Foreign Policy in the Fertile Crescent

By Shawn Healy

In beginning this series with an expose of the policy differences between presumptive presidential nominees, Sens. John McCain and Barack Obama, I lead with the issue which perhaps represents the starkest contrast between the two candidates, the war in Iraq. McCain literally staked his campaign to the issue last year, standing as the first and foremost supporter of the troop surge, stating that he'd rather lose an election than a war. Obama was an initial critic of the war before entering the U.S. Senate, opposing the intervention from the beginning, thus making an argument that he possesses superior judgment to that of his opponents, most prominently, Sen. Hillary Clinton, who voted for the authorization of force if Saddam Hussein failed to comply with 17 different UN resolutions.

McCain grabbed headlines when he spoke about a potential 100-year troop commitment in Iraq, later clarifying that he does not oppose a presence in the region so long as American lives are not being lost in the process. He argues that the surge strategy he authored is working, that sectarian violence and combat deaths have both declined dramatically. In his mind, premature withdrawal would only strengthen the enemy, making Iraq a haven for terrorists and leaving its fragile government vulnerable to failed state status. Instead, a stable and democratic state is his goal, one defended by an all-Iraqi army, allowing American troops to finally come home.

The senior Arizona senator highlights many of the gains in Iraq attributed to the surge: a 90 percent reduction in sectarian violence, a 70 percent reduction in civilian and combat deaths, conciliation across ethnic groups, and the passage of 4 of 6 benchmarks by the Iraqi legislature as defined by the United States. He acknowledges the remaining economic uncertainties and calls for the Iraqi legislature to hire workers to develop critical infrastructure. Moreover, McCain would like to push Iran and Syria to stop arming the enemy and standing as supporters of instability.

More than anything, McCain believes in candid communication with the American people. A sample of his "straight talk" on the issue follows.

"I do not want to keep our troops in Iraq a minute longer than necessary to secure our interests there. Our goal is an Iraq that can stand on its own as a democratic ally and a responsible force for peace in its neighborhood. Our goal is an Iraq that no longer needs American troops. And I believe we can achieve that goal, perhaps sooner than many imagine. But I do not believe that anyone should make promises as a candidate for President that they cannot keep if elected. To promise a withdrawal of our forces from Iraq, regardless of the calamitous consequences to the Iraqi people, our most vital interests, and the future of the Middle East, is the height of irresponsibility. It is a failure of leadership. "

McCain's rhetoric serves as a fitting transition to his presumed opponent, Obama, who he implicitly criticizes in the aforementioned statement. The junior Illinois senator admits that violence has receded in part due to the surge, but it came at a great cost, and only subsided to the "unsustainable" levels of mid-2006. Moreover, it has failed in its promise to provide breathing room for political progress. Obama suggests that little has been accomplished to address the root causes of civil war in Iraq. Furthermore, the massive troop deployment in the country has placed undue strain on our nation's military and diverted attention from a worthy war in Afghanistan.

As suggested earlier, Obama opposed military intervention in Iraq even before the conflict began, speaking at an antiwar rally in 2002, warning of “an occupation of undetermined length, with undetermined costs, and undetermined consequences.” He spoke out against the war on the campaign trail as he ran for the Senate, but tamped down his criticism, even suggesting that his position wasn't all that different from that of President Bush. Former President Clinton even accused Obama of taking down the text of his infamous speech from his web site during this period. By 2005, Obama called for a phased withdrawal of American troops, going further the next year in proposing a timetable and a political solution to the foreign policy crisis. He submitted a plan of his own in 2007 for complete withdrawal by March of 2008.

Shortly thereafter, presidential candidate Obama crafted a 16-month plan for troop withdrawal to take effect immediately upon his installation as Commander-in-Chief. No permanent base in Iraq would be established, and only a small contingent of troops would remain in the country to defend the American embassy. At the same time, Obama proposes diplomatic pressure on Iraqi leaders via the United Nations to spur political conciliation, plus engagement of other nations in the region, Iran and Syria included (more on this later). He also seeks to address a humanitarian crisis within Iraq as an estimated 2 million citizens left the country and another 2 million are displaced within.

Obama, in his own words, offers a stern contrast and challenge to those uttered by his fall opponent:

"But conventional thinking in Washington lined up for war. The pundits judged the political winds to be blowing in the direction of the President. Despite - or perhaps because of how much experience they had in Washington, too many politicians feared looking weak and failed to ask hard questions. Too many took the President at his word instead of reading the intelligence for themselves. Congress gave the President the authority to go to war. Our only opportunity to stop the war was lost.

I made a different judgment. I thought our priority had to be finishing the fight in Afghanistan. I spoke out against what I called 'a rash war' in Iraq. I worried about, ‘an occupation of undetermined length, with undetermined costs, and undetermined consequences.’ The full accounting of those costs and consequences will only be known to history. But the picture is beginning to come into focus."

As Obama emerged as McCain's probable opponent, both candidates have sharpened their criticisms of one another, particularly on this issue and the more general subject of foreign policy. The Republican National Committee has commenced with a running clock of the days since Obama has visited Iraq since his January 2006 trip to the country, 872 days and running. McCain has latched onto this issue, arguing that Obama is more willing to meet with the likes of Iranian President Ahmadinejad than General Petraeus, at the same time remaining ignorant of the progress on the ground attributed to the surge. McCain even offered to chaperon Obama on such a voyage. The presumptive Democratic nominee scoffed at the suggestion, considering it nothing more than a "political stunt," but did raise the possibility of a visit of his own this summer once the party mantle is firmly in place on his shoulders.

McCain has also taken a chapter from Clinton in criticizing Obama for his willingness to meet with leaders from countries unfriendly to the U.S. without preconditions, including the likes of Ahmadinejad, Venezuela's Chavez, and Cuba's Castro. The most recent sparring was triggered by President Bush's nod to European appeasement of Hitler during a speech to the Israeli Knesset, where Obama extracted by implication that his own definition of diplomacy was draped in eerie parallels. The junior Illinois senator his since qualified his pledge, putting in place some preconditions, even stating his refusal to meet with likes of Hamas.

McCain's challenge on this issue, and many others for that matter, is to distance himself from the most unpopular president in modern history. Bush, for better or for worse, will be tied to the Iraq War for all of history, and McCain, in embracing the war and arguably assuming an even more militant stance than his former rival, assumes considerable political risk in doing so. Public opinion, as it pertains to the Iraq War, is demonstrably on Obama's side.

