Clarke’s forceful public criticism is of Chisholm and the so-called “John Doe” investigation that Chisholm has pursued since 2010 against Walker, his staff and virtually every conservative advocacy group in the state.

Clarke, who has been sheriff since 2002 and is running for re-election on Tuesday as the Democratic nominee, has been elected and re-elected with heavy support both from fellow African-Americans and from conservatives.

Clarke said that he agreed with a petition seeking appointment of a special prosecutor to investigate Chisholm. The petition was filed on Sept. 26 by a major Chisholm target, conservative fundraiser Eric O’Keefe.

While Clarke and Chisholm are both Democrats, the iconoclastic sheriff has often clashed with the more liberal Democrats who dominate Milwaukee politics, including Chisholm.

“This will go down as one of the ugliest chapters in Wisconsin political history” Clarke told this reporter. “This is a witch-hunt by a hyper-partisan prosecutor’s office … to go after political adversaries they disagree with.”

Clarke said Chisholm has been evasive responding to whistleblower Michael Lutz’s allegations that Chisholm had exuded improper personal and political bias against Walker in a private conversation in March 2011. Chisholm “didn’t answer the questions,” Clarke said, referring to an Oct. 8 letter in which Chisholm urged Milwaukee Chief Judge Jeffrey Kremers to reject O’Keefe’s petition, which had relied heavily on the questions raised by Lutz’s allegations.

He said he had regarded Chisholm as a “standup guy” years ago when, as a police captain, Clarke worked with then-Assistant District Attorney Chisholm on gun cases.

But as he learned about the nature of the Chisholm’s investigation of the Wisconsin Democratic Party’s political rivals, Clarke said, “I was appalled by some of the stuff that had gone on in the John Doe investigation, and that image I had of Chisholm as a person of unquestioned integrity started unraveling.”

The investigation started in 2010 based on a report by then-Milwaukee County Executive Walker’s staff that reported a minor theft from a charity fund.

Soon, Clarke said, “It became, ‘Let’s see what we can find,’ without any allegation. When you get prosecutors abusing their power, they can take out anyone. I’m a Democrat, but what if he says, ‘Let’s go get Clarke?’ They can ruin your life.”

Clarke stressed what he said had been politically motivated leaks by Chisholm’s office of confidential information about the John Doe investigation to embarrass Republicans including Walker.

“John said his office didn’t originate the leaks,” Clarke said.” Who else would have leaked it? They’re the only ones who had the information. I’m surprised as well that John Chisholm never displayed any concern or disgust that there were leaks coming out of… his own staff.”

Indeed, Clarke added, “You would think he’d shut the investigation down,” it’s so tainted.

Chisholm and his lawyer, Samuel Leib, have not responded to an emailed request for comment.

More generally, Clarke complained, while Chisholm was a good, tough prosecutor before becoming district attorney, he has since “turned more liberal” and soft on crime. “I don’t recognize him,” Clarke said. “He became ‘part of that revolving-door justice system that’s had terrible effects on minority communities.’”

Clarke described himself as a “conservative Democrat, strong on national defense, strong on safe streets. I believe the Constitution protects individuals not groups. I believe in limited government and I believe in the powers of the states.”

His calls for citizens to have guns for self-defense have made him something of a hero to many on the Republican right.

After four years of investigation, Chisholm and his fellow prosecutors have ordered predawn raids by armed officers on the homes of conservative activists; seized their documents, computers and cell phones while their children were getting dressed for school; subpoenaed hundreds of thousands of documents from dozens of conservative groups; routinely obtained gag orders barring targets and witnesses from revealing what has been done to them; won a few minor convictions but failed to find evidence sufficient to charge Walker, indeed any prominent conservative, with any crime.

The issue currently at the heart of the investigation is whether the collaboration of conservative issue-ad groups with Walker’s campaign in a 2012 recall election violated Wisconsin’s campaign finance laws against “illegal coordination,” as Chisholm has suggested.

Chisholm’s conservative targets say that their conduct complied with Wisconsin law, was protected by the First Amendment and was indistinguishable from the conduct routinely engaged in by Democratic candidates, groups and unions.

Both a state and a federal judge have ruled that none of the conduct under investigation appears to have been illegal. Those decisions are on appeal.

Chisholm, who launched the probe of Walker in 2010 and has staffed it with own his assistants, has conducted it since last year in conjunction with Special Prosecutor Francis Schmitz, now the titular head of the investigation, and the state’s Government Accountability Board.

Chisholm’s Oct. 8 letter stressed that Schmitz is not a Democrat and the GAB is required by law to be nonpartisan.

Clarke’s view that Chisholm was a good prosecutor who became “hyper-partisan” is strikingly similar to that of the whistleblower Lutz, the former Chisholm subordinate and decorated former police officer who has accused Chisholm of privately exuding strong personal and political bias against Walker.

“I admired him greatly,” as a friend and a mentor, Lutz has told this reporter, explaining that he was very friendly with both John and Colleen Chisholm because her brother had been Lutz’s police partner and best friend.

But during the bitter partisan battle in the winter of 2011 over Walker’s successful push to break the power of the state’s public-sector unions, Lutz said, “it was surprising how almost hyper-partisan he became.”

During a private meeting in Walker’s office in March 2011, according to Lutz, when he was serving as an unpaid “public interest special prosecutor,” Chisholm ordered him to reject a request by Republican Wisconsin Supreme Court Justice David Prosser that Lutz tape a pre-election video praising a Prosser decision that Lutz admired as good for police.

Chisholm’s reasons, as recalled by Lutz, were blatantly political: “He didn’t want Prosser to decide on” the inevitable legal challenge to Walker’s union-curbing legislation and he “wanted to stay as far away from these Republicans as he can.”

Chisholm also said, according to Lutz, that his wife Colleen, a teachers union shop steward, had been so angry and upset by Walker’s union-curbing as to be repeatedly moved to tears; that she had joined union demonstrations against Walker; and – most important – that Chisholm  “felt it was his personal duty to stop Walker from treating people like this.”

At the same time, Lutz added, many of Chisholm’s unionized staff acted “like an anti-Walker cabal,” with some posting blue fists as anti-Walker symbols on office walls.

Lutz’s reward “for telling the truth,” he has said, was that the Milwaukee Journal Sentinel hunted him down; exposed him as this reporter’s source despite his fear of retaliation and despite his prior role as a source for Journal Sentinel reporters; and dishonestly smeared him as a dangerous drunk with a troubled past.

In particular, the newspaper has repeatedly accused Lutz of making a drunken “death threat” in 2013 against Chisholm and his family.

This despite the facts that Chisholm himself has never claimed publicly that Lutz threatened him; that Lutz has dismissed the “death threat” allegation as a gross distortion of an angry but well-intentioned phone message intended to prevent a suicide; and that the much-decorated former cop, who earned a law degree after being disabled by a gunshot wound, has many admirers in the police department.

Clarke, under whom Lutz worked years ago when Clarke was a Milwaukee police captain, described him on Tuesday as “respected by peers as an active officer” who was “committed to public safety.”

Clarke added that “the Milwaukee Journal Sentinel, having a dog in this fight, went in typical fashion to smear Lutz’s reputation.” He called the newspaper “a wholly-owned subsidiary and a propaganda machine for the Democratic Party in Milwaukee.”

Partisan bias, Clarke implied, may also explain why the Journal Sentinel appears determined to obscure that Chisholm has never specifically denied any of Lutz’s allegations about their March 2011 meeting.

Chisholm’s most recent non-denials came in his nine-page Oct. 8 letter to Judge Jeffrey Kremers, which was made public on Oct. 25.  It rejected in detail various allegations by O’Keefe and his lawyers of criminal abuses of prosecutorial power – without mentioning Lutz or his allegations.

Rather, in apparent allusions to O’Keefe’s heavy reliance on those allegations, Chisholm wrote:

“Supposed ‘new’ information is now offered in the form of statements by persons who have no personal knowledge of which they speak…

“Plain and simple, words like ‘Act 10’ or ‘union’ and phrases like ‘stop Walker’ have never been uttered by me or anyone else in the course of any investigation.

“Those who know my wife know she is not inclined to tears or emotional distress. She is a strong woman with political views of her own, views that play no role in any decision I make as prosecutor.”

While many readers might infer that Chisholm’s letter contradicted Lutz’s allegations, in fact, as Clarke noted, it was carefully drafted to avoid denying a single one of them.

Chisholm’s statement that his wife “is not inclined to tears” did not deny that he told Lutz that she was repeatedly moved to tears by Walker’s Act 10. Nor did Chisholm deny, or even mention, his wife’s alleged “hate for the gov.,” her alleged role in union demonstrations against Walker, or even her role as a teachers union shop steward.

