Blog No 46. Quick Takes: Airstrikes in Syria; Obama at the UN; Resignation of Eric Holder; Midterm Elections; and 2016–Bush, Christie, Paul and Cruz.

Airstrikes in Syria

We felt, as we suspect most Americans did, a surge of satisfaction at President Obama’s decision to take strong military action against an organization as manifestly evil and dangerous as ISIS. As The Wall Street Journal put it, “The initial bombing raids on Islamic State targets in Syria Monday night mark a welcome offensive that takes the war to the terrorists who beheaded two Americans and threaten U.S. interests in the Middle East and security at home.” The New York Times, on the other hand, saw it as a “bad decision,”criticizing the President for proceeding “without allowing the public debate that needs to take place before this nation enters another costly and potentially lengthy conflict in the Middle East.

While the Times had a point, we are, on the whole, inclined to agree with the Journal. In any case, the important question now is what comes next. The contribution of the Arab nations who participated in the airstrikes was important symbolically but not particularly substantive. And the question of who will supply the indispensable ingredient of ground forces in Syria remains conspicuously elusive.

Charles Krauthammer, writing in The Washington Post on October 26, generously described Obama’s strategy as “workable” and called it “containment-plus.” Krauthammer summarized the strategy as: “Expel the Islamic State from Iraq, contain it in Syria. Because you can’t win from the air. In Iraq, we have potential ground allies. In Syria, we don’t.” We suspect that containment-plus may be the most we are prepared to do, but whether it will be sufficient is quite another question. Allowing ISIS to retain a large chunk of territory in Syria, for possible use in training terrorists and planning attacks against the West, carries serious risks. Much, of course, may depend on the strategy and motivations of ISIS, which are unknowable. (For speculations on that subject, see a panel of experts assembled via email by the Brookings Institution.) 

Obama at the UN

President Obama gave a powerful address at the United Nations, explaining and justifying our war on Muslim extremism. He did not use the term “War on Muslim Extremism,” but that was the sense of it and, even in 2001, it would have been a better title than the clunky “War on Terror.” Harking to 2001, many observers pointed out that crucial parts of the speech could well have been delivered by the predecessor Obama has so freely disparaged. As other scribes noted, the tone of the speech contrasted sharply with Obama’s highly promoted 2009 speech in Cairo in which he had expansively discussed the need for harmony between Islam and the West.

Nevertheless, it was, on the whole, a good speech for which the President received due credit. At the same time, the question of “what next” hung in the air. It is also worth mention that, while the President spoke to the General Assembly in the morning, and presided over the Security Council in the afternoon, he did not seek authorization for the military action from the Security Council. Absent such authorization, the legality of the action under international law appears questionable. The Administration’s rationale is that, as indicated in a letter from the Iraq government to the United Nations, we were acting on behalf of Iraq in its self-defense. That theory is something of a stretch as several scholars have pointed out (See, e.g. Dorf on Law, September 15.) Moreover, it would not seem to apply to the simultaneous strike on the Khorasan, who were said to be planning an attack not on Iraq at all, but on the West. Having said that, we recognize that international law tends to have a malleable quality, and we do not suggest that it should have overwhelmed national security. On the other hand, international law may have deserved more attention, particularly from those who have often invoked it in the past to attack the Bush Administration.

Resignation of Eric Holder

The announcement of Eric Holder’s resignation as Attorney General drew predictable reactions from Democrats and Republicans. Democrats paid tribute to his accomplishments, while Republicans characterized him as a partisan and divisive figure. According to The Wall Street Journal, Holder “turned Justice into a routine instrument of social and racial policy.” To which liberals said, in effect, “Yes, and a good thing too.”

