Monday, September 26, 2005


By: UnrepentantNewDealer

Hail to the Chief Justice

Well, William Rehnquist apparently didn't take the hint that it was time for him to leave the Supreme Court, as he had to be dragged from his post kicking and screaming by the Maker of All Laws. Now that I think about it, that sounds like the way to go: knowing your days are numbered but defiantly not letting it slow you down.

Out of respect for the late Chief Justice, the Senate put off hearings for Sandra Day O'Connor's replacement John Roberts until after Rehnquist's funeral. Yet, showing a remarkable lack of taste and respect for the dearly departed, Bush nominated Rehnquist's successor before the Chief Justice had been dead even a day and a half, and several days before he was buried. I guess I shouldn't be surprised, after everything else I've seen from these people in the last 5 years, but... they couldn't have waited just a couple of days out of respect for a man who has been on the highest court in the land since 1971? Not even just two?

Bush's pick to be the next Chief Justice of the United States: John Roberts, the man he had already nominated to fill O'Connor's spot. As Bush is apparently going to wait until after the Senate confirms Roberts before nominating his (probably even more conservative) choice to fill O'Connor's spot, there probably won't be time to confirm her successor before the next Supreme Court session starts at the beginning of next month. So, looks like O'Connor, who announced her intent to retire in June to give time to get her successor confimed, better unpack her bags and settle in for at least the start of another term.

The Constitution doesn't set forth any requirements for the justices, so theoretically, I could be a justice. Realistically, though, a justice should be qualified to judge on the highest court in the land. Roberts is certainly qualified as he has been a lawyer for a number of years (and a rather good one, too, if reports of his earning $700 an hour is anything close to being accurate) and he got the highest grade of "well qualified" from the American Bar Association (as opposed to Clarence Thomas, who barely scraped by with a "qualified"--the only lower grade being "not qualified"--before he was confirmed).

So, I'm not worried about Roberts being unqualified. Nor do I see much of the point in the argument that he is too far out of the mainstream of legal opinion. For one thing, he's so far successfully kept his true beliefs a mystery during the Senate Judiciary Committe hearings (he wasn't paid $700 an hour to sit there and look pretty, unlike some on Capital Hill). For another, Bush did win reelection. His approval ratings may now be the lowest of any modern president at this point in his presidency since Richard Nixon, at or just below 40%, according to the latest batch of polls, and a majority might vote against him today. Unfortunately, they didn't do that last November, and that's all that matters. The American people reelected Bush (technically though, they never elected him in the first place, but I'll let that slide for the sake of argument) and they gave him an increased Republican majority in Congress to confirm pretty much anyone he wants. Anyone who didn't vote against Bush last year has no right to whine about anything he does now. You had 4 years of fair warning.

There are certainly, however, some things that concern me about Roberts. Most troubling to me is whether, like Scalia and Thomas, he doesn't believe that the Constitution contains the implicit right to privacy, an issue central to many of the cases that can be expected to come before the court in the 21st century. One could certainly argue that Roe v. Wade interpreted this right too expansively, but privacy rights are one of the most important of all rights. Why would the Framers have included the Third Amendment, banning quartering troops in people's homes against their will during peacetime if people don't have a right to pretty much exclusive use of their property? Or why would they have included the Fifth Amendment, banning governmental seizure of privately owned land "for public use without due compensation"? The Fourth Amendment's prohibition against "unreasonable searches and seizures"? Or the Ninth Amendment which states that the fact that certain rights aren't specified in the Constitution doesn't mean the people don't still have them? Sure, it never says the people have "the right to privacy", as the First Amendment doesn't include the exact words "separation of church and state". Both are implicit in the document and our founding charter would make very little sense without them. Nor does the Constitution specifically give Congress the power to regulate air traffic. A true originalist would look at the intent of the framers, see that as they never mentioned airplanes, they never intended for the federal government to regulate them, and declare baggage scanning at airports to be unconstitutional. Needless to say, such a verdict, while perhaps correct on a purely technical level, just wouldn't fly (no pun intended).

