No (Political) Experience Required
by George Will

Stiffening their sinews and summoning up their blood, pugnacious liberals and conservatives who relish contemporary Washington’s recurring Armageddons are eager for a summer-long struggle over Barack Obama’s nominee to replace Supreme Court Justice John Paul Stevens. They should pause and ponder how recently and radically the confirmation process has changed.

By 1939, the Supreme Court had been embroiled in political controversy for half a decade. It had declared unconstitutional some important New Deal policies, and FDR had reciprocated by attempting to “pack” the court by enlarging it, which had earned him a rebuke in the 1938 elections. Yet when on Jan. 5, 1939, he nominated Felix Frankfurter to fill a court vacancy, the Harvard law professor sailed through Senate hearings and the confirmation vote in 12 days. It was a voice vote, with no audible dissent.

On March 20, FDR nominated William O. Douglas to fill another vacancy. Although the 40-year-old Douglas had no judicial experience — he was chairman of the Securities and Exchange Commission — and would be the youngest justice in more than a century, he was confirmed 15 days later. No witness testified against him.

Linda Greenhouse of The New York Times notes that when Stevens was nominated in 1975 to fill the first vacancy since the 1973 Roe v. Wade decision, he was asked no question about abortion during his confirmation hearing. He was confirmed 98-0, as was Antonin Scalia in 1986. Things changed the next year, when Ted Kennedy used a demagogic Senate speech to launch a successful liberal crusade against Robert Bork.

As Stevens departs, the eight remaining justices are all products of the Harvard, Yale or Columbia law schools; all are former federal judges. Professor Terri L. Peretti, a Santa Clara University political scientist, notes (in Judicature, Nov.-Dec. 2007) that the court has often included judges with political experience.

The greatest justice, John Marshall, who made the court a nation-shaping force, had been a state legislator and congressman. Between 1789 and 1952, most justices had some legislative or executive political experience. Chief Justice William Howard Taft, a former president, was followed by Charles Evans Hughes, a former New York governor. Hugo Black had been a senator from Alabama. Earl Warren had been California’s governor, which became a problem: Because President Eisenhower, like many others, believed that political thinking sometimes supplanted jurisprudential reasoning in Warren’s decision-making, he sought judicial experience in his remaining four nominees.

In 1971, Richard Nixon nominated the last two justices without such experience, William Rehnquist and Lewis Powell. The last justice with experience in elective politics was Sandra Day O’Connor, who had been an Arizona state legislator before becoming a judge. Bill Clinton seriously considered four prominent politicians for Supreme Court nominations — New York Gov. Mario Cuomo, Secretary of Education and former South Carolina Gov. Richard Riley, Secretary of the Interior and former Arizona Gov. Bruce Babbitt and Senate Majority Leader George Mitchell.

Peretti believes that when, with the 1954 Brown decision, the court began the dismantling of segregation, Warren’s political skills were apparent in the unanimity of the decision as well as the fact that it was “short and non-legalistic” and was “a public appeal” accessible to a broad public rather than “a cogent legal argument whose reasoning lawyers and academics would admire.” But although the court played a crucial role in overturning the South’s social structure, the need for such a dramatic judicial role is rare and there is no visible occasion for it today, so there is slight need to select politically experienced justices.

Conservatives spoiling for a fight should watch their language. The recent decision most dismaying to them was Kelo (2005), wherein the court upheld the constitutionality of a city government using its eminent domain power to seize property for the spurious “public use” of transferring it to wealthier interests who will pay higher taxes to the seizing government. Conservatives wish the court had been less deferential to elected local governments. (Stevens later expressed regret for his part in the Kelo ruling.)

The recent decision most pleasing to conservatives was this year’s Citizens United, wherein the court overturned part of the McCain-Feingold campaign finance law. The four liberal justices deplored the conservatives’ refusal to defer to Congress’ expertise in regulating political speech.

So conservatives should rethink their rhetoric about “judicial activism.” The proper question is: Will the nominee be actively enough engaged in protecting liberty from depredations perpetrated by popular sovereignty?

Mrs. Jellyby, Stuck in the Sixties
by George Will

Secretary of Education Arne Duncan, like many liberals, seems afflicted by Sixties Nostalgia Syndrome, a longing for the high drama and moral clarity of the civil rights era. Speaking in Alabama at Selma’s Edmund Pettus Bridge on the 45th anniversary of the “Bloody Sunday” march, Duncan vowed to unleash on public schools legions of lawyers wielding Title VI of the 1964 Civil Rights Act. They supposedly will rectify what he considers civil rights violations, such as too many white students in high school advanced placement classes.

Duncan said “the civil rights struggle” has become “more complex since the days of Selma.” He seems not to understand that today’s complexities of equity are complex because they are not about “rights.”

He says his rights enforcers — 600 of them, with a $103 million budget — will “remedy discrimination,” such as students being “treated unequally” by policies that have what is called a “disparate impact” on certain groups. For example, Duncan asks: “How can we assure that low-income Latino and African-American students get the same access to a college-prep curriculum, AP classes and college as other students?” But “access” obscures the problem.

The Supreme Court has held that Title VI bans “disparate treatment,” meaning intentional discrimination such as denying access to minorities, not policies that have a “disparate impact” on minorities. No policy denies minority or low-income students “access” to AP classes.

