Magazine April 30, 2012, Issue

The Week

(Roman Genn)

‐Okay, now can we see his Harvard Law transcript?

‐ Even before Rick Santorum dropped out of the primary, Mitt Romney, President Obama, and political journalists were all acting as though the general-election campaign had begun. (Newt Gingrich remains in the primaries, to unclear purpose.) Romney is a slight underdog in that race, but he has started it well by contrasting his vision of an “opportunity society” with the “government-centered society” Obama is working to create. His campaign will have to resist falling for media distractions — chief among them, at the moment, the “gender gap.” Republicans almost always do better among men than women, and vice versa for Democrats. (John Kerry carried female voters in 2004.) Rather than try to craft some distinctive message in a vain attempt to appeal to women on the basis of their sex, Romney needs to improve his standing with voters across the board. Obama’s record should make that feasible.

‐ President Obama’s version of government efficiency turns out to be the misrepresentation of two budgets in one speech. He claimed that his own proposal would put something he calls “annual domestic spending” at the lowest level, as a percentage of the economy, since the Eisenhower years. He turns out to be using a term of art of his own invention, one that excludes the largest domestic programs. Paul Ryan’s proposal, on Obama’s telling, would leave senior citizens picking up an ever higher share of medical expenses — something it is specifically designed to avoid doing. Republicans, he warns, are “social Darwinists.” Never mind that Representative Ryan has argued, explicitly and repeatedly, that the point of his reforms to anti-poverty programs is to help the poor rise from dependency rather than to see them — well, what? Perish? That would seem to be Obama’s implication. News reports say that the Obama campaign is having trouble coming up with a slogan. It does, however, seem to have a motto: Leave no calumny behind.

‐ President Obama has reiterated his call for a tax hike based on the so-called Buffett Rule, which relies on an oft-repeated and oft-debunked falsehood: that wealthy Americans pay lower tax rates than members of the middle class. Families earning $40,000 to $50,000 pay an effective federal income-tax rate of about 3.2 percent, while Americans with incomes of $1 million a year or more pay on average nearly ten times that, around 30 percent; about 10 percent of the very wealthy pay 35 percent or more, and another 10 percent pay 24 percent or less. It is this last group that Democrats are targeting. Because leaders of both parties have long desired to encourage savings — the lifeblood of our economy and the surest path to family prosperity — long-term investments are taxed at a preferential rate (usually 15 percent), as a result of which retirees and professional investors who make most or all of their income from capital gains rather than from salaries and bonuses have a lower effective tax rate. Their numbers are small, but they are high-profile targets of Democratic class-envy rhetoric, which is what Obama’s Buffett Rule speech was really about — even the president’s most enthusiastic supporters admit that the proposal has no chance of making it through Congress. A serious tax-reform plan would be a welcome development, but President Obama has only cheap stunts to offer.

‐ If major enterprises — presidential campaigns, Hollywood studios, Peloponnesian wars — can be wrecked by dueling egos, how could a limping left-wing cable network survive both Al Gore, co-founder, and Keith Olbermann, celebrity hire? The gig had lasted only a year when the break came and the lawsuits flew: Olbermann wouldn’t show up for work . . . no, Current couldn’t keep the lights on in the studio . . . Olbermann’s replacement is former New York governor Eliot Spitzer (what, was Anthony Weiner unavailable?). Current TV may be dropped by Time Warner. As for Olbermann, it is yet another confirmation of Heraclitus (“Character is fate”) that a man of real abilities, however strident — forget his opinions — should bounce from one job to another. Where next? Public access in Vermont? Short-wave radio in Nicaragua? Wherever, it won’t be for long.

#page#‐ A disappointing employment report for March set off the usual debates: “The recovery is again stalling” vs. “Don’t overread one month’s data”; “Unemployment looks even worse when you notice the shrinking labor force” vs. “An aging population is bound to see such shrinkage.” A few points, however, cannot be gainsaid. This has been the longest stretch of unemployment above 8 percent since the Great Depression. When people are out of work for a long time, they lose valuable skills and become demoralized. The losses ramify for decades. Debate will continue about how to address this problem, but let no one doubt that it is a social crisis.