I'm reassured with his response to a question about Kelo v. New London: he appears to be opposed to it. What most concerns me about Roberts is his recent verdict on the D.C. Circuit Court of Appeals that denying prisoners of war at Guantanamo Bay the trials due them under the Geneva Conventions is perfectly constitutional. He was deliberating on this case in which the White House was the defendant at the same time as he was being interviewed by the White House to be nominated as a Supreme Court justice. This raises a number of troubling possiblities: Did Roberts not see the ethical morass he was wading into? Why did he not recuse himself? As Bush announced Roberts as his nominee the day after Roberts turned in a result favorable to the administration, was there quid pro quo involved? Given the above, and Bush's well-known tendency to appoint people based on their personal loyalty to him above all other qualifications (more on that below), how independent a justice will Roberts be? Or does he earnestly believe in transfering more powers to the president? If so, that kind of negates the check justices are supposed to serve on the other two branches. Is his support of expanded executive power a part of a coherent legal philosophy or will he miraculously start trimming the powers of the president the moment a Democrat is inaugerated?

It is really saying something that I have so many questions about Roberts. The problem is that Robert's record is clean--too clean. There is not much of a paper trail and precious little to go on when trying to pin down Robert's judicial philosophy. If I had to guess, I'd say he is ideologically a clone of William Rehnquist, a conservative but a pragmatist, a closet federalist, not one given to unworkable theories like originalism. But no one really knows for sure. His only previous experience as a judge is the past two years on the D.C. Circuit Court of Appeals. That's all we have to go on. And it's not a lot.

That is the greatest concern I have about Roberts: he is certainly qualified to a justice, but... Chief Justice? Even the most junior member of the current court, Ruth Bader Ginsberg, has 11 years of experience on the highest court in the land. I repeat: the only judging experience Roberts has is two years on the D.C. Circuit Court. One would imagine that a better choice would have been to promote one of the current justices (Scalia or Thomas, almost certainly) rather than promote in some new guy from out of nowhere with only two years experience at the appeals level to be the new Chief Justice. Even an appealate judge with, say, 10 or more years of experience would also be acceptable as a Chief Justice. Roberts has what it takes to be a justice. But to be head of the judicial branch in America, one should have a bit more experience at the federal level. John Edwards had more federal-level experience to be president than Roberts does to be Chief Justice! The office of Chief Justice should be held to a higher standard than this.

Failures All Too Human...

And now, time to address the elephant in the room here: the response to hurricane Katrina. Some people say that we shouldn't cast judgement or blame for the response to Katrina, but finding out what failures occured, be they those of individuals (and hence, relatively easy to change) or of institutions (much harder to change), is essential to preventing those failures from recurring. What we saw with Katrina was a product of failures at every level of government.

Of course, the fact remains that it was a disaster of almost biblical proportions. The National Hurricane Center claims that the storm was a Cat 4 at landfall in Louisiana with 140 mph winds and a Cat 3 with winds of 125 when it made landfall along the Mississippi coast. Judging from what I've seen in the media of the total devastation along the Mississippi coast, I find it hard to believe a Cat 3 did that. How could a storm equivalent to Fran cause Andrew-level devastation? I think ultimately, based on the level of destruction it caused, Katrina's strength will ultimately be revised to Cat 5 at initial landfall, just as Andrew was a decade after the fact. Americans are not immune from such megadisasters, I said in my last post. The scary thing is that Katrina could have been far worse. Had it not made that 11th swing to the east, had it not inexplicably weakened at the last minute.... there might not have been anything left of New Orleans to flood when the levees broke. However, despite the storm's natural origin, this disaster was compounded by failures all too human.

First, there was the local response. The mayor of New Orleans, Ray Nagin, waited until less than 24 hours before landfall of what was then a Category 5 hurricane before ordering a mandatory evacution of a city below sea level. When a Category 3 storm is heading for a city below sea level, that's when you evacuate. When it reaches Cat 5, that's when you evacuate everyone within 100 miles of the coast. There is no excuse for such belated action.

