Author Archives: Ron Lipsman

Is the Supreme Court’s Conservative Majority Imperiled?

It is an interesting coincidence that exactly at the time that Justice John Paul Stevens announces his retirement from the Supreme Court, the current edition of The American Spectator has its cover story devoted to ‘a conservative turnaround in the U.S. Supreme Court’ originally engineered by William Rehnquist and Antonin Scalia (TAS, April 2010, ‘The Good Old Days,’ pp. 14-19). It is a convincing essay, explaining how Rehnquist (appointed by Nixon in 1972, elevated to Chief Justice by Reagan in 1986) and Scalia (appointed by Reagan in 1986) have reversed the liberal, activist, non-originalist policies of the Warren and Burger Courts. The two men laid the foundation for the current conservative majority (Scalia, Thomas, Roberts, Alito and Kennedy) and for important conservative opinions of recent years. The article’s author (Alfred Regnery – also publisher of TAS) cites as evidence recent opinions such as: the ruling banning late term abortions, abolition of affirmative action programs in high schools, evisceration of McCain-Feingold and the unconstitutionality of the DC gun ban.

But of course the conservative majority is precarious. In fact, in the years 1950-2008, out of 23 justices appointed, 17 of them were chosen by Republican presidents. Yet during that time – at least until Roberts and Alito cemented the conservative majority – the Court’s decisions were heavily leftist-oriented. Repeatedly, the phenomenon of supposedly conservative jurists drifting slowly, but inexorably to the left occurred over the years: Souter, Stevens, Blackmun and of course Burger and Warren. Even two of Reagan’s were not immune – O’Connor and Kennedy. By the end of her term, O’Connor had slid rather pathetically to the left – and Kennedy was headed in that direction too until Roberts-Alito pulled him back in the last half decade.

By contrast, every appointment by a Democratic president has started and stayed firmly on the left. Clinton’s two appointees (Bader Ginsburg and Breyer) are prime examples. And now we have as President a rigidly leftist ideologue. He has made one ultra-liberal appointment and of course he will make another. But fortunately the justices he is replacing were also in the liberal minority. So unless he appoints a towering intellect who becomes a highly influential liberal justice – things won’t change. If his first appointment is any guide, a towering intellect is very unlikely.

Can the conservative majority survive? Souter was old (although not as old as others who remain) and Stevens was ancient. Both stayed on through the Bush administration just so that the Court would not tip any further to the right. But a death or resignation of any of the five conservative jurists who remain will enable our socialist, community-organizer President to destroy the conservative majority and add another critical building block in his quest to remake America as a European-style social welfare state.

Here are the approximate ages of the justices:
50s – Roberts, Alito, Sotomayor;
60s – Thomas;
70s – Scalia, Kennedy, Bader-Ginsburg, Breyer;
?? – Obama’s new appointment, likely no older than 50s.

The key group is the four in their 70s, with two from each camp. I believe Bader Ginsburg’s health is the most problematic. But in fact, I hope they all hold on through 2012 – and 2016 if need be. My reason for praying for the health of Scalia and Kennedy is obvious. But I hope the two liberals hang on too, for if not, Obama will just replace one or both with younger clones.

How sad that the fate of our country hinges on the relative health of four unelected judges

Romney’s N.O. Victory is Not a Good Sign

Mitt Romney is to 2012 what John McCain was in 2008, what Bob Dole was in 1996 and what George H.W. Bush was in 1988. Namely, it’s his turn. Republicans have a sorry history of nominating for President the person who is perceived to be “next in line.” Little consideration is given to the candidate’s conservative credentials, to his electability, or to whether his rivals are more qualified or would make a better president.

Each instance of this phenomenon has resulted in disaster. Dole’s turn perpetuated the debauched, liberal presidency of Bill Clinton. McCain’s turn resulted in the most radical, left-wing presidency in American history. And although Bush the elder won his race, he proceeded to betray the conservative legacy of Ronald Reagan and set the country anew on the road to a bipartisan ruin that is bearing fruit today.

Romney, if not a RINO, is certainly no heir to Ronald Reagan. All one has to say is: “Massachusetts Health Care.” Why in heaven’s name would the Republican Party want to have him as its standard bearer when there are truly conservative, exciting alternatives available who might be able to reverse the horrendous course our country is on? I am thinking of Mike Pence, Paul Ryan or Rick Perry.

