Friday, January 16, 2009

I guess it's good for something...

Obama on the Employee Free Choice Act (Via Donklephant):

Wash Post: The Employee Free Choice Act - a timing question and a substance question: in terms of timing how quickly would you like to see it brought up? Would you like to see it brought up in your first year? In terms of substance, the bills that you talked about in your floor statement on the Employee Free Choice Act problems with bullying of [inaudible] people want to join unions. Is card check the only solution? Or are you open to considering other solutions that might shorten the time?

Obama: I think I think that is a fair question and a good one.

Here’s my basic principal that wages and incomes have flatlined over the last decade. That part of that has to do with forces that are beyond everybody’s control: globalization, technology and so forth. Part of it has to do with workers have very little leverage and that larger and larger shares of our productivity go to the top and not to the middle or the bottom. I think unions serve an important role in that. I think that the way the Bush Administration managed the Department of Labor, the NLRB, and a host of other aspects of labor management relations put the thumb too heavily against unions. I want to lift that thumb. There are going to be steps that we can take other than the Employee Free Choice Act that will make a difference there.

Like Justin, I am, to the extent that I can be, relieved to hear that President Obama does not seem all too willing to rush the Employee Free Choice Act into law and will consider other options. I do happen to think that, given our current situation, not only are there far more important things that will have to be dealt with, but also that big business will mobilize massive amounts of resources to fight this.

As I mentioned in my previous post, despite all the bellyaching by the AFL-CIO or the respective labor unions about unfair labor practices, none of these organizations, in supporting the EFCA, have ever put forth a compelling argument that the existing structure, which strives to protect an employee's choice to unionize through a private election, is in such disrepair that it has to be abandoned. My view on this is that organized labor does not want to go down this road because simply revising the rules would not give them anywhere near the power they would get under EFCA. That will certainly make a lot of pro-union liberals quite upset.

Food for Thought

I'm going away for the weekend in a few moments, but wanted to thow some links to some things worth pondering that I would have liked to discuss at length if I had the time:

Brad DeLong, speaking at a Cato Institute event: "The modern Ametican liberal economist's view of libertarianism is much the same: libertarianism is false in theory, but it is very much worth figuring out a set of limited, strategic interventions that will make the libertarian promises roughly true in practice." I actually think there is something legitimate in this point, though I do not think it fatal to many forms of libertarianism. (H/T: Tyler Cowen)

James Poulos on the failures of Bush and Reform Conservatism: "But Bush has been a virtual detainee of events, of the powers of personality that glommed around him and beset him from near and far, of the strangeness of history that put the fate of Iraq and the fate of the Party of Reagan in his hands. It was easy for him, I think, to weigh the first above the latter, and though Republicans must not all be conservatives and vice versa, the audacity of this judgment is, Bush knows, what will sink or swim his own acquittal."

Thursday, January 15, 2009

Torture and the Coercion Calculus

I thought this symposium from the NY Times on the effects of "coercive interrogation techniques" on prosecuting terrorists was interesting. The symposium includes an admission by Andrew McCarthy of National Review that information obtained from such acts should not be admissible evidence against a terrorist. In reviewing the symposium - and especially McCarthy's statement, what struck me was the role of the system of military commissions in enabling torture. What I mean is that even advocates of using these techniques (whether or not termed "torture") as a form of intelligence gathering acknowledge that this evidence should not be admissible for purposes of determining a suspect's guilt or innocence.

So if we are all in agreement that such information may not and should not be used in a criminal prosecution, it follows that an interrogator would ordinarily be forced to weigh the value of the information the interrogator hopes to obtain against the value of ensuring that the suspect will eventually go free and possibly return to terrorism. But the military commissions system, which has lower standards of evidence that were once widely believed to permit evidence procured through coercion, eliminated this calculus (although ultimately it was determined that such evidence would not be permitted). And so, in the mind of the interrogator at the time, the techniques chosen (whether or not we term them torture) had no relevance to whether the suspect would eventually walk fact, the use of techniques designed to obtain confessions (whether those confessions were true or false) had the extra benefit of likely assuring that the suspect would be given a stiff sentence.

