Unilateral Disarmament
posted by Frank Pasquale
David Fontana and Micah Schwartzman complain in TNR that President Obama has failed to appoint young judges to federal appeals courts:
The president has so far nominated five judges to federal circuit courts. On average, these nominees are 55 years old, more than a decade older than Sotomayor was when she was nominated to the Second Circuit. (She was 43.) For years, Republicans have been nominating sharp young conservatives to the lower federal courts. Now, rather than looking for young legal talent of its own, a Democratic administration seems to be favoring older nominees. In our view, this is a major mistake.
I think Fontana and Schwartzman are right that older appointees are a mistake for the Democratic party, even though they are probably better for the nation as a whole. (I favor more seasoned judges, particularly as life spans lengthen.)
This is one of many examples where Democrats are trapped in a difficult dilemma by Bush administration practices. If they appoint older judges, they let the circuit courts’ current rightward skew persist longer. But if they retaliate with relative youngsters, we lose the experience and insight that only age can bring to the courts. Same goes for executive appointments: many transparently political appointees of the Bush era have “burrowed in” to permanent positions at agencies, and balance probably requires similar strategies close to the end of the Obama administration — even if long-serving bureaucrats could do a better job in such positions.
Similar dynamics affect government transparency policies. For example, the Brennan Center recently “gave the Obama administration an F for its use of State Secrets” and has criticized it for continuing several Bush era policies of opacity. Here, again, a change would probably be for the better — but we all know that if a terrorist attack occurred, Dick Cheney’s acolytes would be on TV the next day declaring that Obama’s openness helped cause the carnage.
The health reform debate provides a final example. Bush’s plan for Medicare Part D was essentially an unfunded benefit. Rather than take on the tough task of real cost containment, he and the Republican Congress delegated it to fragmented private insurers with little power to make it happen. Conservatives now complain about a dodgy cost curve in Obama’s plans, but denounce virtually every proposed effort for cost containment as “socialized medicine.” Obama’s political fortunes probably rise if he follows the Bush path, but the country will be better off if he and Congress embrace fiscal responsibility.
In light of these examples, I think Fontana and Schwartzman have shed light on a larger phenomenon of the dangers of unilateral disarmament in an increasingly partisan age. If rules of cooperation like the filibuster exist at any less a status than constitutional norm, perhaps the Dems should think deeply about the proper deployment of the “constitutional option” pioneered by those on the other side of the aisle.
July 20, 2009 at 8:37 pm
Posted in: Politics, Privacy, Supreme Court
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Responses (2)
A.W. - July 21, 2009 at 5:48 am
Yes, that is the problem… democrats are too nice. *rolls eyes*
Hey did you hear the latest Trig Palin joke? /sarcasm
Jeff Gamso - July 21, 2009 at 7:24 am
Of course, to assume that the non-confrontational Obama who’s too often adopting Republican policies while articulating them in a less nasty way is failing to push his real agenda is to assume that he actually has an agenda different from the one he’s pursuing.
Much of his campaign was, after all, about changing the tone in Washington, and he’s certainly doing his part – even if the Republicans aren’t so willing to do theirs. And maybe that’s all the change he really could believe in.
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