I was pleased when I awoke this morning to find a USA Today tweet reporting that Tom Harkin has decided to introduce legislation next month that would lower the cloture requirement to fifty-one votes (after a three-day staggered period of reduction to fifty-seven and then fifty-four). This, I will assume, is the direct result of my transcription of Professor George Anastaplo's passionately expressed opinion that keeping the filibuster but lowering the cloture vote threshold would allow minority Senators to have their voices heard without preventing well-intentioned majority legislation.

From a party-political standpoint, though, I am instinctively repulsed: what about when Democrats require the use of a stall tactic? You know, for once we've finally hoped and changed our way back to a congressional minority? That will not be a problem, I am constantly reminded by my colleague Hannah: Democrats don't seem to know how to play the game of congressional obstructionism very effectively, and when we do, it tends to be a matter of principle rather than strategy.

Ben Ehrenreich has written a piece on Slate in which he makes a number of interesting contentions about the nature of our military's contribution to American relief efforts in Haiti. The guy is evidently more hotheaded (and less thoughtful—how often these two characteristics seem to be related inversely) than his mother, and so we first reject for consideration statements like this:

I'm not talking about the earthquake, and certainly not about the so-called "looting," which I prefer to think of as the autonomously organized distribution of unjustly hoarded goods.

Very well. Moving on: Ehrenreich's worthwhile objection is to the operational tendencies of our military apparatus, which he says cause it to behave like a "slow-witted, fearful giant."

...it built a wall around itself, commandeering the Port-au-Prince airport and constructing a mini-Green Zone. As thousands of tons of desperately needed food, water, and medical supplies piled up behind the airport fences—and thousands of corpses piled up outside them—Defense Secretary Robert Gates ruled out the possibility of using American aircraft to airdrop supplies: "An airdrop is simply going to lead to riots," he said. The military's first priority was to build a "structure for distribution" and "to provide security." (Four days and many deaths later, the United States began airdropping aid.)

Combine this with the military-centric approach chosen by the president for aid distribution, and what once may have been intended as a humanitarian mission quickly becomes nothing short of foreign occupation. This, of course, is what mean people probably wanted all along:

The TV networks and major papers gamely played along. Forget hunger, dehydration, gangrene, septicemia—the real concern was "the security situation," the possibility of chaos, violence, looting...

...The guiding assumption was that Haitian society was on the very edge of dissolving into savagery. Suffering from "progress-resistant cultural influences" (that's David Brooks finding a polite way to call black people primitive), Haitians were expected to devour one another and, like wounded dogs, to snap at the hands that fed them. As much as any logistical bottleneck, the mania for security slowed the distribution of aid.

Ehrenreich's proof against this is anecdotal (he's seen photographs of Haitians helping one another and so forth) and no more substantiated than Brooks's claim (which is without justification as well as quite possibly racist), but the question it raises is compelling: Was a 10,000-troop American military presence necessary to guard against whatever violence might have occurred in the absence of the Haitian government? Ehrenreich says no—that the "descent into anarchy stubbornly failed to materialize." But isn't this an assessment made after Haiti's domestic security necessities had been subsumed by American armed forces? Indeed, the military might allow aid services and supplies to languish within the confines of the airport, but this by itself isn't an argument against the fact that aid not so useful if distributed in the midst of anarchy.

Could our ability to prevent anarchy be the "unique" one that our president saw absent in post-earthquake Haiti and so promised to deploy? Ehrenreich thinks it is ("Before the president had finished insisting that 'my national security team understands that I will not put up with any excuses,' Haiti's fate was sealed") and in doing so, dismisses the real question that he raises in the first place. Does the military have anything to contribute in these circumstances? And, if it has a place, is it capable of playing a positive role at all?

Even when it is ostensibly doing good, the U.S. government can be racist, and, in an entirely civil and bureaucratic fashion, savagely cruel.

No argument there.

I know that Florida Rep. Alan Greyson has a slightly ridiculous side that endears him to slightly ridiculous liberal crazies. I'm never entirely sure what to make of someone whom I agree with but find a little obnoxious, and I'm not sure what to think of his latest move besides laugh uproariously:

Rep. Alan Grayson (D-Fla.) is circulating an online petition opposing the [Supreme Court's decision in Citizens United v. FEC], which is expected to undo limits on corporate spending in federal campaigns.