A Gallup Poll conducted from May 4-6 reveals that 57 percent of Americans favor a timetable for withdrawal as specified by Obama. However, only 30 percent favor withdrawal within the next 6 months, with another 27 percent suggesting it should begin some time next year. A full 39 percent oppose timetables altogether. Contrary to McCain's suggestions and his fellow supporters of the war, a majority (58 percent) of Americans do not believe that withdrawing from Iraq will invite more terrorist attacks on the U.S. 22 percent agree with McCain, and an additional 17 percent think withdrawal would make us more safe.

The picture is quite clear. According to public opinion, McCain stands on the wrong side of an unpopular war, and the positions of his opponent largely reflect those of a significant majority of the populace. Given that McCain's foreign policy experience is arguably his best asset, how, then, is he running competitive with Obama in head-to-head polls? Perhaps this a product of other factors like previous record, personality, even demographic variables that have served as a drag on Obama's candidacy throughout the nomination cycle. It could also be attributed to the relative stances of the two candidates on the remaining issues I will explore over the next several weeks.

In the end, many unknown variables still characterize this race a little more than five months from November 4. Even the Iraq War, an issue with a stark divide between the two presumptive nominees, will likely change in complexion as summer fades to fall and Americans are asked to assess who will best secure peace there and at home. Regardless, McCain and Obama have laid down their respective gauntlets, leaving it for voters to decide the fate of the signature foreign policy endeavor of the decade.

Pass the Pundits

By Shawn Healy

This entry introduces a ten-part series where I will focus in a laser-like manner on the policy differences between the presumptive presidential nominees of the two major political parties, Republican Sen. John McCain and Democratic Sen. Barack Obama. Both are unconventional political figures: McCain for his maverick reputation within his own party and Obama for his soaring rhetoric of transcending the red-blue divide and representing the politics of consensus. I seek neither to confirm nor dismiss either of these representations, but rather to dig deep into the policy differences that separate these two remarkable candidates, acknowledging that the mainstream media has been largely negligent in this capacity.

First, a look at how Americans tend to select their elected leaders is warranted. Contrary to the expectations of policy wonks like myself, most voters maintain only a rudimentary understanding of candidates' issue positions. For instance, a study of the 2000 election focused on the policy differences between then-Governor George W. Bush and Vice President Al Gore as it pertained to the budget surplus that existed at the time (remember those days?). Bush advocated tax cuts to return excess revenues to their original source, while Gore sought to solidify the Social Security Trust Fund by allocating surplus revenues into a proverbial "lock box" where Congress could not get their "greasy hands" upon it. A majority of voters sided with Gore on the issue, but of those who said this issue determined their eventual voting decision, a majority actually cast their ballot for Bush. A contradiction, for sure, and evidence that Americans, even when they do consider the issues in their ultimate electoral decision, work in an arena of incomplete information, making themselves vulnerable to error.

On another level, most of us side with one political party or the other across election cycles. True, a sizable percentage of the American electorate does not identify with either party, but even this demographic divides itself fairly predictably between the two major parties. Political party labels, among other things, simplify electoral decisions for the vast majority of the population without the time to swim in the waters of policy nuance. Our preferences tend to line up along an ideological continuum from left to right, liberal to conservative. The Democratic Party lies to the left of the median, Republicans to the right. For example, those who favor unrestricted access to abortion also tend to support more expansive government programs to combat poverty and oppose preemptive war. The modern Democratic Party encompasses each of these policy positions and represents a short cut for those in general agreement with these principles and others.

Until the recent resurgence of polarized politics in Washington and across the country, many political scientists were writing about the end of partisanship and a shift toward candidate-centered campaigns. Candidates themselves eschewed party labels and instead looked to establish their own brands. Parties have returned to strength, but their resurrection did little to diminish the personality-focused campaigns that evolved during their two-decade hiatus. One need look no further than the reform-oriented themes of the two presumptive 2008 presidential nominees. In this bent, the personalities of individual candidates matter as voters evaluate who most shares their values. The heavy weight prize fight between Obama and Sen. Hillary Clinton for the Democratic nomination epitomized this process as the two candidates were close on policy and could be distinguished only on personality and experience.

Speaking to the latter, candidates are apt to ape their qualifications for the job, contrasting their credentials with those of their opponent(s). Clinton made this the premise of her campaign, and McCain is likely to do the same against the relative newcomer in Obama. The junior Illinois senator made a fairly sophisticated argument that personal judgment is what matters most, not Washington experience. Indeed, he is rekindling the familiar outsider theme, running against K Street lobbyists and the Beltway more generally. McCain, despite his lengthy congressional career, will argue that he has long attempted to slay the dragon, that he is a reformer with results.

On a larger level, independent of the candidates running for office, political scientists have long debated the degree to which voters make prospective or retrospective evaluations prior to casting their ballot. Prospective voting is arguably more sophisticated as it requires citizens to learn the issue positions of individual candidates, to examine their qualifications, and predict who is most likely to deliver the policies most favorable to them personally.

Retrospective voting, on the other hand, is a simpler evaluation, because it requires knowledge of neither issue positions nor personal qualifications, but instead, an assessment of the performance of the incumbent party. More specifically, they answer the question that Ronald Reagan posed to voters in 1980: "Are you better off now than you were four years ago?"

Political scientists have gone so far as to create models to predict election outcomes independent of what candidates bear their respective party mantles. Relevant to these equations are economic growth or lack thereof, whether or not the nation is at war, and if so, the number of American casualties in battle, the popularity rating of the current president, and the number of terms the incumbent party has held the White House. On each of these measures, the Republicans are at a decided disadvantage this cycle. The economy stumbles along with anemic growth, more than 4,000 Americans have lost their lives in an unpopular war in Iraq, Bush languishes with the lowest approval rating in modern history, and the GOP has held the presidency for two consecutive terms.

This does not necessarily spell defeat for McCain this November, however, as Al Gore was projected to win comfortably by these measures in 2000 and of course lost in a disputed contest decided by the Electoral College. In 2004, Bush was supposed to cruise to victory, too, but instead survived the closest shave in history for an incumbent president reelected. The fact that McCain is competitive with Obama in most public opinions polls at this juncture, not to mention the head-to-head matchups in key swing states, has to be comforting for the senior Arizona senator.

