Glenn Youngkin Speaks to Law Students, Emphasizes Value of State Government

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Glenn Youngkin speaks during his election-night party in Chantilly, Va., November 3, 2021. (Elizabeth Frantz/Reuters)

Charlottesville, Va. — In a keynote address last night at the Federalist Society’s annual student symposium, hosted this year at the University of Virginia, Republican governor Glenn Youngkin focused his remarks on the value and importance of federalism and state government.

He noted that the Founders likely wouldn’t be surprised to see how little Congress is able to accomplish today and that, by contrast, state governments across the country are continuing to innovate on policy. “Today, it’s the states — and, I might add, the states led by Republican governors — that are charting the future and getting things done,” he

International

Ukraine, Climate, and Priorities

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German Economy and Climate Minister Robert Habeck addresses a news conference in Duesseldorf, Germany, February 22, 2022. (Roberto Pfeil/Pool via Reuters)

To classify Germany’s Greens as climate-change “deniers” would, I reckon, be difficult, so the party’s reaction to the Russian invasion of Ukraine has been telling.

Rather than, as the Wall Street Journal put it, merely insisting “on some pablum about accelerating renewables, a la the U.S. climate left,” the Greens, who form a part of Germany’s new coalition government, have recognized that Putin’s aggression must change the priorities governing German energy policies. First things first, and the first thing that needs to be tackled is Germany’s dangerous dependence on Russian natural gas.

And so Robert Habeck, a former co-leader of the Greens and now Germany’s minister for the economy and climate, has signed off on plans for Germany to build two new terminals to import liquefied natural gas, a way of diversifying its sources of supply. Germany currently has no such terminals, another legacy of the reckless complacency of the Merkel years.

But the Greens are not stopping there.

The Wall Street Journal:

Mr. Habeck [has said] there are “no taboos” in the effort to wean Germany off Russia. That includes extending coal-fired power past the desired 2030 cutoff, and perhaps extending the lives of Germany’s three remaining nuclear power plants, which are due to shut down this year.

Foreign Minister Annalena Baerbock, a Green former co-leader, put it starkly…when asked if her party really would accept extended use of coal: “Yes, that is the price we’ll pay.” She went on to describe Mr. Putin’s violence toward Ukraine to explain this policy change.

For now, the political shift on energy will be more pronounced than the practical change. The nuclear plants are in advanced preparation for shutdown and may not be able to return to extended service immediately. Nor is it possible for coal to replace all of the natural-gas imports Germany could lose from Russia. Many industries and home-heating networks are built to consume only natural gas. German dependence on Russia didn’t develop overnight, and neither will its new energy independence.

But the political shift is momentous. Germany’s Greens, like many parties of the left around the world, purport to combine environmental enthusiasm with idealism about human rights and the rule of law. The Ukraine invasion is testing those abstract ideals as it forces the left to reckon with the balance among climate goals, national security and aspirations for world peace.

The Greens in Berlin are showing they can adapt to a changed world and are prepared to grapple honestly with its challenges even at the expense of their climate concerns. It’s a lesson the British and North American left could stand to learn.

And, as I noted in last week’s Capital Letter, that includes John Kerry:

As Russia moved closer to a full-scale attack on Ukraine, John Kerry, President Biden’s special presidential envoy for climate, worried that a real war might draw attention from the war that really mattered: the war on climate change.

“I hope President Putin will help us to stay on track with what we need to do for the climate.”

If by “us” Kerry is including Putin, he is delusional. To Putin, the way that the reckless “race to net zero” inhibits Western oil and gas production will be a gift that keeps giving. Theoretically, the transition away from fossil fuels will, in time, deprive Russia of an important export market, but the magic phrase is “in time.” For all sorts of reasons, including (I suspect) mounting political discontent, the transition is likely to take considerably longer than its proponents will like. Nevertheless, it has already increased Putin’s leverage over the West. To the extent that it is contributing to higher energy prices, it is also giving Putin a budget boost — handy when he has a war to fight.

Writing for Real Clear Energy, Rupert Darwall had more to say about Kerry.

An extract:

Russia has never hidden its intention to avoid cutting its emissions. Russia’s second Nationally Determined Contribution, submitted in November 2020 under the Paris climate agreement, is to limit its 2030 emissions to “no more than 70% of 1990 levels.” The document is careful to avoid pledging to cut or reduce emissions. The 1990 baseline year was the last one before the collapse of the highly inefficient and heavily polluting centrally planned Soviet economy. Thus, the 70% limit actually enables Russia to increase its emissions by 34% – and that’s before taking account of any changes in forestry and land use that would allow Russia to claim credit for negative emissions…

There is, however, one area where Kerry and Putin are likely to find themselves in full agreement. Two years ago, at a business conference in Moscow, the Russian president denounced fracking as “barbaric,” claiming that fracking technologies “destroy the environment.” A January 2017 Intelligence Community Assessment on Russian activities in U.S. elections noted that RT, the Russian state-owned news channel, ran anti-fracking programming that highlighted the alleged environmental and public health harms of the practice. “This is likely reflective of the Russian Government’s concern about the impact of fracking and US natural gas production on the global energy market and the potential challenges to Gazprom’s [the Russian state-owned energy company] profitability,” the assessment concluded.

In June 2014, Kerry’s predecessor as secretary of state complained about the impact of Russian money on financing “astroturf” environmental campaigns. “We were up against Russia pushing oligarchs and others to buy media. We were even up against phony environmental groups, and I’m a big environmentalist, but these were funded by the Russians to stand against any effort, ‘Oh that pipeline, that fracking, that whatever will be a problem for you,’ and a lot of the money supporting that message was coming from Russia,” Hillary Clinton said.

Putin understands the importance of energy as an essential component of American strategic power. John Kerry does not.

And that makes Kerry a menace, and not only to the U.S., but also to its allies.

Law & the Courts

Supremes Unanimously Rule that FISA Did Not Displace the State-Secrets Privilege

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U.S. Supreme Court in Washington, D.C. (Joshua Roberts/Reuters)

Dan does his characteristically stellar job explaining today’s Supreme Court ruling that reinstates the death penalty for convicted Boston Marathon bomber Dzhokhar Tsarnaev. The Court also decided today a case at the crossroads of two bodies of law that rub our libertarian streak the wrong way — (1) FISA (the Foreign Intelligence Surveillance Act of 1978), which enables the government to monitor suspected clandestine agents of foreign powers based on highly classified warrants obtained from a secret federal court on no notice, ever, to the people monitored (who may be American citizens); and the (2) “state-secrets” doctrine, which pertains to a government privilege to forbid courts from disclosing state and military secrets, even if that means a facially valid legal claim for relief must be dismissed.

Even though the rules applicable to FISA and state-secrets can be tricky, and the situations in which they apply complex, today’s case, FBI v. Fazaga, was sufficiently straightforward that it produced the rare unanimous decision, with the Court’s opinion written by Justice Samuel Alito.

The case involved Muslim men in California who filed a class action against the bureau and various national-security officials, claiming to have been subjected to illegal surveillance under FISA — essentially, singled out for no reason other than their Islamic faith. The Obama administration’s attorney general, Eric Holder, moved to dismiss these claims pursuant to the state-secrets privilege, explaining that to confirm or deny whether the FBI had conducted particular counterintelligence investigations, whether a particular individual had been subjected to FISA surveillance, and what the basis may have been for any such investigation (if one existed), would cause significant national-security harm, particularly insofar as it revealed national-defense secrets and the government’s methods and sources for obtaining them.

The federal district court agreed, holding that the privilege required dismissal of the plaintiffs’ claims. Yet, in a surprising ruling, or at least one that would have been surprising if it hadn’t come from the Ninth Circuit, the appellate court reversed. It held that, in enacting FISA, Congress had supplanted the state-secrets privilege with a FISA provision — Section 1806(f) — that addresses remedies that apply to illegal surveillance.

The Supreme Court rejected the Ninth Circuit’s ruling. Very simply, courts assume that Congress does not tacitly work major changes in the law. Unless lawmakers have “used clear statutory language,” our presumption is that Congress did not undertake to alter settled law — and the state-secrets privilege is well-settled. The Court, moreover, reasoned that since FISA and the state-secrets privilege operate in different ways to achieve different objectives, nothing about the operation of FISA’s Section 1806(f) is incompatible with the state-secrets privilege.

Indeed, the vast majority of the time, they won’t intersect at all. In the main, Section 1806(f) arises only when the government is trying to make some affirmative use of FISA-collected evidence that an “aggrieved” person claims was collected illegally (whether in noncompliance with FISA’s terms, under the Fourth Amendment, or some similar claim). Plainly, if the government believes that using FISA evidence would trigger disclosures that could imperil national security, there will be no need to invoke the state-secrets privilege since the government will refrain from using the FISA evidence in the first place.

Fazaga presented the unusual situation in which claimants, who have no idea whether they were actually monitored, tried to find out by forcing the government to disclose. They then claimed to be “aggrieved” by a government use of the FISA evidence (theoretically triggering the FISA-remedy provision) because, they rationalized, the government had to have made use of the evidence in order to figure out how to respond to their claim.

Nice try.

The plaintiffs and the Justice Department posited different interpretations of how the FISA-remedy provision works and under what circumstances it applies. Justice Alito explained that because the Court was able to dispose of the case on the narrow ground that FISA does not displace the state-secrets privilege, there was no need to decide which (if either) interpretation of FISA was correct.

Film & TV

Mark Wahlberg’s Act of Faith in Father Stu

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I saw the upcoming Mark Wahlberg movie, Father Stu, early this week. I watched Left Behind, and that basically ruined Christian movies for me. Every once in a while, you encounter something different, like The Passion of the Christ, or The Chosen series. Father Stu meets their standard of excellence, but in a different category because of its language (and at least one completely unnecessary moment). But it’s precisely the rough nature of the film that gives me hope that along with Sony distributing it, and Mark Wahlberg starring in it, it has an audience that The Passion and The Chosen wouldn’t. People simply wanting to see a good story. I pray that a door to encountering Jesus Christ might be opened during the course of seeing it. I was in a movie theater this week for the first time in a long time. It’s worth it for Father Stu.

This has been described as a “passion project” for Wahlberg, who financed the movie himself as a way of paying back for the blessings in his life.

Mel Gibson gives quite the performance as Fr. Stu’s father.

It comes out April 13.

You can watch the trailer here:

There’s an interview with Wahlberg talking about the movie here:

 

National Security & Defense

Let’s Make Sure Our Military Can ‘Kill People and Break Stuff’ before Writing It a Blank Check

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A U.S. Air Force F-35 Lightning II assigned to the 48th Fighter Wing, Royal Air Force Lakenheath, England, flies over Siauliai Air Base, Lithuania, March 2, 2022. (Senior Airman John R. Wright/USAF)

In response to We Can’t Afford a $1 Trillion Defense Budget

In response to Rich’s call for a drastically increased defense budget ($1 trillion, up from around $770 billion), Phil points out a simple fiscal reality:

Rich makes a sobering case that the world is a dangerous place and getting more dangerous for the U.S., of course. But this is the position we find ourselves in after decades of fiscal mismanagement by both parties. I see no signs that the current Republican Party has any interest in fiscal responsibility. So we need to see a dramatic course correction on that front and actual improvement in our fiscal picture before proposing trillions of dollars in new spending, regardless of the cause.

