May 29 2009

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Backstairs Politics

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What is Barack Obama afraid of?

Last November, the President made history by breaking the race barrier and winning the nation’s highest office with a convincing win over Republican John McCain.

In Congress, Nancy Pelosi keeps an iron grip with a 70-seat advantage in the House, and Harry Reid is close to realizing a filibuster proof majority in the Senate. Republicans are moribund and listless. President Obama has approval ratings holding steady in the 60s even amid sustained economic uncertainty.

So why is it that on issue after issue, Obama’s rhetoric of action does not fit with the reality of his policies or the results?

Remember the $787 billion Stimulus bill?  It was suppose to create jobs and get the economy moving. Obama said that he wanted it passed because “…the failure to do so would cost more jobs…a failure to act would worsen our long term deficit.”1

Since the bill passed, however, unemployment has gone up and is expected to continue rising this year to a 17 year high of near 10%.2 2009 first quarter GDP was -5.7%.3 An Associated Press accounting of stimulus projects shows that the money isn’t going to the areas with the highest unemployment. As far as the debt, both OMB and the CBO predict that the FY 2009 deficit will be four times larger than 2008; at $1.7 trillion, with trillions of red ink predicted to follow. TheWashington Post, no harsh critic of the President, editorialized that the Obama plan required borrowing $9 trillion over ten years; a plan that the Post said was “unsustainable.”4

And what about the auto industry?  Obama said, “We cannot make the survival of our auto industry dependent on an unending flow of taxpayer dollars… These companies – and this industry – must ultimately stand on their own, not as wards of the state.”5

But in the most breathtaking uses of executive power since the New Deal, the Obama administration has effectively nationalized the auto industry. It has fired management, will replace boards of directors at its’ choosing, has trampled on the rights of shareholders in the auto companies – raising the most basic and constitutional contract sanctity issues – in pursuit of preferential treatment for unions.  It has directed who and when companies will sell.

And amid all of this turmoil and the hemorrhaging of billions by the former Big Three, the Obama administration approved new CAFÉ standards for auto fuel efficiency. The thresholds are so stringent that the technology to build those vehicles on a commercial scale does not yet exist, with scant attention paid to whether US consumers will ever want to buy the road-hazard, “tin and gerbil” products that comfortably seat no-one that Detroit ultimately designs under these new rules; the key to bringing the auto companies back into the private sector and profitability.

By Obama fiat, Fiat will be running Chrysler.  Fiat hasn’t been in the US market for 25 years. Does anyone wonder why?6

On Energy legislation, Obama promised an end to dependence on foreign sources of oil, create “green” jobs at home and wage a concerted American effort to stop global warming.7 But the legislation that Obama has endorsed in the House does not address comprehensive energy security, but rather niche environmentalist climate change concerns.

The Democrat solution, the Cap N Trade system, represents one of the largest, indirect taxes increases in American history. It punishes energy producers, retards efforts by these producers to seek out additional domestic production, will raise costs on businesses and consumers and will create scarcity in parallel to any return of economic growth, retarding such growth.

And only months after the worst financial meltdown since 1929, the bill creates a trading exchange for carbon permits that has all the hallmarks of the under regulated elements that brought Wall Street to its knees.  “Carbon offsets” will become the environmental equivalent of “financial derivatives” in this new environmental market.

The bill does nothing to promote development of rich domestic US energy resources that are carbon intensive; coal, and off shore oil come to mind, meaning less new power brought on line – again contributing to higher costs or lower growth, and continued dependence on Middle East oil.

It is underpinned on the hope of a new US green energy industry that does not currently exist, will cost billions to build and years to take root.

But what should genuinely light taxpayer hair on fire is that for all its ambitious goals and the major economic disruptions it will cause, the Cap N Trade system does virtually nothing to reduce global warming.

Consider that if the current Waxman-Markey bill were to become law, the US would reduce greenhouse gas emissions by 83% of the 2005 level by 2050.  According to the economic model created by Tom Wigley, Al Gore’s top environmental advisor, a fully implemented bill would reduce global warming by 0.09 degrees Fahrenheit, for the US proper during the next 40 years.8

In that context, consider China. By 2030, the consensus forecast is that China will generate 70% more electricity than the US, with about 25% more generating capacity. More than 60% of China’s total generating capacity in 2030 (1 million megawatts) is projected to be based on coal, one of the dirtiest forms of greenhouse gas emissions. An Indian Minister summarized the issue for developing countries and global warming succinctly by saying it would be “immoral” for India to agree to GHG caps when 40% of Indians don’t have access to electricity.

Thus, other countries, not the US, will be the biggest contributors to global warming.  Their energy construction initiatives will completely undo any US contribution to climate change, but Cap N Trade will have significant impact on the US economy and American prosperity.

