Gorsuch Will Live. Norm Will Die.

For months, there’s been plenty of talk about candidate and Pres. Trump destroying various political and cultural norms.  Fair enough.  Most of this talk, however, comes from Democrats (or the Left broadly), who are in the process of upending a political norm themselves.

The nomination of Judge Neil Gorsuch to serve as an Associate Justice on the Supreme Court was favorably voted out of the Senate Judiciary Cmte yesterday on a party-line vote.  It seems likely that the Democrats will filibuster his nomination when it reaches the Senate floor, which in turn will likely cause Senate Republicans to change the rules to eliminate the filibuster for SCOTUS nominations and to confirm Gorsuch by majority vote.

The GOP will be entirely justified in changing the rule.  Gorsuch is eminently qualified for the position.  No credible complaint has been lodged against his ethics.  His record is overwhelmingly in the majority of the panels on which he has served for the Tenth Circuit Court of Appeals.  His opinions are generally well-founded and lively in language.

In contrast, the Democrats’ opposition has been an incoherent mess.  Much of it has been an improper, results-oriented attack on his decisions, continuing the losing claim of Hillary Clinton’s campaign that courts should decide cases based on identity politics.

OTOH, when they aren’t painting him as an extremist, they’re conceding he’s really pretty mainstream, but cannot be confirmed after the way the GOP refused to hold hearings on Pres. Obama’s election-year SCOTUS nomination of Merrick Garland (an approach previously endorsed by Dems like Joe Biden and Chuck Schumer).

Further, Dems are supposedly alarmed that Gorsuch might reconsider precedents like Chevron v. NRDC, or even Roe v. Wade, which Democrats have taken to calling a “super-precedent” (a term as imaginary as a unicorn).  But they are also alarmed that he would be unwilling to reconsider precedents they don’t like, such as Citizens United v. FEC.  Again, a completely political, results-oriented approach that itself departs from the historic norm for judicial nominations.

Ending the filibuster for SCOTUS picks is the next step after Senate Democrats ended the filibuster for judicial nominations to lower courts.  Republicans had blocked a number of Pres. Obama’s judicial nominees, but it must be noted that this was in part a response to the Democrats’ filibuster of prior GOP nominees like Miguel Estrada, a highly-qualified  jurist blocked more than once for no other reason than Dems’ fear he eventually would be appointed to the SCOTUS.

The GOP was also responding to the attempted filibuster of Samuel Alito’s SCOTUS confirmation.  While unsuccessful, the Alito filibuster was supported by Senate Democratic leadership and by then-Sens. Hillary Clinton, Barack Obama, Joe Biden and John Kerry, to name a few.

Indeed, it could be said the Democrats have been attacking the norms for judicial nominations since at least the Reagan-era nomination of Robert Bork, an episode so egregious that the man’s name became a verb signifying a political smear.  Even after the Borking, Republicans attempted to adhere to the traditional norm of supporting well-qualified SCOTUS nominees despite philosophical disagreements, as can be seen by the near-unanimous vote for Ruth Bader Ginsberg.  The GOP got nothing for their consistency.

In this sense, the GOP tried to maintain the norm of confirming well-qualified jurists; the Dems are trying to destroy the remnant of that norm after decades of effort.

And in a way, none of this should surprise anyone much, as Democrats are by nature not particularly fond of norms  — at least not those they are establishing and imposing.  Progressivism is at its heart a philosophy that is not fond of Constitutional norms, as Woodrow Wilson made plain before and during his Presidency.  And in general, they are not disposed to ask why a fence exists before removing it.

Of course, some societal norms are worth junking.  Jim Crow is one obvious example, though progressive Democrats will crow much more about their role in ending it than their prior interest in eugenics (some of which still turns up in the unguarded thoughts of abortion advocates).  Fewer are interested in examining less obvious examples.

All of which is a roundabout way of saying that in politics, people’s concern about norms is usually as situational as their position on any other question.  It would be far better if those purporting to be concerned about norms were willing to have an adult conversation about why certain fences might exist, regardless of which partisan tribe holds a temporary majority.  But that norm appears to have been knocked down long ago.

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Is Sean Hannity Bad For America?

Consider this a companion piece to Friday’s post about conservative news reporters.

