Politics 09: Fire Reid and Steele.

[Shale]

When I saw rumors start to go around about Marty Lederman going back to OLC in a leadership role, my gut reaction was "yeah, it'd be nice, but they're just setting themselves up to be pissed when it's somebody more centrist." Shows what I know.

[Grefter]

So yeah, I go back to the whole thing, this is a man who is apparently for Big Government?  Setting up and following structures which limit the power of the government doesn't mix with the Republican propaganda.  (The fact that the Republican government in power and Neocons in general fucking fail at small government is of course obvious to anyone that studies political ideologies and backgrounds along with what they actually exhibit in action, but is just a minor aside to the point here).

[NotMiki]

What I was getting at, which I never got around to saying I suppose, is that Obama doesn't believe he needs that level of unilateral power and secrecy to operate.  He believes he can be more effective without the unitary executive baggage of the last administration, even though it's a large step down in the stated power of his office.  Smaller in terms of power; bigger in terms of result.

Think of W. and Obama as sluggers.  W's been doing steroids like crazy and his power at the plate has improved.  Obama thinks he can best W's numbers without the juice.  W will never make the hall of fame even with a home run record.  Obama get's 90% his first year of eligability.

[NotMiki]

Couple of interesting things.  First, more on the OLC choices.

http://www.politico.com/news/stories/0109/17895.html

A few things about this caught my eye.  First:

Their arguments precipitated one of Obama’s most dramatic early acts: flatly repudiating all government legal advice on interrogation issued between September 11, 2001, and January 20, 2009.

This is Obama showing sheer contempt for Bush's lawyers, plain and simple.  It's impolite.  It's impolitic.  I like it.

“It’s important for OLC to remember that it’s not a professorial office: there are real lives at stake, there are real liberties at stake,” said Douglas Kmiec, who headed the office under Presidents Ronald Reagan and George H.W. Bush, and who supported Obama and praised the Johnsen pick.

Interesting statement.  If one were uncharitable, one could say that the logical extension of that is that the OLC must ratify the actions of the president if they see a pressing need to do so, even if said actions are clearly illegal.  I wouldn't read it that way, but that's how the office was run for the last 8 years, in any case.

http://www.politico.com/blogs/glennthrush/

And this.  The country's most liberal senator (what, don't tell me you actually believed The National Journal when they said it was Obama >_>) calls for a constitutional amendment barring governors from appointing senators.

[Dunefar]

I'm sympathetic to the proposed amendment after the Burris fiasco. However, it's very much something that should be delegated to the states. Bitch at Illinois and it's system instead.

[SnowFire]

Yeah, ideally this would be done on a state-by-state level, but I guess an amendment would be fine too.  I wonder what deadline it sets for when a special election just gets folded into the normal election?  And if it allows for provisional appointments while the election hasn't yet happened?  I for one wouldn't mind if special elections were held whenever the new Senator would sit for more than a year, but for a year or less they just folded it into the next election and appointed somebody.

...also, Feingold is a cool guy, but I don't think he's the most liberal Senator.  Bernie Sanders, Socialist from Vermont, probably takes that crown.

As for the Gillibrand appointment which kicked up this hubbub again...  I don't think it's that bad.  I think Caroline Kennedy would have been a better choice, but Gillibrand certainly doesn't seem to be a bad one - she seems to be a kind of liberal-libertarian, which I approve of.  It seems that the only reason that this kicked up a stink was because the Governor couldn't keep control of his own office - leaks were saying both that he was going to appoint Caroline K., and that he hated her and never would and that she sucks.  I'm not sure how much of that is Paterson's fault - after all, I imagine most of the staff are Spitzer's picks still, and apparently they don't have much loyalty toward making their boss look good, or something.

[metroid composite]

(what, don't tell me you actually believed The National Journal when they said it was Obama >_>)

That was pretty silly, yeah; I remember after that statistic came out, someone brought up that apparently the NJ named Kerry the most left-wing senator right around the 2004 election (which is even more silly from what I know of Kerry).