More at memeorandum.

Torture Begets Worse Torture

While reading through the comments to John's latest post on torture, a new thought occured to me that I haven't seen expressed elsewhere in the discussion of this issue.

It's been said before that "the point of torture is torture," but I don't think we fully understand the extent to which this is true, nor the extent to which the moral and utilitarian arguments against torture are intertwined. The easiest way to explain what I'm getting at here is through a hypothetical.

In this hypothetical, the suspect is someone who almost certainly possesses some unknown quantity of information that can be helpful in rooting out terrorism. After the suspect refuses to provide information in response to initial non-coercive questioning, the interrogation moves on to measures that are coercive but perhaps fall in the gray area of what we would call "torture."

The suspect talks immediately as a result of the coercion, and for purposes of this hypothetical, we will say that the information provided is accurate. After providing that initial information, the suspect refuses to provide anything else. What should the interrogators do next? Do they accept that the suspect has no further information to provide? Not likely - after all, it took some form of coercion to get the suspect to provide the initial information, so there's no reason to think that the suspect has nothing further to provide. More likely, I think, the interrogators conclude that the only way to get more information is to revisit the methods that got them more information in the first place.

But what if the suspect refuses to provide more information when those methods are used again? Will the interrogators go back to being nice, knowing that the information they got came only after they used more coercive measures? Not likely. Instead, it would seem to me, the natural response is to conclude that the suspect has learned to tolerate the initially successful level of coercion, and so the only way of obtaining more information is to make the interrogation increasingly coercive. Again, the suspect talks and again we will assume that the information provided will eventually prove to be accurate.

But again, the suspect eventually refuses to provide any additional information. Now, the suspect has a track record of withholding information even after coercion is tried, and of providing information when ever-more coercive techniques are used. So what is likely to be the interrogator's response? If you guessed "stronger coercion," you guessed right. But this time the suspect continues to refuse to provide information, and so the interrogator adopts even harsher methods until the suspect provides more. At what point does the interrogator conclude that the suspect has nothing more to provide? If the suspect provides more, how does the interrogator distinguish between what is accurate and what is a lie?

And that's the problem. When coercion fails, it will only result in more coercion, and when it succeeds, it will only result in more coercion. It not only lacks any means of distinguishing between good information and bad information (the basis for utilitarian arguments against torture), but it also cannot distringuish between knowledge and lack of knowledge. And even torture's most ardent proponents would, I think, acknowledge the immorality of using coercion on someone without useful information. In sum, by engaging in coercive interrogation we obtain unreliable intelligence; because we obtain unreliable intelligence, we will inevitably engage in more coercive - and undeniably immoral - interrogation, which will result in more unreliable intelligence, and so forth.

And that's what I mean when I say that the moral and utilitarian arguments against torture are intertwined. What legal barriers such as the Army Field Manual or the Geneva Conventions do is to provide a stopping point past which we effectively presume that further intelligence will be unreliable, and at which we must assume that the suspect has no further information to provide that they would be unwilling to provide in the absence of coercion.

UPDATE: Thinking more about this.....I suppose the logic of this post doesn't lend itself well to the hypothetical (but almost entirely non-existent in reality) ticking time-bomb situation where you have intelligence that the suspect has specific information about a specific plot. In such a circumstance, the torture would not beget more torture once successful because the interrogation would be aimed at obtaining a specific piece of information along the lines of "where is the bomb," or "when is the attack," or "who is the bomber."'s easy to see how the logic described in this post would lead to imagined ticking time bombs where the suspect provides information about a non-existent plot, leading investigators to interrogate someone else about the details of that non-existent plot under the belief that the plot is a "ticking time bomb."

Against Legalization of Drugs

I just wanted to point to David Fredosso's argument, in Culture11's Drug War symposium, against the legalization of drugs (though he seems to limit his argument to "hard" drugs). I'm not sure I'm persuaded, but it's the first argument I've seen in a long while that actually addresses some of the key arguments for legalization and doesn't descend into the usual demagoguery. At the very least, I think he makes a strong case for tempering guarantees of a massive reduction in violence.