The best part of Sean Hannity’s encounter with Ted Koppel may be that Hannity clearly did not think Koppel would actually say he was bad for America, which is why he spent days whining about it.  I don’t think the assessment moves the public dialog further, especially given that Koppel misdiagnoses Hannity as someone who “attracts people who are determined that ideology is more important than facts.”

As Noah C. Rothman observed last week, ideology really cannot be considered the driving force in the age of Trump.  Rothman identifies partisanship and the market pressure for news outlets to chase controversy as the culprits.  This is far closer to the mark, but this could be fleshed out more.

To be sure, the ESPNization of politics and political media reinforces both partisanship and sensationalism, though this can also be seen as a negative feedback loop.  Having written about that topic already, I’ll stick to the other half of Koppel’s critique.

Hannity’s defense is that people can tell the difference between a news show and an opinion show.  As just mentioned, the lines between the two have increasingly blurred over the past few decades.  But implicit in the defense is that an opinion show is held to a different standard than a news show, and not merely different, but a lesser standard when it comes to being based in fact.

Indeed, Hannity frequently defends himself by claiming that he is “not a journalist.”  In reality, he is an opinion journalist or an advocacy journalist and one trusted with rather large media platforms.

As such (or like anyone ostensibly debating a position), credibility matters, or should matter.  This can mean conceding a weak point in one’s argument, or pre-emptively addressing an opponent’s strong one.

But most of all, credibility ought to require some level of fidelity to facts.  If you read a columnist and notice (s)he frequently plays fast and loose with the facts, or omits crucial ones, eventually you will conclude the person is not credible and thus not persuasive.

Thus, when someone like Hannity flip-flops on immigration reform because the RNC favored it in 2013, but Donald Trump was the hot item in 2015, it should matter.  Indeed, Hannity knows it matters, which is why he squeals like a stuck pig and lashes out when people mention it.

Or when Hannity goes from fulminating that Pres. Obama should be doing more to imprison Russian stooge Julian Assange to vouching for Assange’s credibility himself, when the only thing that changed was Hannity’s perception that WikiLeaks was hurting the Democrats,  it should matter.

When, in the desire to later claim that WikiLeaks did not hurt the Democrats in 2016, Hannity embraces a conspiracy theory to blame the CIA for WikiLeaks, it should matter.

Hannity’s ideology is big ratings and as such is not fueled by partisanship so much as constrained by it — though not as much as he would be constrained by political principles or a fidelity to the facts.

And I don’t begrudge the man making a fortune from it, though I suppose I am not laissez-faire enough to think there shouldn’t also be truth in advertising.  So to the extent he built that fortune as a True Conservative, he wasn’t being honest with his audience.  And to the extent that his partisan position is more important to him than facts or principles in the pursuit of ratings, he isn’t being honest with his audience.

Accordingly, where Koppel is probably correct is in his assertion that Hannity attracts the people who don’t care any more than he does.  The people who care tune him out.

One last thing:  Since I’m riding the high horse on this subject today, I note that an astute reader of Friday’s post contacted me over the weekend to remind me that the reporters who recently left the IJR aren’t conservatives.  I let my desire for a quasi-happy ending cause me to make the common error of lumping those who work for a particular outlet in with the outlet’s editorial outlook, and welcome the correction.

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What’s Going Wrong in Conservative Media

I start with the near-obligatory reminder that I am on the record arguing that until establishment media hires enough people with non-Left viewpoints as both reporters and editors to constantly challenge newsroom groupthink, its fundamental biases will persist.

I tend to doubt Big Media will ever do this, but some recent stories about conservative media will hand them some easy rationalizations.

Judge Andrew Napolitano returned to Fox News Channel and affirmed his belief that Pres. Obama asked British intelligence to conduct surveillance on Pres. Trump.  He was previously suspended for making this claim and the supposed “news” side of Fox tried to distance itself from the apparently baseless claim.  But he not only repeated it on a straight news show in his return visit, but also appeared on another supposedly straight news show that evening (lest you think he got suspended again).

Geraldo Rivera accused the House Freedom Caucus of “treason” for opposing the failed House GOP healthcare bill.  Rivera is considered a Fox News correspondent, not a contributor.

Breitbart News has been denied permanent press credentials on Capitol Hill until it clarifies its links to a conservative nonprofit group as well to a major Trump donor whose family is an investor in the site.  And Breitbart’s brand of journalism has corporate advertisers trying to flee association with the site.