These musings in mind, I return to the issue analysis I am introducing here. This ten-part series will feature detailed analysis of the policy positions held by McCain and Obama. The hope is to shed light on key issues so that readers can enter the polling station better armed to make an informed decision. While I don't dismiss the importance of personal qualities, professional qualifications, even the performance of the incumbent party and president, I do believe that there is a place for policy analysis, and also that voters possess the sophistication to sort through this information and make educated decisions.

My ten issue comparisons are based on a Gallup Poll conducted from February 8-10, 2008. The organization asked voters what issues were most important in determining their vote for president. Fourteen issues received the support of at least a quarter of those surveyed, and I took the liberty of consolidating them into ten areas for further analysis. They read, in order, from the war in Iraq, to the economy, which also encompasses the budget deficit and taxes. Government corruption follows, along with terrorism, health care, and energy coupled with the environment. The final four posts will tackle education, moral values, entitlement programs (Social Security and Medicare), and immigration.

The Politics of Diplomacy

By Shawn Healy

There has been a great deal of rancor these past couple of weeks in the aftermath of President George W. Bush's speech to the Israeli parliament, where he alluded to the dangers of appeasement, referencing Hitler and Nazi Germany, and seemingly implicating presumptive Democratic presidential nominee Sen. Barack Obama in the process. Obama fired back instantly, suggesting that we interact with friends and enemies alike in an effort to improve America's standing in the world and produce greater global stability. Sen. John McCain, on the other hand, his probable fall opponent, used this as a line of attack against his younger, and by implication, more naive challenger, considering it incredulous to engage with the likes of Ahmadinejad in Iran, Castro in Cuba, even Hamas in the disputed Palestian territories.

Yesterday, Independent Democratic Joseph Lieberman plunged into these raging waters in an op-ed piece that ran in the Wall Street Journal. He began by posing the following questions:

"How did the Democratic Party get here? How did the party of Franklin Roosevelt, Harry Truman and John F. Kennedy drift so far from the foreign policy and national security principles and policies that were at the core of its identity and its purpose?"

Lieberman, you might remember, was Vice President Al Gore's running mate in 2000, but was soon thereafter ostracized by his party as his hawkish foreign policy views were increasingly out of place in the Democratic Party he called home over the course of his distinguished political career. He lost in a Democratic primary challenge in his home state of Connecticut, eventually defeating his opponent in the general election by running as an Independent. In recent months, Lieberman has served as a loyal surrogate of McCain, campaigning furiously for the Arizona senator in select states, with a potential place atop the ticket looming on the horizon.

Back to the premise of this post. The larger question is this: Did Lieberman leave the Democratic Party, or did it abandon him? His argument begins with Franklin Roosevelt, who led the U.S. into WWII and handed the baton to his successor, Harry S. Truman, who presided over the war's ultimate conclusion, ending the two-theater conflict by using atomic bombs for the first and only time in history. Upon conclusion of the war, Truman oversaw the start to the half-century-long Cold War, which including U.S. participation in a "hot war" on the Korean Peninsula. After two terms of Republican rule under Dwight D. Eisenhower, John F. Kennedy assumed the reigns, a Cold Warrior in his own right. Kennedy made the initial deployments into Vietnam, a commitment that transcended the next two presidencies.

It was during the Vietnam War that Lieberman first saw shifts in his party's foreign policy positions. The battle for the 1968 Democratic nomination, which led to street fights in Chicago, and Sen. George McGovern's attainment of the party's presidential nomination four years later, signaled a stark dividing line between Republicans and Democrats, hawks to the right, doves to the left. Ronald Reagan's staunch stand against the Soviet Union and communism epitomized this shift, for "The Great Communicator" was once himself an FDR Democrat.

Lieberman argues that Bill Clinton and Al Gore returned the Democrats to the White House in 1992 on the backs of a "third way" foreign policy, a willingness to achieve peace through strength and use force when necessary to pursue the best interests of the U.S. The Connecticut senator suggests that he and Gore carried this same banner against Bush in 2000, with the Texas governor promising a more "humble" foreign policy. For better of for worse, this all changed with the events of Sept. 11, 2001. Bush pursued the "war on terror" aggressively, invading Afghanistan almost instantly, and Iraq 18 months later. After a brief period of national unity, Democrats began to question our involvement in each theater, but especially in Iraq. In 2004, Sen. John Kerry, the Democratic presidential nominee, although he voted for both wars, contended that its prosecution was flawed.

By 2006, the Democrats took back control of Congress for the first time in 12 years, largely on the back of an unpopular war in Iraq, with promises to push Bush into immediate withdrawal. Their efforts have been stymied by Republican filibusters in the Senate and presidential vetoes, but all of the eight men and women who pursued the Democratic presidential nomination in 2008 offered some version of a troop withdrawal shortly after inauguration. Hence the current debate.

It is here where Lieberman's criticism of Obama becomes pointed:

"Far too many Democratic leaders have kowtowed to these opinions rather than challenging them. That unfortunately includes Barack Obama, who, contrary to his rhetorical invocations of bipartisan change, has not been willing to stand up to his party's left wing on a single significant national security or international economic issue in this campaign.

In this, Sen. Obama stands in stark contrast to John McCain, who has shown the political courage throughout his career to do what he thinks is right – regardless of its popularity in his party or outside it.

John also understands something else that too many Democrats seem to have become confused about lately – the difference between America's friends and America's enemies.

There are of course times when it makes sense to engage in tough diplomacy with hostile governments. Yet what Mr. Obama has proposed is not selective engagement, but a blanket policy of meeting personally as president, without preconditions, in his first year in office, with the leaders of the most vicious, anti-American regimes on the planet."

Dave Anderson, Executive Director of the McCormick Freedom Museum, quarrels with some of the underlying premises of Lieberman's argument:

"...Don't you think his history is a bit simplistic or even revisionist? I've never understood that mainstream Democrats were apologists for the Soviets. And Clinton waited a long time before committing to a military solution and then it was only via air power and it wasn't clear we'd put troops on the ground. I never believed that Bush was ever going to be weak on the military (as implied, not stated) just because he campaigned for (fewer) foreign engagements (I believe largely to be counter to Clinton's engagement in the Balkans)."