The pertinent lesson of the 1960s is the futility of casting today’s problems of social class, as Duncan does, in the anachronistic categories of the civil rights era. In 1966, the seismic Coleman Report concluded: “Schools are remarkably similar in the way they relate to the achievement of their pupils when the socioeconomic background of the students is taken into account.” (Emphasis added.)

Plainly put, the best predictor of a school’s performance is family performance — qualities of the families from which the students come. Subsequent research suggests that about 90 percent of the differences among the proficiency of schools can be explained by five factors: days absent from school, hours spent watching television, pages read for homework, the quantity and quality of reading matter in the home — and the presence of two parents in the home.

If Duncan is looking for the high SAT scores that correlate with, and often are consequences of, AP courses, he should look for schools where educated parents are intensely involved with their children. The best predictor of SAT scores is family income, which generally correlates with family structure — two parents in the home. Family structure is pertinent to the 9/91 factor — between their births and their 19th birthdays, children spend 9 percent of their time in school and 91 percent elsewhere. For many children, elsewhere is not an intact family.

Government can do next to nothing about family structure, which is why it is pointless for Duncan to suggest that “access” is why “the door to college still does not swing open evenly for everyone.” It will not so swing as long as 71.6 percent of African-American children and 51.3 percent of Latino children are born to unmarried women. The political class flinches from talking about those numbers, preferring to take refuge behind talk about “rights.” But those numbers go far to explain numbers that Duncan does cite: White high school graduates are twice as likely as black or Latino graduates to have taken AP calculus classes. The political system cannot candidly discuss, let alone cope with, the reasons why, for example, there are few if any high-performing inner-city school systems.

Duncan seems to fancy himself an Earl Warren, expanding civil rights. Actually, he resembles Mrs. Jellyby.

While his lawyers seek evidence of displeasing enrollments in AP courses, he is complicit in strangling the scholarship program that enables 1,300 District of Columbia low-income minority students to escape from D.C.’s execrable schools. Like Mrs. Jellyby in Dickens’ “Bleak House,” who was indifferent to her chaotic family while fretting about conditions in distant Borrioboola-Gha, Duncan practices what Dickens called “telescopic philanthropy.” Sensitive about supposed injustices in distant AP classes, Duncan is worse than merely indifferent to children within sight of his office at the foot of Capitol Hill.

No segregationist politician is blocking schoolhouse doors against D.C. children; congressional Democrats are. Until Duncan and the talkative president he serves speak against the congressional Democrats who are strangling D.C.’s Opportunity Scholarship Program, he should spare us the exhibitionism of explaining problems of social class in the Sixties vocabulary of civil rights violations.

Off-The-Cliff, But Catching On
by George Will

You know the foreboding you feel while watching the steamier Greek tragedies, when dynasties are falling and sons are marrying their mothers and everyone is behaving badly and you are thinking: Really, things cannot continue like this.

Washington feels that way on the rare and fleeting occasions when it really thinks about the nation’s looming crisis of public finance. The crisis, which is obvious and inevitable, combines unfulfillable entitlement promises and unsustainable budget deficits. So Washington is succumbing, yet again, to an idee fixe, which is usually, and in this case, scary.

The awful idea is for Congress to divest itself of the core competence that the Constitution vests in it — the power to make the taxing and spending choices that shape the nation. This power would be given to an 18-member panel assigned to solve the budgetary crisis.

Under legislation drafted by Sens. Kent Conrad, D-N.D., and Judd Gregg, R-N.H., and endorsed by 33 other senators, the Bipartisan Task Force for Responsible Fiscal Action would be composed of 16 members of Congress (four each selected by the House speaker and minority leader, and the Senate majority and minority leaders) plus the Treasury secretary and someone the president selects. The panel would propose spending cuts and tax increases to put the government on a glide path to solvency. The menu of proposals would be guaranteed an up-or-down vote — no amendments permitted — in both houses of Congress.

This is patterned on the commissions that were charged with deciding which military bases — more of 300 of them, it turned out — would be closed after the Cold War, a problem deemed too threatening to local sensibilities for Congress to cope with it. The Conrad-Gregg task force is the latest iteration of the “let’s-all-hold-hands-and-jump-off-the-cliff-together” school of government, with this difference: Closing bases is small beer compared to the task force’s sweeping mandate.

There are two objections — each is sufficient — to the task force. One is procedural, the other is substantive.

Regarding procedure, consider a sentence in a Fiscal Times story in The Washington Post on the task force idea, a sentence that seems bland only because of this city’s advanced state of constitutional decadence: “The White House has been talking to Congress to try to craft a proposal that would not wholly relinquish congressional control over major decisions on taxes and spending.” Wholly? The oath of office for representatives and senators does not commit them to partially or occasionally or when convenient “support and defend,” and bear “true faith and allegiance” to, the Constitution and “faithfully discharge the duties” of their offices.

Substantively, the task force would be a means of conscripting Republican participation in huge tax increases. There are precedents. The 1983 Greenspan Commission that “fixed” Social Security permanently (permanence is not what it used to be) involved large and immediate tax increases and small and delayed trims to benefits. The year after the 1990 budget summit, which resulted in President George H.W. Bush’s renunciation of his “no new taxes” pledge, the budget deficit almost doubled.