Over the years, Republicans have assembled a lengthy litany of specific complaints against Holder. While some of the Republican charges appear to have more substance than others, there is no inclination here to recount them, let alone to assess their validity. With one exception. The one exception is a charge that Republicans might well have made more loudly than they have: the failure of the Justice Department under Holder to obtain the conviction of a single high-level Wall Street executive in connection with the debacle of mortgage-backed securities that was the proximate cause of the 2008 financial crisis and the ensuing recession. While a Republican complaint about a failure to prosecute Wall Street executives might have struck some as a “man bites dog” story, it needn’t have. Leaders of the Party have recognized, at least intermittently, the need to shed our image as handmaidens of the wealthy, and focusing on the failures of the Justice Department in this area would have been an excellent opportunity to take a step in that direction.

The case against the Justice Department was laid out in compelling detail in a January 9, 2014 article in The New York Review of Books by Federal District Judge Jed S. Rakoff, “The Financial Crisis: Why Have No High-Level Executives Been Prosecuted?” Judge Rakoff, a Clinton appointee, is one of the most highly respected judges of the Southern District of New York and frequently sits by designation on appellate panels. (Disclosure: Jed Rakoff and I were long-ago law partners and remain good friends.) Ironically, perhaps, Judge Rakoff’s message was underscored by several settlements with large banks trumpeted by the Justice Department: civil settlements against J.P. Morgan ($15 Billion), Citigroup ($7 Billion), Bank of America ($16.65 Billion), and settlement of a criminal case against Credit Suisse ($2.6 Billion). While the numbers sound impressive, not a single individual was prosecuted or made the subject of civil charges in those cases. The pain, if any, that the settlements inflicted on individual wrongdoers —and the deterrent effect on future potential wrongdoers—are far less than individual criminal prosecutions, or even civil suits against individuals, would have yielded.

Apart from competing critiques of Holder’s record, the media is awash in speculation as to who might be nominated as his successor. A number of names have been floated, several of whom have been described as “close to Obama.” It has also been reported that the White House will seek to accelerate the nomination process to complete it in the lame duck session following the midterm elections. That would seem to be a doubtful prospect, particularly if the nominee, despite having solid professional credentials, appears to have been picked principally because of his or her personal relationship with the President. We would urge the President to consider appointing someone of the stature, and perhaps in the mold, of Edward J. Levi. Levi, who was appointed by Gerald Ford, had served in the government, but was a respected legal scholar and was then serving as President of the University of Chicago. He ran the Department on a non-partisan basis and was widely credited with restoring integrity and morale after the Watergate debacle. After the years of partisan rancor under Holder’s leadership, such an appointment would be a welcome breath of fresh air.

The Midterm Elections

The Republican’s confidence in their prospects for the midterm elections has not disappeared altogether, but has receded perceptibly in the last few weeks. We will attempt neither analysis nor prediction, but will simply call attention to a couple of columns that we found interesting and insightful.

In The Wall Street Journal last week, the redoubtable Peggy Noonan contributed a piece entitled “Republicans Need a Direction.”  After noting the President’s unpopularity and the reasons for it, Ms Noonan observed:

But Republicans aren’t achieving lift-off. The metaphor used most often is the wave. If Republicans can’t make, catch and ride a wave in an environment like this, they’ve gone from being the stupid party to the stupid loser party.

She went on to point out that the problem, lack of a clear and compelling message, would remain even if the Republicans should gain control of the Senate:

Republican political professionals need to get the meaning of things back. Otherwise, if Republicans do take the Senate, their new majority will arrive not having won on the basis of something shared. They will not be able to claim any mandate for anything. That will encourage them to become self-driven freelancers in a very pleasant and distinguished freelancer’s club, which is sort of what the Senate is. It’s good to win, but winning without a declared governing purpose is a ticket to nowhere.