Not even GOP loyalists like radio talker Hugh Hewitt trust Breitbart as a news source.  Yet Breitbart dominates conservative social media, perhaps because the number of high-profile conservatives who regularly speak out about Breitbart’s excesses is pretty small.

Regnery Publishing is interested in publishing the book by Milo Yiannopoulos that was dropped by Simon & Schuster after comments surfaced in which Milo condoned sexual relationships between young teenagers and adults.  Apparently his anti-Semitic remarks need more publicity, because Regnery seems to be overlooking those also.

The Independent Journal Review has seen staff departures over the publication of a conspiracy theory and the site’s general editorial direction.  Reportedly, other staffers are also looking to leave.

Of all these stories, the IJR report is the most heartening, as it demonstrates that there are conservative journalists who do not want to be associated with the standards adopted by some conservative media outlets, and overlooked by many conservative media critics.

If conservatives want the establishment media to take conservative journalists seriously, they need to take conservative journalism seriously enough to hold it to the standards they want the establishment to observe.

Update: There’s a minor correction to this post (i.e., it does not affect the thesis) at the end of this companion post.

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The “Airplane!” Presidency

Forget the “Flight 93 Election.”  Heck, forget the “Flight 93 Presidency.”  Right now, this is the “Airplane!” Presidency.

One small problem: Pres. Trump is no Ted Stryker.  And House Speaker Paul Ryan is no Otto.

This is why Rich Lowry proclaims “The Crisis of Trumpism.”  Lowry’s thesis: “No officeholder in Washington seems to understand President Donald Trump’s populism or have a cogent theory of how to effect it in practice, including the president himself.” Conservative social media is loving this column.

As I’m just as capable of being wrong as the next pundit, allow me to blow my horn here like Zombie Clarence Clemons riding out the solo of “Born To Run”:  I have been writing for weeks and weeks that the conflict between a heterodox GOP President and an orthodox GOP Congress was going to be a root issue for this administration and the party.

Lowry’s diagnosis and analysis, however, seem premised on some of his priors.  He seems to presume that it is the obligation of Congress to get with Trump’s inchoate program because Trump won pitching a populist message to the white working class.

There at least two problems with this premise.  First, as a practical matter, most GOP Representatives and Senators outpolled Trump, and typically with a different coalition more dependent on college-educated whites and less so on the white working class.  Second, there is the risk noted by Ben Shapiro that simply signing onto Trumpism would over time corrupt the conservatism Lowry ostensibly seeks to preserve.

[And yes, I presume Lowry might respond that a little Trumpism isn’t necessarily a bad thing, much as he has argued with respect to nationalism.  We might even find some points of common ground about it.  But this is a blog post, not a column or a book, so I move on.]

The political reality overarching and overshadowing Trump’s victory is the long-run trend of partisan polarization.  This is much more a reality at the level of officeholders than voters, but it means that, with respect to Congress, Trump is even more of a square peg jammed into a round hole than prior heterodox presidents like Carter and Clinton.

Lowry suggests: “If things continue to go badly, it’s easy to see Trump turning to the New York Democrats in his White House.”  Okay, but how about Democrats in Congress?

Here’s Senate Minority Leader Chuck Schumer, as quoted by Bloomberg: “On health care?  ‘Drop repeal.  Drop it today.  And drop it for good,’ said Schumer.  On taxes?  No big breaks for the wealthy, and drop plans for a partisan plan.  On infrastructure?  ‘We haven’t heard a peep out of the White House’ about it, Schumer said Tuesday.  On the budget?  No cuts, parity between defense and non-defense spending and no poison-pill riders, he said.”

As Schumer indicates, Beltway Dems and their progressive activist base are in Resist mode.  The kinds of deals Trump would have to offer to get more than a handful of Dems on board would alienate the party that still controls Congress.

Lowry suggesting the failed Governorship of Arnold Schwarzenegger as a model for Trump advances his case no further.  In California, Democrats have ruled the legislature for decades.  In DC — and Trump Country — they do not.

Indeed, the rotting of the GOP and the conservative movement that made Trump possible is united mostly by tribal partisanship and anti-Left sentiment.  Accordingly, moving as far left as Trump would have to do to co-opt the Dems easily could spell his doom. In “Flight 93” terms, it would be making the terrorists his co-pilot.

But that’s not important right now.  This is the “Airplane!” Presidency.  We all picked the wrong year to stop sniffing glue.