After the fact, there was a mad scramble among politicians to cover their asses. It began a couple of days after landfall when I caught Missisippi Governor Haley Barbour on CNN arguing that he had little warning of the zephyr that devasted his state. His argument was to the effect of "Katrina was a Cat 1 when it hit Florida on Friday. It became a Cat 5 early Sunday morning. We had almost no warning." Of course, he had far more warning than that. Katrina made landfall in Florida on Thursday, August 25, not Friday. Friday, August 26 was the first day the forecast path for Katrina put New Orleans and the Mississippi coast firmly its track. Also early that Friday, due to the warm water temperatures Katrina was about to move over in the Gulf, forecasters predicted that the storm would make landfall Monday as a Cat 4 storm along the Louisiana/Mississippi coast--exactly what happened. The forecasters called it right and called it early, giving the Gulf Coast more than three days warning, despite Barbour's protestations to the contrary.

Also under the category of historical revisionism: Bush's comment on September 1 that, "I don't think anyone anticipated the breach of the levees." That's funny. All I saw on CNN in the days before landfall was how there could be massive loss of life in New Orleans because the levees would fail in a Cat 3 storm or greater, according to the Army Corp of Engineers. I even saw an emergency planner for New Orleans parish on CNN two days before landfall saying that there could be up to 40,000 casualties due to flooding if a Cat 4 hit the city. New Orleans' local newspaper, the Times-Picayune, did an extensive series last year in which they examined exactly what would happen when the levees failed in a major hurricane. I saw a special on the Weather Channel about 4 or 5 years ago in which they showed how there could be catastrophic loss of life in New Orleans if a major hurricane hit the area. That just skims the top of the iceberg of the publicly-available knowledge out there. With the possible exception of "The Big One" on the San Andreas Fault, this was the most anticipated natural disaster in American history. There is simply no excuse for ignorance. Like Condolezza Rice's contention that no one could have predicted 9/11, this one fails to hold any water (again, no pun intended).

The failures on 8/29 were across the board. Katrina was one of those moments of crisis that show what men are made of, that remove the mask people wear and expose their true nature to the world. The most obvious example is, of course, the rampant looting and gang violence that broke out in New Orleans after landfall. More shocking still was the desertion of almost a third of New Orleans police officers. Contrast that with the response of the NYPD officers who rushed into the burning World Trade Centers to help get people out. If the plight of the elderly who were abandoned in their nursing homes and died from the flood waters, the wind, or simply days of heat and no water doesn't jar the conscience of all good Americans, nothing will.

Most appalling of all is the fact that the evacuation plans for N.O. had no provision for getting people out who were too poor to own a car and who rode public transportation. In a major city with a good mass transit system like New Orleans, it is far from uncommon for people to not have a car. Thus 100,000 people stayed in New Orleans, most of them apparently because they had no way to heed the evac orders. If anything good comes out of this, it will be to increase the visibility of the truly invisible in our society, the poor. A community--or a nation--that condemns poor people to fend for themselves in a major storm while the rich and middle class have a way to evacuate is little different from the crew on the Titanic who held the third-class passengers below decks to allow the first-class passengers to escape in the lifeboats.

There were also failures at the state level, though I'm not aware of any especially greivous ones. The only thing I know of is that Governor Blanco and Mayor Nagin have a long history of feuding, going back to Nagin's endorsement of Blanco's opponent in last year's election. This probably impeded the recovery effort, as state, local, and federal officials spent too much time squabbling among themselves over division of responsibility and too little doing all they could to provide aid.

Ultimately the federal role is the most crucial one. Louisiana's budget for the current fiscal year is about $14 billion, far less than the amount Congress has already appropriated for hurricane relief in that state. As the feds simply have a greater ability to help, they should shoulder the greatest part of the burden. It also helps that, unlike state governments, the federal government is not required to balance its budget each year, so it can go into deficit spending when disaster strikes.