‐ Finally, some clarity on the Trayvon Martin case — no, not about what happened in Sanford, Fla., but about what got misreported by the media. NBC admitted that the Today show grossly elided a clip of George Zimmerman’s call to the Sanford police. Here is the full transcript, with the excision in brackets. “Z: This guy looks like he’s up to no good, [or he’s on drugs or something. It’s raining, and he’s just walking around, looking about. Police: Okay, is this guy, is he white, black, or Hispanic? Z:] He looks black.” So an answer to a dispatcher’s question became a malicious racial judgment. NBC fired a producer, but is making only cagey statements, evidently fearing a lawsuit. Elsewhere on the tape, some journalists have heard “f***ing coons” (more racist malice). But new analysis of the scratchy tape yields “f***ing punks” as a possibility. Or is it “goons”? Or “cold” (on a rainy winter night)? The media wanted a tale of armed bigotry run amok. But we should want justice, which means an investigation that unfolds off cable and not at its speed. A young man is dead; let us find out how and why.

‐ In the wake of Martin’s death, many commentators have called on states to repeal their “Stand Your Ground” laws. These laws eliminate the “duty to retreat” when attacked, allowing crime victims to meet force with force — lethal force if they reasonably fear death or serious injury. Stand Your Ground is a reasonable policy, and despite some initial speculation to the contrary, it probably has no bearing on the Martin case. Zimmerman says that Martin attacked him without provocation, then knocked him down and beat him. If this is true, Zimmerman had no ability to retreat — and thus would have had no duty to retreat even before Stand Your Ground. If something else happened to spark the physical confrontation and Zimmerman was the aggressor, his behavior was likely unlawful — a fact that removes him from the protection of Stand Your Ground. Whatever happened, a “duty to retreat” means that when one person attacks another, he saddles his victim with a legal obligation not to fight back. The Martin case does not make that policy any less unreasonable.

‐ It is an article of faith among Democrats that there is no voting fraud in the United States, and that Republican efforts to prevent such fraud — even the mildest of efforts, such as requiring valid identification for voters — are nothing less than the resurrection of Jim Crow. Documentarian-prankster James O’Keefe has performed yet another public service by demonstrating exactly how easy fraudulent voting is: An O’Keefe associate received a go-ahead to cast a ballot in the voting district of Attorney General Eric Holder — in the name of Attorney General Eric Holder. There are many things one cannot do without valid identification: buy a beer, cash a check, travel on an airplane, drive a car, etc. As our friends at PJ Media point out, one cannot visit Eric Holder in his office at the Justice Department without a valid photo ID. O’Keefe’s latest prank demonstrates that the liberal argument about voter fraud is fraudulent itself.

#page#‐ Senator Dick Durbin, an Illinois Democrat, had the bad taste to imply, in response to a question about the tornadoes that had just ravaged Texas, that they occurred because an insufficient number of Americans had followed his lead in driving a hybrid car. Perhaps he is unfamiliar with the fact that Texas sits on the southern end of what has been known for a century or more as “Tornado Alley,” and that twisters have been a regular feature of life on the Great Plains since time immemorial. (So ingrained are tornadoes in the Lone Star imagination that there is a famous Tejano band called the “Texas Tornados,” a scattering of Texas sports teams called the “Tornados,” a famous concert series called the “Tornado Jam,” etc.) But let us engage in a little make-believe and pretend that Texas tornadoes are in fact a direct result of insufficient “investment” in alternative energy. The storms did about $300 million worth of damage, with no loss of life. Which is to say, the economic damage resulting from them is a fraction of the economic damage done by the Obama administration in just one of its solar-power schemes.

‐ President Obama has nominated Dartmouth president and global-health advocate Jim Yong Kim to the World Bank presidency, a de facto American prerogative. Kim is an envelope-pushing choice. For one, the medical doctor and social anthropologist lacks extensive economic training (nominees typically come from the world of finance), but more important, he does not seem to agree with the World Bank’s mission. Editor of a book called “Dying for Growth,” Kim has spent his career suggesting that the promotion of economic growth is not a good thing for the poor. The World Bank presumes that it is, and the Third World’s growing prosperity appears to vindicate that view. The countries that have finally prospered under the Bank’s policies have largely endorsed the African Union’s candidate, a Nigerian female economist — and so have the Financial Times and The Economist. It is still unlikely that Obama’s nominee will fail, but it would be a rich irony for multiculturalism to defeat our president’s postmodern pick.