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Donald Trump and the Sleaze Factor

Most of yesterday’s buzz was about the miasma of Trump investigations.  There was a flap over whether the Justice Department sought to prevent former Acting Attorney General Sally Yates from testifying in the House Intelligence Committee’s investigation into Russian interference in the presidential election.

Recall that to date, there appears to be no public evidence that Trump associates’ contacts with possible Russian agents involved wrongdoing (though there are some odd transactions in the past of Trump’s one-time campaign manager, Paul Manafort).

There is also a flap over the committee’s chairman, Devin Nunes, refusing to disclose to the committee who gave him intelligence reports that indicated Pres. Trump and his associates may have been ensnared in incidental intelligence collection outside the probe into the Russia-related issues.

Recall that to date, there appears to be no public evidence to substantiate Nunes’s claim this intelligence was improperly circulated without redacting the names of Trump and his associates in cases where the names were of no intelligence value.

In recent days, I have noted the tendency to treat similarly unsupported claims as Very Big Deals by anti-Trumpers and anti-anti-Trumpers, according to their confirmation biases.  I have also noted that there is a certain sort of partisan fever that drives people to give way too much credit to even nutty conspiracy theories.

Today, I simply want to add that the odds are that none of it may matter much.

Consider that Ronald Reagan got dubbed “the Teflon President” by Rep. Patricia Schroeder on the basis of her list of 225 Reagan administration personnel or nominees who were the subject of allegations of ethical infractions.  It led Dems to claim the Reagan administration had a “sleaze factor.”  The Associated Press drily noted: “The figure has been disputed.  Most were never charged with any wrongdoing, although some nominees didn’t get jobs after the alleged transgressions came to light.”

That didn’t stop the more sober Washington Post from claiming a list of 110 senior administration officials have been accused of unethical or illegal conduct from 1981-86.  Even so, some of the biggest accusations, such as those against Labor Secretary Ray Donovan, fizzled.  The major convictions would mostly come during the Iran-Contra scandal in Reagan’s second term (and some of those would be reversed due to grants of immunity issued in the Congressional investigation).

None of the earlier Reagan-era scandals and pseudo-scandals (which were in large part a function of the then-new standards of the Ethics in Government Act) mattered in the grand scheme because they didn’t touch the President personally and — tbh — people simply don’t care as much about scandals when the economy is doing well (see also: Clinton, Bill).

Based on what we know to date, I would expect the same basic rules to apply here.  Both stories so far look like pseudo-scandals not involving either Pres. Trump or Obama directly.  And if the economy picks up as the GOP hopes, few outside the partisan fever swamps will care much.

As such, the anti-Trumpers are likely just spinning their wheels until some investigation with credibility delivers some evidence bearing on whether Trump associates behaved badly.  And the anti-anti-Trumpers are in the same boat regarding Nunes’s claims.  The latter, however, also carry a whiff of the people who are constantly complaining that the establishment media isn’t covering their pet story enough. Sad!

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The Healthcare Bill Debacle: Ryan Edition

Having addressed Pres. Trump’s role in the failure of the House GOP’s healthcare bill (AHCA) yesterday, it seems only fair to assess House Speaker Paul Ryan’s role, as he had slightly different motives to make many of the same mistakes.

Tim Alberta‘s port-mortem included what I think is the key point: “In dissecting Ryan’s lackluster marketing of the health care initiative, both his allies and adversaries in the Republican conference reached the same conclusion: He had taken support for granted. After all, this was essentially the same bill written by Price when he was in Congress; it became the de facto proposal of the House GOP in its ‘Better Way’ agenda, which Ryan argued throughout 2016 was a governing document that his colleagues universally supported. ‘We all ran on this,’ Ryan said repeatedly over the past several weeks.

“Except that many House Republicans never saw it that way. In fact, some conservatives spent the past year using ‘Better Way’ as a punch line to tease the speaker for convening wonky groups to dream up big policy proposals—but never hold votes on any of them. If there had been committee hearings and floor votes, some conservatives argue, these differences would have surfaced much sooner. ‘We ran on these principles, but not on this bill,’ Meadows told me last week. (Meadows was, however, once a co-sponsor of Price’s bill in Congress.)”

Ryan should have recognized that even last year’s repeal bill vote was not live ammo.  Indeed, he probably did realize it.