I can understand how Obama ended up with the statistic, though, in that he did vote with the Democrat party some ridiculous percentage of the time (99%ish?  Don't remember the exact number, just that it was a lot higher than McCain's 90% along Republican lines).  "Official Democrat Party Stance", however, is nowhere near "the most left-wing possible."  For instance, the Democrat party is arguably further right than the Canadian Conservative party.  In fact, I'd think someone voting along Democrat party lines is a pretty good indication that they're not exactly a new-age hippie.

On a tangential note, this highlights my biggest concern with Obama, which is that historically he's been more partisan than I'd like to see.  Even this most recent news story...while I think the OLC appointments are great, I also notice that they seem to be card-carrying Democrats.  I'm not going to read too much into the situation, though; it's just three people, and maybe the three best candidates for the job happened to be Democrats.

[InfinityDragon]

The Bush administration hardly made a power grab for the executive branch, and most of these "abuses" of power are in fact run of the mill occurrences for the President. To claim they were "the ends" is just silly, considering Presidents do these things quite frequently--now whether or not these powers were used wisely is up to personal opinion.

Invading Iraq without UN approval

Perfectly legal. The President has the power to unilaterally break any treaty at any time for any reason. It's part of the Head of State powers. Congress may not like it, but the Supreme Court refuses to get involved, so that's that (never mind that in this example, Congress also authorized military force; since a treaty is on level ground with federal law, any subsequent federal law passed by Congress can override provisions of a treaty easily enough).

signing a treaty with the present Iraqi government without Congress' approval.

Look up "executive agreements." They aren't particularly powerful given their duration, but they're perfectly legal.

Asserting executive privilege at the same time as he asserts that his office isn't beholden to laws governing the executive branch.

Executive privilege protects just about everything under the sun unless its being used to block evidence in a legal proceeding.

The OLC is a branch of the justice department that is responsible for producing binding legal opinions on what the executive branch can and cannot do.  President wants to do something, OLC says no, it can't be (legally) done.

...no. The OLC, being a branch of the DoJ, acts under the authority of the Attorney General and President, which means the Attorney General and President still make the final decisions on OLC opinions. Now it might be wise to heed those legal opinions, but wise choices and required behavior are separate issues.

The OLC derives its authority from 28 USC 510-512, which are in turn codified forms of the Judiciary Act of 178. Nowhere is it mandated by statute that the OLC can bind the President. OLC opinions, however, can bind other executive departments IF the opinion is supervised by the Attorney General and adopted by the President.

[NotMiki]

(what, don't tell me you actually believed The National Journal when they said it was Obama >_>)

That was pretty silly, yeah; I remember after that statistic came out, someone brought up that apparently the NJ named Kerry the most left-wing senator right around the 2004 election (which is even more silly from what I know of Kerry).

I can understand how Obama ended up with the statistic, though, in that he did vote with the Democrat party some ridiculous percentage of the time (99%ish?  Don't remember the exact number, just that it was a lot higher than McCain's 90% along Republican lines).  "Official Democrat Party Stance", however, is nowhere near "the most left-wing possible."  For instance, the Democrat party is arguably further right than the Canadian Conservative party.  In fact, I'd think someone voting along Democrat party lines is a pretty good indication that they're not exactly a new-age hippie.

the NJ survey methodology, as I understand it, takes the total number of available votes divided by the total number of times you voted against the majority of your party (or official party stance?  not sure.).  This means that an absent and a vote with your party line count as the same thing.  News flash: people running for president miss a *lot* of votes.

[NotMiki]

The Bush administration hardly made a power grab for the executive branch, and most of these "abuses" of power are in fact run of the mill occurrences for the President. To claim they were "the ends" is just silly, considering Presidents do these things quite frequently--now whether or not these powers were used wisely is up to personal opinion.