One thing to point out - Fredosso does not attempt to argue in favor of the "War" on Drugs, only against the legalization of most drugs. This is actually not a flaw in his argument, as he quite openly acknowledges that he is opposed to treating drugs as if they (and all those who come in contact with them) are enemies in a "War."

See also - Balko, excellent as usual, on the collateral damage of the "War" and Anita Bartholomew on the "War's" price tag.

H/T: John.

Tuesday, January 13, 2009

Centrism and Conservatism

Dennis Sanders has a thoughtful response to my mild rejoinder about the role of centrism in American politics. That rejoinder has its roots in one of my personal favorite posts from last year, The Myth of the Moderate.

Sanders seems to fully understand the point I was making, writing:

So does that mean that those who argue for a more dogmatic conservatism were right all along? No. Mark and I agree that the party need to reach out more, but I think he is correct that we need to stop calling it an appeal to the center, since the center varies so much from person to person. What does need to happen is to look at the times we live and [] try to fashion conservative solutions to them.

This is exactly correct in my view.

Ultimately, one of the biggest problems with the idea of a sort of master dogmatic conservatism isn't just that it comes across as mean and driven by fearmongering, it's that it prevents individual constituent flavors of conservatism from applying their philosophies to the world as it is, which makes it exceedingly difficult for conservatism to appear relevant in the modern world. But freeing the various flavors of conservatism to find their own solutions to modern problems will inevitably create a rebirth of all those flavors both in terms of relevance to modernity and in terms of electoral appeal. To be sure, you need to have some type of dogma to define what varieties of conservatism are and are not in the coalition and, more importantly, to unite those varieties of conservatism - but there is no rule that says that dogma needs to be all-encompassing or extend beyond a handful of core issues upon which there is universal or near-universal agreement amongst the constituencies.

One of the key reasons for the mid-90s comeback of the conservative coalition was not, as it is widely assumed, that Newt Gingrich was an unapologetic across-the-board conservative (whatever that means). Instead, the secret of that success (in addition to piggybacking on Clinton Administration overreaches and a high number of Congressional retirements) was in part the Contract with America, which was based on so-called 60% issues, about which there was broad agreement both within the coalition and within the electorate at large. Notably absent from that Contract, therefore, were issues that would divide conservatives of various philosophical stripes - things like abortion and immigration. The genius of the Contract with America was thus that it sought to find issues that already more or less bound the coalition together and to turn those issues into the sole source of dogma. It did not seek to create a new dogma or to define a sort of "master conservatism."

While the practical effects of the legislation passed under that Contract are certainly debatable, the more important point is that it was an effective way of uniting the party while also appealing to people not already within the party. Meanwhile, the various stripes of conservatism remained free to find their own solutions to problems outside the realm of the Contract.

Put another way, the Contract with America didn't seek to impose a new, bigger (but more wobbly) "seat" on the proverbial three-legged stool; instead, it sought merely to put a shine on the seat that already existed while permitting the legs to stabilize that seat by creating as wide a base as possible.

A commercial real estate bailout?

It is possible (subscription required). I am not happy about this but the tone of this piece will be more analytical than editorial.

Not to jump the gun here, but I think this is a situation that can possibly rear its head this year for two reasons. First, rising default rates on commercial mortgage-backed securities due to adverse conditions in the current market as well as very aggressive underwriting standards that were commonplace between 2004 and 2007. The second and more significant reason is that outstanding mortgage debt in commercial real estate is somewhere in the $3.4-$3.5 trillion range. It's not unreasonable to suggest that we can see anywhere between $250-$350 billion of loans come due in any given year. What will make matters worse in this current environment is refinancing any short-term debt that was originated in the past five years, especially as we move into 2010, 2011, and 2012, as 2005-2007, as I mentioned before, were years where loan underwriting was extremely aggressive.