But no, it’s Mitt’s turn. If he gets the nod, either he will crash and burn like Dole or McCain, giving Obama another four years to further encase America in the socialist box he is constructing for us; or Mitt will somehow win and then govern like the Bushes – a big government Republican who will do nothing to reverse America’s slide toward Euro-socialism. On the contrary, I fear that, as he did in Massachusetts, he will foster the slide.

What can I say: I am having a fit about Mitt!

Violating the Law

Politicians violate the law all too frequently. The roster of federal and state legislators and executives who have been exposed as law-breakers is long and shameful. Moreover, the laws they transgress range from local statutes right up to the Constitution. But I venture that the law that is flouted by the greatest number of politicians is actually the Law of Unintended Consequences. The examples are legion and I will point out some of the most famous. However, the main point of this article is to highlight three egregious instances that have received too little attention heretofore.

Let us set the tone by quickly recalling some of the most famous violations of the law of unintended consequences by short-sighted politicians:

  • Minimum Wage Laws. Implemented with the purported purpose of raising the wages of the lowest earning Americans, it has been well documented that a major side effect—which sometimes swamps the intended effect—is increased unemployment among the poor.
  • Gun Control Laws. Enacted to supposedly enhance the safety of our citizens, statistics stubbornly reveal that the localities that pass gun control laws encounter higher rates of crime (including those in which guns are used) than the rates in communities in which concealed weapons statutes are in force.
  • Ethanol Subsidies. Intended to provide relief from our country’s crippling dependence on foreign oil, programs to divert corn to the production of ethanol have had the unintended effect of driving up food prices—both domestically and internationally.
  • The Community Reinvestment Act. Rigging the rules to promote home ownership among the country’s poor, the Act—abetted by those who enforced it vigorously—led directly to the housing bubble and the consequent crash that clobbered the US economy.
  • Aid to Dependent Children. When the government paid women to have babies, discard fathers and not work, then—surprise, surprise—the result was not the intended effect of alleviating poverty; no, the outcome was poor women having many babies, with multiple transitory partners and a culture of helplessness and dependency that destroyed the family structure of all who participated in this pernicious trap.
  • Employer-Based Health Insurance. In order to circumvent FDR’s rigid wage controls, employers conceived the idea of helping to pay for their employees’ health insurance as a recruitment tool. ‘Fine,’ said the IRS. Sixty five years later we have a third party payer system that is helping to bankrupt the country by destroying any user incentive to purchase health care responsibly.
  • Intelligence, or the lack thereof. Due to a misguided sense of moral outrage at the details of covert intelligence operations, the Congress eviscerated the intelligence services of our country over a 30-year period. But rather than elevating the moral fiber of the nation, the result was: Aldrich Ames, Robert Hanssen, 9/11, the fall of the Shah, a failure to foresee the fall of the Berlin Wall and the Soviet Union, erroneous assessments of WMD in Saddam’s Iraq and certainly other unknown intelligence failures that have compromised American security. Moreover, the curtailment of our use of humint in covert operations has not garnered us any increased respect around the world—from either allies or enemies.

Now let us turn our attention to three instances of the formidable law of unintended consequences that have been accorded less recognition. The first originates in a brilliant article by Evelyn Gordon in the January 2010 issue of Commentary Magazine (The Deadly Price of Pursuing Peace, pp. 17-23). Ms. Gordon recalls that one of the main promises of the Oslo peace process was that it would improve Israel’s international standing. She then points out that, despite 16 years of Oslo process, Israel’s standing in the world is at a shockingly low ebb: divestment from and boycott of its products and institutions are called for daily; it is routinely accused of being an ‘apartheid state’; it is characterized by the people of Europe as the single ‘greatest threat to world peace’; its officials are indicted in foreign courts; it is castigated for any and all acts of self-defense (see, e.g., the Goldstone Report); its right to exist is seriously questioned; and indeed its violent death is promised by Iran with nary a peep of condemnation from any other country. Israel’s stated willingness to ‘make concessions for peace,’ its repeatedly announced intention to pursue the peace process with gangsters like Arafat and Abbas, and its unilateral withdrawals all have resulted not in improved standing, but in near pariah status.