Invading Iraq without UN approval

Perfectly legal. The President has the power to unilaterally break any treaty at any time for any reason. It's part of the Head of State powers. Congress may not like it, but the Supreme Court refuses to get involved, so that's that (never mind that in this example, Congress also authorized military force; since a treaty is on level ground with federal law, any subsequent federal law passed by Congress can override provisions of a treaty easily enough).

signing a treaty with the present Iraqi government without Congress' approval.

Look up "executive agreements." They aren't particularly powerful given their duration, but they're perfectly legal.

Asserting executive privilege at the same time as he asserts that his office isn't beholden to laws governing the executive branch.

Executive privilege protects just about everything under the sun unless its being used to block evidence in a legal proceeding.

The OLC is a branch of the justice department that is responsible for producing binding legal opinions on what the executive branch can and cannot do.  President wants to do something, OLC says no, it can't be (legally) done.

...no. The OLC, being a branch of the DoJ, acts under the authority of the Attorney General and President, which means the Attorney General and President still make the final decisions on OLC opinions. Now it might be wise to heed those legal opinions, but wise choices and required behavior are separate issues.

The OLC derives its authority from 28 USC 510-512, which are in turn codified forms of the Judiciary Act of 178. Nowhere is it mandated by statute that the OLC can bind the President. OLC opinions, however, can bind other executive departments IF the opinion is supervised by the Attorney General and adopted by the President.

I admit I was wrong about the OLC.  As for Cheney, I'm not implying the things he did were abuses or were illegal.  I'm certainly not implying past administrations didn't do the same, except for that bit of legal creativity about 'attachment' of the VP to the legislative branch (which is what I take issue with, as opposed to executive privilege).  But I'll stick to my theory that they were done in ways designed to explicitly enhance the power of the executive branch in practice, which is a terrible reason to do something.

Take Harriet Myers and Karl Rove.  Both of them have refused to testify in front of congress, citing executive privilege.  The House subsequently held them in contempt for refusing even to show up in person to claim that privilege.  Why didn't they show up to claim it, and save themselves the trouble?  Because to them (and Cheney) the point was to comply as little with congress as they possibly could and still get away with it.  Not having even to show up to refuse to testify is something they wanted to prove the executive branch could do.  They knew the courts were extremely unlikely to intervene, and that they could wait out the clock on congress' term in any case (turns out they misjudged the House's willingness to continue to go after them in a new term, though).

[superaielman]

http://www.cnn.com/2009/POLITICS/02/03/daschle/index.html

Dashle withdraws from the health and human services office.  Definitely the right move on his part.

[Dunefar]

That was a solid move to cut down on the chance of an early bitchstorm for Obama.

[Shale]

Thank God, I was afraid I'd have to look at those glasses regularly for four years.

[NotMiki]

http://tpmmuckraker.talkingpointsmemo.com/2009/02/dojer_fired_amid_gay_rumors_gets_job_back.php

Can't have been a tough interview.

"What qualifications do you have for the job?"

"Gee, lemme think..."

[metroid composite]

In her performance evaluation, she received the highest possible ratings -- "outstanding" -- in each of five categories.

But Goodling, a Christian fundamentalist, heard a rumor that Hagen was gay. So it was curtains for her.

*headdesk*

Okay, having it legal for businesses to fire someone over being gay is one thing.  Kinda like I don't know how Hooters gets around non-discrimination laws when it does hiring.  But government jobs should be held to a higher non-discrimination code; you represent your entire country, not a fringe business where fair-play loses out to practicality.

[NotMiki]

I don't know how Hooters gets around non-discrimination laws when it does hiring.

Well, here you have two different suspect classifications: Gay people, and women with small breasts.  One of them is protected (in a lot of cases) and the other isn't.  Moreover, breast size actually has something to do with one's job performance as a Hooters waitress, whereas that isn't the case with homosexual lawyers.

Now just don't ask me how Hooters circumvents sexual harassment laws when hiring.