Avik Roy noted that “despite repeated promises to bring the Obamacare replacement before a vote, Ryan did not do so, because there wasn’t enough consensus in the House as to how to replace Obamacare,” adding: “The lack of consensus wasn’t created by Ryan. Because the U.S. health care system heavily subsidizes health coverage for retirees and upper-middle-class workers, many Republican voters are fine with the status quo ante, and opposed to changes that help others at their expense.”

Roy argues that Paul Ryan and other GOP leaders never made the moral case for helping the uninsured, which is true enough.  But the immediate problem for AHCA was that the bill, like Obamacare itself, was a two-headed beast — and Ryan seemingly only cared about one of the heads.

The reason for Ryan to try to cram AHCA through Congress in 18 days was that his primary concern was banking its deficit reduction before proceeding to tax reform which, despite the rhetoric, is going to be difficult to make revenue-neutral.  Thus the focus of Ryan and House leadership was on reforming Medicaid, which was the source of the big savings in the bill.  This also makes sense when you consider that Ryan is very much about entitlement reform (as am I).

Given that focus, it’s no surprise that the Medicaid piece of AHCA was pretty darned good (at least from my point of view; the coverage losses put off moderates).  It’s also no surprise that the Medicaid piece was where Ryan and the White House were most willing to accept suggestions from the House Freedom Caucus (HFC).  But Medicaid was just one head of the beast.

In contrast, the parties dispute whether Ryan or Trump ever really offered the HFC much on the essential health benefits regulations that were a core part of the other head of the beast — reforming the failing individual health insurance market.

Telling conservatives that you’re repealing the individual mandate only works as a selling point if you assume they’re yahoos who — after losing the mandate issue in the Supreme Court — don’t care that AHCA simply substituted a less effective insurer surcharge that would accelerate the death spiral by about two million more people deciding to forego coverage.

Had Ryan been willing to negotiate with the HFC and arrived at the point where he wasn’t going to be able to get enough of their votes short of repealing guaranteed issue and community rating (the essence of covering those with pre-existing conditions), he and others would have a much stronger case for blaming the HFC as intransigent.  We’ll never know if Ryan could’ve gotten more votes by not forcing 50-year-old men to buy maternity coverage.

But Ryan seemingly wasn’t interested in negotiation (and as noted yesterday, Trump wasn’t capable of it).  Instead, Ryan was interested in Medicaid reform and deficit reduction.

That’s how you wind up with the insurer fine standing in for the ACA mandate and refundable tax credits standing in for ACA subsidies on the other half of the bill.  BTW, means-testing those credits was one of the few concessions HFC got on the individual market side of AHCA.  But those bent on placing all the blame on HFC don’t want to admit that accepting the tax credit framework was already a concession by the HFC.

It’s also how AHCA wound up with scores showing that near-retirees would see their insurance premiums increase 760% in the short-term.  It’s how you don’t bother to ask the Senate parliamentarian whether regs can be repealed in reconciliation bills.  It is the tell that Ryan’s attention was elsewhere.

This failure has far-reaching ramifications, not least for Ryan himself.  His Speakership isn’t in danger; we’ve just had a lesson in the difficulty of finding a suitable compromise within the House GOP caucus.

No, the ramifications come from the failure of the Medicaid piece of AHCA.  Although White House spox Sean Spicer is already hinting that the GOP will eventually revisit healthcare reform, and Ryan agrees,  there’s little chance that Ryan’s ideas will be treated as Gospel when they do.

More immediately, that failure will affect the tax reform effort, as Ryan likely feared.  Indeed, the current proposals floating around don’t contain much in the way of tax relief for the middle class, and the populist Trump may insist on adjustments that are likely to further box in the GOP absent those Medicaid savings.

Further into the future, the AHCA debacle is likely to reinforce Trump’s natural inclination to resist reforming Medicare and Social Security, which is Ryan’s real dream.

In sum, by trying to stampede his caucus into a bill that was not well thought-out with regards to one of the heads of the beast, Ryan may have doomed himself to presiding over another decade of accumulated debt and unreformed entitlements while the clock on the debt bomb continues its inevitable countdown.  That’s his punishment as well as ours.

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The Healthcare Bill Debacle: Trump Edition

Tomorrow, I may well write about House Speaker Paul Ryan’s arguably greater role in the current demise of the House GOP’s healthcare bill (AHCA), or at least what it ultimately means for him.  Today, however, is to assess Pres. Trump’s role in Friday’s trainwreck, particularly because he seems determined to draw the wrong lessons from it.