Were the Conrad-Gregg task force to come to a consensus, it almost certainly would be that Congress must make the supposedly “difficult choice” of spending more of other people’s money. Fortunately, the task force probably would be paralyzed by the requirement that its proposals must be endorsed by at least 14 — 78 percent — of its members. Given the difficulty of getting 60 percent of the Senate to agree on anything important, a 78 percent consensus on raising taxes and cutting entitlements will be extremely elusive.

Year one of the Obama administration was devoted to deliberately exacerbating the fiscal crisis. The gusher of spending, combined with the new multi-trillion-dollar health care entitlement, is half of liberalism’s plan to radically and permanently increase government’s grasp on the nation’s wealth. As a response to the crisis, the task force would produce the other half.

Armies on the march are supposedly no match for an idea, especially a bad one, whose time has come. But what armies cannot defeat, monetary incentives might. So, the Gregg-Conrad legislation should be amended to include this language:

“During the life of this task force, which will perform Congress’ fundamental duties, all senators and representatives will be considered on vacation and will not be paid. If the task force’s recommendations are accepted by Congress, there will be no congressional pay until 2050.”

This would be a Madisonian measure, altering incentives in order to encourage responsibility. Let’s vote.

Could a Wave be Building?
by George Will

Demure Delaware was the first state to ratify the Constitution, but since then has not made many waves. It might, however, be part of a political wave a year from now, thanks to a direct descendent of Benjamin Franklin.

The great man’s great-great-great-great-great grandson, Mike Castle, 70, a nine-term Delaware congressman, will be next year’s Republican nominee for the Senate seat Joe Biden held for 36 years. This and other candidate-recruitment successes make it reasonable for Republicans to hope that in January 2011 the Senate will contain fewer than 60 Democrats.

Biden’s seat is currently occupied by a former Biden staffer who, in service to the ancient notion that public offices should be family patrimonies, will disappear when Biden’s son Beau, 40, runs. He is the state’s attorney general and has just returned from serving in Iraq with his Army National Guard unit. Delaware has not elected a Republican senator since 1994, but Castle, who has never lost a race, has run statewide 12 times: Once for lieutenant governor, twice for governor and nine times for the state’s only congressional seat. In the last four elections he averaged 65 percent of the vote.

In 2010, each party will be defending 19 Senate seats. The high number of 38 reflects the fact that six of today’s 100 serving senators were appointed, not elected — one each from Massachusetts (Ted Kennedy’s replacement), New York (Hillary Clinton’s replacement), Illinois (Barack Obama’s replacement), Colorado (the replacement of Ken Salazar, who became Interior Secretary), Florida (the replacement for Mel Martinez, who quit) and Delaware.

In Colorado, where Democrats have won the last two Senate races, the appointed Democrat, Michael Bennet, faces a primary challenger, Andrew Romanoff, a former speaker of the state House. Annoyed because the governor did not appoint him to replace Salazar, Romanoff spurned the plea of a future Nobel Peace Prize winner that he not challenge Bennet. The Republican nominee might be a former statewide winner — Jane Norton, who was lieutenant governor.

In Illinois, which has not elected a Republican senator since 1998, the front-runner for the Republican nomination is Mark Kirk, a five-term congressman from the Chicago suburbs, where statewide elections often are decided. He annoyed his party by voting for the cap-and-trade legislation, but has sort of semi-apologized.

Connecticut’s Sen. Chris Dodd, seeking a sixth term, has an approval rating of 43 percent and has drawn several serious Republican challengers. Any incumbent with a job approval below 50 percent should worry; Nevada’s Harry Reid’s is below 40.

Three seats held by Republicans are currently in jeopardy — Missouri’s (Kit Bond is retiring), Ohio’s (George Voinovich is retiring) and New Hampshire’s (Judd Gregg is retiring). But Republicans have strong candidates in each state: In Missouri, Rep. Roy Blunt, former House Republican whip; in Ohio, Rob Portman, former congressman, head of the Office of Management and Budget, and trade representative; in New Hampshire, a possible nominee, former state Attorney General Kelly Ayotte, is currently leading her likely Democratic opponent.

Regarding House elections, substantial Republican gains are possible. As analyst Charles Cook notes, 84 House Democrats represent districts that were carried either by George W. Bush in 2004 or John McCain in 2008, and 48 of those districts were carried by both Bush and McCain. These and other uneasy incumbents know that Congress’ job approval is 22 percent.

Much can change, nationally and locally, before Nov. 2, 2010. But perhaps the most politically salient thing is unlikely to change: high unemployment. The Wall Street Journal recently reported that the economy, which has lost 7.2 million jobs since the recession began in December 2007, must create 100,000 a month just to match population growth. Joseph Seneca, a Rutgers economist, estimates that even if job creation were immediately to reach the pace of the 1990s — an average of 2.15 million private-sector jobs were added each year, double the pace of 2001-2007 — the unemployment rate would not fall to 5 percent until 2017.

September’s 9.8 percent unemployment rate was the worst since June 1983. But robust growth began then and just 17 months later Ronald Reagan came within 3,800 Minnesota votes of carrying all 50 states. Reagan, however, was reducing government’s burdens — taxes, regulations — on the economy. Obama is increasing them.