The tidal wave of red ink facing the United States is indeed something to consider. Something I also think we should consider is, even if we decide it is worth increasing defense spending anyway, whether we should do so without changing the underlying Pentagon status quo. It is quite possible to respect, admire, and be proud of the U.S. military while also wondering if it is spending its money wisely. A recent Washington Free Beacon report on gender-identity-sensitivity training that soldiers are put through is a more outrageous example of a reason to ask this question, even if it may not exactly be representative.

More representative are abiding concerns about waste and bloat in the Pentagon bureaucracy. Focusing on that notorious money pit, the F-35 fighter jet, David Williams, president of the Taxpayers’ Protection Alliance, wrote for us last year that

the F-35 is far from the only defense program suffering from cost overruns and lack of a clear purpose. Bloated, ineffective programs are a symptom of the misplaced priorities, poor decision-making, and lack of vision plaguing the American defense establishment. The burden on taxpayers and servicemembers alone should be enough to warrant serious scrutiny of the practices that have enabled such bad management for so long. But wasteful defense programs and poor military strategy don’t just cost taxpayer dollars. They can cost American servicemembers’ lives.

I would be much more comfortable shoveling money into the gaping maw of the military-industrial complex if I were confident that said money, upon being digested, were transformed properly into things that improve our abilities to “kill people and break things,” as Rush Limbaugh liked to put it. Right now, I lack the confidence that that money would not be in large part pointlessly siphoned away by self-interested, ineffective, or politically motivated actors in both the public and private sectors of the defense world.

Before we write a blank check to the Pentagon, then, I would want serious reforms of procurement, budgeting, and other aspects of our military’s operations, to make sure we are actually getting a bang for our buck. (For policy nerds out there: Perhaps there is some way to tie meaningful reform to increased dollars.) Without that, we can spend as much money as we want, but all we’d end up with is a pretty-looking yet ineffective war machine.

Religion

Yesterday Was One Beautiful Boy’s Independence Day (to the Relief of His Foster Parents)

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Kristen and John Meyer with their foster son, Noah, now free for adoption. (Courtesy the Meyer Family)

Yesterday was a day of liberation for a young boy in foster care and his loving foster parents, a family that I know and love. This young boy has suffered something awful in his first weeks and months of life, smothered and near death in a hospital. By what I can only understand as Providence, he came into the care of an older couple in the family — who were neighbors to a married couple who have long longed for a child. They loved him back to life, and brought him into a world of support that is the best of Christianity. Even with a network of support, I know it was a grueling process, all the while knowing this boy they are completely in love with could wind up back in a dangerous situation. That’s no longer a fear. After a number of rounds and lots of drama, parental rights were severed yesterday. I pray for his birth parents, but am grateful dear Noah is now free for adoption by his mother and father. As Pope Francis talked about earlier this year in talking about St. Joseph, it is not simply biology that makes a father:

To bring a child into the world is not enough to say that one is also their father or mother. “Fathers are not born, but made. A man does not become a father simply by bringing a child into the world, but by taking up the responsibility to care for that child. Whenever a man accepts responsibility for the life of another, in some way he becomes a father to that person.” I think particularly of all those who are open to welcoming life by way of adoption, which is such a generous and beautiful, good attitude. Joseph shows us that this type of bond is not secondary; it is not second best. This kind of choice is among the highest forms of love, and of fatherhood and motherhood. How many children in the world are waiting for someone to take care of them! And how many married couples want to be fathers and mothers but are unable to do so for biological reasons; or, although they already have children, they want to share their family’s affection with those who do not have it. We should not be afraid to choose the path of adoption, to take the “risk” of welcoming.

Noah’s parents are just one couple that can testify that Naomi Schaefer Riley’s book, No Way to Treat a Child, gives voice to a world that most Americans don’t know but that many children and adults who want to change their lives agonize through. Thanks be to God that the system mostly worked this time, at least in the end, and this couple had the perseverance and support to get their beloved Noah the forever loving home he deserves.

Kristen Meyer wrote a little bit about her family’s story recently here.

You might also be interested in this report from Naomi Riley, Honor Your (Foster) Mothers and Fathers.

How about a Foster-Care Revolution?

World

Want to Help Ukraine? Pray

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(Archdiocese of New York)

Last Saturday morning, I went to an 8 a.m. Mass at St. George’s Ukrainian Church in lower Manhattan. The entire Mass was a different rite from what I’m used to — and in Ukrainian, but that, honestly, only made it the more beautiful, and transcendent. I’ve been to Maronite Masses in the U.S. before and love how awestruck the words of the liturgy are. I knew something similar was going on, even as I did not seek a translation — the frequent dialogue between the congregants and priest made it clear; it was the somewhat familiar (because of the persecuted) Eastern way. We Westerners miss a lot if we do not get to know our Eastern Christian brothers and sisters.

It was a healthy crowd, and there were flowers, flags, and a plea to pray for Ukraine.

Cardinal Dolan went to pray there the next morning, attending Mass as an act of solidarity with the Ukrainian people.

He said:

“The people of Ukraine have been through the crucifixion and are going through it again.”

Calling Ukrainians “people of faith,” Cardinal Dolan said, “You always inspire us because you believe in the power of the resurrection.”

In the homily prepared for Ash Wednesday (the Vatican Secretary of State read it at Mass, as Pope Francis was nursing acute knee pain), Pope Francis said:

If prayer is real, it necessarily bears fruit in charity. And charity sets us free from the worst form of enslavement, which is slavery to self. Lenten charity, purified by these ashes, brings us back to what is essential, to the deep joy to be found in giving. Almsgiving, practised far from the spotlights, fills the heart with peace and hope.  It reveals to us the beauty of giving, which then becomes receiving, and thus enables us to discover a precious secret: our hearts rejoice more at giving than at receiving (cf. Acts 20:35). . . .

Prayer, charity and fasting are not medicines meant only for ourselves but for everyone: they can change history. First, because those who experience their effects almost unconsciously pass them on to others; but above all, because prayer, charity and fasting are the principal ways for God to intervene in our lives and in the world. They are weapons of the spirit and, with them, on this day of prayer and fasting for Ukraine, we implore from God that peace which men and women are incapable of building by themselves.

Whatever you think of Pope Francis, it is worth reading.

As many of us in the West are currently addicted to the news, watching with horror what is happening in Ukraine, realize that we can actually do something. Yes, make financial contributions to efforts by groups like the Knights of Columbus, who are on the ground in Ukraine and with refugees in Poland (100 percent of the money in their Ukrainian fund goes to helping people). But also with prayer. We can never pray enough, unless we are doing it unceasingly. I don’t know about you, but I’m a work in progress. Are you offering prayer and sacrifice for the Ukrainian people? (Do you regularly pray for the persecuted?) Is your place of worship praying for the Ukrainian people? If you’re a person of faith and believe in the power of prayer, commit yourself. Challenge yourself. Miracles can happen.

Watch the head of the Knights in Poland talk about their efforts here:

https://video.foxnews.com/v/6299499364001/

Back at St. George’s in Manhattan, I was struck by how much longer Eastern Masses are. This was a non-Sunday Mass, with Rosary (as best I could tell), and it was over an hour. A typical daily Mass in the Roman rite tends to 20 minutes . . . tops. While there are practical realities like getting to work (though St. George’s has a 7 a.m., too), I suspect the Eastern approach is better for our souls. And I suspect it has helped sustain a long-suffering people.

Politics & Policy

Cloak and Dagger vs. Joke and Jabber

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In response to Why Lindsey Graham Should Not Call for Putin’s Assassination

Muppet News Flash: Lindsey Graham once again leaps into the arms of jackassery.

But you know, Jack, I may be a Cold War nostalgist, but I think I’d rather we had a government that did nefarious deeds and didn’t talk about them than a government that talks about nefarious deeds and doesn’t do them.

One has to admire the professionalism of whoever is killing all those Iranian nuclear scientists without so much as a press release.

World

Twenty-Five Things That Caught My Eye Today: Ukraine, a Father Facing Death, Johnny Cash & More

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Ukrainian service members stand near a school building destroyed by shelling in Zhytomyr, Ukraine, March 4, 2022. (Viacheslav Ratynskyi/Reuters)

1. I know some of you live in Alexandria, Va. Do something about this:

2. From elsewhere on this site, by Hollie McKay, in Kyiv:  Ukrainian Church Leaders Join Fight against Putin’s Invasion: ‘He Is the Antichrist’

Continue reading “Twenty-Five Things That Caught My Eye Today: Ukraine, a Father Facing Death, Johnny Cash & More”

Politics & Policy

Rick Scott’s Illogical Defense of His Plan to Raise Taxes on Half the Country

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Rick Scott on election night in Naples, Fla., November 6, 2018 (Joe Skipper/Reuters)

Florida GOP senator Rick Scott recently proposed changing the law so that all Americans pay some federal income tax. This would mean raising taxes on about half the country.

“All Americans should pay some income tax to have skin in the game, even if a small amount. Currently over half of Americans pay no income tax,” Scott wrote in an eleven-point plan. 

Scott was acting on his own accord, but he is the National Republican Senatorial Committee chairman, and he’s gotten a lot of blowback. Senate GOP leader Mitch McConnell said at a press conference this week that he opposes Scott’s plan.

Today, in the Wall Street Journal, Scott writes the following in defense of his proposal (emphasis added):

I went out and made a statement that got me in trouble. I said that all Americans need to have some skin in the game. Even if it is just a few bucks, everyone needs to know what it is like to pay some taxes. It hit a nerve. Part of the deception is achieved by disconnecting so many Americans from taxation. It’s a genius political move. And it is bankrupting us.

I’m a tax cutter — always have been, always will be. I cut taxes more than 100 times as governor of Florida. But now Chuck Schumer and the Democrats are faking outrage about my plan. Yet Americans want everyone to pay their fair share. Working Americans already pay taxes on their income, and retirees have paid plenty. The change we need is to require those who are able-bodied but won’t work to pay a small amount so we’re all in this together. That means both free-loaders who abuse the welfare system and billionaires who pay lawyers and lobbyists to help them get around the tax laws. This may be a scary statement in Washington, but in the real world it’s common sense.

Most Americans who do not pay federal income taxes already do pay thousands in Medicare and Social Security taxes, property taxes, sales taxes, etc. But what’s really baffling about Scott’s defense of his plan is his assertion that Americans who do not pay taxes now might only have to pay “a few bucks.” Does anybody believe that raising an American’s income-tax liability from $0 to $3 is going to change how that American views federal spending? Does three dollars really count as “skin in the game”?