Anderson is right to illustrate that the argument is not so black and white, and in this election season, we must separate fact from fiction as political alliances crystallize. He contends that Lieberman's article borders on "blatant politicking...for his buddy McCain," and in this regard he is probably on target.

That said, I think there is some substance beneath the partisan veneer. Prior to 2001, every major conflict in the past century was instigated by Democratic presidents (in addition to the narrative offered by Lieberman, Woodrow Wilson ushered the U.S. into WWI). The Republican Party was the bastion of isolationism, and even with the onset of the Reagan Revolution, the arms buildup was based on the premise that we could achieve peace through strength. The onset of the Bush Doctrine, a commitment to preemptive war in defense of democracy (otherwise known is neo-conservatism), represented a sea change of sorts, and McCain has proudly trumpeted this cause, positioning himself as a "happy warrior" who would "rather lose an election than a war."

Obama is apt to reference President Kennedy (I find strong similarities between the two), specifically his negotiations with then Soviet President Nikita Khrushchev. The Illinois senator may be engaging in a little revisionism of his own, however, at least according to this New York Times op-ed. The relatively untested Kennedy met with Khrushchev in 1961, and was deemed "too intelligent and too week." Shortly thereafter, the Soviets embarked on building the Berlin War, then installed offensive nuclear missiles in adjacent Cuba. As the U.S. teetered on the brink of nuclear war in the autumn of 1962, Kennedy's willingness to meet with enemies without conditions is certainly open to question.

As we stand on the cusp of the general election campaign in 2008, this will loom as one of the many definitive differences between Obama and McCain. Obama's ascension to the presidency would represent a dramatic shift in our nation's foreign policy orientation, and McCain, with the exception of subtle nuances like banning torture and combating global climate change, would largely be a continuation of Bush's policies. Experience is also likely to enter the fray, with Obama standing as a relative amateur, and McCain the tested veteran. Obama will attempt to shift the argument to his superior judgment, including his early opposition to the Iraq War. He will also try to make this election about the economy, for this is often a winning issue for the Democrats.

Regardless of who gains the upper hand in this debate, we are a nation at war. Our respect across the globe has certainly diminished in recent years, our status as the world's only superpower eroded. In the final five months leading up to Nov. 4, foreign policy discussions are certain to enter the fray, and Lieberman, McCain and Obama have made great contributions to the furtherance of this debate.

Chicago's Camelot?

By Shawn Healy

Handsome young candidate, representing a new generation of leadership?

Check.

Harvard graduate with soaring rhetoric that inspires the masses?

Check.

Representative of formerly oppressed group that transcends narrow classifications?

Check.

These are but a few of the similarities swimming through my mind between then-candidate Sen. John F. Kennedy and presumptive Democratic nominee Sen. Barack Obama after a visit to the Kennedy Library and Museum in Boston last Friday. The facility sits on the Boston Harbor overlooking the city that the martyred former president called home, and the permanent exhibit is a fitting record of a brief White House tenure whose mystique lives with us to this very day.

Kennedy was criticized as an alleged amateur who lacked foreign policy experience. His tenure in congress (14 years) far exceeded that of Obama (three years), but his opponent, then-Vice President Richard Nixon, contrasted his credentials with those of Kennedy, arguing that his executive experience made him a better candidate. While both Obama and McCain lack executive experience, the senior Arizona senator is likely to place his 24-year military career and 25-year congressional career beside that of his upstart opponent.

While Kennedy and Nixon both entered the halls of Congress during the same year, Nixon was seen as representative of the old guard, an extension of the country club Republicanism of Dwight D. Eisenhower. Kennedy, by comparison, called for a New Frontier, a program hoping to transcend the liberal-conservative divides that paralyzed the country (and his party, for that matter). Obama also calls for a new "politics of hope," an America that is no longer broken down along rudimentary red and blue state dimensions. He faces an opponent that has a long reputation as a maverick, yet his opponents are attempting to classify him as little more than an extension of the widely unpopular Bush presidency, some going so far as to call him "John McBush.

Kennedy was the second Catholic to stand as his party's nominee, and the first (and only) Catholic ever elected president. Obama stands on the cusp of claiming the first major party nomination for an African-American candidate, and the odds-on favorite to stand as the first non-white president in American history. Kennedy gave a rousing speech dismissing any charges that he would take direction from the Pope in Rome, and Obama delivered a majestic oratory of his own clarifying his views on race and controversial ties to his former pastor, the Reverend Jeremiah Wright.

Kennedy was married to the patrician Jackie, who presided over a model family that reeked of youthful exuberance and the American Dream. Obama is married to the lovely Michelle, a Princeton and Harvard Law graduate herself, with two playful daughters, his family a picture of the possibilities offered by a country once torn over the institution and later the legacy of slavery.

Kennedy inspired a generation of young people to devote their lives to public service, and Obama, at least in his 15-month-old candidacy, has gathered a devoted following of new participants in the political process, hoping to ride their enthusiasm and efforts to the other end of Pennsylvania Avenue.

I could continue with the many parallels between these two senators who would be president, but also find it important to identify differences that may prove important this fall. Kennedy came from Boston's aristocracy, while Obama bounced from Kansas to Indonesia to Hawaii over the course of his youth, his mother even relying on government assistance at times to raise him and his sister as a single parent. Kennedy was a war hero reminiscent of Obama's probable opponent this November, John McCain, while the junior Illinois senator has no national security experience other than his brief tenure on the Senate Armed Services Committee. As I mentioned earlier, Kennedy was thrice elected to the House and twice elected to the Senate, while Obama is in the middle of his first Senate term with previous experience as an Illinois legislator.

What may be most intriguing is the process by which both candidates claimed the nomination. Not only did they win primaries that proved their abilities to transcend age-old stereotypes, Kennedy in West Virginia with a Protestant-heavy population, Obama in Wisconsin with its dominant white working class (as a side note, in an ironic twist of fate, the presumptive Democratic nominee this time around was trounced by his opponent in West Virginia by a 41 percent margin of defeat), but they also battled more established favorites for the party mantle. For Kennedy it was Sen. Lyndon B. Johnson of Texas, the man he eventually selected as his running mate. For Obama it is the still-formidable former first lady and current New York Senator, Hillary Clinton. Will he act in his likeness and form the so-called "Dream Ticket?"