Still more striking is Chisholm’s use of the phrase “in the course of any investigation” to qualify his assertion that he had never said anything like “stop Walker.”

Because Chisholm’s alleged private comments to Lutz were clearly not made “in the course of any investigation,” Chisholm’s letter did not deny them.

This omission is consistent with the DA’s previous non-denials.

When this reporter sought comment in a Sept. 5 email about Lutz’s allegations, the only response came from Samuel Leib, Chisholm’s personal lawyer. He called them a “baseless character assault” that “is inaccurate in a number of critical ways,” adding that “John Chisholm’s integrity is beyond reproach.”

Leib provided no specifics. He also ignored this reporter’s follow-up email the same day requesting that he “identify specifically each of the ‘number of ways’ in which you contend the passage that I sent you is inaccurate.”

Chisholm and Leib have also ignored an Oct. 3 email from this reporter containing 37 questions about Lutz’s allegations.

The closest that Chisholm appears to have come to denying Lutz’s specific allegations may have been on Sept. 10, when Jason Stein of the Milwaukee Sentinel reported that “in a brief interview, Chisholm denied making those comments.”

But the article did not disclose what Chisholm had been asked, by whom, what had been his response, and which (if any) “comments” he specifically denied making.

So far as the public record discloses, the newspaper has never pressed Chisholm for a more specific response to Lutz’s allegations.

Nor is there any public-record evidence that the Journal Sentinel has ever pressed Chisholm for access to the recording of the 2013 phone message in which – the newspaper has repeatedly claimed, based on a vague allegation by Leib – Lutz made a “death threat” against Chisholm and his family.

Neither Chisholm nor the Journal Sentinel has ever suggested a motive for Lutz to lie. He says that his motive has been to protect the freedom of speech – including his own First Amendment right to speak out in favor of Justice Prosser – by telling the truth about the political agenda driving Chisholm.

“I don’t like what Chisholm has done,” Lutz told this reporter, “in regard to political speech that he disagrees with.”

Sheriff Clarke doesn’t like it either. And when he heard Lutz detailing his allegations of prosecutorial bias in recent radio interviews, “I asked myself, ‘What’s in it for Mike Lutz to do this? He did it anonymously.’ I don’t see Mike having any agenda here.”

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For far too long, public debate about terrorism has been dominated by right-wing and left-wing ideologues. In this corner, the Cheneys and their allies. In that corner, the American Civil Liberties Union, gonzo House Democrats and academics, and their allies. In neither corner, common sense.

Typifying the quality of the debate was the ACLU’s wildly overstated full-page ad in The New York Times on March 7 darkly suggesting that President Obama would be subverting "our Constitution and due process" if he abandons his administration’s politically toxic plan to move the prosecution of five accused 9/11 conspirators from a military commission to a federal civilian court. The centerpiece of the ad was a drawing of Obama’s face morphing into that of George W. Bush — who seems to be more hated in ACLU-land than Osama bin Laden.

Meanwhile, hard-right conservatives including Liz Cheney and William Kristol have been running a deeply misguided campaign, including a video emblazoned with "DOJ: Department of Jihad," to smear as disloyal several lawyers now working in the Obama Justice Department. They previously represented Guantanamo detainees or sought due process protections for people who might be innocent.

The best hope for replacing this sterile right-left shout-fest with a bipartisan, commonsense approach to terrorism may be the diligent efforts of Sen. Lindsey Graham, R-S.C., to find common ground with the Obama administration. And the time is ripe for the president to realize that a grand bargain with Graham — including comprehensive legislation on how to handle suspected terrorists, closing the Guantanamo prison camp, and related issues — could help him recover from blunders such as seeking to try the 9/11 defendants in Manhattan.

Graham and Obama have broad areas of agreement. They both want fair and credible criminal trials of as many terrorism suspects as possible. They both want to continue holding as enemy combatants, under the international law of war, those truly dangerous detainees who cannot be prosecuted because the evidence against them is too sensitive for courtrooms or is insufficient to prove crimes beyond a reasonable doubt. They both want Congress to remove the taint of arbitrary executive power from those detentions by adopting clear, consistently applied due process protections. They both want to get potentially lifesaving intelligence from newly captured terrorists.

And they both want to close Guantanamo, because it is such a symbol of lawless detention and torture abroad that allied governments have refused to turn over terrorism suspects unless assured that they will not end up there.

Those are the elements of the bargain that Graham seeks and Obama should pursue. Whether Graham could persuade many other Republicans to support closing Guantanamo is unclear. But it’s worth a try.

So it’s a shame that discussions with officials, including White House Chief of Staff Rahm Emanuel, former White House Counsel Gregory Craig, and Attorney General Eric Holder, have left Graham unable to figure out who is in charge. It’s also a shame to hear a White House spokesman saying that no decision will be made for "weeks" on where to try Khalid Shaikh Mohammed and his four 9/11 co-defendants.

Can’t these people ever decide anything fast?

The first step toward a comprehensive solution — in Graham’s view — would be for Obama to move the 9/11 co-defendants’ case back to a military commission, as key advisers have reportedly been urging him to do.

I have mixed feelings about that. Last fall, I defended Holder’s decision to try the 9/11 defendants in federal court in Manhattan. (See "No Need to Fear a Manhattan Terrorist Trial," NJ, 11/21/09, p. 17.) But unlike Graham — who had long warned the administration that such a move would blow up in Obama’s face — I failed to foresee the unpopularity of that venue and anticipate the enormous security costs.

I still see a civilian trial for the 9/11 defendants somewhere outside Manhattan as the best approach. That would have more legitimacy in the eyes of the world and pose less risk of reversal by the Supreme Court than a military trial, especially one at Guantanamo. I can also understand why administration officials bridle at senators wielding appropriation riders to block civilian trials.

But in the 9/11 case, Graham has powerful political forces on his side. And while justice should not be sacrificed on the altar of politics, a military commission — as currently constituted — is a just alternative to a civilian trial.

I still see a civilian trial for the 9/11 defendants somewhere outside Manhattan as the best approach.

To be sure, the commissions were so plagued by start-up problems as to be something of an embarrassment after Bush created them in 2001. The Supreme Court declared them inadequate in 2006, and they are still disdained by the Left. But Congress greatly improved the commission process in 2006 and again in 2009, thanks in part to Graham’s leadership. The rules are now quite fair to defendants.

So Obama might be well advised to use a military commission for the 9/11 defendants’ case if — and only if — doing so could set the stage for a grand bargain with Graham on the other issues discussed below.

The president should pay no attention to hysterical rants by ideologues such as ACLU Executive Director Anthony Romero that using a military commission "would doom this president’s commitment to civil liberties and the rule of law."

Nor should Obama heed the nutty demands from the Right that all prosecutions of suspected jihadist terrorists must go to military commissions, as Republicans and Sen. Joe Lieberman, ID-Conn., are seeking to require. Both Lieberman and Sen. John McCain, R-Ariz., should know better.

At times, Graham, a former Air Force prosecutor who is a colonel in the Air Force Reserve, has seemed sympathetic to such sweeping proposals. But more recently, he has acknowledged that federal courts have a role to play in trying suspected terrorists, including Umar Farouk Abdulmutallab, the Nigerian who was caught in the act of trying to blow up an airliner on Christmas Day.

Military commission trials, while appropriate in some cases — especially those involving national security secrets — should remain the exception, as they were under Bush, rather than the rule. Many terrorists, and many scores of smaller-fry defendants with ties to terrorism, have been successfully tried and convicted in civilian federal courts.

Apart from their greater perceived legitimacy and the smaller risk that the Supreme Court will reverse any convictions, the federal courts are more flexible than military commissions in the range of possible criminal charges and in other important respects. And many foreign governments might refuse to extradite suspects to face trial in military commissions.

Graham seeks the following key ingredients in comprehensive legislation.

•It would legitimatize the detention without trial of dangerous Guantanamo (and other) detainees who have committed no prosecutable crimes, while at the same time giving courts clear rules for providing due process and periodic reviews to those who claim not to be enemy combatants.

•It would establish rules for deciding the circumstances under which foreign terrorism suspects captured in the future should be detained under the law of war, and interrogated for days or weeks without Miranda warnings, and also for determining whether to prosecute them in civilian courts or military commissions. Holding them as enemy combatants would remain an option for those who cannot be prosecuted at all.

•It would bar release into the United States, if the executive branch objects, of detainees who are determined by judges not to be enemy combatants.

•It would provide for closing Guantanamo as soon as the detainees can safely be moved to a prison in the U.S., presumably the one in Illinois that the administration has sought congressional funding to purchase, so far in vain.