Ms. Gordon explains cogently why this is so. First, by acquiescing in the concept that any peace agreement should entail Israeli surrender of part or all of Judea and Samaria (the so-called West Bank), Israel has undermined its own legitimate claim to that territory. Second, by withdrawing from areas in which it previously controlled the Arab population, the result has been more dead Palestinians. This is simply because Israel can no longer arrest, and thereby forestall Arab perpetrators from carrying out their atrocities before they occur; instead it more often must resort to killing the perpetrators of terror during and after their despicable acts. Next, it is clear that Israeli concessions, designed to further the peace process, do not placate Islamic radicals. To the contrary, it impresses upon Israel’s enemies that she is weak and susceptible to defeat by ratcheting up demands. As Gordon says, ‘among anti-Israel radicals, Israel’s increasingly frantic pursuit of peace has aroused not admiration but rather the instincts of a predator scenting blood…[It] convince[s] the radicals (and Palestinians as well) that Israel could be pressured into abandoning any red line if the heat was turned high enough.’ Finally, by raising the hope of a settlement among interested ‘third parties,’ Israel only makes them angrier at her when they see their hopes unfulfilled. Israel would be better served by cooling its ardor for an unachievable peace and encouraging third parties to direct their attention elsewhere.

Ms. Gordon makes a powerful case that had Israel continued its pre-Oslo policy of treating the PLO as a terrorist organization—ergo, an unsuitable peace partner—and refusing to deal with it, Israel would be far better off than it is today. Its insane pursuit of a deeply flawed and unrealizable peace process has led to the unintended consequence of its drastically diminished world standing.

The second example, in which unintended consequences have had a devastating effect, but which has received too little attention, lies in the federalization of US education. Indeed, the education of American youth has truly been federalized, from pre-school to graduate school. I can cite the pervasive role of the feds in student loan programs, the federal regulations that govern the physical environment of our schools and the earmarks that support some of the most arcane school projects. But the coup de grace is No Child Left Behind, which has placed the control of the elementary school curriculum largely under federal direction. The unintended effect of the latter is that the overwhelming majority of the nation’s schools tailor their curriculum to meet the perceived requirements of NCLB. The havoc this has wreaked on the school curriculum has come as a nasty surprise to teachers. In addition, the control that parents can exert on local school boards has been severely curtailed. Finally, student performance has not improved.

Higher education is not immune. We have reached the point that for many institutions of higher education, the amount of revenue that they derive from either of their two traditional sources—tuition and either state funds (public institutions) or endowments (private institutions)—is eclipsed by the funds secured from the feds through government grants and research contracts. Many examples of unintended ill side effects of this development have been recorded—e.g., the severe strictures on research imposed by federal export control regulations. But here is one that I am familiar with from my own university that I have never seen discussed. The selection of campus capital projects and facilities maintenance programs is determined to a surprising extent by the university’s perception of their likelihood of attracting federal matching monies. Well, it is primarily only sexy new buildings and research labs that can do so. Therefore, a hugely disproportionate share of these projects is steered toward the realm of new buildings, hi-tech labs and ultra-modern recreational facilities. The basic infrastructure is left to decay. It has been estimated that the deferred maintenance costs at my institution are nearing one billion dollars. While the safety indicators and educational environment in our classrooms and office buildings atrophy, we leverage funds from the feds to build fancy new buildings whose need is questionable. So, as with the country’s crumbling bridges, roads and tunnels, the university’s infrastructure decays while we chase federal dollars for glitzy buildings, climate change projects, diversity programs and other wasteful outlays in order to satisfy Uncle Sam’s dubious priorities. (The federalization of higher education is discussed in greater depth in another posting in this blog – see Obama Needn’t Federalize Higher Education; It’s Already Federalized)

 

My final example is the election of Barack Obama and an overwhelmingly Democratic Congress in 2008. It is difficult for me to speak for the people who perpetrated this naïve and reckless act, but I think it is fair to say that they thought they were installing a President and a government that would: improve America’s reputation abroad; bring intelligence, transparency and fairness to the governance of the country; be a unifying force for America; and help to address some of the country’s ongoing fiscal problems in a bipartisan way. What they got instead was a radical left regime, dominated by doctrinaire ideologues, determined to march the country toward Euro-socialism in a partisan, economically-irresponsible and arrogant way.