The latter question is a topic for a whole other debate, so I'll leave the question open for further consideration, but one cannot help but envision the debates and contrasts set to take place in the coming months. Will American voters cast their favor with an experienced hand who defends several policies closely associated with the most unpopular president in recent history, or try their lot with a man 25 years his junior that makes a case of superior judgment, and despite the rhetoric, many of his policies represent the traditional party line of his Democratic predecessors? The Vietnam War hero or the early Iraq War dissenter? The naval aviator or the community organizer and constitutional law professor?

Less than six months separate American voters from this monumental decision. Rest assured, it will be a closely contested and at times acrimonious affair. We would expect nothing less given the stakes. The 1960 contest was one of the closest in history, arguably coming down to Illinois and Texas. The two states are unlikely to play pivotal roles this time around, but we can predict the ones that will: Ohio, Pennsylvania, Florida, Virginia, and Colorado, and probably a half dozen or so others. I'll surely break down this match-up on the ground level in the weeks and months ahead, but as Obama stands on the cusp of earning a majority of the elected delegates available this evening, history is in the making. Hold on tight, because this 15-month marathon will soon transform into a five-month sprint.

Before we buckle up, however, a nod to our past is warranted. Will Obama resurrect the path of the 35th president, or fall short as his youngest brother (Sen. Ted Kennedy) did in 1980, returning to the Senate for a distinguished career? The answer awaits us as soon as the summer wind fades to fall.

Roberts Court Review

By Shawn Healy

As we near the completion of Chief Justice John Roberts' third term on the Supreme Court, it is perhaps still a bit premature to make sound judgments on the future direction of the institution, but a few initial observations are nonetheless appropriate.

Vikram David Amar, in an article written for FindLaw, addressed the Roberts Court's early tendencies, beginning with the implications of the recent ruling upholding Indiana's mandatory voter ID law, many of them I addressed in my immediate reaction to the decision. Amar, however, parses the separate opinions written by three distinct trios in the case, and suggests that these fractures are a sign of a general lack of consensus on the High Court.

This is perhaps a bit surprising given the fact that Chief Justice William Rehnquist, Roberts' immediate predecessor, was also his mentor when the law school grad clerked for then Associate Justice Rehnquist. Once the lone ideological conservative on the Court, Rehnquist was frustrated by then Chief Justice Warren Burger's inability to find consensus in either victory or defeat. From 1986 through his death in 2005, Rehnquist brought more discipline and often more clarity in opinions that assumed a more ideological tone and arguably widened the divide between left and right among the nine sitting justices.

Roberts, in his confirmation hearings, suggested that he would like to heal these wounds, deciding cases narrowly and respecting past precedents. Thus far, he has missed on both counts, as the justices have scurried in multiple directions in cases concerning lethal injection, school desegregation, and the Establishment Clause, to name a few. Moreover, 24 of last year's 73 cases were decided by a 5-4 margin, the highest percentage of split decisions in recent memory. Amar suggests that it may be a function of the ideological differences between Justices Anthony Kennedy and Clarence Thomas. Both are habitual members of the conservative bloc, yet Kennedy is a swing vote and non-doctrinal, while Thomas is a strict constructionist and rarely strays from his right-leaning stripes.

Another early tendency of the Roberts Court is its "hostility" to facial challenges, or efforts to strike down laws prior to their implementation. Amar references the Indiana ID law once more, but also recent decisions involving political parties and ballot status in Washington State, along with late-term abortion bans. While potentially opening the door for later as-applied challenges, the author is skeptical of their success. For example, what is the likelihood that the dozen or so 90-year-old Indiana nuns will sue for the denial of ballot access last Tuesday? Moreover, how does a woman challenging a late-term abortion prohibition secure a decision in her favor while in the midst of a time-limited pregnancy?

David Hudson of the First Amendment Center assessed the Roberts Court on the grounds of the five freedoms, measuring the likelihood that the Court will revisit the current tests for Establishment Clause violations, commercial speech, and obscenity. Each of these precedents was established during the Burger years, two of them written by the former Chief Justice himself.

Hudson considers the Lemon Test most vulnerable. It established a three-prong test articulated on this blog previously to determine whether or not a given law violates the Establishment Clause. He quotes reputable constitutional scholar Erwin Chemerinsky, who suggests that the current Court's conservative bloc is ripe to enable more government aid to religious institutions, more religious involvement in government itself, and in the process overturn the Lemon Test. The Hein decision last year lends credence to this argument. Hudson rests his case on the two Ten Commandments cases from 2005, where Justice Sandra Day O'Connor deemed both displays in question unconstitutional. Should her replacement, Justice Samuel Alito, reverse course, the Lemon Test may be relegated to the nearest used car lot.

Commercial speech is afforded a lower threshold of First Amendment protection than is political speech, and many legal critics lament upon this inconsistency. Even though all but one of the current justices (John Paul Stevens) was not on the Court at the time of the prevailing Central Hudson case, and many of the remaining eight have criticized it in part, the author predicts that the Roberts Court will continue the practice of his predecessor and apply more stringent restrictions on advertising.

Finally, Hudson addresses the obscenity test established in the Miller v. California case. It requires that a challenged subject not appear to a "prurient interest," nor be patently offensive or without literary, artistic, scientific or political value. The first two prongs operate in the context of contemporary community standards, but in the age of the Internet, one must ponder whether we live in a single national community and therefore adopt uniform standards. This criticism aside, the author suggests that the Miller decision has not weathered the scrutiny of Lemon or Central Hudson, and is likely safe for the immediate future.

Fuzzy Math

By Shawn Healy

It is now widely known that Senator Hillary Clinton's chances of winning the Democratic presidential nomination all-but-evaporated last Tuesday with Senator Barack Obama's blowout victory in North Carolina and Clinton's squeaker in Indiana. With only six contests remaining, Clinton cannot eclipse Obama in elected delegates, and over the past six days, uncommitted superdelegates have begun to shift toward Obama, providing him with his first lead in this category of elected officials and party insiders. Absent an unanticipated disaster from the Obama camp, Clinton's continued campaigning is an apparent exercise in futility. She should win handily tomorrow in West Virginia, and again next week in Kentucky, but Obama is expected to have success of his own on that same May 20 date in Oregon, perhaps providing the final tallies necessary for the junior Illinois senator to reach the requisite 2,025 delegates.