Health Care

I Don’t Hate Drug Companies

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( okskaz/Getty Images)

Here is Bernie Sanders discussing the one issue that allegedly brings Americans together with former comedian Stephen Colbert:

I don’t hate Big Pharma. It’s done more to help mankind in the past two years than all the socialist and social-justice initiatives have in their entire histories. Drugs help us alleviate pain, repel disease, mitigate depression, enjoy intimacy, live longer, and live that life more actively. It has transformed numerous once-deadly ailments that might have killed little Red Diaper Baby Bernie into historical footnotes. And one day, in the not-too-distant future, some pharma company will invent a drug to help people with Parkinson’s and Alzheimer’s or effectively treat lung cancer or cure autoimmune diseases. Bernie might one day benefit from theses gifts of a capitalist system.

It’s been politically fashionable to criticize Big Pharma. (There is no “small pharma” because drug companies have immense capital expenditures and take on giant risks; the average cost of producing a new product is just short of $3 billion. You don’t bring a new drug to market by starting a company and working part-time in your garage.) And these days that anger has been ratcheted up over the vaccine wars. Like all sectors, pharma lobbies Congress. It attempts to gain unfair advantages and rent-seeks. Some companies in the industry are well run and some are corrupt. But Covid-vaccine mandates aren’t implemented by drug companies, they’re implemented by government.

It should also be noted, contra Sanders, that trust in the pharmaceutical sector has likely gone up for the past few years. According to Ipsos, it is far more trusted by the public than government or media — two of the three least-trusted sectors along with social media.

World

Why Lindsey Graham Should Not Call for Putin’s Assassination

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Sen. Lindsey Graham (R., S.C.) speaks during a hearing at the Capitol in Washington, D.C., January 19, 2021. (Alex Edelman/Reuters)

Senator Lindsey Graham (R., S.C.) can almost always be counted on to provide the most militarily hawkish counsel at any given moment, even — perhaps especially — when that counsel is least wise. A habit born amid the Iraq War, of which he was one of the most prominent supporters, it has continued for many years. In April 2011, he called for the U.S. to “go to Tripoli, start bombing Qaddafi’s inner circle, their compounds, their military headquarters in Tripoli,” adding, “I think the focus should now be to cut the head of the snake off. That’s the quickest way to end this.” And in 2019, he called for U.S. military action in Venezuela. All this despite the fact that sometimes not even he can keep track of what we are and aren’t doing abroad; in 2017, Graham was surprised to find that we had troops in Niger.

As Russia wages a brutal and unjust war on Ukraine, a crisis requiring sober analysis and serious statesmanship, Graham has once again seen fit to play Leeroy Jenkins. From his Twitter account has come ill-advised musing:

There are many complications in the ongoing conflict, one that is largely beyond my ability to comment on competently. But you don’t have to be a military genius to figure out that open calls by important U.S. political figures for Vladimir Putin’s assassination are certain to play right into Putin’s hands (now any domestic discontent with his actions can be cast as a U.S. psyop), perhaps further unsettle his possibly damaged mind, and escalate an already gruesome conflict. Graham should know this, and refrain from dashing off such reckless messages on Twitter — or anywhere else.

Law & the Courts

Supreme Court Reinstates Death Sentence for Boston Marathon Bomber

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U.S. Supreme Court (Timothy Epple/Getty Images)

In a 6–3 opinion written by Justice Clarence Thomas and divided along ideological lines (with Justice Stephen Breyer dissenting, joined by Justices Elena Kagan and Sonia Sotomayor), the Supreme Court reinstated the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev. Dzhokhar was the younger of the two Tsarnaev brothers, the older of whom, Tamerlan, was killed by Dzhokhar while fleeing from police. The sentence had been vacated by the First Circuit, which questioned the selection of the jury and the exclusion of evidence from the death penalty phase that Dzhokhar wanted to use in order to show that his brother was the real mastermind. The Supreme Court rejected both arguments; Breyer dissented only on the second issue, and did not address the pretrial publicity question.

The Tsarnaev case is not about the guilt or innocence of Dzhokhar Tsarnaev, who did not deny his involvement in the bombings. It is also not about the morality or legality of the death penalty, which in this case was squarely authorized by federal antiterrorism law: if you believe in the death penalty, it would be hard to identify a stronger case for it than a public act of terrorism, aimed at a purely civilian public event, in service of an ongoing enemy of the American people. That said, Breyer’s dissent on the sentencing issue leans heavily on the argument that “death penalty proceedings are special,” and it is hard not to suspect that the Court’s liberals would, as they typically do, find a way to avoid voting to affirm a death sentence no matter what the law says. In fact, the implications of their argument would be a radical departure from existing law. Thomas, by contrast, noted in a footnote for the majority’s opinion that the Court had not been asked to revisit as an original matter its precedents on the process for death penalty proceedings, so he was not going to do so.

The first legal issue in the case, which is relevant in almost any sensational case of public interest, was the screening of jurors for their exposure to media coverage of the case. A free press and a fair trial are both constitutional guarantees, but the former can sometimes make the latter difficult or impossible. From Capitol rioters to Derek Chauvin to corrupt politicians to targets of the Mueller and Durham investigations, defendants in high-profile cases often complain that they are being tried in the press to poison the jury pool. The trial court refused to allow an open-ended question proposed by Dzhokhar’s attorney asking jurors to recite all the facts they already knew from media coverage. But it nonetheless conducted an extraordinarily extensive inquiry into their exposure to coverage of the terror attack on what David Ortiz memorably called “our f***ing city“:

The District Court summoned an expanded jury pool of 1,373 prospective jurors and used the 100-question juror form to cull that down to 256. The questionnaire asked prospective jurors what media sources they followed, how much they consumed, whether they had ever commented on the bombings in letters, calls, or online posts, and, most pointedly, whether any of that information had caused the prospective juror to form an opinion about Dzhokhar’s guilt or punishment. The court then subjected those 256 prospective jurors to three weeks of individualized voir dire in which the court and both parties had the opportunity to ask additional questions and probe for bias. Dzhokhar’s attorneys asked several prospective jurors what they had heard, read, or seen about the case in the media.

Thomas began by noting that the Court’s precedents require an impartial jury, not an ignorant one, and that trial judges have latitude in assessing how best to select juries – particularly given the judge’s local knowledge of the media climate. “There is no blanket constitutional requirement that it must ask each prospective juror what he heard, read, or saw about a case in the media.”

As sometimes happens in cases at the Supreme Court, the outcome on this point was more or less dictated by the Court taking the case. The First Circuit applied one of its own precedents that, it felt, imposed such a blanket rule. But “lower courts cannot create prophylactic supervisory rules that circumvent or supplement legal standards set out in decisions of this Court.” That raises an issue that animated a concurring opinion by Justice Amy Coney Barrett (joined by Justice Neil Gorsuch), and contested by Breyer: Barrett argues that the inherent power of federal courts to set rules and procedures for their own courtrooms does not create a supervisory power for appellate courts to dictate these kinds of blanket rules for district courts within their own circuits. Breyer (joined by Kagan) thinks that the power to do so is well-settled. Thomas’s opinion for the Court noted in a footnote that the Court was not weighing in on that dispute, which involves some knotty theoretical questions of great practical significance. “A court of appeals cannot supplant the district court’s broad discretion to manage voir dire by prescribing specific lines of questioning, and thereby circumvent a well-established standard of review. Whatever the ‘supervisory power’ entails, it does not countenance the Court of Appeals’ use of it.”

The justices were more divided on the exclusion of evidence that Dzhokhar wanted to use in order to support his theory that he was dominated and radicalized by his older brother, and that this should mitigate his own guilt. Dzhokhar argued that Tamerlan had been involved in an unsolved drug-related triple murder in Waltham, Massachusetts on September 11, 2011 (a noteworthy date), based on a confession given orally by an accomplice, Todashev, to the FBI. Todashev, however, had attacked the FBI agents when they gave him a pen to write his confession down, and they killed him — so, both Tamerlan and Todashev were dead by the time of the trial. Thus, the only witnesses Dzhokhar could call to support his theory would be repeating levels of hearsay, whether FBI agents who quizzed the accomplice or a friend of Dzhokhar who would say that Dzhokhar knew about Tamerlan’s involvement in the triple murder. The trial judge saw this whole line of inquiry as a confusing tangent that piled hearsay upon hearsay and would send the trial down a rabbit hole that would only confuse the jurors.

For Breyer, it was worth arguing that the exclusion of any evidence of any possible theory that might support Dzhokhar avoiding the death penalty, however tenuous, should be grounds for throwing out the death sentence. For example: “The Waltham evidence showed (if the jury believed Todashev’s account) that Tamerlan had previously exerted such influence over Todashev as to make him an unwilling accomplice to a triple murder. This is much stronger evidence of Tamerlan’s capacity to influence than any evidence that the jury heard.”

Of course, this means that the jury would be asked to assess the credibility of Todashev as a witness, which is hard to do because he was dead and had, literally, died rather than sign a confession to any of this. That means that the trial would have devolved into an entire second level of disputes about the credibility of a dead man the defendant knew through another dead man, as a means of assessing the second dead man’s character — what Thomas described as “a confusing mini-trial where the only witnesses who knew the truth were dead. . . . No one alleges that Dzhokhar participated in the Waltham murders, and . . . the evidence available sheds little light on what role (if any) Tamerlan actually played.” Thus, “Dzhokhar would first have to show, without any surviving witnesses, what role Tamerlan actually played. Then, he would have to establish that he learned of the Waltham crimes before planning the bombings. Finally, he would have to explain how his knowledge of Tamerlan’s role in a nearly two-year-old violent robbery affected his own role in the bombings. Whatever other courts might think about an inquiry into a defendant’s own prior bad acts, this District Court reasonably thought that the Waltham murder inquiry risked confusing the jury in these proceedings.”

Breyer, however, insisted on offering his own micromanaging review of how the case was tried, searching for any straw to grasp to show the relevance of all of this:

The prosecution similarly told the jury that “the bulk of [Dzhokhar’s] mitigation case comes down to a single proposition: ‘His brother made him do it.’” The prosecution also told the jury that it should reject this proposition because Dzhokhar’s mitigation evidence merely showed that Tamerlan was “loud,” “bossy,” and “sometimes lost his temper.” Would the prosecution have made the same argument had the evidence required it to add, “and perhaps slit the throats of three people”?

Yes, common sense says, the prosecutors would have made exactly that argument; framed in slightly different words, perhaps, but this is a terrorist plot, not a prank. It is not a thing a man would enter into lightly. Breyer also second-guessed the trial judge’s assessment of the risk of confusing the jury. Breyer’s arguments might not be so unreasonable coming from a trial judge in the case, but as Thomas wrote, Breyer “ignores our traditional standard for appellate review of evidentiary determinations,” in which the judge on the scene has some discretion over the management of a trial.

As the majority noted, the Court’s precedents do not impose what Breyer seemed to be asking for: a mandatory rule of admitting every piece of evidence a defendant wants, even in a death penalty case, and reversing any trial judge who ever excludes anything. If that was the rule, it would require the Court to find the federal death penalty statute itself unconstitutional to the extent that it ever excludes evidence — something Dzhokhar asked the Court to do. The Eighth Amendment, the Court concluded, requires that a defendant facing the death penalty have an opportunity to present evidence for mitigating his guilt — it does not prohibit federal and state courts from having any rules of evidence whatsoever in such proceedings. That has never been the rule, and it is not the rule Congress applied when writing the statute governing these proceedings.

