump, but the mast-clingers say: Don’t worry, he has said enough to reveal what his “instincts” are. Indeed he has.

The court’s two most important decisions in this century are Kelo and Citizens United. Conservatives loathe Kelo; Trump loves it. Conservatives celebrate Citizens United; Trump repeats the strident rhetoric of its liberal detractors.

Kelo did radical damage to property rights. The Constitution says private property shall not be taken “for public use” without just compensation. Until Kelo, the court had held that “for public use” meant for something used by the general public (e.g., roads, public buildings) or to remove blight. In Kelo, the court held, 5-to-4, that the government of New London, Conn., behaved constitutionally when it bulldozed a residential neighborhood for the “public use” of transferring the land to a corporation that would pay more taxes than the neighborhood’s residents paid to the government. Trump’s interests as a developer and a big-government authoritarian converge in his enthusiasm for Kelo.I

Citizens United said that Americans do not forfeit their free-speech rights when they band together in corporate form to magnify their political advocacy. The court held that the First Amendment protects from government restriction independent (not coordinated with candidates’ campaigns) candidate advocacy by Americans acting collectively through corporations, especially nonprofit advocacy corporations such as the Sierra Club and the National Rifle Association....

The rationale for this [regulating campaign spending], and for the broader liberal objective of replacing private funding with public funding of politics, is the theory that politicians are easily bought and that private contributions breed quid pro quo corruption. Trump loudly voices this proposition.

The court has said that campaign-speech regulations can be justified to combat corruption or the appearance thereof. Trump says he has made innumerable contributions to members of both parties because, “When you give, they do whatever the hell you want them to do.”
don't know if I buy that those are the two most important Supreme Court decisions in our recent history. Decisions on Obamacare, affirmative action, and gay marriage rate right up there. I actually am willing to give Trump the benefit of the doubt that he would nominate one of the people on his list despite whatever wacky ideas he himself has. I just have the feeling that it doesn't matter that much to him so he'd be willing to throw conservatives that bone. And, presuming GOP control of the Senate (without which a lot of this discussion is moot anyway), Republicans could block a different Trump nomination.

I'm much more concerned with how Trump would act in office to keep on the path of executive overreach that Obama has been speeding down.
Most mast-clingers are properly dismayed by President Obama’s anti-constitutional use of executive orders to implement policies Congress refuses to enact. Trump promises more executive orders: “I’m going to use them much better, and they’re going to serve a much better purpose than he’s done.” So, mast-clingers straining to justify themselves by invoking “the court” are saying this:

Granted, Trump knows nothing about current debates concerning the court’s proper role. We will, however, trust that he will suddenly become deferential to others’ preferences about judges. And we will ignore his promise to continue Obama’s authoritarian uses of the executive branch that will further degrade the legislative branch. We will do this because we care so very much for the Constitution.

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Hugh Hewitt responds
to those who are not persuaded to vote for Trump solely to preserve a conservative majority on the Supreme Court.
Rather, most of the critics of the "save the Supreme Court" argument avoid dealing with the argument by stating flatly that you can't trust Trump to follow through and select nominees to the Supreme Court from the list of 11 potential nominees Trump provided this spring. They argue that Trump nominees might be as bad as Clinton nominees.

To which I respond: First, you don't really believe that, do you? And second, and more to your stated objection, you don't have to trust him. If he breaks from that list, the GOP-led Senate will be within its rights to refuse to consider the nominee given how central the pledge was to the campaign. The court will remain at its 4-3-1 semi-static position but will not veer off the "living Constitution" cliff.

Other "save the court" rejectionists simply avert their eyes from how bad a hard left Supreme Court would be. Even some originalists, who have long defended the necessity of a Supreme Court tethered to the original design of the Constitution, have found reasons to shrug their shoulders and say we can live with a couple of Clinton appointees. The easy abandonment of these life-long positions has been, well, stunning. If a hard-left Supreme Court isn't that bad after all, what have we been fighting for?
Hewitt then goes through a parade of horribles to frighten every conservative with how changed the Court could be with a Clinton nominee replacing Scalia.
With hardly any effort at all I summoned up a dozen major cases where the switch on the court from 4-4-1 to 5-3-1 would be disastrous, beginning with Michigan v. Environmental Protection Agency, which was last year's court ruling that reined in the EPA from imposing massive costs on the states without proper rule-making procedure and oversight and the Rapanos decision of 2006 which only gently (and barely) rebuked the Army Corps of Engineers from playing havoc with property rights. The prospect of a massive regulatory state with no meaningful judicial oversight at all did not deter the professor.