The possibility of Republican gains, especially in the Senate, helps explain why Obama is in such a rush to remake the nation and save the planet. His window of opportunity could be closing.

Have We Got a Deal For You
by George Will

“I,” said the president, who is inordinately fond of the first-person singular pronoun, “want to disabuse people of this notion that somehow we enjoy meddling in the private sector.” He said that in March, when the government already owned 80 percent of AIG, Fannie Mae and Freddie Mac. “When a difficult decision has to be made on matters like where to open a new plant or what type of new car to make, the new GM, not the United States government, will make that decision.” But the government is GM’s largest shareholder, customer, tax collector, regulator, partner in determining employees’ compensation, protector of dealers and pension guarantor. GM’s other large owner, the United Auto Workers, is increasingly a government dependant.

Yet Steve Rattner and Ron Bloom, two of the president’s fixers of Detroit, recently wrote in USA Today that government “will play no role” in running GM. They were not under oath.

“What we are not doing — what I have no interest in doing — is running GM,” says the president who, when not firing GM’s CEO, purging its board of directors and picking new members, is designing new products (imposing fuel economy requirements that will control size, weight, passenger capacity and safety). The president, overcoming his professed reluctance to run GM, resembles the journalist Don Marquis when, after a month on the wagon, he ordered a double martini and exclaimed: “I’ve conquered my goddam willpower.”

Washington mandates that Detroit must build cars for which there is much less demand than Washington demands that there be. Then Washington tries to manufacture demand with a $7,500 tax credit for purchasers of the electric Chevrolet Volt, supposedly GM’s salvation. So, GM is to be saved by a product people will not buy without a cash incentive larger than the income tax paid by 83.4 percent of America’s families.

It is reasonable to assume that GM will become profitable — if you make unreasonable assumptions about annual vehicle sales and GM’s share of the market. Besides, the government that runs Amtrak (which has lost $23 billion, in today’s dollars, just since 1990) vows to make GM efficient.

But one reason Amtrak runs on red ink is that legislators treat it as their toy train set, preventing it from cutting egregiously unprofitable routes. Will Congress passively accept auto plant-closing decisions? Rattner says Washington’s demure vow is: “No plant decisions, no dealer decisions, no color-of-the-car decisions.” He is one-third right. Last week, under the headline “Senators Blast Automakers Over Dealer Closings,” The Washington Post reported, “Because the federal government is slated to own most of General Motors and 8 percent of Chrysler, some of the senators said they have a responsibility, as major shareholders do, to review company decisions.”

The pressure to politicize the economy is spreading. John Sweeney, head of the AFL-CIO, and Gerald McEntee, head of the American Federation of State, County and Municipal Employees — which is government organized as an interest group to lobby itself — have demanded the resignation of two directors of Citigroup. Their premise is that businesses receiving direct government subventions should conform to the wishes of the president’s allies.

GM is adopting new ways to lose money: Responsive to its UAW masters, GM is moving from China to America the production of some components of one Chevrolet model. Says UAW President Ron Gettelfinger, “It should be built here if it’s going to be sold here.” That principle, now successfully asserted, means economic autarky — the end of international trade, and of prosperity.

The government’s $50 billion — so far — acquisition of the shadow of GM will injure, with unfair financial advantages, the surprisingly healthy U.S. auto company, Ford. Of course, the government does not intend that injury, any more than it intended to cause protests in Mexico over the high price of corn tortillas, a result of Washington’s mandate that Americans burn corn (ethanol) in their cars.

Washington’s “rescue” of GM began because GM is “too big to fail,” and bankruptcy is (well, was) “unthinkable.” Big? GM’s market capitalization, $375.8 million on Wednesday, is about the size of California Pizza Kitchen’s ($340 million) — is it too big to fail? — and one-eleventh that of Harley-Davidson ($4.3 billion). Fail? If GM has not already failed, New Coke was a success.

The administration is determined to prop up GM as a jobs program for the UAW and Midwestern states rich in electoral votes. This frenzy will intensify as the administration’s decisions deepen the debacle.

Tincture of Lawlessness
by George Will

Anyone, said T.S. Eliot, could carve a goose, were it not for the bones. And anyone could govern as boldly as their whims decreed, were it not for the skeletal structure that keeps civil society civil — the rule of law. The Obama administration is bold. It also is careless regarding constitutional values and is acquiring a tincture of lawlessness.

In February, California’s Democratic-controlled Legislature, faced with a $42 billion budget deficit, trimmed $74 million (1.4 percent) from one of the state’s fastest growing programs, which provides care for low-income and incapacitated elderly and cost the state $5.42 billion last year. The Los Angeles Times reports that “loose oversight and bureaucratic inertia have allowed fraud to fester.”

But the Service Employees International Union collects nearly $5 million a month from 223,000 caregivers who are members. And the Obama administration has told California that unless the $74 million in cuts are rescinded, it will deny the state $6.8 billion in stimulus money.

Such a federal ukase (the word derives from czarist Russia; how appropriate) to a state legislature is a sign of the administration’s dependency agenda — maximizing the number of people and institutions dependent on the federal government. For the first time, neither sales nor property nor income taxes are the largest source of money for state and local governments. The federal government is.

