Criticism of President Obama’s appointment of Elizabeth Warren to oversee the establishment of the Consumer Financial Protection Bureau (CFPB) – the Dodd-Frank Act’s contribution to growing the federal bureaucracy – has focused on Obama’s end-run around the Senate confirmation process.  By making Warren the White House czar for the CFPB instead of the agency’s director, Obama allows her to “effectively run the agency” (quoting the New York Times) while skirting both the Constitution’s requirement that “officers” of the federal government be confirmed by the Senate and the troubling questions about Warren’s anti-business bent that would inevitably have been part of her Senate confirmation hearings.

While the President’s attempt to defeat the constitutional checks and balances provided by the confirmation process is troubling enough, Warren’s appointment as White House czar is undoubtedly also intended to defeat the checks and balances provided by Congressional oversight.  Such oversight typically involves testimony by Cabinet and sub-Cabinet officials before Congressional committees and the subpoenaing of agency documents.

In sharp contrast, the Obama White House has made it clear that its czars cannot be compelled to testify before Congress and will not be allowed to testify voluntarily.  Thus, Warren’s appointment guarantees that the powerful new CFPB will be largely exempt from the openness and transparency Obama promised for the entire government.  That exemption will come in particularly handy for Obama if the GOP takes controls of either house of Congress in November, giving Republicans oversight authority as the CFPB begins its mischief-making next year.

The late Senator Robert Byrd foresaw this problem in February 2009 when he wrote to Obama to express his concern about the President’s excessive use of czars, warning that czars

are not accountable for their actions to Congress, to cabinet officials, and to virtually anyone but the president.  They rarely testify before congressional committees, and often shield the information and decision-making process behind the assertion of executive privilege.  In too many instances, [they] have been allowed to inhibit openness and transparency, and reduce accountability.

Under the terms of the Dodd-Frank Act, the Treasury Department, rather than a White House czar, should be running the CFPB until a director is named.  But Obama got around that requirement by giving Elizabeth Warren a dual appointment as a special adviser to Treasury Secretary Timothy Geithner.  While Congressional committees cannot compel Warren to testify in her capacity as an assistant to the President, Congress may argue that she can be so compelled in her capacity as a Geithner adviser.  But don’t get your hopes up since executive privilege provides the Obama Administration with counterarguments.

At the end of the day, Warren is likely to be as unaccountable as the President’s other czars, but with an added and dangerous twist.  Obama’s use of White House czars to exempt long-established, largely stable agencies from transparency and accountability has been dangerous enough.  But this latest attempt, aimed at shielding from accountability a brand new, poorly understood agency – one likely to be riddled with the mistakes and misjudgments found in any startup – is recklessly irresponsible.

In an op-ed in the Daily Caller, I conclude that

[B]elievers in the rule of law have several things to cheer in the Kagan confirmation battle. Republican senators mounted their strongest opposition in more than a century, sending strong signals to the White House about future Supreme Court picks, while teeing up important issues for this fall’s Senate races. The confirmation fight also saw the continuing repudiation of the Left’s living Constitution philosophy and the solidification of a profound change in the politics of judicial confirmations wrought by the prominence of gun rights for the second time in two summers.

In today’s Washington Post, cartoonist Tom Toles argues that the tea party movement reveals itself to be racist by “want[ing] to go back to the Constitution as it was written,” despite the document’s acquiescence in the continuation of slavery. Toles’s cartoon is a particularly hateful variant of a misleading, but all too common, argument that tries to vilify critics of a “living Constitution” and justify judicial activism by pointing out that the Constitution was written in a different and less tolerant time.

Whether ignorant or intentionally misleading, this line of argument ignores the fact that 1) the Founding Fathers provided for constitutional evolution through the democratic process of constitutional amendment, and 2) what conservatives, libertarians, and the tea party movement favors is a strict constructionist or originalist interpretation of the Constitution and its amendments, not “go[ing] back to the Constitution as it was written” sans amendments.

Toles and other critics of strict construction would benefit from reviewing the Constitution and the history of the civil rights movement. They would learn that constitutional amendments and legislation, rather than a “living Constitution,” are responsible for the greatest advances in civil rights, including the elimination of slavery and the enfranchisement of African Americans and women.

It’s been pointed out that George Steinbrenner’s heirs saved about $500 million in estate taxes because of the timing of his death. Unlike every other year since 1916, there is no federal estate tax in 2010. In 2009, the estate tax rate was 45% and next year, without Congressional action, it will be 55%. The one-year tax-free gap is the result of Congress’s refusal in 2001 and again now to make the Bush tax cuts permanent.