There is plenty to be concerned about in today's real estate capital markets:

1. Property values have decreased substantially off their peaks in 2006-early 2007. Initially, the decreases were capital markets driven, as the debt markets weakened and the weighted average cost of capital rose as a result of a higher percentage of equity. As the conditions in the economy have deteriorated, real estate fundamentals (rents, occupancy rates, etc.) have started to worsen, and investors have become bearish in their expectations. Furthermore, volatility in a declining market where transaction volume is thin poses challenges to make reasonable estimates of value, posing difficulty for investors and lenders alike.

2. Wall Street lending via the originate-to-securitize model for commercial mortgage-backed securities is severely dislocated. Between 2005 and 2007, securitized lenders were responsible for approximately 40% of all commercial real estate originations. Loan originations from CMBS lenders were down 95% from 2007 levels (from $230 billion to $13 billion). I expect origination volume to be less than what it was in 2008. Between investors taking massive losses in these types of investments, absolutely zero comfort in the collateral and credit risk underlying many of these securities and a complete erosion of trust between originators and investors, investors believe that the risk is so high that the returns they demand make originating new loans extremely difficult.

3. This leaves, for better and for worse, commercial banks and life insurance companies as the only lenders in town that have any substantial capital to lend. I say for better because as these two sources are primarily balance sheet lenders and hold the loans on the balance sheet, borrowers facing refinancing risk in a difficult market can negotiate loan extensions, preventing, for the near term, the possibility of default. I say for worse because commercial banks and insurance companies, being both balance sheet lenders and risk averse, prefer neat, easy "middle of the fairway" transactions that exemplify the old institutional mindset of being very choosy about the types of properties they will lend on, conservative loan-to-value ratios, substantial borrower equity and credit and, at times, recourse.

The situation is not good. With all of these things in mind, take into consideration the following options:

  • A borrower that financed through a CMBS lender is faced with the possiblity that there will be no lender at all, forcing an equity payment to pay the loan in full or an outright sale (although the sale option is a difficult proposition as I will explain in a bit). For properties in secondary or tertiary markets or properties that fall outside of the general categories of office, retail, industrial or multifamily, borrowers may face the risk of there being no capital at all.

  • Owners who can refinance will be unable to obtain refinancing proceeds sufficient to pay down the existing loan, requiring substantial equity contributions. Owners may have face further stress on their balance sheets if lenders require recourse and they are forced to post collateral. This will (and has) put property owners and operators with highly leveraged balance sheets in considerable trouble.

  • A borrower can avoid default and/or foreclosure via an outright sale of the property; however, the sales environment is as equally difficult. First, if a borrower can not refinance a property, there is a reasonable chance that a new investor may not as well. More potential deals than I can count have blown up due to potential buyers being unable to secure financing. Second, cash buyers are few and far between and given the dislocation in the debt markets, yields on debt exceed yields on existing real estate assets. As the question goes, why buy the existing asset when you can buy the underlying loan on the existing asset at a deep discount, take the property back in foreclosure, reposition the asset and sell it when the market improves? Whether or not this is a viable strategy is irrelevant to the issue that many equity investors are looking elsewhere. There will be a market for higher-quality assets that equity investors will pursue so I do not mean to make this sound like no one is looking for good real estate these days (they are); however, the markets are so dislocated that anything that isn't a "must-have" deal or is being sold by a very motivated seller will not get done.

The capital markets driving commercial real estate are in a state of severe dislocation. Property owners know this and, rightly, are worried. Refinancing risk, which two years ago seemed like nothing more than a bulletpoint in a Powerpoint presentation, is now a major concern over the next few years. The debt markets are severely supply-constrained and there is a lot of loans coming due that I think will not be refinanced in this current market. At this moment, there are no private sector sources of capital that will step in to fill the gap at interest rates or loan proceeds levels that will make sense to me.

Property owners here are acting as an interest group. They know these markets well. They know that the sale of assets in this market signals that sellers are in trouble. Buyers have no incentive to stretch their valuations to win deals (on the contrary, most investors get nervous if they win a deal). The situation for them is not good and they are attempting to use their political clout to do nothing more than protect the value of the portfolios and to ward off a fire sale.