Grayson said he would personally deliver the signatures to the court in the morning.

"We're trying something new -- usually the only petitions the Supreme Court sees are petitions for writ of certiorari," Grayson told HuffPost. Asked where he got the idea, he said, "It's in the Constitution. The First Amendment guarantees the right to petition the government for a redress of grievances."

First, let me state that I am already mourning what everyone seems pretty certain is going to be a loss for campaign finance reform. Nonetheless, I'm pretty sure that "petition the government for redress of grievances" does not give citizens the entitlement to petition any part of government they so choose. Furthermore, as one of my co-bloggers put it, "I love that if this scheme worked to any extent, it would completely undermine the rule of law and ruin the republic."

Ah, an independent judiciary. So great when they agree with you, so irritating when they do not.

How bad a politician is Martha Coakley? Besides the fact that she spoke derisively about "stand[ing] outside in the cold shaking hands," besides the fact that she dissed the Red Sox (in an apparently major, and utterly stupid way), I think a remark from her concession speech last night is telling. Knowing that all eyes are on her failure as a decisive blow to robust health care reform, Coakley told supporters that

sometimes it is better to travel hopefully than to arrive.

Excuse me? This is something that you tell a defeated sports team or a high school graduate. The campaign may have been great, but you are fooling no one when you say you'd rather run a good campaign than win. And this is certainly not something that you tell the 45 million uninsured Americans who, for the first time in a long while, had hope that something might happen. As the bill's journey got more and more blatantly and disgustingly political, the destination was the only hope many of us had.

I'm not so much surprised that she lost, but more that this woman ever managed to hold statewide office. To the casual observer (and casual observers are playing a bigger and bigger role in election outcomes), she seemed distant and entitled—or like she just didn't care. She didn't even start running advertisements until twelve days before the election. Over the years, many have wondered rhetorically what it would take for a Democrat to lose Massachusetts. The answer: someone like Martha Coakley.

But as much as Coakley's blame for her loss is totally and utterly deserved, the fact remains that the Democrats now have lost their 60-vote majority in the Senate. I understand how bad this is, and it underscores to me the need for major Senate rules reform (as Sam discussed in his earlier post about the filibuster). But let's also remember: the Democrats have 59 votes—an 18-vote majority. It is far too soon for them to roll over and play dead.

What would I like to see? In my fantasies, the Democrats actually make the Republicans filibuster health care reform. I understand that custom is to take the threat of a filibuster seriously enough, but let's actually do it. Force them to stand there and talk for hours, refuse to consider other motions, and show the American people how ridiculous the opposition is to something that would help millions upon millions of Americans.

I'm not alone in this. None other an eminent strategist than James Carville agrees with me. On CNN last August, he said that Dems should

make [Republicans] filibuster it. But the old kinda way is that they filibuster it and make’em go three weeks and all night and [Democrats] will be there the whole time. Then, you say, ‘They’re the people that stopped it. We had a majority of Democrats. We had a good bill. They stopped it.’

(There's also a good post from a while ago advocating a public option-saving filibuster at The National Razor, a blog I've never heard of... but as the author of a blog most people have never heard of, I can't be too disdainful.)

Obama and the Democrats are pretty much in a lose-lose scenario here. If health care dies, I think we can say goodbye to Democratic majorities in November unless they do something else huge. If they pass the Senate bill, I think a lot of progressives are going to be pretty alienated (not to mention that there are those in the House who, for various reasons, won't vote for the Senate bill as it stands, making this not as certain a proposition as it sounds). And if they try to rush through negotiations before Brown is seated, they come off looking like sneaky back-room politicos.

So yes, forcing a true filibuster would be an incredibly risky strategy—which is this is mostly relegated to my realm of fantasy. Nonetheless, it might be their best and last hope—which is why it's a bit grounded in reality. imagine how much this would say about the Republican party.

Of course, given the Democrats' stellar PR, this would probably backfire and come out as "the Democrats are holding up important business by refusing to accept that Americans don't support health care reform" but with the right spin doctors, the image could instead be this: Republicans reading cookbook recipes to stop the Democrats from saving lives.