Something I haven’t seen pointed out – perhaps because most commentators have better taste than I – is that while fortuitous good timing is always welcome, enormous financial incentives to hasten the death of your wealthy relatives is not a good thing. I’m not saying that the death of four U.S. billionaires in the last five months is tied to the 2010 incentives, but it would be naive to think that the four billionaires and their heirs were unaware of the historic tax advantages of dying this year.

Did their awareness influence how aggressively the four elderly billionaires and their heirs sought medical treatment? We’ll likely never know. But it wouldn’t be the first time the threat of high taxation caused otherwise irrational distortions in decision-making. The fact that such ghoulish distortions are even a possibility is a good reason – among many – for Congress to act sooner rather than later to permanently eliminate or reduce the estate tax.

For more on the other good reasons, see here.

Yesterday, RedState’s Erick Erickson broke the story that

[T]he National Rifle Association’s management team has explicitly and directly told the NRA’s board they are prohibited from testifying about second amendment issues during the Elena Kagan confirmation hearings. …  [and] from coming out against Kagan in their individual capacity.

Matt Lewis of Politics Daily and I added some details this morning.  Matt notes that

[I]t appears obvious a major schism has developed between the NRA-ILA executive director and several members of the board of directors. As one board member told me, ‘The bottom line is Chris (Cox) wants to have all decisions go through him and have no board involvement in decisions about or communications with Congress. He was the problem with the DISCLOSE Act. He’s the issue re the SCOTUS nominees.’

Also, I expand on Erick’s thoughts about the connection between the NRA’s positions on Kagan and the DISCLOSE Act:

[I]n light of the NRA’s recent negotiation of a special carve out in the DISCLOSE Act, the controversial campaign finance bill, the NRA needs to be sensitive to putting politics above principle.

To be fair, NRA CEO Wayne LaPierre has a point when he explains the carve out: ‘If we don’t have our speech rights, it would mean the end of the Second Amendment.’  But in dealing with the Kagan nomination, LaPierre needs to be equally aware that the shift of a single vote on the Supreme Court would even more surely doom the Second Amendment.  Moreover, if the DISCLOSE Act becomes law, the fate of its crackdown on free speech will be decided by the Supreme Court.  And in Supreme Court decisions, there are no opportunities to negotiate carve outs.

. . . [I]f the NRA can venture beyond its traditional agenda into the First Amendment issues implicated by the DISCLOSE Act, surely it can weigh in on the Second Amendment issue of Elena Kagan’s gun rights record.

Now the AP is reporting that the protests against Arizona’s crackdown on illegal immigration “intensified Monday as vandals smeared refried beans in the shape of swastikas on the state Capitol’s windows.” That’s on top of Friday’s riots by anti-crackdown protestors. I’m sure we’ll see Democratic politicians and liberal talking heads rushing to the airwaves to denounce the racist protestors responsible for the swastikas and to express their fears that this will lead to domestic terrorism and bloodshed. I’m sure we’ll even see a few tears from a clearly shaken Nancy Pelosi.

It’s amusing to watch the swarm of enraged Democrats promising revenge against Joe Lieberman for his daring to oppose the Medicare buy-in.  Isn’t this the party that has spent the last year constantly ridiculing Republicans for supposedly demanding ideological purity in their ranks?  What’s particularly amusing is that the Democrats screaming bloody murder don’t seem to have the slightest self-awareness of the contradiction in their positions. 

Even putting the hypocrisy aside, the accusation that Republicans seek philosophical purity is belied by the contrast between Democrats’ calls for revenge and the GOP’s treatment of its moderate senators.  Conservatives have often been unhappy with moderate GOP senators like Susan Collins and Olympia Snowe, but I don’t hear even the hardliners calling for revenge

It’s also amusing to observe the very short memories of the Lieberman haters.  Just a few years ago, they tried to punish Lieberman for his stance on the Iraq War by encouraging and supporting a primary challenger.  You see how well that worked.  Let’s hope they keep it up, because the result will be to drive Lieberman into the arms of the Republican caucus, thus ending the threat of a filibuster-proof Democratic majority.

As for the mainstream media, while it has presented both sides of the Lieberman controversy, it appears oblivious to – or unwilling to point out – the hypocrisy of Democrats seeking to stamp out ideological diversity in their ranks. Perhaps that’s because virtually everyone in the MSM assumes, without really questioning, that the GOP is the party that’s drifted so far from the center that it can’t tolerate moderates.