So I brought up Gonzales v. Carhart, a 2003 5-4 decision that upheld the federal partial birth abortion ban. Clinton's appointee would surely vote to overturn the partial birth abortion ban if it reached the court again. (And it will with activist circuit courts everywhere populated by Obama-Clinton academics.)

Again the professor [Tom Nichols of the Naval War College] was unmoved so I referenced this term's U.S. v. Texas, where a 4-4 split at SCOTUS left President Obama's massive unilateralism on immigration stymied.

Then I summoned the Second Amendment, specifically the District of Columbia v. Heller decision in 2008, and McDonald v. City of Chicago in 2010, and then the First Amendment, saved by the 5-4 bell of Citizens United in 2010. All four of those cases governing immigration, guns and speech, would go the other way with a Clinton appointee confirmed. Immigration would essentially be governed by the president, Second Amendment rights would go out the door, and First Amendment rights, speech rights of the non-favored, non-elites would follow.

The professor stood fast. So I asked if he was a person of faith, and he told me he was, so I noted that the 5-4 decision in 2015's Hobby Lobby protects religious freedom in the United States by the narrowest of threads.
As a conservative, it's all very scary and depressing. Just think how different this argument would be if Justice Scalia hadn't passed away when he did. It would be in the realm of the possible and, most likely, we'd be discussing replacing Ruth Bader Ginsburg with a similarly-minded liberal than the replacement of perhaps the most important jurist in the minds of conservatives with a Clinton appointee. It's the one argument that gives me pause. It's enough to make me wish I didn't live in a swing state.

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This is good advice for psychiatrists: stop diagnosing people you haven't treated. That includes presidential candidates.
Psychiatrists should refrain from commenting on Donald Trump's ability to serve as president, according to a release from the American Psychiatric Association.

Marina Oquendo, the president of the association, wrote this week that members should not comment on the mental state of anyone whom they haven't personally evaluated, including presidential candidates.

"We live in an age where information on a given individual is easier to access and more abundant than ever before, particularly if that person happens to be a public figure. With that in mind, I can understand the desire to get inside the mind of a presidential candidate," Oquendo said. "I can also understand how a patient might feel if they saw their doctor offering an uninformed medical opinion on someone they have never examined.

"A patient who sees that might lose confidence in their doctor, and would likely feel stigmatized by language painting a candidate with a mental disorder (real or perceived) as 'unfit' or 'unworthy' to assume the presidency," she continued.

The prohibition comes from the Goldwater Rule, created in 1973 after more than 1,000 psychiatrists who had never met with GOP presidential nominee Sen. Barry Goldwater said he was unfit to serve as president.

"Simply put, breaking the Goldwater Rule is irresponsible, potentially stigmatizing, and definitely unethical," Oquendo wrote. "I encourage you all to read the full text of the rule ... and keep it in mind during this election cycle, and other events of similarly intense public interest."

It would also be nice if elites stopped assuming that people who disagree with them must be crazy, angry, or ignorant. Or perhaps all three.
The experts told us that Brexit will not happen. It cannot happen. The consequences will be too severe. The economic fallout too great to even imagine. Yet, the unthinkable became a reality: The people of Britain voted "Leave,” against the experts' advice. How could this be? Did they not hear the experts' warnings? What went wrong?

Baffled, the experts searched for an answer. And they found one: the people went mad. They became mad from their anger at globalization. Globalization promised them riches, instead it made some of them unemployed. Or they became mad because of fear—fear from immigration and foreign people. Whatever the reason they went mad, the experts are sure of one thing: the fault is not with them. They gave sound advice. Their arguments were relevant. The fault is with the populace, not the leaders.

A few examples are in order. First, an article published in Foreign Policy with the title: "It's Time for the Elites to Rise up Against the Ignorant Masses." The writer claims the world is divided not between right and left, but between the sane and the angry. And the latter are angry simple because they are ignorant. "If they have known better, they would have done better" goes the saying. The masses need education from the elites. Once educated, they will follow their leadership. The Economist's article "The Politics of Anger" express the same theme. It too views the people of Britain and Trump's supporters as angry, their anger causing them to vote against the liberal order. Lastly, an article was published in Foreign Affairs, titled "Brexit's false democracy." From the article (emphasis mine): “Brexit’s real lesson is that there is a consequential divide between cosmopolitans who view the future with hope and those who have been left behind and have seen their economic situations and ways of life deteriorate.” Again, the problem is not with the European Union, but with people getting hurt from globalization.