Of course, as we already have a massive national deficit, it would be better to raise taxes to pay for it rather than go further into the red. Polls have shown that a majority of Americans are willing to accept paying higher taxes to help rebuild the Gulf Coast. But, as after 9/11, when Americans were willing to answer a call for sacrifice, the President has rushed to reassure us that we will be able to pay for the recovery without raising taxes--by trimming spending. What items in the budget bill Bush just signed will get the presidential axe in the aftermath of Katrina? The $231 million to build a bridge to an uninhabited island in Alaska? That particular bit of pork somehow sneaked into the bill, though it might have something to do with senior Appropriations Committee member Ted Stevens, R-Alaska or chairman of the House Transportation Committee Don Young, R-Alaska. Perhaps now might be a good time for Bush to revisit his decision to reduce the $105 million the Army Corp of Engineers asked for last year to fund programs for flood and hurricane relief in New Orleans to a mere $40 million. Reminds me of the cut to the FBI's counterterrorism budget John Ashcroft recommended on September 10, 2001. I know hindsight is 20/20, but is it really that much to ask that our leaders have at least some foresight and be proactive rather than reactive?

Most grievous of all has been FEMA's response. By now, everyone is familiar with the bungles in FEMA's response, such as preventing Wal-Mart trucks from delivering aid to the effected areas, an unaccountably late start to the relief efforts, and the lack of food-drops or airlifts, which has been done after previous disasters to get food into hard-to-reach areas with great success. Then-FEMA director Michael Brown waited until 5 hours before landfall before suggeting dispatching 1000 federal employees to the scene. Foreign aid was delayed for days by FEMA. The U.S.S Bataan, with a half-dozen operating rooms, 600 beds and 1,200 sailors, was kept idling off the coast for days, while hundreds of people died. My favorite FEMA horror story involves the more than 600 firefighters from across the nation who came to Atlanta at FEMA's behest to help out Katrina victims. They spent an entire day in a seminar on sexual harassment, while people were dying in the streets of New Orleans. Finally, they were told the true nature of their mission: to pass out FEMA pamphlets with a toll-free number to call if victims needed actual help.

Perhaps this was inevitable. A major problem hampering FEMA is the fact that it has been subsumed into a vast bureacracy, the Department of Homeland Security. I thought this was a mistake from the get-go. Too many disparate agencies were combined here. True, the Coast Guard does have an anti-terrorism "homeland security" role. Yet, just as important are its roles fighting smugglers, poachers, drug runners, and deterring small Cuban children from swimming to Florida. (Won't someone please think of the children?) One can't help but feel that the effectiveness of these two agencies has suffered from incorporation into DHS. DHS's almost sole focus has been fighting terrorism. That's why it was created. FEMA (and probably the Coast Guard as well) should be returned to its former status as an independent cabinet-level agency.

Yet, it seems apparent that the biggest problems in FEMA predate the creation of DHS. In 2001, Bush chose Joseph Allbaugh, his campaign manager, to be the head of FEMA, and Michael Brown to be his deputy. Upon Allbaugh's retirement, Bush appointed Brown to replace him. Why? At the time, Brown was sold as having been "Assistant City Manager with authority over emergency response issues" in a small town in Oklahoma. It turns out that Brown, a college student at the time, was merely an assistant to the city manager, an intern with no authority over anyone, according to Time Magazine. Brown was also introduced to the public back in 2001 as the head of the International Arabian Horse Association, supposedly an institution affiliated with the U.S. Olympic Committee, according to the White House. What relevance Arabian horses could possibly have to emergency management is anyone's guess. But it gets worse. First, the association apparently was never affiliated with the International Olympic Committee. Second, Brown ran the organization into the ground, forcing it to merge with another group to stay solvent. Time uncovered other "padding" (read "fabrications") in Brown's resume, from his being a political science professor (he was just a student) to being director of a nursing home since 1983(they say they've never heard of him). Seriously, is it really that easy to get a job with this White House? The fact that Allbaugh and Brown were college roommates probably provides the answer to why he was hired in the first place, though if anyone else has a more convincing explanation (or any other explanation at all), I'll take it.