Graham might find it very difficult to round up other Republicans to support closing Guantanamo. The prison has become a darling of the jingoistic Right. But Graham can, and does, remind his colleagues that even Bush, and even Republican presidential nominee McCain, recognized the need to close the prison. Few Republicans disagreed until the issue became a stick with which to beat Obama.

Speaking of sticks with which to beat Obama, while it is fair game for Republicans to demand disclosure of the past representation of Guantanamo detainees by Obama’s Justice Department appointees, the efforts to smear these lawyers as disloyal are shameful.

"Shameful" was the word used to denounce this smear in a recent statement signed by prominent lawyers who served under President George W. Bush, President George H.W. Bush, and President Reagan. The signers include Brad Berenson, John Bellinger, Larry Thompson, Philip Zelikow, Peter Keisler, Matthew Waxman, Kenneth Starr, David Rivkin, Lee Casey, Chuck Rosenberg, and Charles (Cully) Stimson. Benjamin Wittes, a centrist from the Brookings Institution, prepared the statement.

By the way, can anyone remember all the prominent Democrats who have publicly denounced the similarly shameful left-wing campaign to wreck the careers of two Bush Justice Department lawyers? They approved — as did at least 14 colleagues — the legality of waterboarding and other brutal interrogation methods, subject to CIA assurances that they would be carefully limited. For some reason, I can’t think of a single one.

CORRECTION: The original version of this report incorrectly identified the American Civil Liberties Union.

This article appeared in the Saturday, March 13, 2010 edition of National Journal.

The post Time To Depolarize Terror Policy appeared first on Stuart Taylor, Jr..

Last week, for example, I criticized President Obama for failing to seek detailed legislation on detention and interrogation of terrorism suspects. This brought a reminder from an administration official that any effort to get a responsible detention bill past congressional Republicans — who seem far more eager to demagogue the president’s plan to close Guantanamo than to grapple with the hard issues — would probably be doomed.

A fair point. I still think that Obama should give it a try. But I would not bet on a constructive Republican response.

Harry Reid’s "no Negro dialect" line was a classic example of Michael Kinsley’s definition of a gaffe as a politician telling the truth.

And when Obama is faulted for letting Democratic potentates on the Hill festoon the stimulus and health care bills with special-interest favors, I wonder: Could he have forced the potentates to be responsible had he tried?

On another front, I have faulted the Supreme Court’s conservatives for seeking to stretch First Amendment law to the breaking point to gut campaign spending laws. But those laws are so pockmarked with congressional efforts to stifle critics and other incumbent-protection games as to command little respect.

Anyone who has seen a few congressional hearings and a few Supreme Court arguments has to notice that the more democratic branch often seems a sorry circus by comparison with the analytical rigor and intellectual seriousness of the unelected justices, liberal and conservative alike.

Besides, the Senate is not very democratic even on paper. California has about 70 times Wyoming’s population, but each state has two senators. The 21 smallest states, representing 12 percent of the nation’s population, have 42 senators — one more than the number needed to block any controversial legislation.

The Senate’s semiparalysis-by-filibuster is one of the reasons that congressional insiders have told reporters not to expect any serious legislation this year on such urgent problems as global warming and immigration. It also explains why there have for decades been such debilitating delays in confirming presidential nominees.

Even so, few Congress-watchers — other than partisans of the party in power — would see the House’s workings as a big improvement on the Senate’s. The "people’s House" is so polarized between hard-right Republicans and hard-left Democrats that it is unrepresentative of the largely centrist electorate.

Nor does the legislative process call to mind "government of the people, by the people, for the people." Take the Democratic health care legislation that has preoccupied Washington. Whether the bills should live or die, it’s hard to trust the process by which it has been slapped together. Highlights include cynical payoffs to get to 60 votes and backroom deals that mock Obama’s multiple campaign promises to "do all these negotiations on C-SPAN so the American people will be able to watch."

Republicans share the blame. After doing precious little to solve our biggest problems when they were in power, they have greeted Democratic initiatives with an uncompromising obstructionism.

The calcification of our system that my colleague Jonathan Rauch called "Demosclerosis" in the title of a 1994 book plagues the executive branch, courts, states, and localities, too.

California seems especially broken, with its crushing deficits; exodus of employers, jobs, and residents; overpaid public employees — some of whose union contracts allow retirement at 50 with 90 percent of their salary for life; and legislative districts that virtually never change party.

In short, although the United States has "a vital and self-renewing culture that attracts the world’s talent," as James Fallows contends in the current issue of The Atlantic, National Journal‘s sister publication, "our government is old and broken and dysfunctional, and may even be beyond repair."

Fallows details in "How America Can Rise Again" the increasing inability of our governments at all levels to focus on "issues beyond the immediate news cycle, … an increasing gap between the real challenges and opportunities of the time and our attention, resources, and best efforts [and] a political system that seems to be constantly consumed with trivial things."

An utterly trivial gaffe in 2008 by Senate Majority Leader Harry Reid, D-Nev., for example, brought an orgy of media hype and Republican grandstanding after it was revealed last week. Reid had said privately during the 2008 campaign that Obama’s race could help him because he was "light-skinned" and had "no Negro dialect, unless he wanted to have one."

Now, Reid has a penchant for making genuinely offensive comments, such as likening Republican opponents of the Democratic health care bills to 19th-century opponents of abolition. But his "no Negro dialect" line was a classic example of Michael Kinsley’s definition of a gaffe as a politician telling the truth.

So, shame on the Republicans. Their desire to avenge Democratic demonization of then-Majority Leader Trent Lott in 2002 — for an offensive (if benignly intended) expression of nostalgia for the Jim Crow South — was no excuse for so cynically playing the race card against Reid.

But does anybody doubt that the same Democrats who have defended Reid would be clamoring for his head had he been a Republican?

Meanwhile, the media have ignored a genuinely revealing example of racial politics gone mad: a proposal by the quasi-official Governance Council of Berkeley (Calif.) High School to eliminate science labs and the five instructors who teach them because few black or Hispanic students sign up for them, as one member explained to the East Bay Express. This is an extreme example of an underreported problem — efforts to close racial achievement gaps by shifting resources away from high achievers of all races — that damages high-achieving minorities, American competitiveness, and ultimately low achievers as well. The media could hardly be less interested.

What is to be done about the seeming inability of our governments at all levels — not to mention the media — to meet the challenges we face? Fallows has no big reforms to propose. Any effort to amend the Constitution, he notes, would be strangled by special interests. And a full-scale constitutional convention would bog down in ideological battles over abortion, the teaching of evolution, and the like, and perhaps do more harm than good.

Instead, Fallows argues, "our only sane choice is to muddle through" by pressing governments to look to the long term and make the gigantic public investments that are needed to renew our crumbling infrastructure, fund scientific research, and drive our economy forward, as the government did decades ago with the space program, the Internet, and the Human Genome Project.

Worthy goals — but with no underlying principle beyond wishful thinking for making them happen. Governmental dysfunction may be more deeply rooted than Fallows allows in broad cultural and legal trends of the past four or five decades.

Special-interest groups, ranging from unionized public employees demanding tenure regardless of performance to anti-tax crusaders who want government services without paying for them, have since the 1960s pressed governments and courts to elevate their "rights" — that is, their parochial self-interest — over the public good.

Over time, this has created a "jungle of law, growing denser every year, that has submerged individual responsibility to do what makes sense under a deluge of rules and rights, and paradoxically undermined everyone’s freedom," says Philip Howard, a prolific author and critic of legal and regulatory excess, whose day job is practicing corporate law in New York City.

"Individual responsibility should be the principle by which America reforms its public institutions," argues Howard, whose latest book is Life Without Lawyers: Restoring Responsibility in America. "Schools are out of control because teachers fear taking responsibility for discipline lest they be accused of violating disorderly students’ due process rights. Health care costs are out of control because neither patients nor providers are financially responsible for prudence in their use of resources, and doctors squander billions on defensive medicine. Lawsuits are out of control because judges won’t take responsibility for preventing abuse of the system. Americans increasingly feel frustrated and powerless because law has corroded the hierarchy of responsibility needed for anything to work. A free society descends into gridlock. Look around."

These legal-cultural dysfunctions would be obstacles to national renewal regardless of any institutional reforms such as making the Senate more democratic — which aren’t going to happen in any event. Meanwhile, the more Congress shirks its own responsibility to grapple seriously with hard issues, the more the executive and judicial branches will fill the vacuum.

But if we, the people, can focus more on getting big things done for the good of the nation and less on legalistic second-guessing of those accused (often wrongly) of making honest mistakes, we might just get the government we deserve.

This article appeared in the Saturday, January 16, 2010 edition of National Journal.

The post A Congress Worthy Of Deference? appeared first on Stuart Taylor, Jr..

The 228 no votes on the bipartisan rescue plan — cast mainly by the most conservative Republicans, the most liberal Democrats, and the members most vulnerable to voters’ misguided wrath — not only destroyed nearly $500 billion in shareholder equity between Monday morning and Wednesday night. It was also symptomatic of our society’s increasing polarization into warring conservative and liberal camps pervaded by ignorance of economic realities, misinformed ideological certitudes, and unwillingness to trust even the consensus judgment of Democratic and Republican leaders and their expert advisers.

The damage done both to the economy and to international confidence in our capacity for self-government will be lasting even if Congress passes something like the administration’s $700 billion rescue plan by the time this is published, and even if that spurs a stock market rally.

Some banks that could have been saved if the rescue plan had passed on Monday may well go under. And the foreign lenders who hold about half of America’s nearly $6 trillion in public debt will be looking harder for other places to park their money.

The deepest cause of this failure is that many, many voters are at once stunningly uninformed about public affairs and deluded by populist simplicities ranging from Republican Rep. Thaddeus McCotter’s perception of "Bolshevik" tendencies in the Bush administration’s rescue plan to many Democrats’ reluctance to save the financial system if doing so might possibly enrich some undeserving Wall Street fat cats.

These characteristics of the electorate explain why — for the first time in recent memory — a leadership consensus including all of the top Democrats and Republicans in Congress as well as Treasury Secretary Henry Paulson Jr. and Fed Chairman Ben Bernanke could not sell to rank-and-file House members or their constituents a plan that the leaders agreed was critical to the national interest.

That’s not the way representative government is supposed to work. Not, at least, in the view of Edmund Burke, who said in his 1774 speech to the electors of Bristol: "Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion."

I don’t understand the financial system and its ills well enough to assess with any confidence the merits of the myriad attacks on the rescue plan worked out by Paulson, Bernanke, and congressional leaders. Nor do most voters, or most members of Congress, or their lawyer-heavy staffs, few of whom have expertise in the workings of that system. Given this, there was no good alternative to deferring to the consensus of Republican and Democratic leaders and their advisers that rapid adoption of the revised Paulson plan was our best hope of putting out the fire before our house burns down.

Deference to this leadership consensus would have been called for even if members and voters had a reasonable understanding of the economic realities and of such exotic financial instruments as credit default swaps. Deference was all the more necessary given the mountain of evidence that most voters are "spectacularly uninformed," as author Rick Shenkman has written, even about matters far more fundamental to self-governance.

Shenkman, in Just How Stupid Are We? Facing the Truth About the American Voter, and the authors of several other recent books cite polls, social-science studies, and other evidence showing that, for example, only two in five Americans can identify the three branches of the federal government; fewer than half know who Karl Marx was, or which war the Battle of Bunker Hill was part of; and only four in 10 people between the ages of 18 and 24 can find Iraq on a map.

"I am convinced… that, over the past several decades, we have become less knowledgeable, more apathetic, more reliant on others to think for us, more susceptible to simple answers, and more easily exploited," William Pannapacker, an associate professor of English at Hope College, concluded in a Chronicle of Higher Education review of seven books on voter ignorance.

Small wonder that so many voters are fixated on the mistaken notion that the main beneficiaries of the bipartisan rescue plan would be Wall Street elites. In fact, the main beneficiaries would be the millions of ordinary Americans who will lose their jobs as we plunge into a deep recession — or worse. Most of the fat cats who gambled recklessly with other people’s money have either been ruined (see Bear Stearns and Lehman Brothers) or long ago salted away many more millions than they have much chance of making from the rescue plan. A minuscule percentage of the $700 billion sought by Paulson will go to compensate executives of financial institutions.

Congressional leaders understood this. But many of their members did not, or at least pretended not to understand to avoid casting unpopular votes. The "no" group was dominated by conservative ideologues from monolithically Republican districts and liberal ideologues from monolithically Democratic districts, including most members of the Congressional Black and Hispanic caucuses.

"The center had collapsed in favor of a coalition of far-right and far-left zealots," as Dana Milbank observed in The Washington Post. "What was once a lunatic fringe was now a majority: 40 percent of House Democrats, going by [Monday’s] vote, and fully two-thirds of Republicans."

This "failure of followership," as Tom Mann of the Brookings Institution called it, reflects the misinformed populism that runs especially strong among the most-liberal and most-conservative voters. Thanks to gerrymandering and other factors, most House districts have become lopsidedly Democratic or lopsidedly Republican and elect representatives whose views are well to the left or right of center. That’s why the House has been so much less receptive to the rescue plan than the Senate, whose members are elected statewide.

This is not to excuse the failures of the political leaders who backed the rescue plan. John McCain made cartoonish attacks on "evil and greed in Washington"; prematurely congratulated himself for getting House Republicans to support the rescue plan; and fanned the partisan flames after its defeat by saying, "Senator Obama and his allies in Congress infused unnecessary partisanship into the process" — while inconsistently adding, "Now is not the time to fix the blame." Obama keeps trying to blame Republicans for causing "this mess" by passing a 1999 banking deregulation law that was supported by most Senate Democrats, was signed (and is still defended) by President Clinton, and appears to have played no role in causing the problems.

President Bush, meanwhile, is a spent force, his credibility long since squandered by (among other things) his relentless partisanship. Paulson was commendably bipartisan but inept at selling the rescue plan to the electorate. House Speaker Nancy Pelosi launched a rhetorical attack blaming Republicans for the market meltdown at the very moment when she needed their votes. And Republican leaders lamely attributed some of their members’ no votes to petulance over Pelosi’s barbs.

Pelosi’s partisan rant — "for eight years, this government has followed a right-wing ideology of anything goes, no supervision, no discipline, no regulation" — was especially misleading in blaming Republicans alone for a financial crisis that Democrats did much to bring about.

Among other things, leading Democrats have in recent years opposed — while the Bush Treasury Department, the Fed, McCain and other Republicans supported — tighter restraints on Fannie Mae and Freddie Mac. Meanwhile, the two mortgage giants were catering to (disproportionately) Democratic demands for "affordable housing" while lavishing many millions on campaign contributions, a gigantic lobbying apparatus, and excessive executive compensation. The proposed restraints in a 2005 Senate bill that Democrats deep-sixed, for example, would have prevented Fannie and Freddie from recklessly pouring so many hundreds of billions of (implicitly) government-guaranteed dollars into risky investments, including subprime mortgages for borrowers without the means to carry them.

Democracies tend to get the governments they deserve. But this nation’s basically centrist majority — or at least plurality — deserves better than a gerrymandered "people’s House" dominated by both liberal and conservative ideologues and a presidential campaign polluted by dishonest pandering to populist passions.

Our best hope in the short run is that the Barack Obama of the inspiring, inclusive 2004 convention speech and the John McCain who has so often stood against his party’s ideologues will listen to the better angels of their natures. Our best hope in the long run is that centrist voters will rebel against the partisan excesses that have helped bring us to the brink of economic disaster, will choose leaders worthy of trust, and will trust them.

This article appeared in the Saturday, October 4, 2008 edition of National Journal.

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And that the administration still insists on using interrogation techniques so coercive that human-rights groups call them torture?

And that it claims the power to hold dark-skinned foreigners in Guantanamo Bay prisons without meaningful judicial review?

All true. And all horrifying to the American Civil Liberties Union, international human-rights groups, and self-righteous Europeans.

It’s also true, however, that most congressional Democrats support warrantless eavesdsropping on the overseas communications of countless Americans. (See my colleague Shane Harris’s "A Court at the Crossroads," p. 62.)

It’s further true that, although both have waffled lately, Sen. Hillary Rodham Clinton and former President Clinton have supported forms of coercive interrogation that horrify human-rights groups. So will the next president, no matter who wins.

Finally, the Clinton administration itself claimed the power to hold dark-skinned foreigners in Guantanamo Bay prisons without meaningful judicial review. Those were refugees fleeing Haiti, not suspected terrorists. And although most Democrats now support searching judicial review of the current Guantanamo detentions, as I do, there is broad bipartisan support for holding those found to be enemy combatants even if they have committed no crimes or cannot feasibly be prosecuted.

Meanwhile, Bush partisans such as House Republican Whip Roy Blunt bash Democrats for seeking to inject the courts, for the first time in history, into the traditional executive branch prerogative of deciding when to approve electronic eavesdropping on foreigners outside the United States — for example, Qaeda suspects in Pakistan talking to would-be suicide bombers whose whereabouts are unknown.

But the Democratic bill gives the judges very little discretion to say no. And Bush now supports rather similar judicial oversight of eavesdropping policies.