Not a single expert has questioned his own beliefs. Not a single word on the dysfunction of the EU, or why exactly cosmopolitanism should be embraced. And the Brexit is just one example where the experts put the blame on the general public. Another is Trump. With few exceptions, most of the establishment calls Trump a fascist, a racist and a danger to American democracy. But he won enough votes to handily secure a major party's nomination. And again, instead of questioning why their voice has become irrelevant, the elites blame the masses. This trend cannot go on.

Why? Because it is counterproductive. Everyone recognizes the gap between the elites and the public. But by claiming the public is ignorant, racist, or paranoiac, you only widen the gap.
I still remember Peter Jennings describing the results of the 1994 midterm elections that swept Republicans into control of the House and Senate as a "temper tantrum" by the electorate. We're seeing a lot more of that rhetoric this year.
You might argue that often times the public is not led by rational discussion, but by an emotional one. It might be true. But you cannot change feelings, let alone have an open discussion when you and your opponent slur back and forth nasty adjectives. And the blame is on all of the elite, left and right. Every side has utilized demagogy to its ends, destroying the political discussion in the process. The only way to improve the situation, is by returning to a sound public discourse. No adjectives, no borrowed terms from psychology. Yes, it might not make waves in the social media as much as shouting from the top of your lungs. But it will force you to reconsider old thoughts and ideas, helping facilitate understanding between opposite camps. A second advantage lies in rebuilding the trust of the people in the establishment.
We just had a discussion at my school on the eve of classes starting about how it was even more important this year for teachers not to take advantage of our position in the classroom to express our political opinions. We are concerned about providing an atmosphere where students don't feel uncomfortable expressing their opinions. It's one thing if they're going against the majority views of other students. We can't stop students from believing what they believe. But the teachers should not be piling on and giving their imprimatur to certain political views. I've always been very conscious of this since I teach classes on government and politics. Students might find this blog and a few of them have done so. I've always been glad that those who do find and read my blog tell me that they had no idea from what I said in class how I leaned. I wish that the media would display a similar consciousness of their responsibility to be more scrupulous in keeping their own opinions out of their reporting. Sadly, few seem to do so.

Dan McLaughlin proposes some tests by which we'll be able to judge if the Republican Party has really become the Trump Party.
That said, we can identify a few clear fault lines that would suggest the GOP is becoming more Trumpist. Clearly, a Trumpist party would have the following characteristics:

-Anti-immigration: not just anti-amnesty for illegal immigrants but in favor of restricting overall immigration on the theory that immigrants reduce the demand for native-born labor

-Hostile to free trade

-More skeptical of foreign alliances and foreign interventions than the GOP has traditionally been

-Opposed to entitlement reforms

-Stylistically in favor of more bombast and fewer polite, cerebral politicians

-Strategically in favor of more confrontation, less incrementalism

-Less interested in outreach across racial lines, and more in favor of divisive issues like restricting immigration by disfavored groups such as Muslims

-Less interested in fights over matters of concern to religious voters such as abortion and religious liberty
McLaughlin points to future events to see if this is truly the new shape of the Republican Party. Will Paul Ryan, Marco Rubio, and John McCain lose their primaries? They all have opponents who are a lot closer to Trump on policy and in their demeanor. They're all three way up in the polls for their primaries now, but losses or even closer than expected victories might tell us something about the shape of the GOP.

Another indicator that McLaughlin points to is if Trump runs ahead of Republican candidates. Right now, Republican senatorial candidates are running ahead of Trump. If that should change by election day, there might be more of an argument to be made that the party has become Trump's party. Given the uniqueness of Trump, I just don't see many other similar candidates having comparable success.

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Former Attorney General Michael Mukasey explains why the Obama administration sent the money to Iran in cash instead of as a bank transfer.
To be sure, there were at the time, and still are, sanctions in place that bar anyone from engaging in dollar transactions with the regime in Tehran. Thus if the U.S. had simply made a conventional bank transfer to Iran in dollars, the regime would have been unable to readily use the funds, because banks and others would be barred from participating in those transactions. Hence the need for a transfer in other currencies—to avoid the potential for a sanctions violation.