A coupling of news stories today got me thinking about the role of cameras in our palaces of public debate. First, I read an article in my hometown paper (hardly a beacon of journalistic integrity, to be sure) syndicated by McClatchy quoting several older members of Congress who lament the intrusion of the public eye into their chambers. An avid C-SPAN viewer, I found myself conflicted when I read that

Lawmakers of both parties rack up more political points by railing against their partisan opponents than by trying to explain painstaking compromises that would annoy their party's ready-to-blog base supporters.

"We used to wallow in blissful anonymity. Newspapers couldn't cover us all as individuals," recalled [former Minnesota Rep. Bill] Frenzel. "We'd go home and tell constituents what we were doing, and they'd usually believe us."

As loathe as I am to acknowledge that duplicity (or willful ignorance) may have a role in American politics, I do think that there's a legitimate case to be made that increased party polarization might be linked to playing to the soundbite. But is this really C-SPAN's fault? Where C-SPAN isn't, ABC, NBC, FOX, and others are, lurking just outside ready to interview members of Congress or air their campaign advertisements.

In another stately marble building, the Supreme Court decided yesterday that, at least temporarily, the Prop 8 trial can't be broadcast live. Over at HuffPo, one blogger (Jose Antonio Vargas) used this as a chance to declare, essentially, that the Court's own oral arguments need to be videotaped if it wishes to maintain any shred of relevance:

The reality is, unless you're a SCOTUS nerd -- following the latest news on the SCOTUSblog or Above the Law; reading up on the history of the current justices in Jeffrey Toobin's informative and entertaining "The Nine"; watching re-runs of SCOTUS-themed episodes of "The West Wing" (hey, Aaron Sorkin, after you're done with that Facebook movie, can you introduce Facebook to The Nine and a create an online-only fictional SCOTUS series starring Alison "C.J. Cregg" Janney as the first female Chief Justice?) -- court proceedings that impact each and everyone of our lives feel disconnected, downright anachronistic. At a time in which the Internet and technology have brought average citizens closer to their government, the judicial branch in general and SCOTUS in particular feel distant -- out of touch, even.

Aaron Sorkin comment notwithstanding, Vargas is pretty much dead wrong here. He makes the fundamentally incorrect assumption—as do, I think, those who would put cameras in the Prop 8 trial—that our court system is supposed to be democratic. It's not. Fair and impartial, yes; democratic, no. It's supposed to be detached, aloof; that's part of what gives it such credence. Its arguments aren't supposed to be streamed on YouTube so its justices can give some snappy sound bites, something that would surely be a lurking issue if the day's arguments could more easily be plopped into the nightly news.

Obama's YouTube channel and the scores of senatorial Twitter accounts have, in my opinion, only cheapened the level of our public discourse. Cameras won't leave Congress, and I'm not sure they should; after all, we elect these people, and they're supposed to represent our wishes on the floor. But I do know that once @JusticeScalia tweets that "dc v heller 2day...amdnt 2 clrly = rt to bear rms," or C-SPAN starts promo-ing sizzling discrimination oral arguments, I'm going to lose a little bit of respect for the institution I hold so dear. Not only that, but it will become even harder to view these people as nonpartisan legal deliberators. We need to keep them a little stately, a little anachronistic, and a little separate so they don't become another Congress.

It only took a few hours: Almost immediately after the attempted Detroit bombing, the by-now-familiar government response began to take shape. Politicians were yammering on about the system's excellence, and on-the-gr0und bureaucrats were rapidly implementing changes. Say goodbye to your extra carry-on bag, and say hello to a new layer of regulatory safety measures.

The TSA's first response was to ban passengers from getting up, touching their baggage, or using a blanket or pillow during the last hour of the flight. It doesn't take a genius to figure out that the next guy would be free to blow the plane up just after takeoff or mid-flight. Worse, the TSA has announced that the choice to apply these restrictions or not will now be up to the pilots. As much as I hate to criticize a relaxation of such useless measures, I have to ask why it must be done this way. The pilots are locked away in their supposedly hijacker-proof cockpit and have zero passenger contact. As such, they're not exactly optimally situated to judge the terrorist risk on a particular flight. So why put them (instead of, say, the flight crew) in charge of blanket rights?