Breyer was cast as a moderate when he was first nominated for the Court in 1994, in large part on the theory that he would break from the habit of liberal predecessors of anti-death-penalty radicalism. It is an ironic close to his tenure on the Court to find him adopting what amounts to another radical anti-death penalty rule that would effectively eliminate the rules of evidence in such cases, without a basis to do so in the Constitution, and in direct contravention of a federal statute, all for the purpose of saving from execution one of the perpetrators of a notorious terrorist attack on Breyer’s own city.

World

The Coming Siege of Kyiv

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People walk past the remains of a missile at a bus terminal in Kyiv, Ukraine, March 4, 2022. (Valentyn Ogirenko/Reuters)

This war is in its opening week. To get an idea of what is in store for Kyiv, let’s look at a few recent cases of urban warfare.

Fallujah was a small city with 300,000 inhabitants. It had 39,000 buildings, almost all concrete, with poor construction and two to three floors. Of the 39,000 buildings, 18,000 — 45 percent — were destroyed or seriously damaged in the U.S. assault to dislodge the insurgents in November of 2004.

The battle for Mosul in 2015 was far more extensive in size and damage. Mosul, with a pre-battle population of 1.5 million, was about 65 percent destroyed. Of its 210,000 houses, 138,000 were damaged or destroyed. No sewer system, no power, no potable water.

In Kyiv, a city of 3,000,000 people, there are at least 250,000 commercial and residential buildings (my estimate). (Anyone taking the time can count the number of high rises and estimate their engineering stability.)

The insurgents in Fallujah and Mosul did not have anti-tank weapons. With NATO providing thousands of anti-armor weapons to the Ukrainian defenders, the Russians will apply massive artillery and air bombardment before armor and dismounted infantry try to advance block by block.

In Fallujah, U.S. forces expended 2,500 tank main-gun rounds, after launching 540 air strikes and firing 14,000 artillery and mortar shells. It is not unreasonable to expect the Russians to launch ten times that number — or 140,000 artillery shells — at a city ten times larger. Our military has surely done the calculations and shared them.

If televised visuals persist of that bombardment, day after day, then global public demand to forbid the purchase of Russian oil and gas will grow. Even assuming that President Biden soon trumpets a deal with Iran as the solution to skyrocketing gas prices, he will feel additional pressure to cut off Russian oil exports.

In sum, the siege of Kyiv is likely to extend well beyond a month. It is not self-evident that Putin will achieve his objective of installing a puppet government. Unknown is the tenacity of the defenders, even when they are exhausted, and whether a resupply route to them can be maintained.

Politics & Policy

Today in Capital Matters: Profits and Local Control

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Stephen Soukup of The Political Forum reviews In Praise of Profits! by Edward Yardeni:

American business and Americans’ appreciation for business success are being undermined from within, by ignorance, sloppy analysis, and self-serving corruption. In Praise of Profits is Ed Yardeni’s brave and thoughtful attempt to set the record straight and restore the nation’s faith in entrepreneurship, success, and wealth creation.

Tony Woodlief of the State Policy Network writes about how Biden ignores the advantages of local control and puts the federal government in charge of too much:

Worse still, from the perspective of those of us focused on state policy, Biden’s proposals threaten more of the blunt-force federal interventions that have exacerbated the very ills they claim to cure, all while undercutting state and local leaders who currently enjoy significantly more public trust than do federal agencies and officials.

Take, for example, the bipartisan $1.2 trillion infrastructure package that funds roads, bridges, rural broadband, and other items popular among everyday Americans. If allowed to run the course traditional for such laws, these funds might have aided a great many communities. Biden’s activist agency officials, however, can’t resist the temptation to creatively interpret the law’s terms in order to advance their Build Back Better agenda. Guidance trickling out of their offices reveals that standard formulas for allocating highway funding to states will be altered to reduce local decision-making and flexibility; enforce cumbersome environmental reviews that focus on climate change; prioritize electric cars; and impose race, gender, and other quotas at every stage from planning to bricklaying. . . .

World

In Some Ways, This Is a Religious War

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Russian President Vladimir Putin and Patriarch of Russia Kirill arrive to lay flowers at the monument of Minin and Pozharsky on at Red Square marking National Unity Day in Moscow, Russia, November 4, 2017. (Alexander Nemenov/Pool via Reuters)

Yesterday, Tim Kelleher, a deacon in the Ukrainian Orthodox Church, wrote on NR that the silence of the head of the Russian Orthodox Church, Patriarch Kirill of Moscow, “is a scandal. The role of the patriarch in Putin’s architecture of aggression is critical. For Westerners long accustomed to separation of church and state, the Russian arrangement can seem an anachronous quirk. It’s not. Put simply, Putin has been keen to impose a Byzantine model of order known as symphony, in which crown and cathedra work in “providential” harmony. Rooted as it is, however, in gross distortions of history and purpose, this symphony has produced more anthems than hymns.”

We in the West have a hard time integrating Putin’s reputation and identity with his unofficial but clear leadership role in the Russian Orthodox Church. Putin is a cold, ruthless, brutal killer comfortable with torture, intimidation, and ruling by fear — an identity that most of us would find impossible to reconcile with Christianity.

But I think it is important to recognize that Putin probably sees himself in a quasi-messianic role for the broadest possible definition of the Russian people. And do mean the broadest possible definition, as laid out in Fiona Hill and Clifford Gaddy’s 520-page, updated, 2015 biography of Vladimir Putin, Mr. Putin: Operative in the Kremlin:

The Orthodox Church still comes in a package with Putin and the state, even if the modern presidential base of power is secular. In Putin’s system and formulation, it is Rus’ (Russia) that is divine (svyataya or holy). The president is certainly not divine or holy. The stress on svyataya Rus’ picks up on another older Russian Orthodox and tsarist tradition, where Rus’ refers to something larger than the idea of the Russian state and people and encompasses the entire Russian orthodox religious community. Before the Russian Revolution, citizens of the empire who were baptized as Russian Orthodox Christians were seen to be Orthodox (pravoslavnyy) and therefore Russian (russkiy), no matter where they lived or what their specific ethnic origins. Tartar nobility, Baltic German aristocrats, Georgian princes and princesses, and their subjects, all became pravoslavnyy on conversion. Religion and language became the primary identifying markers of a Russian, even if an individual did not russify his last name. The overarching pravoslavnyy identity was one of the mainstays of loyalty to the tsar and to the Russian state. This idea was captured in an interview in July 2014 by the New York Times’ Moscow correspondent, Neil MacFarquhar, of a Russian believer participating in a pilgrimage to the monastery founded by Russia’s most important saint, Sergey (or Sergius) of Radonezh, in commemoration of the 700th anniversary of the saint’s birth. The pilgrim told MacFarquhar, “We are all one people, we are all part of Holy Rus’. . . .  Any person, regardless of where he lives, if he is Russian in spirit, he must be defended by this president, by his country, because he is an indivisible part of the nation.”

Putin and the Russian Orthodox patriarch repeatedly underscored the idea of svyataya Rus’ in speeches about the annexation of Crimea. For example, in his March 18, 2014 speech in the Kremlin, Putin spoke of Crimea as a territory full of places that are holy for Russia. These included, “symbols of Russian military glory and unprecedented valor,” and the site of the baptism of svyatoy knyaz Vladimir (holy prince Vladimir), the Grand Prince of Kyiv* who assumed Christianity on behalf of all Russia in 998.

A few days ago, John Schindler pointed out that in 2018, the U.S. embassy in Kyiv congratulated Ukraine on establishing a local Ukrainian Orthodox Church. Schindler contends that whether or not the embassy realized what it was doing, the U.S. was effectively taking sides in an Orthodox Church schism. The U.S. State Department may well have thought it was offering a generic statement in favor of religious freedom, but to the Russians, this represented the U.S. endorsing Orthodox churches breaking away from the Russian Orthodox Church. Schindler argues this was spectacularly short-sighted, and a likely unintended provocation: “Does Foggy Bottom side with Sunni or Shia? What about Lutheranism versus Methodism? Who in Washington thought it was a good idea to throw its weight behind the OCU, since anybody who knew anything about Putinism and its religious-civilizational mission had to be aware that such statements were guaranteed to raise Moscow’s ire.”

And Schindler reminds us Patriarch Kirill declared in January 2019, “Ukraine is not on the periphery of our church. We call Kiev ‘the mother of all Russian cities.’ For us Kiev is what Jerusalem is for many. Russian Orthodoxy began there, so under no circumstances can we abandon this historical and spiritual relationship. The whole unity of our Local Church is based on these spiritual ties.” That does not sound like a man particularly motivated to prevent or stop a Russian takeover of Kyiv.

Even to the layman, the puzzle pieces of Putin’s strange and frightening mind start to come together in this light. In Putin’s mind, all Russian Orthodox believers living in Ukraine (or anywhere else) are Russians, even if they are legally citizens of Ukraine. The Ukrainian Orthodox Church is “attacking” and attempting to weaken Russia by luring believers down another path; similarly, Volodymyr Zelensky is “attacking” Russia by convincing these spiritually Russian people that they are truly Ukrainian. Even worse, their efforts seem to be working, as the Ukrainian people seem more interested in being part of the European Union and NATO than being reintegrated into a greater Russian superstate. In this twisted mindset, Zelensky is a devil-like figure, tempting and luring good Russians into the decadent ways of the West.

This is how Putin can convince himself that he and his country were attacked first, and that Zelensky and the Ukrainian government are the moral equivalent of the Nazis who invaded Russia. It is nutty nonsense, of course. But it illuminates that Putin sees himself as a saintly, heroic, messiah-like figure, smiting evil enemies and preserving all that is good and holy. Putin no doubt believes that with the soul of svyataya Rus’ at stake, all methods and tactics are justified — cluster bombs, thermobaric weapons, firing shells at nuclear power plants. In Putin’s mind, he is on the holiest of crusades, and cannot stop until he has achieved his objective.

*In the book, it is spelled “Kiev,” but because “Kiev ”is the Russian spelling and “Kyiv” is the Ukrainian spelling, I’m using Kyiv — just to irritate the Russians.

Politics & Policy

Is the Decision in the Thomas Jefferson Case a Good Omen?

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In Coalition for Thomas Jefferson School for Science and Technology v. Fairfax County School Board, the judge ruled that the district’s change to the admissions policy at the school (color-blind and very demanding) simply to achieve racial balancing was illegal.

This is like the Battle of the Marne in World War I. The invaders figured they could sweep right across America with their “equity” gibberish, but were just stopped in their tracks.

Attorney Louis Bonham reflects on the decision in this Minding the Campus essay. His conclusion is uplifting:

“If the Supreme Court overturns Grutter/Fisher and reaffirms that the law is colorblind, will university administrators persist in ignoring the law in favor of preserving the woke narrative of the faculty lounge? Probably, and they will cite suits against their institutions as just another example of the ‘systemic racism’ in society. But in the case of state employees (such as UT’s Jay Hartzell), the clear nature of the law will keep them from enjoying their usual qualified immunity and open them up to being held personally liable for directing and approving such unlawful behavior. Hopefully, future litigants will use this tactic to make administrators bear an economic cost for their lawless virtue signaling.”