The Clinton campaign has countered with a no-holds-barred effort to seat the delegates from Michigan and Florida, moving the magic number to 2,209 delegates, but even if these states were seated in lopsided numbers favorable to the junior New York senator, she would still fall short of the tallies accumulated by Obama. The Democratic Party Rules Committee is set to meet on the final day of the month, and DNC Chairman Howard Dean has pledged to seat state delegations from the previously-disqualified states, but the more likely scenario is an even division of the delegates between the two remaining contenders, closing yet another window for the never-say-die candidate.

If Clinton does not leave the race come May 20 or 31, the process continues for only three more days with primaries in Puerto Rico (she may well win here, too), Montana and South Dakota (should be Obama states). The fact of the matter is that there are not enough remaining delegates for her to close the gap, and even a sudden shift of superdelegates would fail to deliver the nomination to the former First Lady.

The even larger issue is the dearth of financial resources at her disposal to continue the fight. She has already reportedly loaned her campaign more than $11 million, and it becomes harder and harder to convince even the most diehard supporters to fund a lost cause. Rumors that she is staying in the race to extract help from the human ATM that is Obama were outright denied, but don't count out such a bargain. Senator John McCain did the same for Mayor Rudy Giuliani, and the Arizona senator is a much less prolific fundraiser.

Others are suggesting that Hillary is staying in the race to form the so-called "dream ticket," this version with Obama at the top. I consider this highly unlikely given the acrimonious nature of the campaign, not to mention Obama's mantra of change. Further ties to the Clinton's would suggest a reverse spin of the 42nd president's 1996 campaign theme: a bridge back to the 20th Century. Moreover, Clinton hails from a blue state, and Obama would be wiser to select a swing state governor and/or someone with stronger national security credentials than his own.

In the end, what this amounts to is a presidential obituary for Senator Hillary Rodham Clinton. She ran an admirable campaign, winning almost all of the most-populous states, and crashing through the glass ceiling in so many ways. She built a reliable coalition of support, a cohort that Obama must now rally to his cause or face a landslide defeat in an environment enormously favorable to his party. Indeed, if the Democratic Party relied upon the same winner-take-all rules as their GOP counterparts, Clinton would probably be the presumptive nominee at this juncture. She is not because the delegates were awarded proportionately in these large states where she won by sometimes convincing margins, and her gigantic oversight of caucus states where Obama out-organized her and is now on the cusp of claiming the party mantle.

The larger explanation lies in the candidacy of Barack Obama. Clinton was the presumptive nominee of the party, but his message of change resonated with voters across the country tired of war, nervous about economic fluctuations, and searching for competence from our national leaders. On January 2, one day before Iowans caucused and kicked off this historic nominating season, I had the privilege of hearing Hillary Clinton and Barack Obama speak just hours apart in the Cedar Rapids area. Clinton gave a stirring stump speech entirely on message and laden with policy details. She spoke to a substantial crowd of strong supporters, but everything was typical of my political experiences to date.

Obama, on the other hand, spoke to throngs in an auditorium reverberating with energy. He skimmed through a traditional cookbook of Democratic Party policies, but his delivery was more like that of a preacher than a politician. His army of young supporters canvassed the room and delivered a resounding win on caucus night. One couldn't help but feel that this was more of a movement than a campaign.

However, the race was far from over as Clinton rebounded with a surprise victory in New Hampshire five days later, then prevailed in the Nevada caucuses. They skipped contests in Michigan and Florida, although Clinton was on the ballot in both and beat Obama in Florida where his name also appeared. Little did we know how important these forgone opportunities would stand four months later. Obama rallied with a strong win in South Carolina, and the two split the two dozen contests on Super Tuesday, leaving the outcome muddied on a day that was supposed to determine the nominee.

The race then sifted to the Potomac Primary, where Maryland, Virginia and the District of Columbia all went heavily to Obama, and the streak continued with an easy win in Wisconsin as Obama broke into the Clinton coalition, even winning the ever-elusive white working class vote. Clinton was counted out, but she rebounded with a solid win in Ohio and a nail-biter in Texas, then used the intervening month to further batter her opponent and win convincingly in Pennsylvania, setting the stage for last Tuesday's split verdict.

Given this narrative, it is probably not wise to write off Hillary Rodham Clinton forever. Contrary to my expectations, an unexpected earthquake could still shake the electoral landscape and deliver her the nomination, or at least a place on the "dream ticket." If not, should Obama lose this fall, Clinton would be the odds-on favorite for the Democratic nomination come 2012. There may also be an opportunity to run for governor of New York if David Patterson decides not to seek re-election. Ultimately, she may even pursue the path of the Democratic Party's lion, Senator Edward Kennedy, who narrowly lost the 1980 nomination to Jimmy Carter, but returned to the Senate and only further cemented a distinguished career as an elder statesman and bearer of one of the most formidable modern political dynasties.

FREEDOM FOR THE THOUGHT WE HATE

By Winnie

I've seen a lot of other societies. Many of them have admirable aspects, but none of them has the same degree of openness that we do. I think that is our distinguishing characteristic, and I think we ought to treasure it. ... If we understand it, and know how hard it was to achieve, we might fight a littler harder to preserve it. -- Anthony Lewis

Anthony Lewis, the longtime New York Times op-ed page columnist and veteran Supreme Court observer recounts the different interpretations of the First Amendment to the Constitution in "Freedom for the Thought That We Hate: A Biography of the First Amendment." Adopted in 1791, the amendment was first enforced by the Supreme Court in 1931. Mr. Lewis profiles the people and controversies that have shaped today's understanding of the First Amendment and the current arguments that surround freedom of expression. Anthony Lewis discussed his book at the McCormick Tribune Freedom Museum on May 1, 2008, with Gretchen Helfrich as the moderator.

This short and lucid volume has a simple question at its heart: where does the extraordinary freedom of thought and expression found in the United States come from? We all know that the First Amendment asserts that "Congress shall make no law...abridging the freedom of speech, or of the press." But as Lewis shows, those words are not the end of the story but its beginning. Our understanding of these freedoms has evolved, and Lewis gives the Supreme Court pride of place in facilitating that evolution.

Anthony Lewis briefly narrates the history of the First Amendment, from the Sedition Act of 1798, which criminalized “false, scandalous and malicious writings against the government of the United States," to the Espionage Act of 1917; the rationale was that the law was needed, as Lewis explains, "to defend the country against terrorism: French terrorism."