‐ The Export-Import Bank is a subsidized outfit that promotes U.S. exporters, and like all forms of industrial policy it is vulnerable to a simple argument: If the transactions it promotes would have happened without government support, it is wasteful; if they would not have happened without government support, it is also wasteful. The Washington Post editorializes that although there is no economic rationale for the bank, we should preserve it because “everyone else does it.” It would be better for the global economy if all countries were to give up their export subsidies at once. But taxpayers should not have to suffer until that nirvana.

‐ The official “vision” of the General Services Administration, the agency responsible for managing federal real estate and procuring supplies for federal offices, is a “government that works ever better for the American people.” Administrators at the GSA evidently thought that fulfilling this vision required the American people to fund a conference for 300 government employees in Las Vegas (the location was chosen to match the theme of “A Showcase of World-Class Talent”) costing more than $800,000 and featuring a clown, a mind reader, a $75,000 bicycle-building teamwork exercise, and commemorative coins, according to a recently released inspector general’s report documenting the lavish spending in 2010. The revelations, as well as the subsequent leaking of musical videos produced by employees and showcased at the conference (one of which is a high-tempo number about “going green” because “POTUS wants a press event, a project he can show”), have proved embarrassing for President Obama, who has expressed his “outrage” and caused several top heads to roll at GSA. House Oversight chairman Darrell Issa (R., Calif.) has announced a probe of this and past conferences, which will no doubt uncover similar waste and abuse. Not to worry, though, a GSA spokesman has promised that henceforth “employees will be required to take mandatory training in conference planning.”

#page#Goliath and David

When I first had the idea to write my book Liberal Fascism, I thought I might write it entirely about economics.

The inspiration came from the CEO of the globe-spanning conglomerate Nestlé — a firm so enormous it wouldn’t surprise me if “Nestlé” is actually Swiss French for “Ram Jack Corporation,” or maybe “Skynet.” I was in Switzerland on the sort of junket I naïvely thought I’d soon be going on a lot more of.

As I listened to the CEO talk about his company’s relationship with the European Union, the UN, various NGOs, and his competitors, it became very clear that he didn’t really care much about free markets. Oh, sure, he liked a little competition for efficiency’s sake among his vendors and suppliers, but basically, he saw Nestlé as bigger than all of that — and apparently, so did the various world leaders he dealt with.

Hardly an earth-shattering insight, I know. But it got me thinking about how feckless big business is when it comes to fighting for free-market principles. It also illuminated how big business really doesn’t mind regulations, if the regulations help them secure market share and prevent other firms from competing.

That’s one of the reasons the health-insurance industry was perfectly fine with being thrown into the briar patch of Obamacare. Thanks to the individual mandate, the law protected the big insurance companies by turning them into de facto utilities.

The example I usually use for this sort of thing is the Americans with Disabilities Act. Big corporations didn’t object to it much because they understood that they could pass the costs on to consumers, while the burden of the regulations would prevent smaller, nimbler firms from competing.

When I make this point, people who don’t want to understand its implications look at me funny. “You mean big business likes . . . big government?” Well, here comes NPR to help me make the point. Their reporter Adam Davidson recently did a piece on the Jewish-food manufacturer Manischewitz — a/k/a Big Matzo.

Manischewitz follows incredibly complex rules to guarantee that their matzo (the unleavened bread my people eat around Passover and often, for soup, crumble and mold into soggy spheres with the texture of balled wet toilet paper) is kosher. Squads of rabbis scour the plant, brimming with tsuris (anxiety) over every detail. Indeed, a single violation of kashrut (kosher law) by an employee is punished with immediate termination because the costs of cleaning and restarting the whole process are exorbitant.

Now the regulations in question are rabbinical and theological, not governmental (as the folks at Hebrew National say, “We answer to a higher authority”). But the upshot is the same.

Complying with the rules of kashrut is a burdensome, extremely expensive process requiring special equipment and imposing high labor costs, but it also keeps Manischewitz in business.