Interesting case up in your home country recently, actually.  I don't have the link on hand, but anyway, strip club owner gets sued for age discrimination for firing a stripper for being too old.  Stripper won the case, and rightly so.  Funny thing is, he coulda fired her for not being popular, whether that was true or not, and he'd probably have been fine.

Now just don't ask me how a theater company is able to discriminate against white guys auditioning for Othello.  I'm sure they can, but I have no idea why, from a legal standpoint.

[Dark Holy Elf]

For the theatre... mm. The thing with auditions for a creative work is that the director is allowed a lot of personal input. He or she is under no obligation to choose the objective "most qualified" or whatever - he or she could hire someone with no experience at all over a distinguished veteran actor/actress if the director was more impressed by the former at the audition. Since the director is hiring for his or her vision of the play/film/etc., which is not objectively measurable, he or she is under fewer obligations. In fact, it's considered quite normal for physical characteristics to be considered when casting a part, if they're relevant. As a basic example, most (though by no means all) productions of MacBeth would cast a male actor as MacBeth and a female as Lady MacBeth. Just as Hamlet will be cast by a young actor and Polonius an old, Hermia a short actress and Helena a tall, etc. This seems pretty reasonable to me, at least. It's just a necessary "evil" of the trade.

On the other hand, characteristics which do not show up in parts an actor plays, such as his or her religious beliefs or sexual orientation, do not appear to me to be fair game.

In other words, I am okay with "discrimination" in hiring if it can be reasonably showed that the discriminating characteristic affects qualification for doing the job, and with theatre/film there's a fair bit of potential here where there wouldn't be otherwise.

There's an interesting debate to be had on the Hooters subject about whether Hooters (and for that matter, more respectable restaurants) hiring "more attractive" is fair game for similar reasons. I don't know how I feel there.

For the life of me, though, I can't see how sexual orientation is relevant to... very many jobs at all. There's probably a small number you could make a case for (I suspect I wouldn't), but attorney certainly isn't one. Like religion, it's a pretty private thing.

The stripper case, I feel you nailed. You shouldn't be able to fire one for being old, especially when you can just take note of how popular the stripper is, and fire her if she, well, isn't.

[SnowFire]

Monica Goodling was a total idiot, that's all there is to it.  I can understand wanting to bring conservatives into Washington, but did they have to bring in 3rd rate B-school conservatives?  I think that Bush was worried that intellectual conservatives "go Washington" or something by actually being reasonable and amenable to compromise and science.  But yeah, Goodling was just a horrible horrible functionary from everything I've heard.  All she heard was a RUMOR too, it seems, and that was enough to terminate employment, which is even worse.

For the life of me, though, I can't see how sexual orientation is relevant to... very many jobs at all. There's probably a small number you could make a case for (I suspect I wouldn't), but attorney certainly isn't one.

I'd argue that for sensitive positions with access to classified data, there is in fact a solid argument.  Why?  Because they could be blackmailed (See: Colonel Redl.).  I believe this was the basis of the CIA and FBI's policies against hiring gay people "back in the day."  Of course there's a very simple solution to this - require all gay employees to be out of the closet, and there ya go, no blackmail material.  (Thanks to Charles Stross for pointing this out- on an unrelated note, everyone should read "The Atrocity Archive" by him.)

On the theatre note...  a popular idea as of late has been "race-blind casting."  Which is exactly what it sounds like.  I ended up seeing the more recent Broadway production of Les Miserables a few years back, and some things in it were definitely odd if you took the race of the actors as literal.  Cosette's mother (Fantine) was black, young Cosette looked Asian as best I could tell (possibly half-Asian?), and Cosette was white.  Definitely some oddities in the gene pool there.  Javert was played by a black actor, which would have made the spying subplot rather different ("Hey, doesn't the new guy look the Paris police's famous first Algerian member?").

Amusingly enough race-blind casting fails horribly in plays in which the race of the participants is actually relevant, so yeah, it's probably important to play something like Othello straight.