This week, the Senate votes on President Obama’s nomination of District Court Judge David Hamilton to the Seventh Circuit.  Because of Hamilton’s fundraising activities for ACORN, his leadership positions with the Indiana branch of the ACLU, his statements supporting judicial activism, and most importantly, his rulings putting liberal ideology above the rule of law, he is the first and only Obama circuit nominee to draw heated opposition.

There are many examples of Judge Hamilton’s tendency towards liberal judicial activism.  However, the most bizarre and controversial instance is Hamilton’s 2005 ruling prohibiting prayers that mention Jesus Christ in the Indiana House of Representatives, but allowing prayers that mention Allah.  While troubling in any context, the religious double standard in Hamilton’s ruling is particularly deserving of close scrutiny in light of Major Nidal Hasan’s recent shooting rampage at Fort Hood. 

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In April I blogged about Larry Sabato’s statement that, in the wake of the much-vaunted 2008 Obama realignment, “we’re on our way from being a two-party system to being a party-and-a-half system. And the Republicans are the half a party.”  Sabato was all over the tube last night and today, but I didn’t hear any mea culpas from him about what now seems like a ridiculous prediction.  Nor did I hear any apologies from the many other pundits who made similar predictions.

Obama’s 2008 victory in Virginia was the crown jewel of the supposed realignment.  Now it’s a glaring example of how silly virtually every declaration of realignment turns out to be.  As I said in April, such declarations “are appealing in their simplicity and particularly persuasive in the aftermath of a one-sided election.  But, like all analyses based on sample sizes of one or two elections, they’re essentially worthless.”

The Supreme Court announced today that it will decide, in McDonald v. Chicago, whether the Second Amendment applies to state and local gun laws. That puts the focus on the Court’s newest Justice, Sonia Sotomayor, and on President Obama’s future picks for the Court.

Gun owners were alarmed by Sotomayor’s nomination to the Court, because of her “extreme anti-gun philosophy” and record on the Second Circuit, in the words of former NRA president Sandy Froman. At her Senate hearing this summer, Sotomayor defended that record by saying that her hands were tied by old Supreme Court precedent. Now that she’s on the High Court, her hands are no longer tied. She will have a lot of explaining to do if she decides in McDonald that the right to keep and bear arms is the only significant right in the Bill of Rights that doesn’t apply to the states. Such a decision would indicate that she was not serious when she promised the Senate that she would put the rule of law above ideology.

Today’s announcement ensures that gun owners will continue to play a big role in Supreme Court confirmations, just as they did this summer. The Court’s 2008 decision in District of Columbia v. Heller, recognizing the Second Amendment as an individual right, moved the battle over gun rights from the legislatures to the courts. That set the stage for gun owners to enter the judicial wars. The decision to review McDonald puts the future of gun rights back squarely in the Supreme Court, reinforcing the conviction among gun owners that their fate is now in the hands of judges and that their continued involvement in the judicial confirmation process is vital.

Whatever the Supreme Court’s decision in McDonald, it will further focus the Second Amendment community on the needs for constitutionalist judges. Heller was limited to federal gun laws and the District of Columbia, but most of the laws that worry gun owners are at the state and local level. If the McDonald decision recognizes an individual Second Amendment right at that level, the number of gun rights cases – and thus the importance of the judges issue to gun owners – will explode. Should the Supreme Court rule the other way in McDonald, the anger of gun owners will be a force to reckon with every time there’s a Supreme Court nomination.

Cross-posted at the Committee for Justice blog.

I used to respect Chris Matthews for being a liberal who was interested in both sides of an argument.  Over the last couple of years, as Matthews has become increasingly blinded by his crush on Barack Obama, my respect for the Hardball host has faded.  However, it was not until last night that I sadly realized that Matthews had become unhinged from reality.  I only watched the first ten minutes of Hardball last night, but that was long enough to learn that

1) Matthews believes that right wing hatred of Democratic presidents is so pernicious that it’s even responsible for John F. Kennedy’s assassination by avowed Communist Lee Harvey Oswald:

What is it about the zeitgeist, the atmosphere in the air, in that case, very virulently right- wing hatred of Jack Kennedy, that may have sprung or triggered even a left- winger like Oswald to do what he did? … A communist sympathizer like Lee Harvey Oswald … kills in the atmosphere of a right-wing hatred of a lefty.