The unintended consequence of course is that instead of unifying the country under a mildly liberal form of government, the Obama-Pelosi-Reid (OPR) team has produced a badly polarized populace that has turned ferociously on the President and his allies in Congress. The American people have received the exact opposite of what they opted for: our international reputation has changed, but not for the better—instead of being seen as a bully, we are perceived as weak and vacillating, lacking in leadership; the government we have is willfully ignorant, opaque and beholden to hard left special interests; the country is splintered, not unified; and in almost every way, the OPR team has exacerbated America’s fiscal problems. Thus the people can be as ignorant as the politicians. By installing the OPR team, we have totally ignored the law of unintended consequences.

A Prominent Syndicated Columnist Goes Gloomy

Many of my readers have chastised me for excessive pessimism. One of my previous posts entitled ‘Is America Doomed’ has been cited as especially gloomy. But consider the words of nationally syndicated columnist Jeffrey Kuhner in The Washington Times (3/26/10):

The bitter debate over Obamacare has exposed the country’s profound divisions. We are no longer one nation or one people. Rather, there are now two Americas: one conservative, the other liberal. Increasingly, we no longer just disagree but we despise each other.

Our disagreements encompass everything – politics, morality, culture and history. We no longer share a unifying essence or common values. One half of America believes abortion is an abomination; the other half considers any attempt to repeal it as oppressive and sexist. One half opposes homosexual unions because it elevates immoral and unnatural behavior to the sacred status of marriage; the other half supports it as an extension of civil rights. One half reviles Mr. Obama’s socialist agenda, viewing it as the destruction of capitalism and our constitutional government; the other half embraces it as the culmination of social justice and economic equality. One half reveres America’s heroes – Christopher Columbus, George Washington, James Madison, Davy Crockett – and its glorious history; the other half is ashamed of its past, seeing it as characterized by racism, imperialism and chauvinism.

How’s that for pessimism? But Kuhner goes further:

Ultimately, a country is not simply its geographical borders with the people inside of it. It is something more – and deeper. A nation must share a common heritage, language, culture, faith and myths. Once upon a time, Americans celebrated the same heroes, sang the same patriotic songs, read the same history and literature, and gloried in its exceptional nature: a city upon a hill, with liberty and freedom for all. It was understood that, for all of our different ethnic and religious backgrounds, America is a product of English and Christian civilization. Those days are long gone.

Instead, we are going the way our Founding Fathers warned us against: increasing balkanization and sectionalism. A constitutional republic – unlike an empire – is only as strong as its national cohesion. It is based not on imperial coercion but civic consent. Mr. Obama is recklessly pulling at the strings of unity, further polarizing us.

Alas, I think Mr. Kuhner is correct. Among my conservative acquaintances, I increasingly hear words like: secession, revolution and refounding. More ominously, I hear sentences such as: this government is more oppressive than the one that our forefathers revolted against; the Republic is lost, those of us who care need to start over; our uber-progressive President and his allies are destroying our Constitutional Republic and impoverishing its citizens. As proof of the last assertion, I can say that among my friends and relatives of my age (60s) who have children in their 30s and 40s trying to raise a family, the percentage of the adult children who are living as well as their parents did at a comparable age—much less better—is meager.

This piece also appeared in The American Thinker under the title, ‘Is All the Pesimism Justified?’; see:

 

Obama Needn’t Federalize Higher Education; It Already Is Federalized

While we are all focused on health care, and cap and trade waits in the wings, we shouldn’t forget the third leg of Obama’s trio of nasty tricks to ‘change’ America—education reform. One might argue that George W Bush already federalized public school education with his infamous No Child Left Behind legislation. Whether one believes its consequences have been positive or negative, one cannot dispute that NCLB has effectively given the federal government control over critical parts of the public school curriculum. State and local officials understand very well that they must teach and test what the feds want, or they won’t be able to feed at the federal education trough—to whose content they are hopelessly addicted.