George Will, writing in The Washington Post, focused on the race in Kansas which some observers have said might hold the key to control of the Senate. In Kansas, the Democratic challenger to longtime Senator, Republican Pat Roberts has dropped out but Roberts is in a close contest with Independent Greg Orman. The situation is particularly interesting because Orman has said that “he will caucus with whichever party is ‘clearly’ in the majority next year.” Will was plainly impressed with Orman and highlighted his conservative instincts:

Orman discusses policy problems with a fluency rare among Senate candidates and unusual among senators. From his firmly Republican father, who owns a small furniture store in Stanley, Kan., Orman acquired an animus against “the beehive of regulations”: One regulation is a “pinprick,” but cumulatively, regulations are akin to “falling into a beehive.” He is reading Paul Ryan’s new book, “The Way Forward,” and shares Ryan’s anxiety about how nearly 60 percent of federal expenditures are not subject to annual appropriations. He also shares Ryan’s dismay that a single mother earning about $20,000 can pay, in effect, a marginal tax rate twice as high as the 39.6 percent top statutory rate on the affluent because she can lose government benefits and incur expenses when she increases her earnings.

If Orman should win, and decide to caucus with the Republicans, we would be delighted to welcome him to the ranks of the RINOs.

2016: Bush, Christie, Paul and Cruz

Some time ago, we announced a “pre-endorsement” of Jeb Bush for the Republican nomination in 2016 and we see no reason to withdraw it. It was a pre-endorsement because Bush had not announced his intention to run and that fact has not changed. In the meantime, his positions on immigration and the Common Core educational standards have irritated some on the right flank of the Party, but they are positions that we support. It should also be acknowledged that his positions on other major issues of the day remain largely unexpressed: foreign policy from ISIS to Russia to China, the defense budget, climate change, tax reform (individual and corporate), entitlement reform, welfare reform and income inequality are yet to be addressed. Nevertheless, we share what appears to be the assumption of the “establishment,” the “business community” and “major donors” that his positions on such issues will be relatively moderate. The same assumption, of course, is held by those on the right.

This may be the place to note that, even where Jeb Bush has taken positions, we do not agree with him in every instance. As reported in The Hill, Bush is among virtually every other potential Republican candidate to support a bill that would ban abortions after 20 weeks. We believe that the bill is not only unconstitutional but bad policy. We also happen to believe that positions on abortion laws should be matters of conscience rather than staples of partisan politics. Nevertheless, opposition to abortion, wherever the opportunity for opposition arises, seems to be a fact of life within the Republican Party. While we don’t agree with that view, we are prepared to live with it (even as pro-life members of the Democratic Party must acquiesce in its dictates).

If Jeb Bush does become a candidate, will he be doomed by opposition from the right, particularly in view of early primaries in the conservative states of Iowa and South Carolina? Would his candidacy create a “Civil War” within the Party? Possibly on both counts, but not necessarily on either. In any case, a defeated candidacy or a battle within the Party (whatever the outcome) would be preferable to a performance comparable to that of Mitt Romney who assumed various pretzel-like shapes to please “the base.” (There is, one might say, nothing like a presidential primary to bring out the baser instincts of some Republican candidates.)

If Jeb Bush does not run, much interest, and much of his potential support is likely to shift to Governor Christie. Christie has shown signs of surviving the “Bridgegate” scandal and, like Bush, he is viewed as a candidate of relatively centrist views. We have no particular disagreement with Christie on the issues, but we do have reservations as to his temperamental suitability for the Presidency. Teddy Roosevelt famously observed that the White House was a “bully pulpit,” but a pulpit (or the White House) is no place for a bully. It may be that the characterization of Christie as a bully is unfair, but we shall see. His demeanor in the crucible of a presidential campaign might be instructive.

We have previously made clear our lack of enthusiasm for Senators Paul and Cruz and will not revisit or amplify those thoughts just now. We mention the Senators only to note that last week they were the leading speakers at the Values Voter Summit hosted by the Family Research Council. Both were lavishly praised by Tony Perkins, President of the Council, who added: “We had to be selective. So we didn’t invite Christie this year, didn’t invite Jeb Bush. They weren’t on the top of the list.” Uh-huh. And with all due respect to Mr. Perkins, his values are, in large part, not the values of RINOcracy.com.