National Security & Defense

We Can’t Afford a $1 Trillion Defense Budget

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Soldiers from the U.S. Army’s 82nd Airborne Division walk out at dusk to a transport plane bound for Europe at Fort Bragg, N.C., February 14, 2022. (Jonathan Drake/Reuters)

In a column on the main site, Rich makes the case for a $1 trillion defense budget. Without getting into the debate on the merits of significantly increasing our military expenditures (or the national-security case for and against doing so), I just want to take a moment to comment on the fiscal reality. And that reality is that we cannot afford it.

When the Reagan-era defense buildup began in 1981, debt as a share of the economy was 25 percent. Now it’s four times that amount — or about 100 percent — meaning that our public debt is roughly equal to a year of economic output. That’s a level not seen since World War II. Only the difference is, once the emergency of World War II was over, the debt receded for decades. Currently, we are just in the early stages of the massive entitlement crisis, in which a rising retirement-age population and exploding health costs are putting us on an unprecedented — and unsustainable — fiscal course. And this is the status quo, before entertaining any conversations about defense spending.

Increasing defense spending to $1 trillion would add hundreds of billions of dollars to our annual obligations. Adjusted for the traditional ten-year budget window, we’d be talking about trillions of dollars — or something of the magnitude of President Biden’s original $3.5 trillion version of Build Back Better.

There are only three ways to accommodate the sort of spending Rich proposes. One would be to simply issue more debt, adding it on to the unsustainable mountain of obligations we’ve been accruing. Another would be to raise taxes by a staggering amount, which would have a destructive impact on the economy. And another way would be to drastically reduce current spending levels. While the latter option would be my preferred choice of the three, it would not make the super-charged defense spending cost-free. That’s because if we were really in a position to cut spending by trillions of dollars, we should be using it help tackle our debt problem rather than engage in new spending projects.

On top of all of these practical implications, there is also the political one. If conservatives get behind the idea of massive hikes in the military budget, it gives them a lot less credibility in arguing against the massive social spending being proposed on the left.

Rich makes a sobering case that the world is a dangerous place and getting more dangerous for the U.S., of course. But this is the position we find ourselves in after decades of fiscal mismanagement by both parties. I see no signs that the current Republican Party has any interest in fiscal responsibility. So we need to see a dramatic course correction on that front and actual improvement in our fiscal picture before proposing trillions of dollars in new spending, regardless of the cause.

Politics & Policy

Poll: Youngkin More Popular Than Biden in Virginia

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Then-Virginia Republican gubernatorial nominee Glenn Youngkin speaks during his election night party at a hotel in Chantilly, Va., November 3, 2021. (Elizabeth Frantz
/Reuters)

A new poll from Roanoke College shows that recently elected Republican governor Glenn Youngkin is more popular than President Joe Biden in the state.

The survey was conducted between February 7 and February 16 — well before the conflict broke out in Ukraine, it should be noted — by Roanoke College’s Institute for Policy and Opinion Research, surveying 605 Virginia residents. It has a 4.8 percent margin of error.

According to the results, 50 percent of Virginians say they approve of the job Youngkin is doing thus far as governor, compared to 41 percent who disapprove. Biden, meanwhile, has the approval of just 41 percent of Virginia residents, while 53 percent say they disapprove of the job he’s done. This is the lowest approval rating Roanoke College has measured for Biden in Virginia since he took office.

Forty-six percent of respondents have a favorable view of Youngkin, compared with 41 percent who said they have a favorable view of outgoing Democratic governor Ralph Northam. Biden’s favorability rating in Virginia, meanwhile, is underwater by nearly ten points.

When it comes to the Covid-19 pandemic, 51 percent of Virginians said they approve of the job Youngkin is doing, while 44 percent disapprove. Fifty-two percent of respondents said they disagree with Youngkin’s executive order allowing parents to decide whether their kids should wear masks in school, while 36 percent agreed with it. The poll did not ask respondents about the state law enacted shortly thereafter codifying the executive order.

Most Virginians (51 percent) agree with Youngkin’s removal of the state-employee Covid-19 vaccine mandate, while 46 percent disagree.

While some progressives have predicted that there would be a backlash in Virginia to Youngkin’s immediate moves to fulfill his promises regarding Covid restrictions, that doesn’t seem to have come about. Instead, this poll suggests that, in essence, Virginians who voted for him are satisfied with what he’s done, and those who didn’t remain unhappy that he won.

Editor’s note: This post has been updated since its initial publication to reflect that 51 percent of Virginians approve of Youngkin’s handling of Covid. 

Education

A Strong Argument in Favor of Studying the Classics

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We hear over and over from “woke” professors that contemporary Americans have nothing to learn from books written by dead white males. Such books merely perpetuate white hegemony, or so we are told.

One scholar who disagrees with that is Roosevelt Montas. His book Rescuing Socrates argues that reading the classics was of inestimable value to him, and in today’s Martin Center article, Professor Matthew Stewart of Boston University reviews it.

Stewart writes, “Most importantly, a teenaged Montás rescued a volume of Plato from a sidewalk garbage heap — a Harvard Classic whose beauty as a physical object is also noted — and read it with the openness and curiosity that consistently shine through in the author. ‘There I stood before a trove of precious books. . . . In ways I could not have understood, before me was the treasure I had come to America to find.’”

How much did that find matter to Montas? Eventually he would become a professor at Columbia University, serving for ten years as director of its esteemed Center for the Core Curriculum.

But people such as Montas aren’t supposed to read and enjoy great books, say the leftists, intent as they are on tearing down Western civilization. To that, Stewart has a reply: “Those who wish to impose a color bar or an identity politics litmus test on such authors are answered respectfully but firmly by Montás. He writes that even as a student, he ‘quickly came to resent expectations about who I was supposed to be, what I was supposed to like, what political views I was supposed to hold, what student groups I was supposed to join, what classes and topics I was supposed to be interested in, what identity I was supposed to need affirmed.’”

I suppose the woke will dismiss Montas as not “authentically” a person of color.

Stewart concludes, “Here is the very model of intellectual dialogue: Freud speaking to Montás and Montás considering thoughtfully and speaking back — a demonstration of the fact that the value of liberal arts education is to be found in the experience itself rather than in bean-counter terms such as ‘learning outcomes’ or starting salaries.”

World

Moral Questions

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A portrait of Boris Nemtsov, the murdered Russian opposition leader, carred in a march in Moscow, March 1, 2015 (Maxim Shemetov/Reuters)

In Impromptus today, I lead with Phil Mickelson and the Saudi regime. The great golfer played footsie with the Saudis, who are funding a new golf league. The world came down on Phil’s head. Some of the comers-down, no doubt, were upset that Phil told the truth about the Saudis — even as he was playing footsie with them. An interesting case. I also discuss American energy, the meaning of conservatism, our national fear of quiet — must music blare everywhere? — and other things.

My latest Q&A is with Bill Browder — here. Browder is the financier who became a campaigner for justice. I wrote about him in 2018, here. Bill is the driving force behind Magnitsky acts — those laws that allow governments to sanction individual human-rights abusers, rather than whole peoples. The laws are named after Sergei Magnitsky, Bill’s lawyer, who was tortured to death in a Russian prison.

When the U.S. Congress passed the American Magnitsky Act in 2012, Boris Nemtsov was sitting in the gallery. At the time, Nemtsov was the leader of the Russian opposition to Putin, and he would be murdered three years later, within sight of the Kremlin. Sitting in the gallery, in 2012, he remarked, “This is the most pro-Russian law ever enacted by a foreign government.” Congress had furnished a valuable tool against the brutes ruling Russia.

Bill Browder has risked his life to take on Putin. He is an extraordinary man who has done a great good thing in the world. For years, he has tried to alert the West to the dangers posed by Putin. For years, he has tried to get the world to hold Putin to account. Many are at last waking up (even as Ukrainians are being bombed). Some people never will.

Last week, I wrote about a delicate question: the relation between Putin’s assault on Ukraine and the artistic world. Some Russian artists are having their contracts canceled in the West. Some are being asked to denounce the assault, to keep their contracts. I will write more about this question in the future. For now, I want to report one thing.

Last night, Daniil Trifonov, the Russian pianist, played a recital in Carnegie Hall. Before the recital began, the hall’s director, Sir Clive Gillinson, came out to give a brief speech. He emphasized the difference between Russians artists who are outspoken and unapologetic supporters of Putin and Russian artists in general. Yes, this is crucial.

In my view, presenting organizations ought to go case by case. Guilt by national association is low. Also, the desire to take a moral stand is understandable. These times, more than most, call for discretion, sympathy, and good sense.

All for now.

Regulatory Policy

Crypto and Russia

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(solarseven/iStock/Getty Images)

Over at Reason, Liz Wolfe has a good piece on Hillary Clinton’s disappointment in crypto exchanges that won’t cut off Russians entirely. Here is what Clinton said:

“If the Ukrainians with our help can impose enough economic pain on [Russian President Vladimir] Putin and, sadly, the Russian people, combined with providing weapons…that might be the only way…that I can see us getting to a stalemate that might save the Ukrainian people from even greater tragedy,” said Clinton, referring to the broad-based sanctions imposed by Western governments on Russian financial institutions and state-owned companies.

Clinton added, “I was disappointed to see that some of the so-called crypto exchanges, not all of them, but some of them are refusing to end transactions with Russia for some philosophy of libertarianism or whatever,” later in the segment. “Everybody…should do as much as possible to isolate Russian economic activity right now.”

I have little to add from what Wolfe wrote. Go read her piece here. Yes, one feature of crypto is precisely that it transcends national borders and thereby provides a possible route for those who want to escape their government’s actions against them. It also provides an escape for people against the economic consequences — such as a collapsing domestic currency — that arise, for example, because of sanctions imposed by foreign governments. In my mind, that’s a good thing. Let’s remember that not every Russian using crypto is complicit in Putin’s attack on Ukraine. We should be careful to not lump ordinary Russians in with their ‘leader.’

We can, of course, debate whether in the case of Russia today the existence of cryptos will contribute positively or negatively to a speedy end to Putin’s vile invasion of Ukraine. But no one, including Mrs. Clinton, can know the answer.

I worry that Clinton’s thinking is widespread among government officials who will use this as an excuse to heavily regulate crypto exchanges (which is easier than regulating users). It’s not as if they aren’t pouring a lot of energy into doing just that already. Governments don’t like escape routes, as we have seen with their disgusting attempts to destroy tax competition. In the U.S., the latest such attempt is the implementation of a global minimum tax.

If indeed governments — deciding not to let this crisis go to waste — hinder cryptos as to damage the competition they potentially create, the easiest way is to crack down on exchanges since it is easier to go after these platforms than after the users themselves. Going back to the tax-competition analogy, the European Union, when it was trying to impose its EU Savings Tax Directive, was going after foreign banks and their lower-tax governments to force them to share the investment information of their national taxpayers abroad.