The SEIU says the cuts violate contracts negotiated with counties. California officials say the state required the contracts to contain clauses allowing pay to be reduced if state funding is.

Anyway, the Obama administration, judging by its cavalier disregard of contracts between Chrysler and some of the lenders it sought money from, thinks contracts are written on water. The administration proposes that Chrysler’s secured creditors get 28 cents per dollar on the $7 billion owed to them, but that the United Auto Workers union get 43 cents per dollar on its $11 billion in claims — and 55 percent of the company. This, even though the secured creditors’ contracts supposedly guaranteed them better standing than the union.

Among Chrysler’s lenders, some servile banks that are now dependent on the administration for capital infusions tugged their forelocks and agreed. Some hedge funds among Chrysler’s lenders who are not dependent were vilified by the president because they dared to resist his demand that they violate their fiduciary duties to their investors, who include individuals and institutional pension funds.

The Economist says the administration has “ridden roughshod over (creditors’) legitimate claims over the (automobile companies’) assets. … Bankruptcies involve dividing a shrunken pie. But not all claims are equal: some lenders provide cheaper funds to firms in return for a more secure claim over the assets should things go wrong. They rank above other stakeholders, including shareholders and employees. This principle is now being trashed.” Tom Lauria, a lawyer representing hedge fund people trashed by the president as the cause of Chrysler’s bankruptcy, asked that his clients’ names not be published for fear of violence threatened in e-mails to them.

The Troubled Assets Relief Program, which has not yet been used for its supposed purpose (to purchase such assets from banks), has been the instrument of the administration’s adventure in the automobile industry. TARP’s $700 billion, like much of the supposed “stimulus” money, is a slush fund the executive branch can use as it pleases. This is as lawless as it would be for Congress to say to the IRS: We need $3.5 trillion to run the government next year, so raise it however you wish — from whomever, at whatever rates you think suitable. Don’t bother us with details.

This is not gross, unambiguous lawlessness of the Nixonian sort — burglaries, abuse of the IRS and FBI, etc. — but it is uncomfortably close to an abuse of power that perhaps gave Nixon ideas: When in 1962 the steel industry raised prices, President Kennedy had a tantrum and his administration leaked rumors that the IRS would conduct audits of steel executives, and sent FBI agents on pre-dawn visits to the homes of journalists who covered the steel industry, ostensibly to further a legitimate investigation.

The Obama administration’s agenda of maximizing dependency involves political favoritism cloaked in the raiment of “economic planning” and “social justice” that somehow produce results superior to what markets produce when freedom allows merit to manifest itself, and incompetence to fail. The administration’s central activity — the political allocation of wealth and opportunity — is not merely susceptible to corruption, it is corruption.

Racing Past the Constitution
by George Will

Rampant redistribution of wealth by government is now the norm. So is this: It inflames government’s natural rapaciousness and subverts the rule of law. This degeneration of governance is illustrated by the Illinois Legislature’s transfer of income from some disfavored riverboat casinos to racetracks.

Illinois has nine licensed riverboat casinos and five horse-racing tracks. In 2006, supposedly to “address the negative impact that riverboat gaming has had” on Illinois horse racing, the Legislature — racing interests made huge contributions to Gov. Rod Blagojevich — mandated a transfer of 3 percent of the gross receipts of the four most profitable casinos, those in the Chicago area, to the state’s horse-racing tracks. This levy, subsequently extended to run until 2011, will confiscate substantially more than $100 million.

What is to prevent legislators from taking revenues from Wal-Mart and giving them to local retailers? Or from chain drugstores to local pharmacies? Not the tattered remnant of the Constitution’s takings clause.

The Fifth Amendment says private property shall not “be taken for public use without just compensation” (emphasis added). Fifty state constitutions also stipulate taking only for public uses. But the Illinois Supreme Court ignored the public use question. Instead, the court said it is “well settled” that the takings clause applies only to government’s exercise of its eminent domain power regarding land, buildings and other tangible or intellectual property — but not money.

Conflicting rulings by state courts demonstrate that that question is chaotically unsettled. That is one reason the U.S. Supreme Court should take the Illinois case and reject the preposterous idea that money is not property within the scope of the takings clause — an idea that licenses legislative confiscations. Another and related reason why the court should take the case is to reconsider its 2005 ruling that rendered the “public purpose” requirement empty.

The careful crafters of the Bill of Rights intended the adjective “public” to restrict government takings to uses directly owned by government or primarily serving the general public, such as roads, bridges or public buildings. In 1954, in a case arising from a disease-ridden section of Washington, D.C., the court broadened the “public use” criterion. It declared constitutional takings for the purpose of combating “blight” that is harmful to the larger community.

In 2005, however, in a 5-4 decision, the court radically attenuated the “public use” restriction on takings, saying that promoting “economic development” is a sufficient public use. The court upheld the New London, Conn., city government’s decision to seize an unblighted middle-class neighborhood for the purpose of turning the land over to private businesses which, being wealthier than the previous owners, would be a richer source of tax revenues. So now government takings need have only some anticipated public benefit, however indirect and derivative, at the end of some chain of causation hypothesized by the government doing the taking and benefiting from it.