A number of post-mortems have already been written about Trump’s role, particularly his seeming inability to sell the bill to reluctant members of the GOP caucus (or, conversely, their supposed intransigence).  I would argue that Trump’s failures stem from the fact that he and his lieutenants learned the wrong lessons from the 2016 election.

In particular, I believe the 2016 campaign taught Trump that one can win by framing the final decision as a binary choice and bullying people into accepting the marginally lesser of two evils.  I believe he also learned that one can be elected President without having to know much of anything about policy.  These two beliefs made for a particularly toxic combination when it comes to passing legislation more complex than, say “build a wall.”

The fact is that the House GOP caucus refused to accept that healthcare reform was a binary choice between AHCA and ACA, probably in part because House leadership had already abandoned a first draft of AHCA.  Moreover, most of the House GOP Congress has been around long enough to know their majority derives in large part from the Democrats having to own Obamacare, both its cramdown and its consequences; many Representatives owe their current careers to it.

The notion that Trump, Stephen Bannon & Co. were going to ask them to condense a cramdown into 18 days on a bill that had no constituency was a pipe dream.  The idea that they were going to demand that elected officials — many of whom outpolled Trump in their districts — simply rubber-stamp a bill as instantly unpopular as ACHA was madness.

Under more ordinary circumstances, this would be the point where I tempered that last statement by noting that passing a comprehensive reform bill with a narrow Congressional majority was always going to be difficult.  But the fact is that the Trump administration and House leadership wanted to behave as though the opposite was true as a matter of basic strategy.  They chose poorly.

Of course, aside from considerations involving the legislative calendar, Trump in particular had few alternatives as a strategy.  Although he fancies himself a dealmaker, his basic ignorance of healthcare policy, shared by most of the people around him (save HHS Sec’y Tom Price) rendered him unable to evaluate the merits of AHCA accurately or negotiate them with either conservatives or moderates.   And again, policy actually matters to people whose careers depend upon it.

It follows, therefore, that when you repeatedly respond to any attempt to discuss policy with profanity and dismissal, things will go badly.  Had been able to discuss the bill intelligently, he might have understood those who thought he was demanding a day or two of winning in return for years of losing.

Rather than accept that these were his problems, it seems Trump is resorting to another campaign favorite — ridiculing conservatives.  He and his minions have trained their fire primarily on the House Freedom Caucus (HFC), but it extends to conservative think-tanks and advocacy groups, including those upon which he has relied heavily to date.

Whether one believes this deep Politico post-mortem or their more Trump-friendly follow-up, the charge is essentially false, as moderates were slightly more likely to have publicly opposed AHCA than the HFC was.  Even if some of the moderates went public based on public accounts of Trump’s pseudo-negotiations with the HFC, they were far more concerned with the CBO projections of lost coverage and increased premiums.

Moreover, as Reihan Salam notes, the HFC was “fighting for a more deliberative, thoughtful approach that might yield a more coherent set of reforms.”  But if Ryan really did not want the HFC as partners in the process, Trump was intellectually unequipped to even consider the possibility.

As The Federalist’s Ben Domenech noted on Friday, GOP leadership “must develop a new, inclusive, transparent process.”  This has been the case for years, but AHCA brought it to a head.  Ryan is smart enough to potentially learn this lesson, if he can get over what he likely sees as a personal rejection.

Trump & Co., otoh, seem inclined to conclude that they underestimated the fractiousness of the caucus and will try to sideline conservatives from upcoming efforts like tax reform.  The tax bill, however, will again feature simmering problems about distributional effects, just like AHCA.  It will also feature maddeningly complex issues like the controversial border adjustment tax.

If the White House intends to charge forward without learning their agenda has broader problems and complexities they need to understand — as opposed to the mere opposition of the HFC — they are likely to repeat the same mistakes.

Lastly, note that Trump and Ryan completely dropping healthcare is not simply a reflection of Trump’s general petulance, but a direct reflection of the so-called “binary choice” strategy.  Having threatened people with “take it or leave it,” the administration is incentivized to at least act as though they’re leaving it.