Unfortunately, we can’t fully count on most exchanges fighting to protect their consumers, as we have seen when the government has gone after other platforms to get to their users to prevent them from doing things they disapprove of or collect more taxes. These platforms or intermediaries often give up and throw their users/customers under the bus in hopes of saving themselves or preventing worse policies from the political overlords (the image of Facebook, Twitter, and other tech companies appearing before Congress and promising to do better comes to mind here). Such cravenness is naïve, of course, because if such tactics work in the first place, government officials won’t stop until they ultimately control everything.

Fiscal Policy

There Is Still Plenty of Money Left from Past Covid-Relief Bills

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President Joe Biden delivers his State of the Union address to a joint session of Congress at the U.S. Capitol in Washington, D.C., March 1, 2022. (Saul Loeb/Pool via Reuters)

During the SOTU address, President Biden listed many of the policies he wanted to implement, including many that were blocked in the Senate when Build Back Better failed to gain any traction. It wasn’t lost on most people, including Senator Joe Manchin. When asked by reporters about whether spending $1.5 trillion to $2 trillion would lower costs and cool inflation, he said, “I’ve never found out that you can lower costs by spending more.”

He is not buying it. Me neither.

That reminded me to check how much of the money from the CARES Act and the ARP still hadn’t been distributed, but should be in 2022. According to the Committee for a Responsible Federal Budget, there is about $740 billion of unspent/committed legislative stimulus funds. Here is a breakdown of some of these ($4 billion or more):

$200b for Covid health spending, $106b for state recovery aid, $104b for tax credits, $52b for stimulus checks, $39b for unemployment benefits, $29.4b for Medicaid funds increase, $26b for rental assistance, $20.6b for disaster-relief fund, $12.7b for economic-injury loans, $10b for capital projects fund (jobs program), $9.7b for compensation to farmers, $9.2b for foreign affairs, $9b for homeowners assistance, $7.8b for national defense, $7b for child-care subsidies, $6.1b for food stamps (SNAP), $5b for education funds, $4.6b for airport aid grants, and $4b for supply-chain funding.

Here is an idea: Maybe we should spend that cash, get inflation under control, and start to balance our books before we start talking about spending more money.

Sports

Has Lia Thomas No Shame?

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Lia Thomas of University of Pennsylvania celebrates with teammates after winning the 400-yard freestyle team relay at the Women’s Ivy League Swimming and Diving Championships at Harvard University in Cambridge, Mass., February 19, 2022. (Paul Rutherford-USA TODAY Sports)

Lia Thomas, the male swimmer currently dominating female Ivy League swimming, is utterly shameless. And so is Robert Sanchez, the writer who profiled Thomas in an exclusive interview for Sports Illustrated. Sanchez writes:

In her first year swimming for the Penn women’s team after three seasons competing against men, Thomas throttled her competition. She set pool, school and Ivy League records en route to becoming the nation’s most powerful female collegiate swimmer.

It is true that Thomas “throttled” the competition. But the rest is a lie. Thomas is not “en route to becoming the nation’s most powerful female collegiate swimmer” because Thomas is not actually a female swimmer.

Thomas tells Sanchez, “I want to swim and compete as who I am.” Very well. But athletes should also compete according to what they are — male or female. To ignore this biological distinction is to make a mockery of female sports.

Religion

Why We Need Lent — with Father Peter John Cameron, O.P.

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Yesterday, as you know, was Ash Wednesday, the beginning of the penitential season of Lent. It’s about a lot more than giving up chocolate. It has everything to do with setting people free to not be terrified of death and to see purpose in suffering. (As Xan wrote about yesterday.)

I talked with Dominican priest Father Peter John Cameron, O.P., popular author, preacher, and former editor of Magnificat (a great monthly guide to the spiritual life) yesterday about Lent and why we need it and how it can be lived as a journey of freedom. We tried to be practical, and I hope you and/or people you know find it helpful.

Watch and share it here at your convenience:

And apologies for my small technical problems toward the end. I don’t think it spoiled things too much.

Prayers for all who celebrate Lent, and for all who seek.

Health Care

Clinical Activist Mischief

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Jesse Singal has a great Twitter thread debunking the junk “science” used by transgender activists to justify the unjustifiable in children’s health care.

International

McKinsey & Russia (and China)

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McKinsey & Company logo at Viva Tech in Paris, France, in 2019. (Charles Platiau/Reuters)

There’s an old saying about the need for a long spoon when supping with the Devil. There’s another about rats and a sinking ship.

I can’t think why they have just come to mind.

The Financial Times:

Accenture axed its entire 2,300-person business in Russia on Thursday while McKinsey and Boston Consulting Group moved to suspend all client work there, as the world’s largest professional services groups join western companies’ flight from the country.

Days after Vladimir Putin’s invasion of Ukraine, McKinsey and BCG had said they would not work for Russian government entities but had stopped short of dropping other clients, including state-owned groups.

Without wishing to be impolite, that does seem to have been a rather fine distinction.

McKinsey has now said, the FT reports, that it will “suspend all client work there once its other projects ended.”

To be fair, it is important to note that many of the people who have lost their jobs at Accenture (and, presumably, at McKinsey) will be Russians who have played no role, whether passively or actively, in the horrors now being inflicted on Ukraine. They are just trying to make their way in a country not known for the opportunities it offers (and many, indeed, will doubtless be part of the support staff that any office needs). There were plenty of such people to be found in Moscow and St. Petersburg after the 1998 financial crisis had apparently wrecked their prospects in a nation opening up after the long communist nightmare. It seemed, a Russian friend told me at the time, “like the end of the world.”

And, in the years after Putin was first elected, quite a few of them (at least initially) will probably have supported him, drawn in by his promise of a more disciplined Russia where such a catastrophe could never happen again. I also note that Accenture’s head office is/was in Moscow, for many years a city — like some other major Russian urban centers — where enthusiasm for Putin has long been, shall we say, restrained, and, indeed, where some remarkably brave people have been taking a stand against the invasion of Ukraine.

All that said, I could not help recalling a story I posted about McKinsey in January last year.

It began like this:

McKinsey & Company (“our commitment to making a difference in society is embedded in everything we do”) is one of those firms that like to emphasize how much they support “stakeholder capitalism”:

“Business leaders should embrace the apparent contradiction—of low trust and high expectations—and make the choice to demonstrate that they see their mission as serving not only shareholders but also customers, suppliers, workers, and communities. The common term for this is “stakeholder capitalism” and we think its time has come…”

I also linked to this story from the Moscow Times.

An extract:

The Moscow office of leading U.S. consultancy McKinsey & Company banned its staff from attending an unauthorized protest in the capital in support of Kremlin critic Alexei Navalny on Saturday and warned them against voicing online support, according to an email sent to McKinsey personnel seen by The Moscow Times…

And I quoted from a subsequent story from the same newspaper:

The managing partner of U.S consultancy McKinsey & Company’s Moscow office has messaged his staff “clarifying” an earlier email banning them from attending an unsanctioned protest for jailed Kremlin critic Alexei Navalny.

“Some of you have raised concerns about my email to the office yesterday. I admit that the Firm’s policy was incorrectly reflected in that email,” Vitaly Klintsov wrote on Saturday.

He added a clarifying statement saying, “McKinsey supports its employees’ rights to participate legally and in a personal capacity in civic and political activities across the countries we operate. The recognition of these rights is unqualified…

You can see more in the original post.

Since then, McKinsey’s preaching of the virtues of ESG, stakeholder capitalism, and all the rest of that honeyed, insidious (but profitable) flimflam has continued.

From January 2022:

Purpose and environmental, social, and governance (ESG) issues represent critical chal­lenges for both boards and executive teams. They have become particularly salient since the COVID-19 pandemic, which has forced corporations to scrutinize their responsibilities and role in society….

Nevertheless, McKinsey carried on its work in Russia, advising corporations and other institutions, some of which almost certainly had more than a tangential relationship to the complex networks that underpin the current regime in Moscow.

Food for thought.

Oh yes, McKinsey is also busy at work in a China that is rapidly evolving into a fascist state. NR’s Jack Butler touched on the consultancy’s involvement in that country here. Quite a bit of that business appears to involve advising the country’s state-owned companies (and ultimately there is, in China, no distinction — at least where it counts — between a state-owned company and the state).

As the extent, depth and sophistication of China’s challenge to the U.S. becomes evident, that’s something worth noting.

The same cannot be said for McKinsey’s ESG and stakeholder sermons, confections of interest only to connoisseurs of hypocrisy and corporatist sweet talk.

National Security & Defense

Iran and Its Proxies Are about to Cash In on Ukraine

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Flag in front of Iran’s Foreign Ministry building in Tehran (Morteza Nikoubazl/Reuters)

There is speculation that the Vienna negotiations will conclude with a deal in the next 72 hours. Reza Zandi, an Iranian oil and gas analyst, tweeted:

Russia’s chief negotiator in Vienna, Mikhail Ulyanov, is sending similar signals, saying that steps are being taken to “finalise” the deal:

Iran, which has been given practically every concession from spineless American negotiators, is about to gain the biggest win of all: a market desperate for oil. According to Markets Insider, in response to these hints, oil prices dropped from their highest levels since 2008:

Brent crude, the international benchmark, had been up as much as 6.1% at $119.84 before reversing course. Brent lost 3.1% then pared the decline to 0.5%. West Texas Intermediate crude had been up as much as 5.3% at $116.57, then fell by nearly 4% before paring the intraday loss to 0.4%.

As war rages on after Russia’s invasion of Ukraine, oil prices have exceeded $100 a barrel. With Putin showing no signs of deescalation, oil prices are likely to remain high. This means that Iran is about to inherit, as Mr. Zandi puts it, “golden circumstances” for a reentry into the oil market.

With Vienna negotiations coinciding with Putin’s invasion, some have suggested a deal with Iran as a solution to impeding oil shortages. Ellen Wald from the Atlantic Council suggested that a nuclear deal could help tamp down spiking oil prices:

Of course, there are more important national security issues involved in the relationship with Iran and those must take precedence. However, if the focus is just on the problem of high oil prices, a deal with Iran would help. There has been significant progress in negotiations over the past two weeks, and Iran analysts seem positive that a deal could be reached soon. According to the latest deal under discussion, an agreement would lift sanctions in the second phase of implementation, which could be between one and three months after signing. If this moves forward, Iran potentially could put between 67 million and 87 million barrels of condensate and crude oil that it has in storage on the global market immediately. In fact, Iran is communicating with potential buyers in Korea, a sign that they believe a deal and sanctions relief is possible.

The Islamic Republic is eager to show that it can quickly supply oil. Earlier today (auspicious timing, huh?), Iranian oil minister Javad Owji said that as soon as a deal is struck in Vienna, Iran can achieve “maximum oil production capacity in less than one or two months.” The Islamic Republic currently has approximately 80 million barrels of oil in storage and could produce up to 1.2 million barrels a day. No wonder oil markets are in a frenzy.

But this deal wasn’t meant to shore up the global oil market. This deal was meant to rein in Iran’s nuclear capabilities and its destabilizing behavior (it does neither, by the way). Now, Iran isn’t just getting $8 billion to $10 billion in frozen oil money; it’s scoring a particularly advantageous oil market with which to fund its regional terrorist proxies.