If there's one thing we've learned about Al Qaeda, it's that they're not stupid. Meanwhile, as these measures fail to keep anyone safer, they increase inconvenience exponentially. Can you imagine trying to travel with a young, grumpy child at the end of a trans-Atlantic flight? No, I can't read to you. No, you can't have a toy. No you can't sleep with blanket. Better just sit there quietly. Oh, you have a child-size bladder and have to pee? Better hold it.

We're lucky terrorists are such fans of explosions. If they weren't, all they'd have to do to completely and utterly ruin air travel would be to have a few guys sneak explosives (or even fake explosives) onto planes in, say, laptops, diapers, and iPods (I'd say underwear but that's been done) and get caught—then let the TSA complete the task by instituting whatever draconian and ultimately ineffective security measures they deem necessary.

When will we figure out that banning liquids, screening shoes, and patting down old ladies is not going to prevent terrorism? We have an inherent disadvantage: as long as enough people want to attack us, they will succeed at some point. This begs the question, why don't we take a proactive stance and try to prevent people from hating us in the first place? If Hamas can buy support with a little humanitarian aid for a poor and disenfranchised people, surely the U.S. government has the resources to do the same. It wouldn't convert the most extreme jihadists, but it would steal away their base, making it much more difficult to operate. Such an intervention would also provide long-term security in a way that increased scrutiny at airports will not. Digital strip searches and increased limits on your liquids and gels may be reasonable stop-gap measure,s but for those of us who are young enough to have to face the problem of growing extremism for the next sixty years or so, something beyond band-aid protections would be nice.

I have often heard it said that "freedom isn't free" (perhaps just Toby Keith says it, but still, I hear him say it often) and the idiom came to mind this morning when I opened the Times to discover that Israel's Supreme Court had ruled on Tuesday that the military could no longer bar Palestinians from accessing an arterial highway in the occupied West Bank.

The article quotes an Israeli legal commentator's summarization:

The court was saying that you can't reasonably find every Palestinian to be a security risk... The security considerations are legitimate, but [the military has] to find other solutions."

Allow me first to posit that this post renders no judgment on the actual case itself—I am loath to imitate so many partisans in, as our Justice Scalia warns against, "judging judges" without understanding the material with which they're working. I have no legal opinion with regard to the Israeli Court's ruling.

What got me thinking, though, was the reaction attributed to "Israeli settler leaders," who condemned the court's decision. I'm used to hearing arguments grounded in legal reasoning. Was there some compelling or overriding national interest that superseded the right of the Palestinians to drive along Hwy. 443? There might be. Did the court improperly interpret some textually ambiguous statute? Perhaps there is an argument to be made in this vein (but again, jurists ought not to be at the mercy of an undergraduate.) But none of that is important if you ask the nameless settlement leaders quoted in the Times. What is important is to know that the Israeli Supreme Court is apparently in unholy anti-Semitic league with the terrorist groups.

"The justices never miss an opportunity to blame Jews for racism and provide Arabs with convenient conditions for the next terror attack."

Let's momentarily accept this statement as fact—that the Court's decision will make it easier for Palestinian terrorists to attack civilians. This is still no argument against the ruling. Any American who has visited the Supreme Court will recall the words etched in granite (and included in the judicial oath of office), proclaiming "justice without respect to persons." Israel's judicial branch is based on identical intentions. "In adjudication," the law establishing Israel's judiciary reads, "there is no authority over the judge except the authority of law."

So what's missing, then, in the minds of Israelis who think that a judge is obliged to some modus operandi beyond the interpretation of Israel's laws? Perhaps what they lack is a willingness to acknowledge that free society comes at a cost. In-group judicial reasoning and the rule of democratic law cannot coexist; one cannot hold allegiance to one's tribe concurrently with loyalty to republican civil society. Blind justice comes at the cost of being "without respect to persons."

Suddenly, the terrorist name-calling argument (if it can be called an argument) sounds familiar. It's not a novel position, and Israel's right-wing extremists do not hold a monopoly on its use. Just last week we observed a failed Al-Qaeda operative, yearning in writing for a return of the caliphate, attempt to blow up an American airplane. He professed to desire a part in the eventual destruction of Western civilization. The chilling dialectic is the same as that employed by the Israelis who criticize the Supreme Court for... existing as a Supreme Court. Their methods might differ—their contempt for modernity may be of different varieties—but in the end, both the extremist settlers and the Islamic terrorists resort to something that smacks of eschatology. And "people who like this sort of thing," Lincoln is said to have joked, "will find this the sort of thing they like."