Alain Bankier, the co-owner of the company, tells Davidson that the costs of the matzo line “are huge barriers to entry that no businessperson would really start thinking that they could get around, without a huge capital investment. They’d want to buy our company before [trying to compete] — you know, that’s the only way it could make economic sense.”

Or as Davidson summarizes, “rather than being a big, difficult challenge, the owners of Manischewitz say all these rules are a near guarantee that they will never have a lot of competition.”

As new business start-ups are at a 30-year low, and the president pours more and more regulations on big businesses that are doing fantastically well, it’d be nice if someone reminded Barack Obama of this small bit of wisdom from Hebrews.

#page#‐ The U.S. government has found a way to lose money even while making money. Specifically, it costs the Treasury 2.4 cents to make a penny (the metal content, mostly zinc, accounts for about half a cent of this). And why does it bother? For most people, pennies are not worth the hassle of carrying them around; if you drop one, the only reason to pick it up is to avoid littering. Beggars angrily toss them away, and with “a penny for your thoughts” tantamount to an insult and “pennies from heaven” sounding like a Biblical plague, is there any reason to keep minting them? The Canadians have decided that there isn’t, so they will cease production of pennies next year. This is one worthwhile Canadian initiative.

‐ News quickly spread that Wisconsin governor Scott Walker had repealed the state’s “equal pay law.” What Walker had actually repealed was the Equal Pay Enforcement Act, a 2009 law that allowed sex-discrimination victims to file their cases in Wisconsin circuit courts — after they’d already won before an administrative-law judge. The circuit courts were directed to award compensatory and punitive damages of up to $300,000, whereas administrative-law judges simply make accusers “whole.” Of course, even before 2009, accusers seeking punitive damages could sue in federal court, or they could file a complaint with the federal Equal Employment Opportunity Commission (which negotiates with employers, and sometimes files lawsuits). What’s more, the statistics that the 2009 law’s defenders bandied about — such as that women make only 77 cents for every dollar that men do, and that Wisconsin rose in the “gender parity” rankings in the year following the law’s passage — do not hold up to scrutiny: The 77-cent number fails to take account of differences between men and women, such as that women are more likely to leave the work force after the birth of a child, and states’ “gender parity” numbers (which are calculated basically the same way) are incredibly volatile. The Equal Pay Enforcement Act was unnecessary and deserved to be repealed.

‐ Marion Barry has spent his adult life in District of Columbia politics: as mayor (four terms) and as a city councilman. The Democratic party never tires of nominating him. After his latest victory in a city-council election, he celebrated by saying, “We got to do something about these Asians coming in, opening up business — these little dirty shops. And they ought to go, understand that right now. But we need African-American businesspeople to be able to take their places too.” What’s dirty, and ought to go, is Barry’s corrupt and racialist politics.

‐ What is Israel going to do about the Iranian nuclear program, and how, and when? Foreign Policy, a serious journal, has published an article confidently professing to have insider knowledge on this subject. A senior and of course anonymous official in Washington is quoted as saying, “The Israelis have bought an airfield and the airfield is called Azerbaijan.” Diplomats and military-intelligence officers, also unnamed, are said to concur. It’s plausible. Iran suppresses the nationalism of its Azeri minority while Azerbaijan stokes it up, and the resentment between these neighbors is mutual. Azerbaijan is the one Muslim country with which Israel has had lengthy and consistently friendly ties. Israeli planes taking off from Azerbaijani airfields would be hundreds of miles closer to their targets. Is the Obama administration so determined to avert an Israeli strike on Iranian nuclear facilities that it even prepared to leak potential operational options? Having Israel’s back, then, has a distinctly ambiguous meaning.

‐ The Cuban dictatorship did pretty well out of Pope Benedict’s visit to that tortured island. Cuba’s democrats and human-rights activists — most of them Catholic, of course — are heartbroken, befuddled, and angry. The pope met with no members of the opposition. The Vatican explained that the dictatorship made this impossible. Democrats said, rightly, that the pope could have insisted. He saw not only the Castro who is nominally in charge, Raúl, but the Castro who is still supremely in charge, Fidel. This meeting was “very cordial,” said the Vatican. The pope made no mention of the many victims of the Castros. People strained to see, and longed to see, criticism of the regime in what the pope said. (A sentence in a Reuters report began, “In a possible dig at Marxism . . .”) The pope very clearly, however, denounced U.S. policy toward Cuba. Before his visit, the dictatorship rounded up hundreds of democrats, to limit their troublemaking. During the visit, state security sent a text message: “As soon as the pope leaves, we are going to disappear you all.” After the visit, the state made good, as old women were beaten up and parents were dragged off to dungeons while their children screamed. Many such episodes are documented. In short, the pope’s visit sent a message to the dictatorship, however unintended: “You can get away with it.” They have gotten away with it for more than 60 years now, ever since young Catholics, being murdered by the Communists, shouted, “Viva Cristo Rey!”

#page#‐ George Galloway is the first politician to be elected to the British parliament by transforming himself from hard-core Leftist into Islamist fellow traveler. It is revenge of a sort for a very revengeful and quarrelsome character. Formerly a Labour member of parliament, he had been expelled in the days of a critical Tony Blair and gone on to found the so-called Respect party. Devotion to Arab dictators and Iranian clerics, to the cause of Palestine and the destruction of Israel, is everything Respect stands for. A by-election in the city of Bradford gave him his chance to exploit this record and follow up on his ambitions. Rock-solid Labour for years, the constituency has a probable majority of Pakistani immigrants, if they are properly head-counted. Galloway campaigned as a pseudo-Muslim, criticizing his Labour opponent for being a bad Muslim who drank alcohol. He won an astounding majority that showed Muslims had voted for him nearly unanimously. Respect is the party of an exclusive religious faith, and nobody so far has been able to decide whether this is the temporary achievement of a mendacious loudmouth or a portent for the future.

‐ Britain continued its slow transformation into the land of surveillance, “hate speech” policing, and mob rule. First, British citizen Liam Stacey was sentenced to 56 days in prison for posting (abhorrent) racist comments about a soccer player on Twitter. The judge at Stacey’s trial told him that he had “no choice” but to put him in jail, given the scale of the public’s outcry. A few days later, another fan was targeted for having committed a similar offense, with Durham County police launching an investigation after a public complaint. These developments are unsurprising. The British have passed a series of laws over the past 20 years that prohibit free Britons from causing anyone else “alarm or distress” and place the determination of what constitutes offense in the hands of the “victim.” There is, naturally, no way of consistently applying such laws: The Internet is too big to police and, besides, distress is in the mind of the beholder. In the two Twitter cases, there will be little disagreement that what was written was utterly obnoxious, but this is beside the point. The law cannot substitute for the discretion of individuals and private institutions, and becomes dangerous when it tries.

‐ In May 1990, the Burmese dictatorship did something shocking: They held free elections. The National League for Democracy won in a landslide. The dictatorship simply ignored the elections. One leader of the NLD was Aung San Suu Kyi. She is the daughter of the nation, in a way: Her father, Aung San, was Burma’s independence hero. He was assassinated when she was two. For most of the last 25 years, Aung San Suu Kyi has been under house arrest. She won the Nobel Peace Prize in 1991. The dictatorship would have let her go to collect it, but they would not have let her back in. And she preferred to stand her ground, even under house arrest. On April 1, 2012, the dictatorship again allowed free elections. Again the National League for Democracy won in a landslide. Aung San Suu Kyi herself was elected to parliament. The dictatorship seems doomed, but doom can take a long while to play out. Aung San Suu Kyi is one of the most admired people in the world, and rightly so: a living symbol of democracy, self-sacrifice, and bravery.

‐ Anyone who has read John Derbyshire in our pages knows he’s a deeply literate, funny, and incisive writer. Every one of his “Straggler” columns has been a little gem. He can also be maddening, outrageous, cranky, and provocative. His latest provocation, published in a heretofore obscure webzine, lurched from the merely politically incorrect to the nasty and indefensible (urging non-black parents to tell their children to avoid blacks as much as possible, including not helping black motorists in distress). We never would have published it, but it caused a firestorm because it was by a National Review writer. This meant that Derbyshire was effectively using our name to get more oxygen for views with which we would never associate ourselves otherwise. So there had to be a parting of the ways. It’s a free country, and Derbyshire can write whatever he wants, wherever else he wants. But he will not be writing for us any longer.

#page#‐ Evita, the 1970s Andrew Lloyd Webber/Tim Rice musical, has opened for its most recent incarnation on Broadway. We note, for the record, the sardonic narrator, originally named simply “Che” but made into Che Guevara at the insistence of Evita’s first producer, Harold Prince. That’s showbiz: balance a starstruck portrayal of two fascists (Evita and Juan Perón) with a Communist. Some productions show Che in a full guerrilla beard, others dial down his Guevara-ness, which may be even worse: Che? He’s just the guy on my T-shirt. The current Che is the gay pop singer Ricky Martin. What would the actual Guevara have done with him? Called him a “maricón” and murdered him. That’s Communism.

‐ Left-wing British journalist Laurie Penny, who writes without irony about “pop culture and radical politics with a feminist twist” for a variety of outlets, including the New Statesman, The Nation, and the Independent, appears to have been on a long quest to prove herself the world’s silliest person. In early April, she finally achieved it after being saved from oncoming traffic in New York City by a movie star. She promptly took to Twitter and then to Gawker breathlessly to announce “everybody needs to calm down about Ryan Gosling saving me from a speeding car.” Penny described in detail what happened to her, before first severely chiding her readers for having the gall to be interested and then reminding them that it wasn’t important anyway because “there’s a war in the Middle East.” She also took a swipe at Americans, calling them “very strange” and accusing them of “hyperventilating” over salacious celebrity stories, such as the one that she related in over 1,000 words on the Internet’s most gossipy site. Indeed, so morally superior to the rest of the world is Miss Penny that she was entirely incapable of looking the right way on a one-way street (Sixth Avenue) not only because she “is from London” but because she was “thinking about an article [she was] writing about birth control and the importance of reproductive freedom to women’s rights.” One could forgive Gosling were he to wish that he had performed his act of kindness elsewhere.

‐ The 2012 Masters tournament gave the world something to remember. But then, they all do, in their ways. Many players were in contention at this latest tournament, but it was Bubba Watson of Bagdad, Fla., and Louis Oosthuizen of South Africa who wound up in a playoff. Earlier in the day, Oosthuizen had achieved the rarest score in golf: an albatross, or double eagle. He holed out his second shot on the par-5 second. People thought of “The Shot Heard ’round the World,” Gene Sarazen’s double eagle on No. 15 in 1935, the second year of the Masters. The best thing about the experience, Sarazen later said, was that Bobby Jones was watching. (So were Byron Nelson and Walter Hagen.) In 2012, Watson (Bubba, not Tom) won on the second playoff hole, by brilliantly curving a wedge out of the trees. He is an American original, with a homemade swing and a lot of heart. In defeat, Oosthuizen was incredibly gracious, even jolly. A terrific show.

‐ Chinese scientists have recently unearthed a fossil dubbed Yutyrannus huali, or “beautiful feathered tyrant,” which not only had feathers but was a relative of the more familiar Tyrannosaurus rex. This discovery suggests that T. rex may have been feathered too. Some Western researchers are excited as only a paleontologist can be by this discovery. Others are dubious, suggesting that the Chinese fossil grew feathers because it lived in a cold climate, while T. rex, on the balmy west coast of what is now America, had no such need — especially since, at nine tons or so (six times the weight of puny Y. huali), it was big enough to generate its own heat. Bitter controversy rages over this question — and don’t even get us started on whether T. rex was a predator or a scavenger.

‐ Mike Wallace, longtime radio and TV reporter, most prominently for CBS’s 60 Minutes, lived to tear you down. With a sandy voice and a face like the tongue of an old shoe, he would probe for any weak spot, and God help you if you had one. Checkbook journalism, hidden cameras, gotcha questions — he used them all. Over the years he interviewed approximately everybody, including Ayatollah Khomeini and Mahmoud Ahmadinejad. (N.B.: Journalism changes things only in free societies.) One unintended side effect of Wallace’s career has been the diffusion of his methods: Interviewees have learned to make their own films of interviews, so as to flag any unfair editing, while ambush techniques have spread beyond the networks to freelancers like James O’Keefe. Greater transparency is the (ever-beckoning) goal. Dead at 93, R.I.P.

#page#THE LAW

Marbury v. Obama

At the presidential inauguration of 1861, when James Buchanan stepped aside for Abraham Lincoln, young Charles Francis Adams Jr., descendant of two presidents himself, thought Buchanan “was undeniably the more presentable.” Appearances can deceive. In 2009, George W. Bush, the Texas gargler, gave way to Barack Obama, cool con-law prof and veteran of the Harvard Law Review. Finally, there would be some intellectual heft in the White House.

It has been embarrassingly absent, though, as Obamacare has gone before the Supreme Court. Early this month the president lectured the Court in a press conference. “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” Leaving aside the question of the strength of the majority — 219 to 212 in the House — Obama seemed not to know that the Supreme Court first overturned a federal law in Marbury v. Madison (1803).

Obama later tried to refine his remarks. One of his former teachers, Professor Laurence Tribe of Harvard Law School, meanwhile rode to the rescue. He explained that his former pupil “didn’t say what he meant” — a defense that is almost as embarrassing as the mistakes. But then he gave the president a suggestion. “I don’t think anything was gained by his making these comments.” In other words: Mum’s the word. That at least was good advice.

Tribe is an intelligent man, and so is Obama, though not as intelligent as everyone said when he took office (Erasmus was not that intelligent). The reason they bobble Obamacare and the courts is that their progressive desire to expand the scope of government drives everything before it; it obliterates historical memory (history is on their side, anyway) and concern for legal detail (the law, properly understood, is on the side of history).

Obama in his initial comments took one swipe, not at the courts, but at “conservative commentators” who, he said, have argued for years that “the biggest problem on the bench was judicial activism or a lack of judicial restraint.” Conservatives have assailed many of the decisions of the modern activist judiciary, and sometimes our critiques have been too sweeping, whether from sheer impatience, or because of a commitment to extreme legal minimalism or Jeffersonian states’ rights. Conservatives rightly deplore judicial activism based on sociology, penumbras formed by emanations, foreign law, or other political or law-faculty fashions. We deplore judicial activism that rewrites the Constitution, or makes the task of judges identical to that of legislators (Dred Scott, Roe v. Wade). When judges rule, and overrule, like Chief Justice Marshall, we like them just fine.


Green Powerball

The Obama administration’s energy policy, as one wag put it, is indeed “all of the above” — and nothing from below. While much of the country is undergoing an oil-and-gas boom thanks to the combination of hydraulic fracturing and horizontal drilling (see Jay Nordlinger’s report from North Dakota on page 33), energy production on federal lands is in decline because the administration is slow-walking the permitting process. Meanwhile, the federal government has diverted many millions of dollars from the pockets of taxpayers into losing positions in dodgy solar-power projects — Solyndra was the most infamous of them, but the case of Solar Trust, another recently bankrupt recipient of federal largesse, promises to give Solyndra’s sorry story a run for our money.

The administration calls these projects “investments,” but ask yourself whether any sane investor would offer $2.1 billion in financing to a firm that has only $10 million in assets — and as much as $100 million in liabilities — as the government did in the case of Solar Trust. (The ailing firm withdrew from the program before the deal was finalized.) That’s like giving a family with no income, $50,000 in illiquid assets, and a mortgage upside down to the tune of $500,000 a Visa card with a $10.5 million credit limit. The depth of the economic thinking here can be summed up by the observation of the city manager in Blythe, Calif., where the Solar Trust project was to have been constructed, that with the federal government behind “what was to have been the world’s largest solar power plant, someone somewhere will buy it and build it.” That “somebody, somewhere,” remains a mysterious party, but taxpayers will not have far to look for the parties on the hook for this fiasco.

State-level Democrats are following the president’s lead: Deval Patrick, the Democratic governor of Massachusetts, is foisting upon the state a wind project that will see consumers paying twice the going rate for electricity, on top of the billions of dollars of subsidies lavished upon the wind industry. New York and other states bordering the Great Lakes have entered into a wind-power compact, making themselves in part reliant upon a power source that simply would not exist without massive government subsidies — and which, because of the fickle nature of wind power, does little or nothing to reduce greenhouse-gas emissions from traditional power sources. Other countries, from Britain to Spain to Canada, are reducing their subsidization of such enterprises (the accounting firm KPMG calculates that every resident of the United Kingdom could save nearly $900 a year if the government would dump green subsidies in favor of clean-burning natural gas) but the Obama administration soldiers on, oblivious to the fundamental facts of economics and thermodynamics.

To top it off, Obama’s EPA has just handed down rules that will in effect ban the construction of new coal-fired power plants and shut down some existing ones, reducing the nation’s generating capacity by 4 percent — an enormous economic loss for a complex modern economy, and a millstone around the neck of U.S. manufacturing and heavy industry. This, too, will do nothing to reduce worldwide carbon emissions: Coal once destined for clean-burning U.S. plants will instead be redirected to relatively dirty power plants in China, providing a de facto subsidy to one of our major economic competitors.

The Obama administration’s energy policy represents an investment in precisely the same way that spending a week’s pay on Powerball tickets represents an investment. It is financial foolishness amplified by wishful thinking. The difference is that with the lottery, somebody wins.

Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”

In This Issue


Politics & Policy

On Judicial Review

It’s a good thing that President Barack Obama was not writing his law-school exams when he attacked judicial review. The administration is reeling from the Supreme Court’s tough questioning of ...
Politics & Policy

Youth Movement

Dayton, Ohio — The first Senate candidate Senator Marco Rubio (R., Fla.) endorsed this year was Ohio’s state treasurer, Josh Mandel. On the day of his endorsement, Rubio explained to ...


Politics & Policy

Big &#%!ing Joker

An August 26, 2008, Politico story began: “During his first full day of solo campaigning, newly minted Democratic vice presidential candidate Joe Biden showed some of the flashes of the ...

Books, Arts & Manners


Politics & Policy


Fiery Defense In the April 2 issue’s “Week” section, you comment that the Chevy Volt had an “annoying habit of bursting into flames.” Two Volts did burst into flames, but both had ...
Politics & Policy

The Week

‐Okay, now can we see his Harvard Law transcript? ‐ Even before Rick Santorum dropped out of the primary, Mitt Romney, President Obama, and political journalists were all acting as though ...

Hunger Strike

I don’t mind Arby’s. It’ll do. The last time I ate there I thought, Hey, I’m not regretting this. Some red sauce, some white sauce, a bun that doesn’t taste ...
The Long View


TO: FROM: RE: Drink? Keith! Darling! I wish I could get together this week. Just totally crazy with everything. But quickly, before I forget, no, we don’t have any plan to do ...
Politics & Policy


  Patience of Dreams A dream arrives with the comforting aura of the mists of morning; a time without shadow or warnings, as I, as horseman, unbridle and release the animal into a broad ...
Happy Warrior

Middle-Class Mick

Midway through a Julie Burchill column in the Guardian bemoaning the Queen’s Diamond Jubilee, I was startled to learn the following: Although fewer than 10 percent of British children attend ...

Most Popular

The League of Morons

Let’s look back at the two and a half years when the greatest country on earth went crazy. What was that all about? How did it happen? How could so much have happened based on so little? Did we learn anything? It’ll take a keenly observant artist to put it all in perspective. Fortunately two artists have ... Read More

The League of Morons

Let’s look back at the two and a half years when the greatest country on earth went crazy. What was that all about? How did it happen? How could so much have happened based on so little? Did we learn anything? It’ll take a keenly observant artist to put it all in perspective. Fortunately two artists have ... Read More

Who Speaks for Whom?

Who among us, in the presence of a man calling himself Charlamagne tha God, would be immune to grandiosity’s temptation? Mr. God hosts a popular radio show and had as a guest Joe Biden, the presumptive and presumptuous Democratic nominee for president in 2020. During the interview, Mr. Biden declared that ... Read More

Who Speaks for Whom?

Who among us, in the presence of a man calling himself Charlamagne tha God, would be immune to grandiosity’s temptation? Mr. God hosts a popular radio show and had as a guest Joe Biden, the presumptive and presumptuous Democratic nominee for president in 2020. During the interview, Mr. Biden declared that ... Read More