Their problem is that they really can’t leave it, at least not in the medium-term.  As Obama was cut some slack on the Great Recession and Iraq as the inheritance of the Bush administration, so might the GOP get a little slack on their inability to immediately reform Medicaid and the individual health insurance market.

But Obama timely acted on the Great Recession, even if the GOP didn’t like his approach.  And Obama got out of Iraq (however precipitously) before running for re-election.  The GOP House would be ill-advised to run through not one, but two cycles more of Obamacare slowly collapsing before the 2018 midterms, especially when their party is led by a president who announced his tolerance for watching the system burn.

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Trump, Surveillance, Leaks, Hysteria

Partisanship has a way of coloring views of the news, especially of highly-charged stories involving Trump campaign and transition officials turning up in government surveillance.

This week, CNN reported: “The FBI has information that indicates associates of President Donald Trump communicated with suspected Russian operatives to possibly coordinate the release of information damaging to Hillary Clinton’s campaign, US officials told CNN.”

Righties, particularly those of the anti-anti-Trump bent, focuses on the “supposed” and the “possibly” to conclude the story was No Big Deal.  The story is certainly qualified, but the dismissal tends to ignore the fact that it’s a report on an ongoing investigation and that unless some sort of charge is brought, it’s a fair bet the evidence will be below the level needed to bring charges.

Conversely, the same basic group of righties thought this week’s press event by Rep. Devin Nunes — chairman of the House Intelligence Committee — (helpfully transcribed by Lawfare) was a Very Big Deal.

Nunes initially claimed that: “on numerous occasions, the intelligence community incidentally collected information about U.S. citizens involved in the Trump transition.  Details about persons associated with the incoming administration, details with little apparent foreign intelligence value were widely disseminated in intelligence community reporting.  Third, I have confirmed that additional names of Trump transition team members were unmasked. And fourth and finally, I want to be clear, none of this surveillance was related to Russia, or the investigation of Russian activities, or of the Trump team.”

He added that the collection itself appeared to have been legal (i.e., were likely part of conversations of or with foreign surveillance targets), which casts doubt on the claim reported by Fox News that documents may show the Obama administration was using the cover of legitimate surveillance on foreign targets to spy on President-elect Trump (unless your definition of “spy” is incredibly broad).

Also, as noted by the Lawfare bloggers: “In his initial statement, [Nunes] makes what seem to be bold and unequivocal claims, but he then spends the question and answer period significantly undercutting several of them.”  Indeed, Nunes now says he does not know “for sure” whether Trump or members of his transition team were on the phone calls or other communications at issue.

It’s odd that the same people who relied on qualifiers to proclaim the CNN story to be No Big Deal overlook the contradictions and ambiguities in the Nunes claims to deem them a Very Big Deal.  By which I mean not odd at all if you can hear the the tribal beating of partisan drums in the background.

Nunes, however, further raises the serious allegation that Trump or members of his transition team were “unmasked” (i.e., their identities were not redacted as would usually be the case for U.S. citizens in cases of incidental collection) in cases without foreign intelligence value, and that said reports were widely disseminated.  This is precisely the concern civil libertarians have raised about our foreign surveillance efforts during the post-9/11 era.

FWIW, Rep. Adam Schiff, ranking Dem on the House Intelligence Committee, claims Nunes told him most of the names at issue were masked, but that Nunes claimed he could still figure out the likely identities of the people involved.  The resolution of that question of fact will be significant.  The closer Schiff is to being right, the less likely that the “smoking gun” suggested by Fox News sources will be found.

Nevertheless, this claim is consistent with what I thought was a very odd March 1 New York Times story that reported: “In the Obama administration’s last days, some White House officials scrambled to spread information about Russian efforts to undermine the presidential election — and about possible contacts between associates of President-elect Donald J. Trump and Russians — across the government.  Former American officials say they had two aims: to ensure that such meddling isn’t duplicated in future American or European elections, and to leave a clear trail of intelligence for government investigators.”

Note: The Nunes claims do not involve Russia, but the notion of widely spreading sensitive material regarding the Trump camp is a common theme.

I found the NYT story odd because it is essentially an unfavorable admission by the leakers, raising the question of why they would want this dispersion effort made public.  Stupidity and hubris can never be ruled out.  But there is another possibility.