[metroid composite]

For the life of me, though, I can't see how sexual orientation is relevant to... very many jobs at all. There's probably a small number you could make a case for (I suspect I wouldn't), but attorney certainly isn't one. Like religion, it's a pretty private thing.

It's relevant if you have to deal with homophobic clientele.  If a mayor in small-town Alabama was outed as gay, he/she would probably be voted out of office.  If a store clerk in small-town Alabama was outed as gay, that store would probably lose business from customers who are uncomfortable in such company.  If a priest such a place were outed as gay, I can imagine several churchgoers would find another church, or stop donating to the church.

Granted, replace "gay" with "in an inter-racial marriage", and all of the above is probably still true.  Which is to say I still consider it unacceptable grounds for firing.  Just...yeah, I can see potential for a business impact.

[Shale]

I can see counting "closeted gay" in the came column as "having an affair" or "was arrested for misdemeanor drug use" in terms of screening for potential scandals, but it shouldn't be its own category.

[Grefter]

"Closeted gay" is all kinds of special trap for people who consider their sexuality a non-issue in the workplace.  You either have to be flamboyantly into the gay stereotype there, talk about your sex life at work or run the risk of being thought of as a closet case.  You might be openly gay but it just isn't an issue in the workplace, however if someone calls you on it, bam instant scandal and all the shit that goes with it.

[Hunter Sopko]

On the theatre note...  a popular idea as of late has been "race-blind casting."  Which is exactly what it sounds like.  I ended up seeing the more recent Broadway production of Les Miserables a few years back, and some things in it were definitely odd if you took the race of the actors as literal.  Cosette's mother (Fantine) was black, young Cosette looked Asian as best I could tell (possibly half-Asian?), and Cosette was white.  Definitely some oddities in the gene pool there.  Javert was played by a black actor, which would have made the spying subplot rather different ("Hey, doesn't the new guy look the Paris police's famous first Algerian member?").

Yeah. I saw that show too. Very good (except for Fantine, who's voice was not suited for the role), but I kept thinking:

"A black Javier?"
"Why not?! It worked in Blazing Saddles!"

[NotMiki]

For the life of me, though, I can't see how sexual orientation is relevant to... very many jobs at all. There's probably a small number you could make a case for (I suspect I wouldn't), but attorney certainly isn't one. Like religion, it's a pretty private thing.

It's relevant if you have to deal with homophobic clientele.  If a mayor in small-town Alabama was outed as gay, he/she would probably be voted out of office.  If a store clerk in small-town Alabama was outed as gay, that store would probably lose business from customers who are uncomfortable in such company.  If a priest such a place were outed as gay, I can imagine several churchgoers would find another church, or stop donating to the church.

Granted, replace "gay" with "in an inter-racial marriage", and all of the above is probably still true.  Which is to say I still consider it unacceptable grounds for firing.  Just...yeah, I can see potential for a business impact.

Well, keep in mind that for two of your three examples, homosexuality isn't protected in the first place.  People can vote for politicians for any reason they want, and have an unlimited right to be unhappy, including petitioning for them to be booted from office, if said politician doesn't live up to their standards.  Religious organizations are allowed to take into account things relevant to their religion in hiring (That's why they can make hiring choices based on religion in the first place).

The person hiring that clerk, though, is out of luck if he wants to discriminate.

[NotMiki]

http://tpmdc.talkingpointsmemo.com/2009/02/coleman-lawyer-its-the-dems-fault-that-minnesota-has-one-senator.php

I realize Coleman's well into the throw-everything-against-the-wall-and-see-what-sticks phase of his election challenge, but this?  This takes the cake.

[Shale]

It almost makes sense, if you look at it from the perspective that Al Franken is a terrible candidate, and somebody competent would have kicked Coleman's ass hard enough that he'd have conceded on election night.

Somehow I doubt that was what he was going for, though.