In a brief opposing the Illinois Legislature, the American Legislative Exchange Council, an organization of state legislators, makes this argument against “predatory taxation”: Suppose Congress, eager to aid newspapers hurt by competition from new information technologies, decides to take a percentage of the assets of Bill Gates and half a dozen other beneficiaries of those technologies, and give the money to newspapers. Would not this “take and transfer” scheme be unconstitutional? Targeting specific, identifiable persons or entities for unfavorable treatment, and transferring their assets to equally identifiable persons or entities, surely also raises equal protection issues.

Unquestionably a legislature can impose a levy on casinos if the revenues become subject to what the state legislators’ brief calls “allocation via the familiar push and pull of political decision-making.” But Illinois’ confiscation of riverboat revenues is a private-pockets-to-private-pockets transfer, without even laundering the money through the state treasury.

The Supreme Court has held that “one person’s property may not be taken for the benefit of another private person without a justifying public purpose.” But in the aftermath of the court’s ruling in the New London case, the Illinois Legislature merely seeks judicial deference toward its judgment that transferring wealth from casinos to racetracks serves the public purpose of benefiting “farmers, breeders, and fans of horse racing.”

The court’s virtual nullification of the “public use” requirement encourages lawlessness, which will proliferate until the court enunciates the constitutional principle that the takings clause protects money, like other forms of property, against egregious seizures. Enunciating such a principle would be a step toward restoring meaning to the “public purpose” clause.

An Insufficiency of Fear
by George Will

The president, convinced that the only thing America has to fear is an insufficiency of fear, has warned that “disaster” and “catastrophe” are the certain alternatives to swift passage of the stimulus legislation. One marvels at his certitude more than one envies his custody of this adventure.

Certitude of one flavor or another is never entirely out of fashion in Washington. Thirty years ago, some conservatives were certain that their tax cuts would be so stimulative that they would be completely self-financing. Today, some liberals are certain that the spending they favor — on green jobs, infrastructure and everything else — will completely pay for itself. For liberals, “stimulus spending” is a classification that no longer classifies: All spending is, they are certain, necessarily stimulative.

At Yale’s 1962 commencement, President John Kennedy expressed Washington’s recurring confidence in the ability to supplant politics with expertise. As is traditional, Kennedy deplored “traditional labels” and insisted that “differences today” involve not clashes of principles but only “matters of degree.” Kennedy argued that “the practical management of a modern economy” is “basically an administrative or executive problem.” Congress need not intrude. Because policy issues are “sophisticated and technical questions,” demanding “technical answers, not political answers,” laypersons could hardly participate in the debate.

In December 1965, John Maynard Keynes, although 19 years dead, was, as today, enjoying one of his recurring resurrections as vindicator of government management of the economy by manipulating “aggregate demand.” Keynes’ visage was on Time magazine’s cover and the accompanying story said that happy days were here again and here to stay.

President Lyndon Johnson was embarked on building the Great Society, assisted by policymakers who, wrote Time, “have used Keynesian principles” to smooth the moderate business cycles and achieve price stability: “Washington’s economic managers scaled these heights by their adherence to Keynes’ central theme” that a modern economy can operate at “top efficiency” only with government “intervention and influence.” So, “economists have descended in force from their ivory towers and now sit confidently at the elbow of almost every important leader in government and business, where they are increasingly called upon to forecast, plan and decide.” Ten years later, the “misery index” — the unemployment rate plus the inflation rate — was 19.9, heading for 22 percent in 1980.

Today, again, we are told that “politics” has no place in the debate about the tripartite stimulus legislation, which is partly a stimulus, partly liberalism’s agenda of social engineering, and partly the beginning of “remaking” the economy. Gary Wolfram of Hillsdale College notes that the size of the stimulus — the House-Senate compromise bill is $789 billion — is just slightly less than the amount of all U.S. currency in circulation, and is larger than the entire federal budget was until 1983. Yet it is said that in the debate about this encompassing legislation — which concerns what government can and should do, and ultimately what kind of regime America shall have — people should “transcend” (so says Larry Summers, the president’s economic adviser) politics. What, then, would be left for political argument to be about?

It is said that the negligible Republican support for the stimulus legislation means that bipartisanship is dead. But what can “bipartisanship” mean concerning legislation that concerns almost everything?

John McCain probably was eager to return to the Senate as an avatar of bipartisanship, a role he has enjoyed. It is, therefore, a measure of the recklessness of House Democrats that they caused the stimulus debate to revolve around a bill that McCain dismisses as “generational theft.”

The federal government, with its separation of powers and myriad blocking mechanisms, was not made for speed but for safety. This is particularly pertinent today because if $789 billion is spent ineffectively or destructively, government does not get to say “oops” and take a mulligan. Senate Republicans have slowed and altered the course of the “disaster! catastrophe!” stampede. Still, as Anthony Trollope wrote in one of his parliamentary novels, “The best carriage horses are those which can most steadily hold back against the coach as it trundles down the hill.”

Not yet a third of the way through the president’s “first 100 days,” he and we should remember that it was not FDR’s initial burst of activity in 1933 that put the phrase “100 days” into the Western lexicon. It was Napoleon’s frenetic trajectory in 1815 that began with his escape from Elba and ended near the Belgian village of Waterloo.