It could be that the leakers wanted this brazen taunt in print precisely to provoke a reaction.  They may have thought Trump might be goaded into tweeting about it, and every news cycle consumed with stories that Trump associates were picked up in foreign surveillance is a bad one for Trump, because most don’t follow this story closely and the center-left media isn’t going to put a neutral or pro-Trump spin on the coverage.

Trump didn’t tweet about it, but it may have caused people to come forward with the documents that caused Nunes to go public (and then to the White House before consulting the Committee).  The leakers admit they want investigators to find the material they dispersed.   And so long as the general gist of the story from the media is that people in Trump’s camp were under some sort of cloud, the leakers may be quietly happy with Nunes, especially if it turns out he exaggerated.

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A Tale of Two Bodies

It was a dickens of a time.

One body, the Senate, will be concluding the confirmation hearings for Judge Neil Gorsuch to be elevated to the Supreme Court.  By most all accounts a fitting conservative successor to the late Justice Antonin Scalia, this intelligent and good-humored man has thus far glided through his hearings without a single significant blow from the the Judiciary Committee Democrats.

The Dems’ main theme seems to be framing Gorsuch as an enemy of the little guy.  It’s inaccurate, and has backfired.  But it’s an attack that was doomed from the outset.  During the 2016 campaign, this Supreme Court vacancy was a major issue.  Hillary Clinton clearly announced that she would appoint a results-oriented activist.  Donald Trump promised he would select from a public list of distinguished jurists.  To paraphrase fmr. Pres. Obama, Trump won.

The Gorsuch nomination, once confirmed, will likely be one of Pres. Trump’s most consequential choices — and probably one of his best.

The other body, the House, is — or was — supposed to bring the America Health Care Act up for a floor vote.  It is — or was — a bill loved by few outside leadership and the White House.  As I write this, the White House is negotiating major last-minute changes with the conservative House Freedom Caucus in an effort to get to a majority, while losing at least one moderate, Rep. Charlie Dent.   The Congressional GOP seems set to replicate the unpopular manner in which the prior unpopular healthcare law was enacted, this time as farce.

I have little sympathy for the party’s lack of imagination.  As Santayana observed, those who cannot remember the past are condemned to repeat it.

So GOPers may be sticking their necks out.  One hopes this tale does not end with figurative decapitations, but such are often the result when vengeful populists are in the saddle.

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Reaping News

According to a new Harvard-Harris Poll, 59 percent of Republicans say they believe Pres. Trump’s claim that fmr. Pres. Obama wiretapped Trump Tower.  That claim has been rejected by FBI Dir. James Comey, as well as many GOP leaders in Congress.  Similarly, NSA Dir. Michael Rogers has rejected Trump’s claim that Obama asked British intelligence (GCHQ) to conduct surveillance on Trump.  Overall, 66 percent of registered voters reject the claim.

Trump and White House spox Sean Spicer relied on Fox News Channel pundit Judge Andrew Napolitano to justify their claim about GCHQ.  Napolitano had managed to mangle an already dubious claim by wacky CIA analyst-turned-blogger Larry Johnson on RT, the “news” channel funded by the Russian government.

The “news” side of Fox, including anchors Shepard Smith and Bret Baier, tried to distance itself from the ensuing international spat.  Napolitano was indefinitely suspended from FNC over the flap.  Cynics linked the suspension of Napolitano to the backlash the baseless claim could have on Fox News honcho Rupert Murdoch’s proposed deal to purchase Sky News in the UK.

The cynics are finding more ammo in yesterday’s editorial from the Murdoch-affiliated Wall Street Journal, which said of the wiretap claims that “the President clings to his assertion like a drunk to an empty gin bottle” and warned that “he needs support beyond the Breitbart cheering section that will excuse anything. As he is learning with the health-care bill, Mr. Trump needs partners in his own party to pass his agenda. He also needs friends abroad who are willing to trust him when he asks for support, not least in a crisis.”

It’s hard to discount the cynics in light of prior reports that Murdoch was much involved in directing the tone of Fox’s Trump programming, both when it was tough and when it turned soft.  And reports that there have been tensions within the WSJ’s newsroom over its Trump coverage.

Indeed, it’s a little rich to see the WSJ condemning the “Breitbart cheering section” while ignoring Sean Hannity wildly shaking his pom-poms for Trump from Murdoch’s sidecar.

The WSJ is right to be concerned about Trump’s credibility.  One hopes conservative media might take the moment to consider how much they are linking theirs to his, and how it affects the public discourse.

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