As Kagan has herself pointed out, these hearings are "vapid and hollow charade." The Senators are going to repeat partisan talking points that bear little relation to the complexities of constitutional law and the nominee will say just enough to be confirmed but no more. As others have emphasized, these hearings ought to work as a civic event to educate the public regarding constitutional interpretations and the content and progress of our civic freedoms. However, it is hard to see how an environment where both participants are just trying to score points is conducive to educational outcomes. At first glance, this does not appear to signal that the Socratic dialogue between professor and student in a law school would be educationally useful, but having been there myself, I think that most students (and probably most professors) are simply trying not to look stupid or unprepared. However, in the present case, I do not think that anyone believes that Elena Kagan is stupid. From all reports, she seems to have been consciously preparing for this moment her whole life; she is unlikely to screw it up now by saying something risky. And on the other side, I do not think that the Senators will be able to say anything that will convince me that half of them are not complete morons.
30 June 2010
Because I am an attorney and because I happen to love constitutional law, one might think that I would be glued to my television this week during the confirmation hearings for Elena Kagan to be appointed as a justice on the Supreme Court. However, nothing could be farther from the truth. I will read the daily dispatches in the New York Times and might catch the soundbites on CNN, but I can think of a list longer than my arm of things more worth my time.
Another unanticipated break from blogging. My ongoing intention has been to post more regular and briefer posts, and in a more timely fashion than I have traditionally been accustomed to. So tonight, I am actually going to start that project and have two posts for your reading pleasure.
Last week, President Obama relieved Gen. Stanley McChrystal of his command over American forces in Afghanistan, following revelations from this Rolling Stone article. McChrystal's various disparaging remarks regarding members of the Administration, including the President himself, are well known and do not need to be repeated here.
In the days and hours leading up to the announcement of Gen. McChrystal's "firing" and replacement with Gen. David Petraeus, I felt ambivalent about letting him go. On the one hand, he had clearly committed a misdeed worthy of the punishment he received. The Constitution clearly establishes the principle of civilian control of the military. If one of the privates or captains in Afghanistan had made similar disparaging remarks to a newspaper regarding Gen. McChrystal, he would have been discharged immediately. One simply does not criticize or complain about superior officers to the press or the public. And in this case, the President, as commander-in-chief, is everyone's superior officer. Some may worry that this deprives those who serve in the military of some measure of their First Amendment freedom of speech. Technically that is true, and such deprivation has been accepted as one of the costs of enlisting in the military. However, no one is insisting that Gen. McChrystal must like President Obama and the members of his foreign policy team, or that he cannot criticize them vociferously in private. However, once he stepped over the line by repeating those criticisms to a journalist, he has made himself the focus of and an obstacle to the mission, the ultimate no-no for any soldier, no matter what rank.
On the other hand, I am personally tired of the seeing this pattern: member of political (or military) leadership commits very public and very embarrassing gaffe, he or she is fired or "resigns", we all pretend that the problem is solved. The McChrystal incident is not a perfect illustration of this problem, because the norm which he violated is so well-understood and so dangerous if transgressed. Nevertheless, his criticisms go to the heart of the problems with the ongoing wars in Iraq and Afghanistan-- military leaders (I believe) understand what our political leaders sometimes fail to, that victory, in any form that would be immediately recognizable to Americans is simply not going to happen in these conflicts. On the negative effects that the prolonged state of war is having on our military personnel, I highly recommend this great op-ed by Andrew Bacevich in the Washington Post. The problem in general is that when one of these embarrassing statements or mistakes is made, no serious conversation regarding the merits is generated. The resignation or firing is a purely face-saving move, but one that leaves the government temporarily disrupted and crippled until a suitable replacement can be found. We need to have that conversation about Afghanistan, not to mention 10 or 20 other issues. We ought to be able to rely on journalists to generate this kind of discussion, but they are increasingly unable or unwilling to challenge or diverge from the self-serving narratives that emerge from Washington. And so the disgraced shuffles off into the shadows, only to reemerge shortly thereafter with a new lobbyist position or a generous pension (as in McChrystal's case). Its pointless, if not counterproductive, and we need to find a better way to deal with these types of situations as a government, but more importantly as a public.