Toward the Grand Bargain
by George Will

Days before becoming responsible, in the eyes of a public fixated on the presidency, for almost everything, Barack Obama vowed to convene a “fiscal responsibility summit.” It will consider the economy’s long-term problems, one of which is the growing cost of entitlements in an aging nation that is caught in the tightening grip of an iron law of welfare states: Graying means paying.

Presumably the president’s summit will help chart a path toward what has been called a “grand bargain.” This Big Bang will aim to create a new universe of domestic policy by, among other things, making the entitlement menu — particularly Social Security, Medicare and Medicaid, which are more than 40 percent of federal spending — manageable. Obama spoke of his summit a day after the House of Representatives, evidently believing that the nation is so flush that there is no need for restraint, voted to make matters worse by enriching that menu.

By a vote of 289-139, with 40 Republicans joining the majority, the House, in the process of reauthorizing the State Children’s Health Insurance Program, doubled the funding, thereby transforming it through “mission creep.” SCHIP’s purpose, when it was enacted by a Republican-controlled Congress in 1997, was to subsidize state governments as they subsidize health care for families too affluent to be eligible for Medicaid but not affluent enough to afford health insurance. Because any measure acquires momentum when it is identified as for “the children,” SCHIP was said to be for “poor children” or children of “the working poor.”

In 2007, President Bush proposed a $5 billion increase in SCHIP, the House voted a $50 billion increase but receded to the Senate’s proposed $35 billion, which became the definition of moderation. That compromise, which Bush successfully vetoed, at first would have extended SCHIP eligibility to some households with incomes 400 percent of the poverty line ($83,000 for a family of four), and more than $30,000 above the median household income ($50,233). So people with incomes higher than most people’s became eligible for a program supposedly for low-income people. Call that compassionate arithmetic.

The new expansion, which is vengeance for Bush’s veto, is mission gallop: It will make it much easier for some states to extend SCHIP eligibility to children from families earning up to $84,800. Furthermore, to make “poor” an extremely elastic concept, generous “income disregards” are allowed. Families can, depending on their state’s policies, subtract from their income calculation what they spend on rent or mortgage or heating or food or transportation or some combination of these. So children in some families with incomes well over $100,000 will be eligible.

Grace-Marie Turner, a student of health care policies, says this SCHIP expansion is sensible — if your goal is quickly to get as many people on public coverage as possible, and to have children grow up thinking that it is normal for them to get their health insurance from the government. That is the goal.

And this is the Congress with which the president will try to strike a grand bargain. Because of the 22nd Amendment, he may not be president long enough to get a Democratic Congress to agree to the shape of the table at which to bargain.

If he does tackle the problem of the teetering entitlement system, he will do so at an unpropitious moment: Events are making reform more necessary while making it seem less urgent. A nation in which $350 billion was but the first half of the Troubled Asset Relief Program, and in which TARP is distinct from the perhaps $850 billion “stimulus” program, is a nation being taught not to take seriously sums with merely nine digits and two commas. Remember, just 15 months ago Bush vetoed SCHIP because of $30 billion, a sum that, from the TARP bucket, nowadays disappears into the thin air from which much of the almost $1 trillion of stimulus will be conjured.

The theory of a grand bargain is that if every American faction is being nicked simultaneously — if tax increases and benefit cuts (“cuts” understood, perhaps, as disappointing increases) make everyone surly at the same time — there will be unity born of universal grievance, which will morph into a public-spirited consensus. Perhaps. On the other hand, George Kennan, diplomat and historian, said that the unlikelihood of any negotiation reaching an agreement grows by the square of the number of parties involved.

American Czars
by George Will

In 1966, the price of eggs rose to a level that President Lyndon Johnson judged, God knows how, was too high. There were two culprits — supply and demand — and Johnson’s agriculture secretary told him there was not much that could be done. LBJ, however, was a can-do fellow who directed the U.S. surgeon general to dampen demand by warning the nation about the hazards of cholesterol in eggs.

Johnson, the last president with a direct political connection to Franklin Roosevelt, was picked by FDR in 1935 to be Texas director of the New Deal’s National Youth Administration. Two years later, Johnson came to Congress, a rung on the ladder that led to glory as Egg Czar. Today, with Washington experiencing a Roosevelt revival, Johnson’s spirit, too, goes marching on as the federal government permeates the economy with politics.

Or not. In an interview with Business Week, Rep. Barney Frank, the effervescent Massachusetts Democrat who chairs the Financial Services Committee, was asked, concerning the auto industry, “How do you make sure the government doesn’t meddle too deeply in day-to-day operations and bring politics — like a push for green cars — into the equation?” Frank replied: “Oh, well, a push for green cars is very much a part of what we’re involved in. We don’t think that’s politics.” So, when the government, its 10 thumbs stuck deep in the economy, uses its power to compel an industry to pursue the objectives of the political party that controls both of the government’s political branches, that is not politics.

Business Week: “Should GM acquire Chrysler?” Frank: “I’m not competent to say.” Frank’s humility is selective: He obviously thinks he is competent to say what kind of cars should be made.