In all of these cases, in my opinion, the near-consensus views of most congressional Democrats (and the Republicans) are right. Doctrinaire civil libertarians such as the ACLU are wrong to suggest that the government should never be able to "spy upon Americans without an individual warrant." (Would the ACLU bar the government from eavesdropping without a warrant on a Qaeda operative in Pakistan who calls his naturalized American cousin in Manhattan?) And so are those doctrinaire executive-power mavens who would give the government carte blanche to eavesdrop on the international phone calls and e-mails of Americans.

How can I speak of a near-consensus among most congressional Democrats and Republicans about anything, let alone issues as contentious as these? The answer is that the real policy differences between the opposing party leaders on some of these issues are so small that consensus could easily be within their grasp. The problem is that most of our leaders don’t want consensus.

So polarized have our politics become that even as the nation faces what could be "its greatest crisis since the Civil War," in the words of attorney general nominee Michael Mukasey, Republican and Democratic leaders are far more interested in strafing each other than in compromising for the sake of national unity against our common enemies.

This polarization is not merely a matter of bad leadership. Even good leaders have an uphill battle convincing voters in their own parties that bipartisan consensus is preferable to endless political combat.

In a front-page Washington Post article on October 17, for instance, Alec MacGillis explained that Sen. Barack Obama’s "summons to ‘turn the page’ past the country’s red-blue polarization is not what many Democrats want to hear after seven years of mounting anger at Bush and the Republican-dominated government." Hillary Clinton, the reporter added, "more directly exploits Democrats’ feelings of resentment." And look who’s ahead in the polls.

The current battle in Congress over proposed amendments to the Foreign Intelligence Surveillance Act of 1978 illustrates how poisonous partisanship kills potential consensus. The details are complex, but the gist is this:

FISA generally requires that surveillance of Americans and wiretaps within the United States be based on a special, secret federal court’s advance finding of individualized "probable cause" to believe that each target is a spy, terrorist, or other type of foreign agent.

But most experts, and most members of Congress, agree that galloping technology and the magnitude of the terrorist threat have made FISA obsolete in some ways. These were among the reasons for President Bush’s arguably illegal invocation of unilateral executive power to circumvent FISA from late 2001 until January 2007.

Bush has agreed to work within FISA’s bounds, at least for now, while proposing amendments. The House Judiciary Committee recently adopted its own proposal, which Bush threatens to veto. But as explained by Shane Harris, and by Brookings Institution scholar Benjamin Wittes in the October 15 New Republic Online, the competing proposals are not all that different.

What’s obsolete about FISA? First, although it was never intended to restrain executive branch eavesdropping on foreigners overseas, changing technology arguably brought many eavesdrops on "foreign-to-foreign" communications within FISA’s coverage. The reason is that many foreign-to-foreign communications now run through U.S. territory via fiber-optic cables.

In a ruling this spring, a judge on the secret FISA court created a serious impediment to warrantless collection of foreign-to-foreign communications that pass through the U.S. The administration has complained that this literal interpretation opened a huge hole in our defenses against terrorism. If so, the administration deserves most of the blame, for having spent more than five years stubbornly and (until a December 2005 New York Times expose) secretly defying FISA instead of asking Congress to update it.

Almost everybody agrees that FISA should be updated to allow warrantless taps of foreign-to-foreign communications running through the U.S. Most experts and members of Congress also agree that the dangers of Islamist terrorism call for reaffirming — many would say judiciously increasing — the government’s power to intercept communications between foreign targets and people in the U.S.

Congress fixed the foreign-to-foreign problem in August, in the hastily passed Protect America Act, which Democrats insisted be temporary because it also contained other, more controversial amendments, which Bush now seeks to make permanent.

The most important question is how to regulate wiretaps targeted at foreigners overseas that pick up their communications with Americans, or with unknown persons who just might be Americans.

House Democrats have with great fanfare rammed through the Judiciary Committee the so-called RESTORE Act, which a House Intelligence Committee press release touts as "protecting innocent Americans from warrantless eavesdropping." This is a highly misleading claim. In fact, the Democratic proposal would (and, in my view, should) give innocent Americans only marginally greater protections from warrantless eavesdropping on their overseas calls and e-mails than would the Bush-backed proposal.

Both the Democratic and Bush proposals would give the FISA court an exceedingly modest role in approving or disapproving on a programmatic basis eavesdropping operations with foreign targets that capture communications to and from Americans. So the National Security Agency could listen in on every phone call that you may have with any non-American outside the U.S. who is suspected (perhaps wrongly) of Qaeda links.

The Wittes and Harris pieces explain the details. The bottom line is that the administration is right to say that the Democratic proposal goes a bit too far toward requiring (or pretending to require) advance judicial approval of surveillance targeted on foreigners abroad.

The Democrats, on the other hand, are right to push for strict new reporting and auditing requirements and other measures making officials accountable to the FISA court, to Congress, and to the Justice Department’s inspector general for any abuses.

It would be easy to craft a reasonable compromise between the Democratic and Bush proposals. But at this writing, neither side seems interested.

Is there any hope of ever getting beyond such extreme partisan posturing? Perhaps not during the current primary season, which places such a premium on partisan zeal. But the Democratic or Republican presidential nominee who tries hardest to build bipartisan consensus will go a long way toward winning my vote and, I suspect, a lot of others.

Pledging to appoint an attorney general not of the nominee’s own party would be a good start.

Correction: I erred in my October 13 column in stating, in reliance on numerous published reports, that Justice Clarence Thomas graduated ninth in his class of more than 500 from Holy Cross. I also cited this as evidence that he was qualified for any law school in the country quite apart from his race. Justice Thomas promptly sent word to me that he recalls ranking in the top 9 percent of his class, not ninth. I regret the error.

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In particular, the right nominee could get through the Senate without caving in to the demands of some Democrats that a special prosecutor be appointed to investigate the White House role in the firings of nine U.S. attorneys, or that Bush abandon his claims of executive privilege.

The big question, at this writing, is whether a president who so clearly values lapdog loyalty over competence, integrity, and independence can bring himself to invert those priorities.

If the nominee inspires bipartisan trust, who needs special prosecutors with their built-in bias toward investigative overkill? The amazingly still-unexplained U.S. attorney firings do smell fishy and do need to be investigated energetically. But this ain’t Watergate. The American people get that.

There is, to be sure, something to the complaint by David Rivkin and Lee Casey, in an August 29 Wall Street Journal op-ed, that "the only unifying theme congressional Democrats have exhibited since taking control last January is an unremitting hostility toward President Bush in particular, and executive power in general."

Any nominee will face a tough confirmation hearing.

But even those Senate Democrats most eager to rub Bush’s nose in the dirt understand that if they come off as obstructionist, or beat the tired "special prosecutor" drum too incessantly, the electorate will punish them. And their hostility to executive power is tempered by their confidence that it will belong to them as of January 20, 2009.

The key is for Bush to pick an exceptionally able nominee with the stature to inspire bipartisan confidence that his or her loyalty to the president’s policy agenda would be qualified by the resolve to say no when the law so requires — and by a deep understanding that the president’s word is not the law and his broad wartime powers are not unlimited.

After a day or two of doing the nominee equivalent of Muhammad Ali’s rope-a-dope — as the conservative John Roberts did so brilliantly two years ago en route to winning confirmation as chief justice — the right choice would be confirmed.

Why would a person of such quality want to be a caretaker for this lamest of lame-duck presidents? Maybe because he or she could be far more than a caretaker. A good attorney general could play a major role in steering toward pragmatic, bipartisan solutions on issues of huge consequence to the nation, such as the coming donnybrooks over surveillance and detention of suspected terrorists.

On the other hand, if Bush can’t bring himself to choose a nominee of proven ability, integrity, and independence — three traits shared by none of this president’s closest associates — then he will deserve a drubbing in the confirmation process, and he will get one.

Indeed, now would be the ideal time for Senate Democrats to channel their partisan energies into establishing a new bipartisan tradition: Never again should the Senate confirm anyone to head the Justice Department who has not demonstrated in advance a capacity to put the rule of law ahead of the will of the president. No more Al Gonzaleses. And no more Bobby Kennedys, either.

Gonzales, who should have been rejected, was confirmed in February 2005 by 60-36, with the votes of six Democrats, even though it was obvious then that he was not exceptionally able and was a bad bet to transcend his record as a loyal, sometimes lawless servant to the man who had plucked him from obscurity. While Democrats control the Senate (barely), at least as many would support a good nominee now as supported a bad nominee in 2005.