2) Matthews considers what Rep. Joe Wilson did – or standing outside a town hall meeting with a gun or anti-Obama sign – akin to assassinating the president:

What is it that triggers? Is it the sense that the whole atmosphere is, this guy is not legitimate, the guy I’m about to shoot or the guy I’m about to humiliate with carrying a gun or with a sign or yelling out, “You lie.”

3) Matthews has no memory of the left-wing protest signs and cartoons that portrayed George W. Bush as a chimpanzee and compared him to Hitler and the Nazis:

You can go to a rally and hold up a sign talking about the man in the White House being some kind of animal, that he’s a Hitler guy, the fact that somebody would know they can get away with carrying a sign like that without being shunned, pushed aside, even beaten up, tells me there’s a license out there. … You wouldn’t hold up a sign like that a few months ago.

Recent admissions of extramarital affairs by Mark Sanford and John Ensign resulted in heavy media coverage and constant generalizations about Republicans’ hypocrisy concerning family values.  The mainstream media’s fascination with GOP affairs is likely fueled, not by a desire to “get” Republicans, but by a worldview that makes it difficult to view those who preach conservative social values as sincere. That said, it’s fair for the media to highlight hypocrisy.  I just wish the MSM applied a more bipartisan standard to hypocrisy, such as when sensitivity-preaching Democrats make racially insensitive remarks (e.g., Joe Biden), pro-labor liberals shaft their workers (e.g., Al Franken), or self-righteous greens contribute far more than their share to mankind’s carbon footprint (e.g., Al Gore).  Instead, the opposite rule seems to apply: a politician’s history of liberal rhetoric is taken as evidence that no harm was intended by what would otherwise be viewed as hypocritical behavior.

Cross-posted at Politico.

Senate Majority Leader Harry Reid admitted yesterday that he doesn’t have the 60 votes necessary to confirm Dawn Johnsen as head of the Justice Department’s Office of Legal Counsel, because at least a few Democrats will vote against her. That should give President Obama pause as he considers his first Supreme Court nomination – all the more so because a President’s selection of judicial nominees is given less deference by the Senate than his choice of Executive Branch nominees like Johnsen.  Dawn Johnsen’s troubled nomination is emblematic of at least three obstacles that Obama’s High Court nominee will encounter if she is as unabashedly supportive of judicial activism and liberal causes as Johnsen.

First, the key to confirmation of President Obama’s Supreme Court nominees – now and in the future – is red and purple state Democrats like Sen. Ben Nelson (D-Neb.), who is “very concerned” about Johnsen’s nomination.  Having 59 or 60 Democrats in the Senate does not mean Obama has a free hand in choosing the next High Court Justice.

Second, the surest way for Obama to lose the vote of a red or purple state Democrat is to nominate someone whose values are decidedly to the left of those of the senator’s constituents.  For example, Ben Nelson has pointed to Johnsen’s work as a pro-abortion activist.  A Supreme Court nominee who believes that partial birth abortion and gay marriage are constitutional rights, but that individual gun ownership and freedom from discrimination regardless of race aren’t, is unlikely to survive the confirmation process.

Third, senators who oppose the President’s High Court nominee can succeed merely by ensuring that the nominee gets a thorough and thoughtful examination, rather than being rushed through the Senate before the August recess.  Once the nominee’s record and views are fully aired, each and every Democratic senator will decide if they can defend the nominee before the folks back home.  If Sen. Reid still has the votes for confirmation after the senators face their constituents in August, no one can complain that the process wasn’t fair.

Cross-posted at CFJ’s Blog.

Since November, I’ve become accustomed to predictions that the Republican Party is on its way to irrelevance.  Nonetheless, I was disappointed to hear that sentiment voiced by University of Virginia professor and pundit Larry Sabato, who generally tries to provide a relatively objective analysis.  On MSNBC’s Hardball today, Sabato opined that “we’re on our way from being a two-party system to being a party-and-a-half system. And the Republicans are the half a party.”  Here’s Sabato’s analysis followed by my thoughts on why such predictions are silly.

Essentially, it boils down to this. Minorities are going to be the majority by 2042. It could even be by the 2030s. Young people 18 to 29, they voted more than two to one for Obama, and their turnout is going to go up with each additional year as they age. The same with people with graduate degrees, who used to vote Republican on fiscal issues. Now they’re so turned off to Republicans because of [conservative rhetoric] and the social issues, they turned Democratic. Hey, you can`t just win with white male voters in the South, and that’s what the Republicans have left.