But I wish to focus on higher education here, and to argue that by virtually the same means—that is, by dangling dollars—the federal government controls the operation, enrollment, budget, facilities and curriculum of our esteemed institutions of higher education to a greater degree than most would acknowledge. I can cite the pervasive role of the feds in student loan programs, the federal regulations that govern the physical environment of our schools and the earmarks that support some of the most arcane education projects. But the coup de grace is the following startling fact. We have reached the point that for many institutions of higher education, the amount of revenue that they derive from either of their two traditional sources—tuition and either state funds (public institutions) or endowments (private institutions)—is eclipsed by the funds secured from the feds through government grants and research contracts.

Much of this has been accomplished without any special enabling legislation. It takes place within the budgets of various federal departments and agencies—e.g., Defense, Commerce, Interior, NASA, NSF, and others. But with or without specific legislation, like all the massive intrusions by the federal government into areas of our society and economy, it has been carried out lawfully, with the public’s support. Of course in doing so, we the people have ignored the most basic law—the Law of Unintended Consequences. And indeed the examples of unintended ill side effects of the federal usurpation of higher education are legion:

·       The vast majority of federal grant money is directed toward faculty research projects at the nation’s universities. The inevitable result has been a dramatic decline in the percentage of faculty time devoted to teaching. The unintended effect—the quality of education suffers.

·       Federal grants are complicated and time-consuming to administer. Thus, the number of university administrators has skyrocketed. These people contribute little toward the university’s mission.

·       It is no great secret that the lion’s share of federal grant monies is directed toward the sciences (physical, life, social and medical). Humanities lag far behind thereby engendering weaker academic credentials and a commensurate loss of self-respect in those quarters.

·       State support of public higher education continues to decline. No State can compete with the feds. Thus local control of our public universities diminishes.

·       As with any other federally-assisted venture, the huge influx of federal funds drives up costs. Inflation in higher education fees has swamped cost of living increases for years.

·       The one who pays the freight gets to call the tune. Faculty, students and administrators increasingly have to dance to Uncle Sam’s tunes. A simple example is the straightjacket that university researchers feel they are in because of federal export control rules that apply to all faculty activities supported by government research contracts.

·       State universities’ Boards of Trustees and private institutions’ Boards of Overseers have seen their powers curtailed. They are fearful of bucking the feds.

·       It might only be indirectly, but increased federal influence in higher education eventually leads to a say in the most important decision the university makes—namely, faculty tenure. These decisions are increasingly dependent on a faculty member’s ability to secure federal funding—opening the process to influences other than scholarly merit.

·       Naturally, faculty—and the university in general—devote enormous amounts of time, energy and resources to the securing of federal grants. This is time taken from teaching and research—supposedly the university’s primary mission.

·       We are all aware of rampant corruption in Medicare, Social Security and virtually every other huge federal program. Do you think that federal support of higher education is immune? Suffice it to say that universities now routinely employ lobbyists to further their cause on Capitol Hill.

All of the above, while perhaps unexpected, are not controversial allegations. The next two certainly are:

·       The university—like the media, legal profession, foundations and public schools—has become an almost exclusive province of the left. Progressivism, relativism, secularism, multiculturalism, pacifism and environmentalism dominate campus thought. Federal government money and influence only fosters that dominance.

·       There is absolutely no justification whatsoever in the Constitution for the federal government’s interference in higher education. But no one seems to care about that.

I believe I have heard or seen each of the above items—even the last two—in public venues in the last few years. But here is one that I am familiar with from my own university that I have never seen discussed. The selection of campus capital projects and facilities maintenance programs is determined to a surprising extent by the university’s perception of their likelihood of attracting federal matching monies. Well, it is primarily only sexy new buildings and research labs that can do so. Therefore, a disproportionate share of these projects is steered toward the realm of new buildings, hi-tech labs and ultra-modern recreational facilities. The basic infrastructure is left to decay. It has been estimated that the deferred maintenance costs at my institution are nearing one billion dollars. While the safety indicators and educational environment in our classrooms and office buildings atrophy, we leverage funds from the feds to build fancy new buildings whose need is questionable. So, as with the country’s crumbling bridges, roads and tunnels, the university’s infrastructure decays while we chase federal dollars for glitzy buildings, climate change projects, diversity programs and other wasteful outlays in order to satisfy Uncle Sam’s dubious priorities.
 
This piece also appeared in The American Thinker under the title, ‘Federalized Higher Education’; see: