No Panaceas

Friday, February 14, 2003
Advise and Dissent: Here’s what the Constitution says about Senate confirmation of presidential appointees:

"[The President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

That’s it. As in many other areas the framers wrote rather vague language – “advice and consent” – and left the particulars to future decision makers. Scholars and politicians have parsed and deconstructed the meaning of “advice and consent” since the beginning. But in the end it adds up to exactly what Sen. Sessions (R-AL) stated during the Republicans little preemptive filibuster Wednesday nite. Channeling Gerald Ford’s interpretation of another constitutional conundrum, Sessions basically said that “advice and consent” means “whatever the Senate says it means.”

In practice it has meant that judicial nominees must receive a formal positive action in the form of a majority vote from the Senate. In other words, the Senate’s failure to act on a confirmation is equivalent to a formal negative action where a majority of the senators vote no on confirmation. (Contrast this with the president’s veto. Except under quite specific conditions, if the president fails to take action on a bill – sign or veto – then the bill becomes law. Here’s the constitutional language.)

This might sound like a narrow, rather empty point, but it’s really quite fundamental. In Congress, most especially in the U.S. Senate, it is far easier to obstruct than it is to pass. To paraphrase an old saying, “There are a thousand ways to kill a nominee, but just one way to confirm one.” In the Senate, small groups of senators, and often a single senator, can wreak havoc on a confirmation. The blue-slip rejection, for district and circuit nominees, is just one example. Consequently, throughout its history the Senate has been vulnerable to manipulation by the extremists, those who cannot muster a majority: the far left, the far right, the racists, and the curmudgeons.

While vulnerable, the truth is that over the years Senate norms of deference and reciprocity to each other limited obstruction of district or circuit nominees. When obstruction did occur it was likely for parochial rather than ideological or partisan motives. Likewise once a nominee reached the floor the nominee was virtually assured of confirmation. Over time the old system of deference and reciprocity started to break down in the Senate, and eventually the decision making vacuum was filled, in large part, by ideologically driven partisanship. But the old obstructive weapons were still there just waiting to be exploited.

Thursday, February 13, 2003
There is a proposal before the Nebraska legislature to start paying U of Nebraska football players. It passed once before but was vetoed, this time around it has the support of the governor. Read about it here and here.

Blue-Slipping Away: The U.S. Senate is the most undemocratic democratic institution in any democracy in the world. It’s part of what makes it fun to study. Blue-slips are a great example. From basic civics we know that a judicial nominee requires a majority-vote Senate confirmation to take office. In practice nominees that do receive a vote get well over a simple majority. The problem is getting the vote. The real action occurs earlier, before the full Senate gets to vote on a nominee. When the Senate Judiciary committee prepares to consider a nominee it sends a blue piece of paper – a blue-slip – to the two senators from the nominee’s state. If both senators send the blue slip back with a positive endorsement then usually the nominee will receive a hearing, get passed on to the floor, and then voted onto the bench.

What happens when a senator fails to return a positive blue slip? Before 1995 a single negative blue-slip wounded but usually did not kill a nominee’s confirmation. Two negative blue-slips meant no hearing, let alone a floor vote. Such a system is a vestige of senatorial courtesy, itself a remnant of patronage-based politics. In 1995 the new Republican majority reduced the number of blue-slip rejections needed to block a nominee to one. This move facilitated the mutation of the blue-slip norm from the parochial to the partisan. It was an easy – and private – way for Republicans to block Clinton’s nominees from states that were served by just one Republican senator, such as North Carolina. (Until just recently blue-slip rejections were not made public.) Thus Clinton’s nominations were quietly euthanized at the committee level, and the Republicans avoided the public spectacle of floor fights and the public record of voting. Technically, the Republicans did not reject the Clinton nominees; they just did not get around to confirming them.

Needless to say the Democrats railed against the Republican tactics saying many of things that Republicans right this second are saying about the on-going filibuster against Estrada.

Fast-forward to 2001. George W. Bush is elected president and now the Democrats looked forward to exploiting the new blue-slip rule. Suddenly for the Democrats the one blue-slip rule made a lot of sense, and suddenly for the Republicans the one blue-slip rule looked like an affront to democracy and the Constitution. So the new Judiciary chair, Orrin Hatch (R-UT), announced that he wanted to go back to the old two blue-slip rule. The Democrats exploded in indignation and threatened to filibuster all Bush judicial nominees, a quite a credible threat at the time. Before anything really happened Jeffords (now I-VT) defected and the Democrats took back the Senate. This ended talk of changing the blue-slip rule, until now. With the Republicans back in power Hatch is claiming that he will require two blue-slip rejections to stop a nominee. The Democrats promise procedural war.

So what can we make of all of this? First, I am not a fan of the blue-slip process. To me it is one of the more objectionable weapons in the Senate’s potent arsenal of obstruction. (At least the filibuster requires acquiesce of forty-one senators.) Plus, it enables a particularly noxious, gridlock-inducing brand of partisanship. It is not across the board effective (re: Estrada), but it is often effective and, quite importantly, easy to use, and, maybe more importantly, its use tends to fly under the publics’ radar (in contrast to the filibuster).

Second, both sides are equally hypocritical on this. Both sides contradict themselves for short-term self-interested gain. (Just as they do on any number of other issues such as states’ rights.) That’s politics; it’s the nature of the beast. But let’s not fool ourselves that either side really is standing up for principle here.

Third, we are in a tit-for-tat partisan death spiral. More on this tomorrow.

Wednesday, February 12, 2003
Normally I find Slate's"Explainer" column interesting and educational. But a recent column by Julia Turner dropped the ball rather badly. The article reminds me of the tagline from Absence of Malice: "...everything they said was accurate... But none of it was true."

The style of the piece is typical for Slate (and The New Republic) in its attempt to tear down a conventional wisdom. What's so great about _____? What's so bad about ______?. In this case it's the importance of the D.C. circuit court. In essence the piece asserts that the D.C. court's importance is overrated and, thus, by implication the Miguel Estrada confirmation is less important than some people think.

(By the way, what we are talking about here is the United States Court of Appeals for the District of Columbia Circuit. Colloquially it's the D.C. Circuit, but it's not inaccurate to call it the D.C. Court of Appeals. But...there is another court -- the District of Columbia Court of Appeals [DCCA] -- that handles local jurisdiction appeals for the District. So calling the federal appeals court the D.C. Court of Appeals can cause confusion.)

Turner starts off with a claim, "The real reason most people say the court is so important, it turns out, is that other people have been saying the same thing for years." This is dangeorously close to a classic Begging the Question fallacy. But, I'll be nice and say she has a valid point about pack journalism. Perhaps the pack is wrong. Perhaps, she asserts, the court's reputation is due simply to the fact that it's perceived as a gateway to the Big Show, kind of like the ultimate AAA minor league team. After all, Scalia, Ginsberg, and Thomas all played for the D.C. Circuit first.

Fine. So, show us some evidence or, at least a decent argument, that the D.C. Circuit is less important than we thought. The evidence: More cases are granted cert from the 9th and 2d Circuits. So, in other words, the Supremes' tendency to let D.C. Circuit decisions stand, rather than grant cert and possibly overturn, is a sign of the D.C. circuit's weakness? Ok.

There are different reasons why the Supremes choose to grant or not grant cert. A key one is when two circuits deliver contradictory decisions in the same area of law. Because of its unique jurisdiction the DC Circuit is less likely to be in such a conflict. Plus, some circuits, the 9th most notably, seem more inclined than the DC Circuit to produce decisions at odds with the current Supreme Court's conservative bent. In short, cert numbers say little about a circuit's importance and unfortunately this article says little about the DC Circuit. As a consequence it says little about the relevance (or irrelevance) of the Estrada nomination. More on Estrada later.

Tuesday, February 11, 2003
Yesterday I played around with the idea of the U.S.-Iraqi crisis as a game of Chicken. At first blush this situation might look like Chicken, but it isn’t. In Chicken the worst possible outcome – for both sides equally – occurs when neither car swerves. If we are talking about possible nuclear war – say between the Soviet Union and the U.S. – then Chicken gives you a little bit of analytical leverage. (The doomsday machine scene in Dr. Strangelove gets at this nicely.)

But Iraq does not have nuclear weapons, and it is extremely difficult to imagine the circumstances necessary for Iraq to do any real damage to the U.S. military. Consequently the outcome where neither side swerves – war – is not the worst possible outcome for both sides equally. It is probably the worst possible outcome for Saddam Hussein, but it is not the worst outcome for George W. Bush. We might reconceptualize the game like this:

As before the exact number values are arbitrary but of little relevance. You can just as easily replace the higher to lower numbers with variables defined simply as a>b>c>d. As I’ve modeled it, the best outcome for Bush is to Don’t Swerve while Hussein Swerves. (For Hussein swerving means the golden parachute to exile.) Likewise Hussein prefers to Don’t Swerve while Bush Swerves. (Which means the troops come home and we return to some sort of pre-“Axis of Evil” containment strategy.) So far this looks like Chicken. But the outcome Don’t Swerve/Don’t Swerve is dramatically different than Chicken. For Bush this is the second best outcome while for Hussein it remains the worst outcome. Thus Bush has no incentive to swerve. For him, driving straight ahead will yield one of his two best possible outcomes. Knowing this, the obvious strategy for Hussein is to Swerve into exile.

Which brings us back to the issue of Hussein’s rationality. If the above reflects some small part of reality, then what the heck is Hussein doing? Is he an irrational madman? Perhaps. But perhaps not. To make this point I need to step away from the model a bit. The true strategic situation is a bit different then the game I just described. It’s more complicated, with a few more options for both sides, and a bit more uncertainty. Plus, importantly, decisions do not have to occur simultaneously. Bush and Hussein do not have to swerve at the same time. (I could show some of this with what is known as an extended form game, but I’ll spare you.)

Let’s think about Hussein’s strategic situation. Almost certainly he has some biological and chemical weapons. He may not intend to use them against any targets the U.S. honestly cares about, but he has no chance of convincing the Bush administration of that intent. Coming clean isn’t much of an option. Yet, there is still a chance the U.S. will not attack. Domestic or international pressure might still, just maybe, deter Bush from attacking. So why not wait? Why not wait until there is no chance for a reprieve? Even if the attack does come, it will come with a little warning. Bush will likely announce a hard deadline, much as his father did the first time around. My guess is that Hussein has managed to secret away billions. A golden parachute deal with Saudi Arabia will make retirement that much more comfortable. Of course, if he mistimes his departure…

So, I am not convinced that Hussein is acting all that irrationally. After all this time, despite wars and sanctions, he is still in power. That’s not very indicative of a madman. (I do not see evil as synonymous with mad.) And if he is rational, does that mean he can be deterred? And if he can be deterred then what is the point of a preemptive war?

Monday, February 10, 2003
Lots of people speculate about Saddam Hussein’s rationality. This is usually in the context of weighing the merits of different decision making predictions, many of which assume the relevant actors are rational. Consider, for example, the idea that the U.S. can use deterrence – rather than preemptive war – to prevent Hussein from using biological, chemical, or nuclear weapons against the U.S. or her allies. Deterrence likely fails if the target is irrational; ergo, an irrational Hussein must be removed preemptively. Josh Marshall over at Talking Points Memo touched on this recently.

At the end of the day I don’t think rationality is provable, especially since irrational-seeming behavior is often rational. (Back to this in a moment.) But I thought I’d play around a bit with some very simple (and simplistic) game theory to see where it takes us.

An obvious way to think about the current situation is with the game Chicken. Think of classic car stupidity. The Rebel Without a Cause version works, I suppose, but I prefer to think of it in terms of two idiots racing towards each other on a country road. The first to swerve loses, if neither swerves then, well, it isn’t pretty.

In normal form here is a Chicken game. (You'll have to scroll down. I'm still working out the kinks on importing html.)



Doesn't Swerve

Kyle Swerve











The numbers are arbitrary (what really matters is the ordinal ranking) but these will do. So if Stan does not swerve and Kyle does, then Stan gets 10 and Kyle gets –5. Stan gets to boast of his bravery while Kyle looks like a chicken. If both swerve then each gets –1, Kyle and Stan share the embarrassment. But if neither swerves then splat. Both get the worst possible outcome, -10 payoffs for each (and matching caskets at the funeral).

I’ll spare you the technical blather about equilibria, types of strategies, etc and skip to the punch line. Chicken has an interesting quality. To win you must convince your opponent that you are absolutely positively no-way-in-hell swerving. You are committed. You are a nut. You’re waving the steering wheel out the window saying, “You better swerve because I’m coming through!”

It sounds a bit like President Bush, doesn’t it? He commits massive numbers of troops. He cranks up the rhetoric. He cultivates a “cowboy” image. He puts his domestic (and international) reputation on the line so that if he backs down he will permanently wreck his credibility. In a game of Chicken this behavior makes loads of sense.

And, given such a credible commitment, you might think that a “credible” Saddam Hussein will either: a) try to make his commitment to “not swerving” even more credible; or b) swerve, which realistically means taking a multi-billion dollar golden parachute to exile.

Only, this is not a game of chicken. More on that tomorrow.