This sort of analysis sounds quite logical but is reminiscent of what the pundits said following the re-election of both Ronald Reagan and George W. Bush.  After the 1984 election, expert after expert explained why the shift of population and thus electoral votes to the Sun Belt had given the Republicans a “lock on the Electoral College.”  Despite my youthful eagerness for a GOP presidential monopoly, this electoral analysis struck me as too sweeping and simplistic to be correct.  Unfortunately, I was right.

Following the 2004 election, the message from the experts was the same, though the explanation had changed.  Now the Democrats had little chance of winning presidential elections because they were only competing in states that accounted for barely half of the 538 electoral votes.  It was a seductive argument, but again it was too simplistic and backward-looking to be true.

Predictions of electoral locks are appealing in their simplicity and particularly persuasive in the aftermath of a one-sided election.  But, like all analyses based on sample sizes of one or two elections, they’re essentially worthless, if only because the news headlines and candidates that await us are unknowable  Although it’s much less fun and won’t get you a guest appearance on MSNBC or FOX, the only honest analysis is admitting that you haven’t got a clue about what’s going to happen in future elections.

Conservatives pundits and media have been sounding alarm bells about President Obama’s nomination of transnationalism-touting Yale Law School Dean Harold Koh to be the State Department’s top legal adviser. But even Newsweek’s balanced piece on the Koh nomination (April 27 issue), which concludes that he should be confirmed, enumerates plenty of reasons to be alarmed.  Consider the following excerpts:

Koh argues that American law should reflect “transnational” legal values.

Were his writings to become policy, judges might have the power to use debatable interpretations of treaties and “customary international law” to override a wide array of federal and state laws.

[T]aken to their logical extreme [Koh’s views] could erode American democracy and sovereignty.

Koh has campaigned to expand some rights guaranteed by the U.S. Constitution—and perhaps shrink some others, including the First Amendment’s guarantee of free speech—to better conform to the laws of other nations.

He has campaigned to write into U.S. law the United Nations “Convention on the Elimination of All Forms of Discrimination Against Women,” …  A U.N. committee supervising the treaty’s implementation has called for the “decriminalizing of prostitution” in China, the legalization of abortion in Colombia, and the abolition of Mother’s Day in Belarus (for “encouraging woman’s traditional roles”).

Adoption of his ideas could expose U.S. companies to multibillion-dollar liabilities merely for doing business in countries run by human-rights violators … [and could mean] extraditing American officials to be tried as war criminals.

In 2004, Koh asserted that President Bush (by invading Iraq and flouting the Geneva accords) had put the United States into an “axis of disobedience” to international law along with North Korea and Saddam Hussein’s Iraq.

Koh and the other “transnationalists” are using their legal theories to advance a political agenda. The international legal norms they wish to inject into American law by and large reflect the values of Social Democratic Europe and liberal American academics. Koh is not suggesting, for instance, that American judges adapt Islamic law that discriminates against women.

In his speech at Georgetown today (video here), President Obama relied on a superficially appealing but misleading analogy to defend his plan to tackle health care, energy and education reform while the nation is still mired in recession. Obama analogized critics’ arguments that the nation can’t afford to do everything at once to a parent’s decision about whether their children should attend college – i.e., invest in the future – or work in a fast food restaurant – i.e., worry about paying the bills – during bad economic times.

Obama’s analogy fails because it assumes rather than demonstrating that energy, education and health care reform are time-sensitive initiatives.  The college versus paying the bills decision is a relatively easy one – at least if your family is affluent – because going to college is time-sensitive. If you don’t go to college soon after graduating high school, chances are you’ll never go. The analogous argument – that we’ll probably never do health care, education, and energy reform if we don’t it now – is only valid if the reforms are such a bad idea that their passage depend on Obama’s honeymoon popularity and the distraction of many political battles at once. Somehow, I don’t think that is what Obama was arguing.

Another bit of rhetoric in today’s speech that caught my attention was Obama’s remark that, from now on, the nation’s best and brightest should favor careers that involves “making things” rather than careers in finance.  I doubt Obama noticed the tension between that statement and his defense, minutes before, of the bank bailout, in which he emphasized that the banks and free-flowing credit are the lifeblood of the economy.  I’m just thinking it might be a good idea to have many of the best and brightest attending to the nation’s lifeblood.