Indeed, in the long run the right nominee would bolster a presidency that has paradoxically been weakened by the Bush approach of claiming almost unlimited, unilateral wartime powers and using secrecy to circumvent the checks and balances established by the Constitution. Bush and Gonzales have claimed the powers:

•Not only to seize any person on earth, anywhere on earth, on suspicion of being an "enemy combatant" but also to imprison that person incommunicado for years, with no judicial review or semblance of due process.

•To torture such people wholesale, in violation of international treaties and an act of Congress making torture a crime (although Bush has stopped just short of explicitly authorizing torture).

•To try them before "military commissions" with the power to impose penalties including death with no independent judicial review.

•To secretly defy for more than five years a partly outdated law making it a crime to conduct foreign-intelligence wiretaps without judicial warrants, instead of working with Congress to update the law.

•To invade Iraq without consulting Congress (a power that Gonzales claimed, though Bush ended up seeking and getting congressional authorization).

It is these overreaching Bush-Cheney-Gonzales claims of executive power that have brought the administration a succession of rebuffs from the courts, including all three of the big Supreme Court decisions on terrorism issues since 9/11.

Bush did persuade the then-Republican Congress to change the laws on which two of the justices’ decisions were based. But the Court is widely expected to hand Bush yet another big loss in a pending challenge to the sharp curbs on judicial review of "enemy combatant" detentions that Bush pushed through Congress. A decision striking down those curbs could pave the way for excessively intrusive judicial oversight over wartime detentions — a regime that Congress might lack the power to override. The right attorney general could avert such an outcome by working with Congress to provide better due process safeguards and better judicial review before the justices decide the pending case. If Bush balks at such an approach, he will have only himself to blame for weakening the presidency yet again.

Meanwhile, earlier this year a special court plausibly construed the Foreign Intelligence Surveillance Act in a way that crippled for months the government’s ability to monitor the many overseas communications among possible foreign terrorists that happen to pass through American switches. Congress, which fixed this problem at least temporarily in early August, would gladly have fixed it years before but for the administration’s pigheaded insistence on acting unilaterally and in secret.

What would have happened if we had had a good attorney general over the past six years, and a president with the sense to follow good advice?

Bush would have won all of the court cases mentioned earlier. The legal (and international) legitimacy of presidential detentions of enemy combatants would have been bolstered by due process protections against error, ideally prescribed by legislation. The administration would have done far better in world opinion by drawing a sharp line between illegal torture and appropriately aggressive, even coercive interrogation. The president could have easily persuaded Congress to bring the Foreign Intelligence Surveillance Act into the Internet age in late 2001 or 2002. Gonzales would not have been tempted to invade a hospital room in March 2004 in an unsuccessful attempt to arm-twist the very sick then-Attorney General John Ashcroft to certify the legality of surveillance practices that Ashcroft’s expert subordinates had found to be illegal. And, in my view, we would all be safer.

Jamie Gorelick, who was deputy attorney general under President Clinton, was exactly right on The NewsHour With Jim Lehrer on August 28: "The way you get greater executive power is by making sure that the other two branches of government trust you. And they won’t trust you if you are not transparent with them, if you do not share with them the information to which they are entitled. If you do, particularly in the area of national security, there will be tremendous deference. It is my view that by claiming the right to do everything unilaterally, you ultimately undermine the actual quotient of power that you end up with. I believe that the posture the Justice Department has taken actually is going to end up weakening executive power."

Not many members of the two other branches of government trust Alberto Gonzales. One measure of his effectiveness in helping the president to discharge his duty to "take care that the laws be faithfully executed" is the recent exodus from the 110,000-person department of Gonzales’s deputy attorney general, acting associate attorney general, chief of staff, the deputy’s chief of staff, the White House liaison, the head of the Office of Legislative Affairs, and the chief and deputy chief of the Civil Rights Division, not to mention the career officials who have left in disgust and the talented potential replacements who don’t want to work for a political hack.

Fortunately, the right nominee — make that nominees — could make a good start at repairing the damage.

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In 19 cases during the past year, the Supreme Court split down the middle along ideological lines. The court’s four conservatives-Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito-lined up on one side, and the four liberals-Justices Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg and David Souter-lined up on the other. Each time, the tie was broken by a fifth vote belonging to Justice Anthony Kennedy. On 13 occasions, Kennedy aligned himself with the conservatives. While the court is clearly moving to the right, it’s obvious that Kennedy holds the balance of power.

Kennedy is known for examining his conscience as well as the law books when he decides a difficult case. And justices caught in the middle of fierce ideological disputes sometimes agonize or brood over their opinions. But sitting with a NEWSWEEK reporter in his chambers overlooking the U.S. Capitol on the day after the court’s final decision of the 2006-07 term, Kennedy seemed cheerful, even enthusiastic, about his role. True, "the cases this year were more difficult than I thought they would be," he said. In closely divided cases when time is short, he added, the court’s "tone becomes somewhat more acrimonious." But he laughed and held up his hands and said, "Hey, I’m a lawyer. I’m trained to argue. I love it."

He does not love being called a "swing vote." He told NEWSWEEK that he and earlier denizens of the court’s center-Justice Sandra Day O’Connor and the late Justice Lewis Powell-"never liked the term ‘swing vote’ because it indicates that you elect to swing for the purpose of accommodating one side or the other." Indeed, in the court’s most important case of the year, Kennedy refused to accommodate either side. He voted with the four conservatives to strike down racial-integration plans championed by school districts …

In 19 cases during the past year, the Supreme Court split down the middle along ideological lines. The court’s four conservatives-Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito-lined up on one side, and the four liberals-Justices Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg and David Souter-lined up on the other. Each time, the tie was broken by a fifth vote belonging to Justice Anthony Kennedy. On 13 occasions, Kennedy aligned himself wi

In 19 cases during the past year, the Supreme Court split down the middle along ideological lines. The court’s four conservatives-Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito-lined up on one side, and the four liberals-Justices Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg and David Souter-lined up on the other. Each time, the tie was broken by a fifth vote belonging to Justice Anthony Kennedy. On 13 occasions, Kennedy aligned himself with the conservatives. While the court is clearly moving to the right, it’s obvious that Kennedy holds the balance of power.

Kennedy is known for examining his conscience as well as the law books when he decides a difficult case. And justices caught in the middle of fierce ideological disputes sometimes agonize or brood over their opinions. But sitting with a NEWSWEEK reporter in his chambers overlooking the U.S. Capitol on the day after the court’s final decision of the 2006-07 term, Kennedy seemed cheerful, even enthusiastic, about his role. True, "the cases this year were more difficult than I thought they would be," he said. In closely divided cases when time is short, he added, the court’s "tone becomes somewhat more acrimonious." But he laughed and held up his hands and said, "Hey, I’m a lawyer. I’m trained to argue. I love it."

He does not love being called a "swing vote." He told NEWSWEEK that he and earlier denizens of the court’s center-Justice Sandra Day O’Connor and the late Justice Lewis Powell-"never liked the term ‘swing vote’ because it indicates that you elect to swing for the purpose of accommodating one side or the other." Indeed, in the court’s most important case of the year, Kennedy refused to accommodate either side. He voted with the four conservatives to strike down racial-integration plans championed by school districts in Seattle and Louisville, Ky. But he refused to go along with the conservatives in joining an opinion by Chief Justice Roberts that exuded hostility to all race-based solutions to racial inequalities. Kennedy suggested that school boards might be able to assign students based on their race as a last resort, though only if they could show that other methods proved ineffective. At the same time, Kennedy reproached the liberals on the high court for supporting racial engineering that "may entrench the very prejudices we seek to overcome."

More than a half century after the Supreme Court required school desegregation in Brown v. Board of Education, Americans remain divided over race and by race. In the latest NEWSWEEK Poll, 35 percent of whites and 23 percent of nonwhites approved of the court’s decision to limit the use of race for school-integration plans, while 29 percent of whites and 54 percent of nonwhites disapproved. The court’s decision provoked an emotional dissent from Justice Breyer, who thundered that the ruling would "threaten the promise of Brown" by hindering progress toward "true racial equality." Some commentators attacked Kennedy’s middle-way opinion for leaving school officials with no idea what they can legally do.

In his interview with NEWSWEEK, Kennedy did not seem much disturbed by the hubbub. He recalled how, as a Stanford undergraduate in the mid-1950s, he was given the privilege of helping escort around campus the nation’s greatest civil-rights lawyer, Thurgood Marshall, who later became a Supreme Court justice. Marshall had, a couple of years earlier, successfully argued Brown. "I thought that we had solved the race problem," Kennedy recalled. "I mean, that’s how little I knew about it." But he seemed more bemused than rueful about "how naive many of us were," and he went on to talk enthusiastically about the "whole heap of fascinating, difficult problems" the court faces each year.