Business Week: “Does Congress realize how few hybrids have been sold, as it pushes Detroit to make them, and will Congress give consumers greater incentives to buy these cars?” Frank: Those who are “blaming the auto companies forget to blame somebody else — the consumers. In the recorded history of America, no one was ever forced at gunpoint to buy a Hummer. But we do believe that the combination of genuine concern about global warming and energy efficiency means people are now ready to buy these cars.” Consumers are such a disappointment to Congress. But what Congress really believes is that people are not ready to buy those cars at a price that reflects the costs of making them. Why else has it voted tax subsidies for buyers?

Forty years ago, Vietnam was a disaster and the Great Society was a disappointment as Johnson limped back to Texas. Today, there is more Johnsonian confidence in government’s competence than at any time since Johnson’s policies shattered such confidence. The resurgence of confidence began under today’s Texan president.

The 1996 Republican platform said: “The federal government has no constitutional authority to be involved in school curricula. … That is why we will abolish the Department of Education (and) end federal meddling in our schools.” One year ago, the Department of Education announced: “U.S. Secretary of Education Margaret Spellings today honored President Lyndon Baines Johnson in a ceremony officially renaming the U.S. Department of Education Building … as the Lyndon Baines Johnson Department of Education Building.”

The domestic achievement for which George W. Bush will be most remembered, the 2001 No Child Left Behind law, was the seventh reauthorization of LBJ’s 1965 Elementary and Secondary Education Act, which brought the federal government heavily into primary and secondary education. NCLB requires states to define “proficiency” in reading and math, and achieve 100 percent proficiency by 2014.

Frederick M. Hess, director of education policies studies at the American Enterprise Institute, notes that unless the “proficiency” standards are risible, the goal is delusional.

It is ironic, Hess writes, that 50 states establishing divergent standards — the decentralized approach Republicans demanded — have sparked demands for centralization, in the form of national standards, a decade after congressional Republicans opposed President Bill Clinton’s plan for voluntary national standards.

Furthermore, Hess notes, there has been striking dissonance between Republican resistance to race-conscious government policies, and NCLB “requiring states to identify every student by race and then report test scores — and impose sanctions — on that basis.” The Johnsonian attributes of NCLB, which Hess says include “Great Society-style ambition and race-conscious rhetoric,” suggest that the Egg Czar, who also was the first National School Superintendent, would feel right at home in a Washington where he could be Automotive Engineer in Chief.

Same Old New Deal?
by George Will

Early in what became the Great Depression, John Maynard Keynes was asked if anything similar had ever happened. “Yes,” he replied, “it was called the Dark Ages and it lasted 400 years.” It did take 25 years, until November 1954, for the Dow to return to the peak it reached in September 1929. So caution is sensible concerning calls for a new New Deal.

The assumption is that the New Deal vanquished the Depression. Intelligent, informed people differ about why the Depression lasted so long. But people whose recipe for recovery today is another New Deal should remember that America’s biggest industrial collapse occurred in 1937, eight years after the 1929 stock market crash and nearly five years into the New Deal. In 1939, after a decade of frantic federal spending — President Herbert Hoover increased it more than 50 percent between 1929 and the inauguration of Franklin Roosevelt — unemployment was 17.2 percent.

“I say after eight years of this administration we have just as much unemployment as when we started,” lamented Henry Morgenthau, FDR’s Treasury secretary. Unemployment declined when America began selling materials to nations engaged in a war America would soon join.

In “The Forgotten Man: A New History of the Great Depression,” Amity Shlaes of the Council on Foreign Relations and Bloomberg News argues that government policies, beyond the Federal Reserve’s tight money, deepened and prolonged the Depression. The policies included encouraging strong unions and wages higher than lagging productivity justified, on the theory that workers’ spending would be stimulative. Instead, corporate profits — prerequisites for job-creating investments — were excessively drained into labor expenses that left many workers priced out of the market.

In a 2004 paper, Harold L. Cole of UCLA and Lee E. Ohanian of UCLA and the Federal Reserve Bank of Minneapolis argued that the Depression would have ended in 1936, rather than in 1943, were it not for policies that magnified the power of labor and encouraged the cartelization of industries. These policies expressed the New Deal premise that the Depression was caused by excessive competition that first reduced prices and wages, and then employment and consumer demand. In a forthcoming paper, Ohanian argues that “much of the depth of the Depression” is explained by Hoover’s policy — a precursor of the New Deal mentality — of pressuring businesses to keep nominal wages fixed.

Furthermore, Hoover’s 1932 increase in the top income tax rate, from 25 percent to 63 percent, was unhelpful. And FDR’s hyperkinetic New Deal created uncertainties that paralyzed private-sector decision-making. Which sounds familiar.

Bear Stearns? Broker a merger. Lehman Brothers? Death sentence. The $700 billion is for cleaning up toxic assets? Maybe not. Writes Russell Roberts of George Mason University:

“By acting without rhyme or reason, politicians have destroyed the rules of the game. There is no reason to invest, no reason to take risk, no reason to be prudent, no reason to look for buyers if your firm is failing. Everything is up in the air and as a result, the only prudent policy is to wait and see what the government will do next. The frenetic efforts of FDR had the same impact: Net investment was negative through much of the 1930s.”