In a Washington Post editorial today, "Keep the Big Tent Big," William Daley urges the Democrats to stop pandering to their liberal wing and

acknowledge that the agenda of the party's most liberal supporters has not won the support of a majority of Americans -- and, based on that recognition, to steer a more moderate course on the key issues of the day, from health care to the economy to the environment to Afghanistan.

Ah, yes. The paradox of the current Democratic party: on issue after issue, they ignore the calls of their most stringent left flanks, and yet people still call them liberal like it's a bad word. When polls showed that Americans supported the public option, we were supposed to realize that public opinion isn't everything. Now that people remember what government inaction looks like and the poll numbers, well, clearly the Democrats are trying to do too much.

But Daley's wrong. It's this type of poll-driven calculating moderatism that has got the Democrats where they are—and trying to guide their party platform to the center of a not-all-that-enlightened focus group's survey results is not going to suddenly vanquish the Republicans once and for all. Instead we'll have a Democratic party that's even more sanguine, listless, and just plain blah than they are today.

Good West Wing fan that I am, I'm reminded of a quote from a second-season episode:

JOSH: Numbers don't lie.

JOEY: They lie all the time. They lie when 72% of Americans say they're tired of a sex scandal, while all the while, newspaper circulation goes through the roof for anyone featuring the story. ... You say that these numbers mean dial it down. I say they mean dial it up. You haven't gotten through. There are people you haven't persuaded yet. These numbers mean dial it up. Otherwise you're like the French radical watching the crowd run by and saying "There go my people, I must find out where they are going so I can lead them."

It's time for the Democrats to lead—to proactively argue why their ideas really are in the best interests of Americans. I firmly believe that we're all going to benefit if everyone has access to government-run health care, if we aggressively protect our civil liberties, if New York city doesn't get flooded when the polar ice caps melt for good. I'm pretty sure that Nancy Pelosi, Harry Reid, and the like are with me on this one.

In his editorial, Daley recognizes this—to a point. To his credit, he says that

For liberals to accept that inescapable reality is not to concede permanent defeat. Rather, let them take it as a sign that they must continue the hard work of slowly and steadily persuading their fellow citizens to embrace their perspective. In the meantime, liberals -- and, indeed, all of us -- should have the humility to recognize that there is no monopoly on good ideas, as well as the long-term perspective to know that intraparty warfare will only relegate the Democrats to minority status, which would be disastrous for the very constituents they seek to represent.

What I fail to understand is why vague inaction now can be balanced by the promise of persuasion later. He makes it sound like this winning people over is a process that happens one individual at a time. But we have microphones and news cameras at our command 24/7. We have a tremendous public platform that Republicans, historically, have been a lot better at using than we have. We need to fight back, and we need to do it now, and fighting involves action. Claiming you're a progressive party doesn't do you any good if you abandon those progressive ideals at the first sign of their unpopularity. That's conceding defeat before the battle's even begun.

Just moments ago (and just for a few moments—I can't seem to find it again) Slatest posted the abstract for some commentary by Paul Krugman on his frustration with the Senate's well-known procedural stall tactic, the filibuster. Despite the fame it has garnered by popping up in popular media (Mr. Smith, West Wing) most Senate observers know full well that the marathon upper-house gab-fest never actually happens these days—rather, a cranky senator (knowing that the majority lacks the sixty votes necessary to end debate) simply threatens a filibuster, at which point the measure he picks as his target is customarily tabled. It's entirely a formality at this point, and we've all seen it in action this past weak, serving in the hands of Joe Lieberman as a de facto veto on any legislation backed by Democrats and opposed by all Republicans.

The objections reached fever pitch in no time. Liberals were fuming, HuffPo was HuffPo-ing, and Paul Krugman seems to have a (temporarily MIA) Times editorial piece coming out, objecting to the majority-evasion that can result if the filibuster threat is implemented under a suitable set of circumstances.

I had always brushed aside these criticisms as requisite partisan babble. Yes, some senator thwarted our good intentions. Are we going to ban the filibuster in response? No— at some point the Democrats are going to be in the minority again, and they are smart enough to know that they will invariably wish to delay a judicial nominee's confirmation or stall some future anti-abortion legislation. The Republicans came (sort of) to this conclusion themselves in 2005, and they seem to be better off today for their accidental prescience four years ago. It will simply always be, I assumed, a fact of life for the Senate: Filibusters will happen, people will complain, life will go on.