Kennedy’s critics say he is perhaps a little too eager to play the role of Wise Man in the Middle. In a biting New Republic cover story last month, Jeffrey Rosen, a George Washington University Law School professor and a widely noted court watcher, portrayed Kennedy as a pretentious moralizer with a "self-aggrandizing conception of the court’s role." A few of Kennedy’s former clerks interviewed by NEWSWEEK allow that he can be a little pompous. "He thinks he is the living embodiment or transmitter of the nation’s bedrock values," says one, who refused to be identified criticizing his former boss. But this clerk-and all the others interviewed-portrayed him as gracious, decent, fair-minded and intellectually curious about many things ranging far beyond the law. "I would put him in the top rank intellectually," says Washington lawyer Richard Willard, who became the then Judge Kennedy’s first clerk in 1975 and has remained close.

In a partisan age, Kennedy is almost bound to disappoint. "Liberals don’t like him because he is conservative most of the time and extreme conservatives don’t like him because he is not conservative all of the time," says Willard. Not just right-to-lifers but many conservatives were bitter when Kennedy, a Ronald Reagan appointee, voted in a 1992 decision, Planned Parenthood v. Casey, to uphold what he, O’Connor and Souter called "the essential holding of Roe v. Wade," the Supreme Court’s 1973 decision giving women a right to abortion.

Kennedy can, in fact, paint with a broad brush. "At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe and of the mystery of human life," declared an opinion signed by Justices Kennedy, Souter and O’Connor in the Casey decision. Kennedy (who, it later turned out, drafted the language) quoted the same passage in a 2003 majority opinion striking down laws against gay sodomy. In a dissent to the court’s gay-rights decision, Justice Scalia mockingly referred to this language as the "famed sweet-mystery-of-life passage." Another federal judge, Robert Beezer of the U.S. Court of Appeals, wrote in 1996 that Kennedy’s formulation is "so broad and melodramatic as to seem almost comical in its rhetorical flourish."

Kennedy, 70, is tall, dapper and shows no sign of slowing down. Chief Justice Roberts has tried, so far without much success, to get the justices to speak with fewer voices. He wants them to write fewer "concurrences"-judicial opinions that, like Kennedy’s in the school-desegregation case, reach the same conclusion as the majority but articulate different reasons. Asked by NEWSWEEK about this effort, Kennedy laughed and interjected, "I guess I haven’t helped much. My initial reaction was going to be, ‘Just let me write all the opinions’."

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The knotty problem was that Congress, in the "issue ad" provision of the 2002 McCain-Feingold campaign finance law, had joined a legitimate goal with an illegitimate one.

The legitimate goal was to prevent business corporations — which have no mandate from their ideologically eclectic stockholders to use their money to meddle in election campaigns — from doing just that.

The illegitimate goal was to censor criticism of elected federal officials (along with other candidates) by nonprofit citizens advocacy groups — ranging from the National Rifle Association to the Sierra Club — whose members pay dues and band together precisely for the purpose of promoting political causes near and dear to them.

Congress quite deliberately, and cynically, accomplished both goals in the same provision (Section 203) by the simple and stealthy expedient of making it a federal crime for any corporation (excepting media corporations) to pay for a broadcast ad that refers to any federal candidate during the run-up to an election.

Because nearly all nonprofit advocacy groups are incorporated, the effect was to extend to such groups a ban ostensibly aimed at companies like General Electric and Dow Chemical. Indeed, it was the nonprofit citizens groups, not Big Business, that had bought many or most of the attack ads that legislators so resent.

Congress thereby made a mockery of the First Amendment’s injunction that "Congress shall make no law … abridging the freedom of speech, or of the press, or the right of the people … to petition the government for a redress of grievances." These provisions were intended above all to guarantee citizens (and groups of citizens) the same right to criticize incumbent officeholders that Section 203 restricts.

The ideal solution would have been for the Supreme Court to uphold the ad ban as applied to business corporations and to carve out an exception for nonprofit advocacy groups.

How many justices proposed doing that? Not one. Instead, in FEC v. Wisconsin Right to Life Inc., the five conservatives in the majority and the four liberal dissenters alike focused on all-or-nothing arguments treating all corporations as fungible.

I discussed the flaws of this approach in my April 28 column. But such is the fog of complexity surrounding this issue that my arguments are worth revisiting now that the justices have once again made a hash of it. It is also worth explaining how Congress sneaked censorship of advocacy groups into a law masquerading as a curb on Big Business and Big Labor.

(The same fog of complexity also prompts me to confess to oversimplification: I will not explain how the majority justices splintered into three separate opinions; why the exemption of political action committees from the issue-ad ban alleviates the burden on citizens groups far less than that on business corporations and unions; or the important difference between campaign contributions and independent campaign spending.)

Some background: Recognizing that business corporations amass vast sums invested by shareholders who (in most cases) do not intend that their money be spent on election campaigns — and that such sums can be used corruptly as quasi-bribes to buy influence — Congress has banned corporate contributions to federal candidates for 100 years. The Court has never questioned this ban. But until McCain-Feingold, corporations were free to spend money on so-called issue ads, meaning ads designed to persuade voters to pressure their representatives to support or oppose legislative measures.

The main reason for this distinction was that issue ads did not have the same potential to buy politicians as campaign contributions (or even independent campaign expenditures). But it is impossible to draw a clear line between issue ads and campaign spending. Especially during the 1990s, companies and citizens groups alike spent many millions on broadcast ads — dubbed "sham issue ads" by critics — that also had the purpose or effect of persuading viewers to vote for or against identified candidates.

The radio ads that Wisconsin Right to Life wanted to run in 2004, for example, urged viewers to "contact Senators Feingold and Kohl [both Wisconsin Democrats] and tell them to oppose the filibuster" of some of President Bush’s judicial nominees. This was an issue ad because the group no doubt wanted the filibuster to stop. But it was also intended to persuade viewers to vote against Feingold, who was up for re-election.

Indeed, in the 1990s issue ads became a way for business corporations as well as some nonprofits to circumvent the restrictions on corporate campaign spending. By the same token, criminalizing such circumvention would inevitably chill genuine issue advertising as well. And that’s what Congress chose to do in Section 203’s ban on pre-election broadcast ads that refer to candidates.

Many members recognized that no justification existed for extending this ban to nonprofit citizens advocacy groups. So the Senate adopted the so-called Snowe-Jeffords amendment to allow such groups to buy issue ads so long as they used only membership dues and contributions and thus avoided serving as conduits for business or union money.

But then the late Sen. Paul Wellstone, D-Minn., proposed an amendment to override Snowe-Jeffords and censor nonprofit advocacy groups too. Supporters of this amendment made it clear, by railing against "negative attack ads," that their goal was not to prevent corruption but to stop citizens groups such as the NRA from criticizing them.

A different bunch of (mostly Republican) senators — who opposed all curbs on issue ads, and perhaps wanted to gain support for their own campaigns in the form of business-funded or union-funded issue ads — cynically put the Wellstone amendment over the top. These senators believed (and McCain-Feingold’s sponsors warned) that it was so obviously unconstitutional that it would provoke the Supreme Court to strike down the entire issue-ad provision.

They guessed wrong. In the first ruling on Section 203, in 2003, all nine justices ignored both the unsavory history of the Wellstone amendment and the large distinction between citizens groups and business corporations. By 5-4, the Court upheld the issue-ad ban across the board.

Then, in the June 25 decision, again by 5-4, the justices went the other way, all but overruling the 2003 decision and rendering Section 203’s issue-ad ban unenforceable across the board. This sharp shift reflected the replacement of Justice Sandra Day O’Connor, who (to the surprise of many) wrote the 2003 decision, by Justice Samuel Alito, who voted with the majority in the new decision.

The two decisions had one thing in common: All nine justices ignored the Wellstone amendment and took an all-or-nothing approach, lumping nonprofit citizens groups together with corporations such as General Electric and Dow Chemical.

You might think that somebody on the Court would have looked for a way to salvage the sensible restrictions on business corporations and unions while striking down Congress’s cynical imposition of the same restrictions on nonprofit advocacy groups. But nobody did. Why not?

One reason was the facts of the case: Wisconsin Right to Life had spent business contributions along with members’ dues on its issue ads and made common cause with business corporations; this enabled its adversaries to portray the group as a conduit. Another reason was that the Court’s precedents have usually (if not always wisely) recognized no distinction between the free-speech rights of business corporations and those of individuals and citizens groups.

But the main reason for the all-or-nothing approach of justices on both sides, in my view, was the same ideological polarization that obstructs pragmatic compromise in Congress.