He then asserts that the first time any opinion was ever written in the Supreme Court saying that the First Amendment protected against repression of speech or publication was in 1919; and that was a dissenting opinion by Justice Holmes in the Abrams Case. This then, he mentions was the beginning a series of dissenting opinions by Justices Oliver Wendell Holmes Jr. and Louis D. Brandeis. This sparked what Lewis calls "a legal revolution." They "had only two votes of nine," he says. "But their rhetoric was so powerful, so convincing, that it changed the attitude of the country and the Court." They eventually persuaded America and the Court. And very gradually the Court began to see that freedom of expression was a part of the most basic values of this country. The Justices began to take the words of the First Amendment seriously.

Anthony Lewis, who fundamentally believes in the inclusion of stories, real life stories and experiences, in any form of discussion, shared with our audience several stories, in relation to the book. This story in particular inspired the title of this book: Lewis told our audience that he recalls when Justice Felix Frankfurter’s showed him an eloquent 1929 dissent by Justice Oliver Wendell Holmes Jr. that defended the free speech rights of Quakers and pacifists. I remember Lewis saying that “when he came to the final paragraph, he felt the hair rise on the back of my neck.” This he states is when the modern First Amendment began to take shape.

Lewis then discusses the press and their sources and press privilege. (He makes known that he is definitely not a Hugo Black absolutist, especially in regards to press). He asserts that journalists do, from time to time, have to make promises of anonymity to sources and that they absolutely have to keep those promises. He states, “you cannot disclose somebody’s name if you’ve promised no to. He says it’s not only a moral compulsion; it’s a legal compulsion because the Supreme Court decided a case in which a reporter in Minneapolis (Cohen v. Cowles) promised a source to keep the name secret, and published the name anyway and the source sued for violation of contract and won.

But he also states that a judge should balance the interest of the parties. Basically, Lewis says, “the interest in the reporter’s secrecy must trump the government’s interest in the information.” Lewis notes that he does not think that the press should have an automatic immunity or press privilege. If they are able to invoke the First Amendment and go free then Lewis states, there would be no recourse for irresponsible journalists.

Although it is a truism that the United States allows greater freedom of speech and freedom of thought than any other nation in history, Anthony Lewis reiterates that our constitutional rights were not protected simply by the existence of the Constitution. Brave judges and citizens were willing to uphold the rights when legislatures, governors, and presidents try to circumvent them. And hence, today, conservative as well as liberal judges now agree that even speech we hate must be protected, and this is one of the glories of the American constitutional tradition.

Original Sin?

By Shawn Healy

Chief Justice John Roberts, during a lecture last week at the University of Kansas, addressed the age-old question of whether the U.S. Constitution is "living" or should be considered in its original form. He refused to classify it as either, claiming that “legal documents don’t live or die.” Instead, Roberts contends, the Constitution is a contract between the federal government and the people of this country that must be applied to an ever changing society. He spoke just days after Justice Antonin Scalia restated his "originalist" bearings in a taped interview that aired on the CBS show "60 Minutes."

Scalia's controversial writings, and last week's interview for that matter, have ignited a firestorm in the legal community since "Nino" (as he is affectionately known by his colleagues) first donned a robe on the High Court in 1986. Just prior to his confirmation as Associate Justice, William Rehnquist survived a contested battle over his promotion to Chief Justice. Five years later, Clarence Thomas was confirmed by a four-vote margin, forming a triumvirate of adherents to the originalist philosophy. Chief Justice Roberts and Justice Samuel Alito joined the Court more recently, in 2005 and 2006 respectively, and although solid conservatives, both have yet to prove themselves as strict adherents to the "School of Scalia."

Justice Anthony Kennedy, the swing vote on the Court, is more of a pragmatist and is arguably without an underlying legal rationale. Justice Steven Breyer subscribes to a theory of "active liberty," in my mind another way of saying that he believes that the Constitution is alive and must be adapted through judicial opinions to address contemporary challenges. Namely, the outcome of a decision is what matters most, not how we arrive at a given conclusion. Justices John Paul Stevens, David Souter, and Ruth Bader Ginsberg align closely to this theory in practice, too.

In my reading of academic scholarship of the Supreme Court, it is a near consensus that Justices defy the originalist or legalist school of thought despite regularly endorsing it rhetorically. Through this line of reasoning, Justices, and all federal judges for that matter, are policymakers with philosophical preferences that are applied to most of their decisions. This explains the ideological divides on the contemporary Court, where nine esteemed intellects frequently come to dramatically different conclusions. While they may drape their opinions in references to previous precedents and interpretations of the Constitution and statutory law, this process is carried out in subjective fashion to justify individual policy preferences.

This hypothesis is tested in Andrew Koppelman's recent paper titled "Phony Originalism and the Establishment Clause." Here the Northwestern University Law professor explores the jurisprudence of the three originalists on the Court for most of the last two decades: Rehnquist (since deceased), Scalia and Thomas. While refusing to dismiss originalism outright, Koppelman uses the writings of this trio to question their true commitment to the philosophy in the context of religious liberty, specifically the Establishment Clause of the First Amendment.

An originalist understanding of the Founding Fathers' intentions specific to the Establishment Clause, he argues, would ask the following two questions: (1) why did the framers think establishment of religion is a bad thing, and (2) is the same bad thing brought about by the challenged action in this case?" To access the Founders' intentions, Koppelman refers to Madison's Memorial and Remonstrance Against Religious Assessments. Here he gleans the justification of the Establishment Clause as two-fold: to prevent alienation amongst the citizenry and to avoid corruption of religion itself. He writes, "The Court has understood its task to be to devise practical rules that would prevent the evils of alienation and corruption."

Returning to Rehnquist, Scalia and Thomas, the Koppelman claims they consistently violate these originalist principles, instead resting their conclusions on "dreadful historical scholarship," and writing opinions that "conveniently coincide with the agenda of the Republican Party." He begins with critique with Attorney General Ed Meese, an interesting target of the impetus for originalism given that Rehnquist sat on the Court and arrived at conclusions consistent with this school of thought nearly a decade before the dawn of the Reagan Revolution. The author uses Meese as a foil for the alleged perversion of originalism, arguing that complete separation of church and state is contrary to the Founders' intentions, and moreover, denial of state support actually undermines religion.