The Obama energy program is a Special Interest “Potemkin Village” that causes dislocation and retarded economic growth without meeting any of the goals the President set out.

It is political cotton candy.

Which brings us to the Supreme Court.  During the primaries, candidate Obama said that he would look for someone who not only had academic and legal credentials, but someone with real life experience; someone who would speak for minorities, or those outside the political process where the political process has not worked for them.9

President Obama summarized that view after Justice Souter announced his retirement by saying he was looking for someone that would bring “empathy” to the Court.  But by placing identify politics ahead of judicial candor in his choice of Judge Sonia Sotomayor; Obama has lost an opportunity to show in action what he has described in the hypothetical as his judicial philosophy.

You see, Judge Sotomayor has a genuinely riveting life story; a very American story.  Growing up in housing projects near Yankee stadium in NYC. Her mother scrimping and saving so that her daughter could go to Catholic schools that provided better educational opportunities than the city’s public schools (argument for vouchers, but that’s another story). The Judge lost her father at age 9. But despite all these challenges, she managed to graduate from Ivy League colleges, practice law in the private sector and serve as a judge for 17 years.

The Judge is the first Hispanic nominated to SCOTUS, making her potentially historic if confirmed. The first African-American President nominating the first Latino Justice for SCOTUS; now there’s a story line.

And it’s a political “two-fer” for Obama. Women’s groups and Latinos, still simmering between Hillary Clinton’s primary loss and the sense that insufficient deference has been paid politically by Obama, should be momentarily sated.

And it puts the Republicans in a pickle. Already demoralized and depleted, how do you challenge someone who defines success the way Republicans themselves do, with the added complexity of seeking to determine judicial doctrine without alienating the American audience of women and minorities that the Party will need to gain its footing and contest future elections?

Somewhere, David Axelrod and Rahm Emanuel are smiling.

But nominating Sotomayor raises at least one glaring contradiction between Obama’s stated qualifications for the bench and Sotomayor’s performance to date.

As a Judge in the Second Circuit, Sotomayor ruled on the case of Ricci vs. Destefano. The Second Circuit stated that New Haven, Connecticut had the right to reject the results of two tests given to city firefighters — used for promotion — because the top performers did not include African Americans.10

Specifically, a total of 118 applicants took the two tests in late 2003, and 59% earned passing scores. But because there were limited vacancies, only the top scorers were eligible for promotion – a group comprised of 17 whites and two Hispanics. None of the 27 black firefighters with passing scores was eligible.  The city ultimately rejected the results of the test on that basis.  Firefighters whose scores gave them a good chance at being promoted filed suit.11

Among the firefighters who sued was Frank Ricci. Ricci, who is dyslexic, spent more than $1,000 on books and paid someone to record the study materials on tape to make it easier given his condition. He claims to have studied 13 hours a day to prepare for the exams.12

If there is a case where empathy should trump standard application of legal doctrine, it is here.

But Judge Sotomayor’s Second Circuit was unimpressed. The panel affirmed the District Judge’s ruling saying that it was a, “thorough, thoughtful and well-reasoned opinion.” “We are not unsympathetic to the plaintiff’s [Ricci] expression of frustration,” the panel wrote. “But it simply does not follow that he has a viable Title VII claim.”13

Clearly affirmative action “absolutism” trumps common sense “empathy” here.

The Ricci case has been heard by SCOTUS and in what is likely to be a landmark civil rights ruling before Sotomayor is confirmed, is almost certain to overturn Judge Sotomayor’s Second Circuit decision in the Ricci case.  If it is better than a 5-4 decision, SCOTUS will be handing a fairly stunning rebuke to its potentially newest member on one of the most sensitive and enduring issues of our time.

Moreover, it will place the spotlight clearly on the divide between President’s apparent distain for disconnected, book-read jurisprudence and his stated goal of bringing real life legal application to the bench. Which part of Sotomayor is Obama nominating?  The story of life achievement earned the hard way?  Or the identity politics absolutist who ruled against common sense?

With President Obama there is so much pretty wrapping. You just have to be careful of the present.

“Caveat Emptor.”

1. Obama Speech, Joint Session of Congress

2. Christian Science Monitor, May 27, 2009

3. Washington Post, May 30, 2009

4. Washington Post, Editorial, May 29, 2009

5. Washington Post, Editorial, May 30, 2009

6. Business Week, Fiat to Return to the US, June, 2008

7. www.whitehouse.gov – Energy & Environment 2009

8. http://www.cgd.ucar.edu/cas/wigley/magicc/

9. YouTube Video Democratic Primary Debate 2008

10. WSJ Law Blog, Ashby Jones

11. Ibid

12. Christian Science Monitor, 1-9-09

13. Ibid


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