While the majority justices noted in passing the ad ban’s special burdens on nonprofit advocacy groups, they proceeded to gut Section 203 as it applied to business corporations. They thus fetishized corporate free-speech rights to the point of opening the door wide to business corporations (and unions) that seek to misuse shareholders’ (and workers’) money to buy political influence.

And although the four liberal dissenters stressed the need to curb "the corrosive and distorting effects of immense aggregations of wealth" on campaigns, they also unhesitatingly blessed Section 203’s censorship of citizens groups. They are so determined to uphold any and all curbs on big money in politics that they are willing to throw the free-speech baby out with the bathwater.

Not all liberals are so blinkered. "Here, Congress has passed a law under which, for example, it can be a federal crime for the ACLU to spend money criticizing members of Congress," wrote Walter Dellinger, the former acting solicitor general, in Slate. "How can that possibly not raise a most profound constitutional issue?"

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Measured by the passion of the dissenters, today’s 5-4 vote to strike down two school districts’ use of race-based student assignments to promote integration could be the biggest Supreme Court decision of any kind in years. Justice Stephen Breyer’s 77-page dissent-which he summarized from the bench in a tone of mounting indignation, for a near-record 27 minutes-thundered that "to invalidate the plans under review is to threaten the promise" of "true racial equality" that Brown v. Board of Educ

Measured by the passion of the dissenters, today’s 5-4 vote to strike down two school districts’ use of race-based student assignments to promote integration could be the biggest Supreme Court decision of any kind in years. Justice Stephen Breyer’s 77-page dissent-which he summarized from the bench in a tone of mounting indignation, for a near-record 27 minutes-thundered that "to invalidate the plans under review is to threaten the promise" of "true racial equality" that Brown v. Board of Education established. Breyer added that the position of the four most-conservative justices "would break that promise."

Breyer’s apocalyptic language notwithstanding, the decision may not be the watershed that he and the other three liberal dissenters feared. The majority opinion of Chief Justice John G. Roberts-especially the portion that the man in the middle, Justice Anthony Kennedy, declined to join-exuded skepticism of all government programs that consider the race or ethnicity of individuals in allocating opportunities or benefits. The decision will make it harder to sustain affirmative-action programs as well as race-based school assignments. It also confirms the widely held view that the closely divided court has moved a notch or two to the right on race issues since Justice Samuel Alito replaced Justice Sandra Day O’Connor.
          
The immediate impact will be limited, however. The race-based assignments that the justices struck dow…

Measured by the passion of the dissenters, today’s 5-4 vote to strike down two school districts’ use of race-based student assignments to promote integration could be the biggest Supreme Court decision of any kind in years. Justice Stephen Breyer’s 77-page dissent-which he summarized from the bench in a tone of mounting indignation, for a near-record 27 minutes-thundered that "to invalidate the plans under review is to threaten the promise" of "true racial equality" that Brown v. Board of Educ

Measured by the passion of the dissenters, today’s 5-4 vote to strike down two school districts’ use of race-based student assignments to promote integration could be the biggest Supreme Court decision of any kind in years. Justice Stephen Breyer’s 77-page dissent-which he summarized from the bench in a tone of mounting indignation, for a near-record 27 minutes-thundered that "to invalidate the plans under review is to threaten the promise" of "true racial equality" that Brown v. Board of Education established. Breyer added that the position of the four most-conservative justices "would break that promise."

Breyer’s apocalyptic language notwithstanding, the decision may not be the watershed that he and the other three liberal dissenters feared. The majority opinion of Chief Justice John G. Roberts-especially the portion that the man in the middle, Justice Anthony Kennedy, declined to join-exuded skepticism of all government programs that consider the race or ethnicity of individuals in allocating opportunities or benefits. The decision will make it harder to sustain affirmative-action programs as well as race-based school assignments. It also confirms the widely held view that the closely divided court has moved a notch or two to the right on race issues since Justice Samuel Alito replaced Justice Sandra Day O’Connor.
          
The immediate impact will be limited, however. The race-based assignments that the justices struck down in Seattle and Jefferson County, Ky., did not foster much diversity in any event. Roberts observed that they changed the assignments of only a "minimal" percentage of students. Seattle had done almost nothing to relieve minority isolation at the city’s two least-integrated high schools, which remain 90 percent nonwhite. It had also approved an overtly segregated "African-American Academy." Broadly speaking, there do not appear to be very many other programs around the country where local officials promote integration through race-based assignments.

Kennedy’s take is perhaps the most interesting-and in any event is now the law of the land. Casting the critical fifth vote for the majority, he wrote an ambiguous concurrence. It leaves school districts and lower courts that are determined to promote integration some room to experiment, at least until another shoe drops. Kennedy rejected what he saw as the unduly extreme positions of conservatives and liberals alike. He sided with the dissenters on one crucial point by stressing that school districts have "a compelling interest … in avoiding racial isolation" of minority students and achieving "a diverse student population." He also complained that portions of the Roberts opinion "imply an all-too-unyielding insistence that race cannot be a factor." And he rejected the idea that the Constitution is unyieldingly "colorblind."

Nonetheless, Kennedy joined in striking down the racial-assignment plans in Seattle and Jefferson County. He felt that their detailed rules were too susceptible to abuse and he came close to saying that there is no justification for public schools ever to tell individual students that they cannot attend their schools of choice because they are the wrong color. He also joined Roberts in chastising the dissenters for alarmist rhetoric, for distorting the court’s precedents (which the dissenters accused the majority of doing), and for taking a position that would perpetuate raced-based decision making in all walks of life.

The programs struck down by the court represented the struggles of two school districts to cope with segregated housing patterns-a legacy of America’s tortured racial history. Like the rest of the South, Louisville and its suburbs, which together make up Jefferson County, once mandated official school segregation. After the court had unanimously declared such segregation unconstitutional, the Jefferson County schools were eventually put under a judicial decree mandating countywide busing and desegregation measures. In 2000, a judge declared that this had been achieved and ended the desegregation decree.

But a return to neighborhood schools would have looked a lot like resegregation. So the county school board voted in 2001 to consider race in student assignments. The complex rules sought to keep the proportion of black students-34 percent countywide-at no less than 15 percent and no more than 50 percent in each school, from kindergarten through 12th grade. This involved denying to some blacks and whites, on account of race, their first-choice schools.

Seattle does not have the same history of official segregation. But it adopted a voluntary plan to integrate the white 40 percent of its high-school students with the nonwhite 60 percent. Students could choose among the city’s 10 high schools. But the most popular schools gave preference to nonwhite applicants if they were as much as 55 percent white, and to whites if they were as much as 75 percent nonwhite.

Students who were denied their schools of choice sued-and have now won. The decision may force these and other school districts to think more creatively about how to promote racial integration. One promising strategy, promoted by Richard Kahlenberg of the Century Foundation, might be to promote racial and economic integration not by considering race directly, but by seeking to assign people of diverse economic classes to each school. Disadvantaged students, who are disproportionately racial minorities, could be identified by such measures as eligibility for subsidized school lunch programs. Such a class-based program could further racial diversity indirectly. And no justice has ever suggested that class-based preferences violate the Constitution.

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Liberals and many moderates prefer the "living-Constitution" approach, which has been dominant at least since the Warren Court. It involves using ancient but conveniently vague constitutional phrases to enforce "evolving standards of decency," to promote equality, and to vindicate what sometimes-liberal Justice Anthony Kennedy likes to call "the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." Not surprisingly, constitutional evolution in the hands of liberals supports liberal policies.

Each school of thought is most persuasive in debunking the other. Justice Stephen Breyer skewers originalism in his 2005 book, Active Liberty: "Why would the Framers, who disagreed even about the necessity of including a Bill of Rights in the Constitution, who disagreed about the content of the Bill of Rights, nonetheless have agreed about what school of interpretive thought should prove dominant in interpreting the Bill of Rights in the centuries to come?"

Even when the original meaning is undisputed, it is often intolerable to conservatives as well as liberals. Many Framers did not see the flogging or even the execution of a 12-year-old for theft as "cruel and unusual punishment," for example. And nothing in the text or original meaning of the Constitution was designed to bar the federal government from discriminating based on race (or sex). This has not stopped Scalia or Thomas from voting to strike down federal racial preferences for minorities. Nor have they hesitated to invoke debatable interpretations of the Constitution to attack laws regulating campaign finance and imposing monetary liability on state governments.

The living-Constitution approach may be even more problematic, because it has cut a wider swath through democratic governance with even less basis in the written Constitution.

If the Constitution is an "invitation to apply current societal values," as Scalia has asked, "what reason would there be to believe that the invitation was addressed to the courts rather than to the legislature? … A democratic society does not, by and large, need constitutional guarantees to ensure that its laws will reflect ‘current values.’ Elections take care of that."

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