By contrast, Clinton chose as his FEMA head, James Lee Witt, a veteran emergency management official, who turned FEMA into the world's leading emergency management agency. Also, the head of FEMA had a spot on the cabinet, a spot it lost (along with the EPA head) when Bush came to office.

With all this cronyism going on at the top (a number of other top FEMA officials have also been found to have had no disaster experience prior to being hired), one wonders what effect this might have on morale among FEMA's rank and file. Turns out morale is miserable and many experienced professionals have left. Due to the brain drain at FEMA, 3 of the 5 people in charge of disaster preparedness and 9 of the 10 regional directors are only in provisional "acting" positions.

This is symptomatic of the Bush administration since Day 1. John DiIulio, Bush's former head of the faith based initiatives office and the first high-level official to leave his administration has said, "There is no precedent in any modern White House for what is going on in this one: a complete lack of a policy apparatus. What you've got is everything, and I mean everything, being run by the political arm."

DiIulio's claim has certainly been borne out. When the EPA was about to release a report on the impact global warming was going to have on human health, an appointed political hack at the top of the chain of command watered it down to almost nothing, questioning the validity of global warming (which the EPA's scientists had not done). This was bad science and bad public policy, but good news for Big Oil and other big contributors to the Bush campaign. For a time, women visiting the National Cancer Institute's webpage could read of the horrifying study that proved a causal link between abortions and breast cancer. Of course, this was complete nonsense, but a welcome payback to the constituency that always turns out in the largest numbers for Bush, the Religious Right. I could give many other examples, but the fact remains: political considerations play a far-greater role in determining policy decisions in this White House than in any previous one. And, as Katrina showed with such devastating effect, when politics trumps sound policy, we all lose, and some inevitably lose their lives.


"What I'm hearing, which is sort of scary, is they all want to stay in Texas. Everyone is so overwhelmed by the hospitality. And so many of the people in the arena here, you know, were underprivileged anyway, so this is working very well for them."
-Barbara Bush

I'll close by examining the reactions of senior members of the Bush administration to Katrina. The sentiments expressed by the president's mother speak for themselves; to say more would be too akin to shooting fish in a barrel.
Katrina struck while Bush was on vacation. (Why is it these things always happen when he's on vacation?) It took several days for Bush to wrap up his vacation and get back to Washington after Katrina struck. At first he merely continued on with agenda, mentioning Katrina in passing in one speech, then spending the better part of an hour talking about Social Security reform and Iraq. One of his aids had to compile a DVD of news clips of the disaster unfolding in New Orleans to spur him into action more than 4 days after Katrina made landfall. True, he has made a number of visits to New Orleans since, but compared with his inspiring speech in the ruins of the WTC right after 9/11, it seems like too little, too late.

One Bush photo-op was at a levee in New Orleans in front of what appeared to be heavy machinery and workers hard at work on repairing the levee. The next morning, Lousiana Senator Mary Landrieu flew over the area and saw that all the machinery and workers had been moved--all props for a president more interested in seeming effective than in being effective. His staged photo-ops contrasted with the relief efforts of his 2000 opponent Al Gore, who chartered two jets with his own money to fly refugees to his home state of Tennesee, hacking through a mammoth amount of FEMA red-tape to do so.

In a particulary Marie Antoinette moment, Condolezza Rice was shopping for shoes in New York City and watching Broadway plays on Thursday, 4 days after landfall. Only the concerted efforts of bloggers created enough public pressure to force our National Security Advisor to do her job. At least Condi beat the U.S. Senate's return from summer recess. The Senators were not called back to D.C. until Friday, 5 days after landfall. One can't help but contrast Congress's belated return to Washington for Katrina victims with the speed which these same senators showed in arriving back in D.C. from recess, late on a Sunday night to petition a judge to reconsider his decision in the Terry Schiavo case--a decision he had issued just a few hours earlier. A few hours for a politically-convenient photo-op on behalf of one woman, 5 days for millions of Katrina refugees. What that tells us about the GOP-led Congress's priorities is positively chilling.