Michael Rubin, a senior fellow at the American Enterprise Institute, told National Review that the Iranian regime “has driven their economy into the ground even before sanctions.” Should sanctions be lifted, “the cash infusion really will allow them to snatch victory from the jaws of defeat.” This is especially true for Iran’s terroristic proxies: “A new deal and end to maximum pressure will throw a lifeline to Hezbollah.” Rubin, who visited Hezbollah’s territory in southern Lebanon last year, observed a major decline in Iran’s favorite proxy, observing that the group “was losing its members in droves as the money dried up.”

As if that wasn’t enough, the Biden administration is allegedly planning to lift all terrorism sanctions on Iran, meaning its state sponsorship of terrorism will be unfettered and internationally approved.

Khamenei, Nasrallah, and company are likely jumping for joy. And they should be: Biden’s negotiators couldn’t have crafted a weaker deal at a worse time if they’d tried.

World

25 Things That Caught My Eye: Religion in Ukraine, Unmasking Children, Senator Casey’s Vote for Abortion Extremism, & More

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People offer accommodation for refugees who arrive at Berlin’s central train station following Russia’s invasion of Ukraine, in Berlin, Germany, March 3, 2022. (Annegret Hilse/Reuters)

1.

2. George Weigel: The religious roots of Ukrainian resistance

Many Western observers have missed the deeply religious dimensions of Ukrainian identity – and Ukrainian resistance to Russian aggression.

 

Continue reading “25 Things That Caught My Eye: Religion in Ukraine, Unmasking Children, Senator Casey’s Vote for Abortion Extremism, & More”

World

Should We Expect Russian Athletes with Family Back in Russia to Criticize Putin?

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Washington Capitals left wing Alex Ovechkin (Geoff Burke/USA Today Sports)

One of the many reasons a responsible leader attempts to prevent war is that once it starts, the leader can control very little of what happens. War stirs anger and rage, often justified; one side’s outrageous attack upon civilians triggers the desire to lash out at any convenient target in the opposition.

The U.S. did not start this war, and is, at least for now, not a participant. But we’re already seeing Americans who want to lash out, and they’re picking awful, illogical targets for their anger.

The vandalism of the Russia House restaurant in Washington, D.C., is a good example of this phenomenon. The high-end Russian-cuisine restaurant is owned by a U.S. company and had been closed for nearly two years because of the pandemic. The owners and staff are not involved with the invasion of Ukraine; they’re not even Russian!

Nor does it do any good to give any grief to Russian hockey players here in North America. Russian athletes didn’t make the decision to invade, and while they have some ability to influence public opinion in Russia, we are not a handful of NHL players away from deposing Vladimir Putin and ending the war.

I can understand if some readers might want to make an exception for Washington Capitals star Alex Ovechkin, a longtime fan and friend of Putin. For what it is worth, this week Ovechkin offered vaguely critical comments, saying “please, no more war.”

But just about every Russian athlete playing outside of Russia has family back in the country, and Ovechkin is no exception — his wife and young children still live in Russia, 90 minutes from Moscow. I would prefer to see Ovechkin come out and offer a full-throated denunciation of Putin and the invasion, but it is easy to see why he would hesitate.

Film & TV

Oppenheimer: Christopher Nolan’s ‘Last Stand for Intelligent Films’?

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Director Christopher Nolan sits in a nearly empty AMC theatre in Burbank, Calif., March 15, 2021. (Mario Anzuoni/Reuters)

Production has just begun on Oppenheimer, director Christopher Nolan’s next film. It will be a biopic of J. Robert Oppenheimer (portrayed by Cillian Murphy), the Manhattan Project scientist considered one of the “fathers” of the atomic bomb.

Nolan’s commitment to the theatrical-viewing experience led him nobly to insist on the theatrical release of Tenet, his last movie, in September 2020, when many movie theaters were still closed nationwide. (Unfortunately, the movie wasn’t very good.)  For Oppenheimer, Nolan has parted ways with Warner Bros., his longtime studio partner, in part because he was disappointed with its decision to release its 2021 film slate on HBO Max simultaneously with theatrical release. From his new studio, Universal, he has secured a $100 million budget and a promise for an exclusive theatrical-release window.

So Nolan is committed to the moviegoing experience, and very much against the flight to streaming. And while he is a brand unto himself, one of the few directors able to achieve commercial and critical success consistently with original ideas, will he be able to revive filmgoing for the more discerning (adult) viewer? Movies can still make money in theaters; see, e.g.,  the millions earned by the Marvel fan-service fantasia Spider-Man: No Way Home. But that was meant for younger audiences. What about the typical viewer of a historical biopic?

Spectator World books editor Alexander Larman is skeptical:

The era of the grown-up picture seems to be over. If Oppenheimer is a hit, then it may yet postpone its death throes for a few years. But it increasingly feels as if Nolan, master filmmaker though he undoubtedly is, has placed himself in an impossible position — to be the savior of an entire industry. The only heroes in this situation are the ones, Batman-like, who wear capes.

Oppenheimer famously declared that “Now I am become death, destroyer of worlds” when he saw the first detonation of a nuclear weapon on July 16, 1945. As Nolan prepares to release his new film seventy-eight years later, he can only wonder whether his actions will be the salvation or destruction of the genre of the adult-oriented drama.

Larman adds that “only a churl would not wish him well.” Indeed. I am perhaps a bit more optimistic about the survival of moviegoing, though certainly a lot will be riding on Nolan’s film. And I intend to see it in a theater — assuming theaters still exist in 2023. Kudos to Nolan for his continuing willingness to take risks with his work, and for giving people like me a reason to keep going to the movies instead of staying on our couches.

The Constitutional Law Professor Who Endorsed the Deplatforming of Ilya Shapiro

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Ilya Shapiro at the 2016 CPAC conference. (Gage Skidmore)

On Tuesday, the libertarian-conservative constitutional-law scholar Ilya Shapiro was shouted down by student activists at the University of California, Hastings College of the Law. Shapiro, who has been embroiled in a far-reaching controversy over a series of tweets criticizing the use of racial preferences in Supreme Court nominations, was scheduled to deliver a lecture on campus about the recent Supreme Court vacancy. The event, which was organized by the school chapter of the Federalist Society months in advance, was set to feature a debate between Shapiro and Professor Rory Little, a progressive member of the UC Hastings Law faculty.

That debate

PC Culture

Mark Joseph Stern Applauds the Suppression of Speech by Means of Screaming Mobs

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Ilya Shapiro speaks about constitutional law in 2014. (The Cato Institute/via YouTube)

Ilya Shapiro, still under suspension from his position at Georgetown Law because of the campus cancel-culture mob there, went to speak at the University of California’s Hastings College of the Law on Tuesday. He was prevented from speaking by a screeching, anti-speech mob that howled him down for 45 minutes. This is the brownshirt mindset at work: People one disagrees with should be forcibly prevented from presenting their side of the story, even and perhaps especially on a university campus. Speech should be met, not with more speech, but with brute force. It is an attitude that is not just illiberal but wholly inappropriate coming from people who aspire to be members of the bar. It is not legitimate political discourse but mob rule and the handmaiden of riot and oppression.

Nobody did more to summon up angry mobs against Shapiro than Mark Joseph Stern of Slate, who knowingly, falsely attributed to Shapiro “overt and nauseating racism, which has been a matter of public record for some time.” Stern claimed, knowing that it was false and defamatory of Shapiro’s professional reputation and would incite precisely this sort of reaction, that “to Shapiro, the nomination of any woman of color is inherently suspect. . . . He cannot accept that a woman of color deserves to sit on SCOTUS. His assessment of nominees is contaminated by his own racism.” Shapiro has, as Stern doubtless knows, previously and repeatedly touted Janice Rogers Brown, who is African American, as a good candidate to serve on the Supreme Court (see here in 2009 and here in 2016). Stern claimed the contrary, knowing it to be false, with calculated malice. Yet Stern has claimed that he bears no responsibility whatsoever for his own campaign of character assassination.

Now that he has successfully summoned an illiberal mob to shout down speech, how does Stern react? Left-wing writer Jay Willis shared video of the mob of protesters yelling and pounding their desks to prevent Shapiro from being heard by the people who came to see him and commented, “this f***ing rules” (apologies for the profanity contained in the tweet below). Stern responded with a raising-hands applause emoji:

Stern has dropped the mask. He is in favor of shouting down speakers. Never let him claim again that he is against that sort of thing, or complain if it should ever happen to him.

Law & the Courts

What Ketanji Brown Jackson Told Ted Cruz about a ‘Living Constitution’

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Ketanji Brown Jackson testifies before a Senate Judiciary Committee hearing on Capitol Hill in Washington, D.C., April 28, 2021. (Kevin Lamarque/Reuters)

My latest article in the magazine looks at Ketanji Brown Jackson’s record. One thing that should be a focus of attention at her Supreme Court hearings before the Senate Judiciary Committee, beginning March 21, is what she told Ted Cruz when she came before the committee last April. Cruz asked if she believed in a “living Constitution,” a well-known divide in constitutional law. Jackson responded by pleading her lack of experience with constitutional questions:

I have not had any cases that have re­quired me to develop a view on con­stitutional interpretation of text in the way that the Supreme Court has to do and has to have thought about the tools of interpretation. I am aware that the Supreme Court, at least with respect to certain provisions of the Constitution that it already interpreted, has looked at history and is focused on the original meaning of the text, say, in the Second Amendment . . . context in the Heller case. I just have not had any opportunity to do that. I have worked with those kinds of materials when I was in private practice. . . .

I believe that the Constitution is an enduring document. . . . It has, . . . the Supreme Court has said, a fixed mean­ing, that we’re to look to the original words in the Constitution and . . . as lower-court judges . . . interpret pro­visions the way in which the Supreme Court does, and they look at the text and look at the original meaning. And so if I ever had one of those cases, that is how I would approach the task.

You can watch that exchange here, starting at 2:57 of the video:

In a written clarification, she cau­tioned that, “As a sitting federal judge, I am bound by the methods of consti­tutional interpretation that the Supreme Court has adopted, and I have a duty not to opine on the Supreme Court’s chosen methodology or suggest that I would undertake to interpret the text of the Constitution in any manner other than as the Supreme Court has directed.” Thus, she gave herself wiggle room to take a different approach if she should be on the Supreme Court. Questioning of Jackson should pin her down on this:

  • Does she still lack the experience with constitutional law to answer ques­tions about the interpretation of the Constitution? She has not written any opinions in the intervening year to suggest otherwise.
  • Would she, as a Supreme Court justice, look at history and the original meaning of the text and treat it as having a fixed meaning tied to the original words? Or did she promise to do that as a circuit judge only because she would be bound by a higher court?
Politics & Policy

Biden’s Abortion Non-judgmentalism

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President Joe Biden delivers his State of the Union address to a joint session of Congress at the U.S. Capitol in Washington, D.C., March 1, 2022. (Jim Lo Scalzo/Pool via Reuters)

A reporter on the South Lawn asked President Biden a rather pointed question yesterday about his support for abortion: “Why do you support abortion as a Catholic, defying church teaching?”