Not so, says George Anastaplo. At a recent book talk by the Loyola professor of constitutional law, the old professor carefully distributed photocopies of a letter he had written to the Times editorial board calling for a substantial modification of the Senate rule that allows for a single senator to delay voting indefinitely. His suggested change involved lowering the threshold for cloture (the process by which a supermajority can currently limit debate to thirty hours before a vote is forced—effectively preventing a filibuster) from sixty votes to a simple majority of fifty-one Senate votes.

Hearing this, my initial response was the result of my assumption that the filibuster is some sort of constitutional inevitability (or at least permitted by A1S5, which gives each house of Congress the ability to make its own rules for operation). I was corrected by Anastaplo: Making laws, he offered, is the primary constitutionally mandated purpose of the legislative branch. Allowing a single senator to veto otherwise majority-supported legislation stands in violation of this mandate. Likewise, any rule that permits for such interference with law making is also a violation of the spirit of article 1 and the chief task of Congress.

My next objection was related to the spirit and character of the Senate as a deliberative body. The House easily disintegrates into the parliamentary equivalent of a zoo and its rules reflect this tendency. The Speaker has tight control over which measures reach the floor, the amount of time allocated for debate to each party, and can end debate essentially when she pleases in order to vote on a bill and get on with business. The Senate, on the other hand, was not intended to be so encumbered by heated tempers and populist sensibilities, and the filibuster therefore seems a natural outgrowth of the body's deliberative orientation. Any member, not just the Senate leadership (which is comparatively weak) ought to be able to raise a point for debate, and have it heard.

Anastaplo agreed and explained that I had, in fact, made an argument in favor of lowering the number of votes required for cloture to fifty-one. The spirit of the Senate is deliberative, he said, and the cloture rule allows for that tradition to be maintained. Thirty hours of debate, followed by a cutoff and mandatory vote (the current result of cloture) allows for more than two days-worth of unregulated commentary—enough to satisfy even the most long-winded of lawmakers. Anastaplo's proposed change, however, would maintain this benefit while preventing the filibuster's current major drawback: With a fifty-one vote cloture requirement, filibusters would no longer result in the automatic tabling of felicitous majority-endorsed legislation. Even single senators could take ample time to voice their objections to a bill before the majority would rightly be able pass it with a simple majority. No longer would the filibuster simply be a threat—a technique by which to attempt to thwart the Senate's attempt at doing its job—but a real means of allowing the body to be ruminative without comically standing opposed to the basic tenets of democratic republicanism.

But back to the real world. Joe Lieberman is frustrating, and we need to pass this health care reform bill, watered-down though it may be. So perhaps, in the midst of a storm of stall tactics, we should remember the ideal purpose of the filibuster, and not begin cursing its existence or, for that matter, the existence of a single Senator who disagrees with the majority. The man became a Senator for a reason, and his voice should be heard. It simply ought not to hinder the work of an elected majority in its task of creating legislation.

Last night, while scheming to revive this blog with my co-contributors, we realized that we spend an awful lot of time hating on Obama. We're not entirely sure why (except that his actions in office are bearing out what we were saying during the campaign, and we like to say "I told you so" even as our country goes to hell in a handbasket...), and we're trying to diversify a bit.

So, for this post, I will not bash Obama. Instead, I'll just cross-reference a great article by Naomi Klein over at The Nation:

Contrary to countless reports, the debacle in Copenhagen was not everyone's fault. It did not happen because human beings are incapable of agreeing, or are inherently self-destructive. Nor was it all was China's fault, or the fault of the hapless UN.…

I understand all the arguments about not promising what he can't deliver, about the dysfunction of the U.S. Senate, about the art of the possible. But spare me the lecture about how little power poor Obama has. No President since FDR has been handed as many opportunities to transform the U.S. into something that doesn't threaten the stability of life on this planet. He has refused to use each and every one of them.

Ultimately, she concludes:

There are very few U.S. Presidents who have squandered as many once-in-a-generation opportunities as Barack Obama. More than anyone else, the Copenhagen failure belongs to him.