Rehnquist echoes this argument in his 1985 dissent to the Wallace v. Jaffree decision, writing: "...Nothing in the Establishment Clause requires government to be strictly neutral between religion and irreligion, nor does that Clause prohibit Congress or the States from pursuing legitimate secular ends through nondiscriminatory secular means," offering a "generalized endorsement of prayer" in this case.

Scalia, the author contends, further abandons originalist tendencies by urging the discontinuance of the precedent that a law have a secular purpose in order to survive an Establishment Clause challenge in Edwards v. Aguillard, a case considering the constitutionality of teaching creation science in public schools. His rationale was that it is an unworkable standard. He later used history as the rationale to uphold the constitutionality of prayer at a high school graduation ceremony (Lee. v. Weisman), history that was flawed in the mind of Koppelman.

The author's strongest criticism of Scalia lies in his argument that the Court may play a role as the decider of "...which articles of faith are sufficiently widely shared to be eligible for state endorsement," an offshoot of the 2005 Ten Commandments in the courtroom case, McCreary County v. Kentucky. Koppelman contends, "Scalia's solution departs from Rehnquist's earlier nonpreferentialism, because it unapologetically discriminates among religions."

The author's diatribe against Scalia ends with the denunciation: "The idea that religion might be degraded by state sponsorship is entirely lost on (him)."

Justice Thomas draws additional barbs, specifically for his argument that the Establishment Clause should not be applied to states at all given the fact that it is not an individual right and therefore unworthy of incorporation under the Fourteenth Amendment. Thomas wrote in Newdow v. Elk Grove: "I would welcome the opportunity to consider more fully the difficult questions whether and how the Establishment Clause applies to the States." The author allows that this could be associated with an originalist approach, but the argument was never endorsed by any of the Constitution's framers. Moreover, Thomas goes so far as to suggest that Establishment Clause violations occur only in instances of coercion, another conclusion divorced from the Framers.

Koppelman concludes that originalism as it exists on the contemporary Court is "phony," used as a disguise to "...advance substantive positions that the judges find congenial." While never dismissing originalism outright, he fails to offer any substantive support for its doctrines. Moreover, he never offers an alternative to its strictures. The article, while provocative, begs the question of whether all judges use legal philosophies to drive their own personal political agendas, and if so, why this is detrimental to society. The reader is left with the conclusion that Koppelman has an ideological ax of his own to grind and shrouds his conclusions in academic prose.

Tomorrow They Vote

By Shawn Healy

Yesterday, May 1, a day of international labor solidarity with roots in Chicago, has come to be known in recent years as a day that immigrants and their supporters across the country demonstrate in favor of humane reforms to U.S. immigration law. Numbers peaked in 2006 when two competing bills winded their way through the halls of Congress. The House version focused largely on border security and was deemed overly punitive by its detractors. The Senate bill was more comprehensive in nature. It too included border security measures, but also an expanded guest worker program and a path to citizenship for the estimated 12-20 million immigrants in the U.S. illegally. The result was a stalemate, and the only legislation that passed authorized the construction of a 700-mile wall along the U.S.-Mexican border.

Last year the marches did not match the vigor of 2006, but were impressive nonetheless. The Senate constructed a similar compromise bill, but with a tougher path toward citizenship for illegal immigrants and a shift away from an emphasis on family reunification to a focus on job skills in the application process for regularized citizenship. The efforts of a bi-partisan legion of supporters failed miserably, and the House failed to even take up the cause. Congress instead resorted to piecemeal reform, and even these efforts met a polarized end. For example, the DREAM Act, legislation that would bestow citizenship upon children of illegal immigrants who completed two years of college or military service, was shot down when attached to a defense appropriations bill.

The status quo is a genuine political stalemate. The Dept. of Homeland Security, through ICE, has stepped up workplace raids, as enforcement of contemporary immigration laws lies largely in the hands of employers. Contractors, factories, and farms face a severe labor shortage as key guest worker programs are set to expire. Congress lacks the will to act in an election year, especially considering the backlash that presumptive GOP presidential nominee Sen. John McCain faced last summer when he spearheaded the bi-partisan immigration reform derided by its opponents as "blanket amnesty" with his Democratic colleague Sen. Ted Kennedy. President Bush, despite his early leadership on the issue, is weighed down by the lowest approval ratings in modern history, redefining the meaning of a "lame duck."

It is no wonder that the numbers at yesterday's rallies were a mere echo of those the past couple of years. The spirit of those pursuing immigration reform has literally been beaten down from all comers. This year's organizers realized that this is not an issue only for immigrants, particularly Latinos. In Chicago, they approached civil rights organizations like the Rainbow-PUSH coalition, but also labor organizations, as this issue carries both social and economic dimensions.

As Winne pointed out so eloquently in her post last Friday, this is an concern that crosses party lines. Businesses, a core component of the GOP base, tend to favor comprehensive, humane reforms to restore access to an able and willing labor supply, while many unions, an age-old staple of the Democratic Party, see it as a threat to member jobs and a downward pressure on wages. Social conservatives, rooted firmly in the Republican ranks, are miffed at the violations of law and order, while civil libertarians, predominantly in the Democratic mix, argue that newcomers broke only a silly law, crossing an imaginary line.

Wherever you land in this complicated matrix, we can all agree that the present situation is simply unacceptable. Repairing a broken system will require a level of political willpower seemingly lacking in Washington as of now. The three remaining presidential candidates, Sens. Clinton, McCain and Obama, all supported the aforementioned comprehensive reform, along with fortified border security. McCain has seemingly stepped away from this grandiose vision, claiming that he heard the voices of Americans who do not trust the competence of their government. He promises to seal the border, have this certified by governors in the region, then pursue comprehensive reform. Clinton and Obama have been less specific on the issue, instead quibbling over whether illegal immigrants should be issued drivers licenses by states (Clinton says no, Obama yes).

Let me remind you that President Bush holds a similar position on reform, and that Congress is likely to have little turnover this fall regardless of who wins the White House. This means that leadership with have to come from one of these presidential wannabes. Rest assured, those who marched yesterday will have their voices heard one way or the other. For those who are eligible to vote in November, expect them to uphold their promise to participate ("Today we march, tomorrow we vote"). Therefore, the White House hopefuls and their peers in Congress should heed these words. Come May 1, 2009, the streets of America's cities will be filled once more by those demanding political courage to mend a fractured system. Will our President Clinton/McCain/Obama be up to the challenge?