But why cash, and why in an unmarked cargo plane? How come the U.S. did not simply transfer the $400 million we are told actually belonged to Iran to a foreign entity, to be converted into foreign funds for conventional banking transmission to Tehran? That would have permitted the U.S. to keep track of how Iran spent the money, at least to some extent. Here, recall the assurances given by CIA Director John Brennan that the sanctions relief Iran has received thus far has been used for infrastructure projects and shoring up the Iranian currency, to help undo some of the damage that sanctions inflicted on the country’s economy. Again, why cash?

The apparent explanation isn’t pretty. There is principally one entity within the Iranian government that has need of untraceable funds. That entity is the Quds Force—the branch of Iran’s Revolutionary Guards Corps focused particularly on furthering the regime’s goals world-wide by supporting and conducting terrorism. This is the entity, for example, that was tied to the foiled plot to assassinate the Saudi ambassador in Washington, D.C., in 2011, as well as to the successful plot to blow up a Jewish community center in Buenos Aires in 1994.

Notably, there is a federal statute that bars the transfer of “monetary instruments”—cash or its equivalent in bearer instruments—with the intent to promote “specified unlawful activity.” That term is defined to include a crime of violence or use of an explosive against a foreign country, a category that would include terrorism.

Proving intent is always difficult, but federal law recognizes that conscious avoidance of knowledge can be enough. So, for example, the person who transfers a firearm to a known bank robber need not be told directly that the weapon will be used in a bank robbery in order to be held responsible when it is—particularly if he took steps to conceal the transfer.

As it happens, though, there is more than one reason why no one in the administration will be prosecuted for consciously avoiding knowledge of how this cash likely will be used, and thereby violating the anti-money-laundering statute—even with proof that the cash was transported in an unmarked plane. For one thing, the law applies only to transfers to or from the territory of the U.S. This transfer occurred entirely abroad.

In addition, there is a legal doctrine that bars the application of criminal statutes to government activity in furtherance of legitimate government business, unless those statutes are clearly meant to apply to such activity. So, for example, the driver of a firetruck cannot be held liable for speeding on his way to a fire.

The cash transfer here was said to have been arranged in furtherance of conducting the foreign relations of the U.S. The conduct of foreign relations is entirely an executive function. Those involved in this transfer would have the benefit of that doctrine.

Still, if this transfer had been made by a private person or entity—say, in payment of a debt to Iran—and the “monetary instruments” passed through the U.S., is there much doubt that a reasonable prosecutor would at least consider bringing the case?

So we have here the spectacle of the state engaging in conduct that would expose a private citizen to the risk of jail. Considering that the government exists both to serve and to teach us, perhaps it would not be asking too much to demand an explanation: Precisely what legitimate interest of the U.S. was furthered by loading $400 million in cash in an unmarked cargo plane and delivering it to a state sponsor of terrorism?
Well, this is an administration whose Secretary of State treated national security so cavalierly that any other person would have been prosecuted for what she did. It shouldn't be a surprise that the Obama administration does exactly what would have been prosecuted if done by a private citizen.

Ah, the IRS. They just can't stop themselves from targeting conservatives.
A federal appeals court unanimously confirmed Friday that Internal Revenue Service (IRS) officials targeted Tea Party and conservative non-profit applicants, with one of the judges calling the tax agency’s actions indefensible.

“It being plain to the Inspector General, the District Court, and this court that the IRS cannot defend its discriminatory conduct on the merits,” U.S. Court of Appeals for the D.C. Circuit Judge David B. Sentelle wrote.
That led to this humorous moment on CNN that Ann Althouse noticed.
Just as the Democratic commentator is saying Republicans can only win through voter suppression, she's radically undercut by the crawl at the bottom of the screen.

A commentator on "State of the Union" this morning — Baltimore mayor Stephanie Rawlings — asserts that voter suppression is "the only way Republicans win" just as the crawl across the bottom of the screen says: "Federal appeals court reinstates lawsuit against IRS says agency needs to prove it's no longer discriminating conservative groups. Court rules conservative groups who brought 2013 lawsuit were 'subjected to extended delay' when applying for tax-exempt status with IRS. Court says 'it is absurd' to suggest unlawful delays by IRS have completely ended, considering two of the plaintiff groups still have tax-exempt applications pending...."

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