“I’ll tell you what, I don’t want to get into a debate with you on theology, but you know . . . well anyway,” Biden said.

When the reporter made a second attempt, Biden replied, “I’m not going to make a judgment for other people.”

Throughout his long career, Biden has attempted just about every excuse in the book to explain his choice to support legal, elective abortion while also presenting himself for communion as a practicing member of the Catholic Church, which denounces abortion in no uncertain terms as a grave moral evil.

Declining to “make a judgment for other people” is something of a new one, though it’s a variation on a classic defense of abortion used by those who call themselves “personally pro-life” or who claim the moniker “pro-choice” as opposed to “pro-abortion.”

Other versions of this line include, “I would never have an abortion, but I won’t make that decision for others” and “If you don’t like abortions, don’t have one.”

But as we’re all willing to acknowledge when it comes to moral evils other than abortion, this line of thinking doesn’t get you very far when it comes to debates over the law. The reporter, presumably, was not asking the president to pass personal judgment on women who have obtained abortions; he was asking, yet again, how Biden squares the circle of proclaiming his Catholic faith while backing unlimited legal abortion.

Moreover, every law must necessarily make a judgment of some kind about what is right and what isn’t — or, at the very least, about what is needed keep a society running in a smooth and orderly fashion. Just as it would make little sense to demur on a question about anti-slavery laws or traffic signals by refusing to “make a judgment for other people,” it makes little sense for Biden to hide behind non-judgmentalism when it comes to killing unborn human beings, a practice abhorred by the church he claims.

Politics & Policy

‘Sen. Casey, Democrats Abandon Pro-Life Roots’

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Sen. Bob Casey (D., Penn.) speaks at a news conference flanked by other Democratic senators on Capitol Hill in Washington, D.C., January 23, 2020. (Mary F. Calvert/Reuters)

In an op-ed for the Pittsburgh Post-Gazette, Maureen Ferguson took Democratic Pennsylvania senator Bob Casey Jr. to task for his vote this past Monday in favor of the Women’s Health Protection Act, calling it “another chapter in the sad, parallel descent of [Casey] from a principled defender of the unborn to a believer in abortion as a sacred right.”

As I noted on NRO earlier this week, Casey’s vote wasn’t especially surprising — nearly every Senate Democrat who voted, other than West Virginia senator Joe Manchin, backed the pro-abortion legislation — but it was especially disappointing considering that he continues to portray himself as a pro-lifer.

Ferguson contrasts Casey Jr.’s defection on abortion with his stalwart pro-life father, Bob Casey Sr., the late two-term governor of Pennsylvania:

A generation ago, another leader stood up to the abortion industry and his own party because, to him, unborn children were one more vulnerable group who deserved Democrats’ protection. His name was Bob Casey Sr., and he became a national hero when, as Pennsylvania’s governor, he fought Planned Parenthood all the way to the Supreme Court to defend the innocent from violence. The decision in Planned Parenthood v. Casey upheld Pennsylvania’s pro-life laws.

Bob Casey Jr. first ran for office as a pro-life Democrat, too, and was elected to the U.S. Senate largely on his father’s good name. That legacy is proud and noble — but it has become inconvenient at glitzy fundraisers and on Twitter. And so Mr. Casey, like his party’s leaders, has abandoned that proud, inclusive legacy and traded it in for cultural intolerance and ideological extremism. Mr. Casey is now a full-fledged member of Team Planned Parenthood.

Her op-ed offers a key insight into why Democrats insist on backing extreme legislation such as the WHPA, even though it’s unpopular even with their own voters: “Despite the actual problems facing their traditional working-class base, cultural extremism like third-trimester abortion-on-demand is what Democratic elites really care about today.”

The Women’s Health Protection Act, which would go so far as to block state pro-life laws across the country, is a case in point.

White House

My Three-Point Plan to Fix the State of the Union

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Vice President Harris and Speaker Pelosi exchange glances as President Biden speaks during his State of the Union address at the Capitol in Washington, D.C., March 1, 2022. (Saul Loeb/Reuters)

The State of the Union is terrible.

Since the Constitution mandates that presidents “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such measures as he shall judge necessary and expedient,” we can’t abolish our atrocious SOTU tradition. I’d prefer we return to the standard, pre-Woodrow Wilson custom of a president simply sending a written report to Congress, but a) that’s unfortunately unrealistic in our TV-and-Internet visual age and b) no one (probably not even Congress) would read it.

But Americans hate the State of the Union speech. What’s more is that, since we hate it, we ignore it. It’s entirely useless, provides no enduring popularity boost to a president, and there is no evidence that it advances any administration’s preferred policies.

So let’s fix it. Here’s my advice to whichever future president wants to actually get something useful out of this embarrassment.

Step 1: Turn the State of the Union Speech into an Actual Speech

The State of the Union should be no more than 30 minutes long, and the speech should be a real piece of political rhetoric about the one big thing that a president’s administration wants to get done that year. We’re Americans. Our brains have been addled by Twitter, and most of us probably have a screaming toddler wreaking havoc in the house. We don’t have the time or attention span to listen to your 15-part laundry-list of a speech about every last initiative or task force your administration plans to launch this year.

The Gettysburg Address was 268 words long. Winston Churchill’s “Blood, Toil, Tears, and Sweat” speech lasted less than ten minutes from start to finish.

If some speech writer is telling you that your one hour and 15 minute speech is inspired rhetoric, it’s not.

If the secretary of health and human services is telling you that the American people are going to care about her task force on new pharmaceutical safety measures, they won’t.

If a senator is demanding one line that endorses his pet project, just say No.

Brevity, Mr. President, is the soul of wit. Make your speech about the one big thing you want to do that year. Keep it to a digestible, Ted Talk-adjacent length. And write a good speech. This takes discipline. Have some discipline!

Step 2: Tell Congress to Sit Down and Stop Embarrassing Themselves

Everyone hates Congress. It’s almost an American tradition. But people really hate the State of the Union speech for the ridiculous, faux-enthusiastic standing ovations after every third sentence. And, if you’re the president, it hurts your speech! It breaks your momentum. Yes, it’s theater, but it’s terrible theater.

Mr. President, when you begin your speech, tell the Congress to hold their applause to the end. In fact, use that line! The American people will love it. They’ll thank you for it. You will be a hero, and people might actually decide to watch your speech.

Step 3: Establish the New Tradition of ‘President’s Questions’ in the Senate

Okay, well how are you going to get the news out that the National Oceanic and Atmospheric Administration designated six new areas as critical habitat for killer-whale populations off the coasts of Oregon and Washington? How will your administration announce that the Fish and Wildlife Service restored the Migratory Bird Treaty Act’s authority over businesses that have caused incidental deaths of migratory birds?

If you’re not putting this in your State of the Union, how will the public ever know about your administration’s (minor) achievements?

Remember, Mr. President, you must be disciplined. No one cares about this stuff in the SOTU speech. It gets ignored anyway. If a speech falls in the woods, does anyone hear it?

You could have your press secretary — your Jen Psaki — go tell the press about it. But no normal person hears or cares about what Jen Psaki says either.

Here’s my idea: Once a month, the president should go down to the Senate and take 30 minutes worth of questions from senators of both parties. Yes, I’m advocating that you steal the House of Commons’s Prime Minister’s Questions tradition wholesale.

Senators from your party can toss you softballs that allow you to tout your administration’s task forces and initiatives. Since the president himself is announcing it, it will get a little more attention than if your no-name press secretary talks about it at a press conference that no one watches.

Sure, senators from the opposition party can send the high cheese across the plate, but that gives you a chance to do a little political sparring to try to get a soundbite on the evening news and gin up your base.

Doing this in the Senate rather than the House will theoretically make it less of a clown show, you’ll be fulfilling your constitutional duty (remember, nothing in the Constitution says that the SOTU report needs to be a yearly speech), and, since incumbent presidents are notoriously lackluster during presidential debates, you’ll be getting a little bit of real-world debating practice in before your reelection campaign.

Who knows? Maybe this new tradition will even return the Senate to its roots as the “world’s greatest deliberative body.” (Don’t laugh.)

So that’s the three-step plan to fix the State of the Union speech. Whichever president takes these steps will earn the eternal thanks of the American people. Is there a president willing to go for it?

World

Two Cheers for Normal

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The masks are off, people are traveling again, there’s Russian nuclear blackmail, and a prominent Illinois politician has been indicted on 22 counts of federal racketeering charges. Things really are back to normal.

Politics & Policy

Today in Capital Matters: USPS and Medicaid Reform

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Chris Edwards of the Cato Institute explains why the House’s postal-reform bill fails to make the changes the U.S. Postal Service needs:

Private companies facing falling demand cut costs and improve efficiencies, but Congress limits the ability of the USPS to do likewise. The House bill relieves the USPS of more than $50 billion in worker retirement health costs at taxpayer expense, but it doesn’t trim the excessive pay and benefits of its unionized workforce.

The House bill requires the USPS to deliver mail to every address in the nation six days a week, but that is wasteful and unneeded because there are fewer letters, advertising brochures, and periodicals in your mailbox these days, and of the ones that still do come, few are time-sensitive. Congress has also prevented the USPS from closing nearly any of its 31,000 locations, even though thousands of them serve only a handful of customers per day. . . .

Ross Marchand of the Taxpayers Protection Alliance on why the federal government should let states reform Medicaid:

Policy-makers can steer clear of wasteful spending and bureaucratization by jettisoning the complicated structure of Medicaid and giving program dollars directly to low-income families. States such as Arkansas have already implemented this approach, recognizing that individually purchased private insurance is far superior to government insurance. Under this system, doctors can treat vulnerable patients without worrying about Medicaid not approving claims in full or clawing back already-paid claims. Other states such as Texas take a more middle-of-the-road approach, using Medicaid dollars for a stabilization fund to directly reimburse the claims of the uninsured instead of going through the federal billing process.

Politics & Policy

Isn’t the Great Reset ‘Merely an Attempt to Address the Weaknesses of Capitalism’?

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Authoritarians are good at concocting benign-sounding phrases that mask their desire to impose control on everyone else. One that is very current is “the Great Reset,” which supposedly will adjust the free-market order to make it more fair, more green, more desirable.

Don’t believe it. In this piece for the Independent Institute, Michael Rectenwald argues that the Great Reset would not be benign. He writes, “The Great Reset ushers in a bewildering economic amalgam, what I’ve called ‘corporate socialism’[25] and ‘capitalism with Chinese characteristics,’[26] or what Giorgio Agamben later called ‘communist capitalism.’[27] Schwab and company euphemistically call this system ‘stakeholder capitalism.’”

In sum, it would mean that there would be very little room left for purely private economic activity. The elitists and their interest group allies would have the power to prohibit anything they didn’t like.

Arguably the “stakeholder capitalism” notion is the most dangerous. As Rectenwald writes, “Unsurprisingly, stakeholder capitalism has been seen as a new approach to achieving socialism, even by socialists.[36]

He concludes that the Great Reset is doomed to fail and I agree, but along the way it would inflict enormous economic losses and wipe out much of what remains of American freedom.