Maybe it requires the use of TARP funds. Maybe it requires the Fed setting up a lending facility where it becomes the lender of last (more like first) resort for property owners. Maybe certain rules governing the mortgage-backed securities business will be rewritten to allow for loan workouts for defaulting loans in CMBS pools (which I think do not exist today). Unfortuneately, I do not have those kinds of details, but consider the possibility that we could hear about them soon.

Just saying...

What the Immigration Issue Says About the Modern GOP

Alex Massie, right again:

Now it's true that immigration reform is a tough subject for conservatives. True too, that when it comes to immigration there are some many on the restrictionist wing who consider Bush to be either a) a sentimentalist or b) corporate America's pawn or c) both of the above. Equally, the orthodox Republican position on immigration - border enforcement first, then reform - is not desperately unpopular. But a popular (or at least not unpopular) position is only half of the matter: you have to sell it well too. And on a subject as contentious as immigration, that requires a degree of tact and sophistication that, by and large, seems alien to many Congressional and grass-roots Republicans.


So it isn't just that legal Hispanic immigrants might be turned off by the GOP's language on immigration, so too are educated, upscale white voters who don't like the idea of endorsing a party that gives the impression, unwittingly or not, of being hostile to immigration. The GOP's posture on immigration fosters the impression, fairly or not, that they're the "nasty party". As far as political branding goes, that's a toxic position for any party to find itself in.

And this is the real problem the GOP faces, and which we've been discussing over the last several weeks. The biggest problem with the party's current situation (i.e., the problem of "talk radio dogmatism") isn't its position on the issues - it's the downright meanness upon which it insists to push those positions.

As I wrote during my stint subbing for John Schwenkler, it's terribly difficult to persuade people to vote for a party or even support its policies (regardless of whether they agree with those policies in principle) when:

  • That party’s guiding lights, rather than make principled arguments for various "anti-terrorism" policies, insist on labeling your religion as "Islamofascism";
  • Rather than make principled arguments for stronger restrictions on immigration, you and your family are portrayed as foreign invaders seeking to destroy the country from within because of the Mexican flag hanging on your balcony - even as nothing is said about the Italian or Irish flag hanging on your neighbor’s balcony
  • Rather than make principled arguments against gay marriage, you are accused of wanting to destroy your country’s traditions because you want legal recognition of your relationship.
  • Those same guiding lights proudly promote, rather than simply defend, the use of words and phrases with a well-known role in oppressing you or your ancestors.
  • Rather than make principled arguments against an auto bailout, you and your friends are accused of bleeding the American people dry
  • Rather than make principled arguments for the use of force and/or for restrictions on civil liberties, you are accused of being a "Defeatocrat" or wanting to "let the terrorists win."
The reason this meanness comes about is that the party has lost sight of the principles that gave rise to its policy preferences in the first place, principles that came from a number of different strains of political thought. Far from being a sort of "master conservatism," the resulting set of litmus test policy preferences thus lacks a coherent ideological basis in any cognizable form of conservatism.

And when a party loses sight of underlying principles, the only way to maintain party unity is to scare its constituents into loyalty, turning every issue into "Us vs. Them." While this can work in the short-term, it must inevitably result in unprecedented discord as once-loyal coalition members become fed up with consistently being called one of "Them." Case in point - see Weigel on Malkin on Voinovich. And that says nothing about the effects it has on ensuring you don't make inroads into the other coalition's constituencies.

H/T: Conor Friedersdorf.

Cross-posted at Donklephant.

Monday, January 12, 2009

Quick Links

I'm extremely busy this week, but wanted to point my readers to some worthwhile reads around the web:

First, Scott Payne at Politics of Scrabble posts the very personal insights of someone you all know well on the effects of terrorism on the way we think.

Next, Max Socol of Some Political investigates Hamas' posturing and finds what Hamas is really trying to accomplish in any cease-fire. Max then uses this finding to propose a way forward that would have a chance to end the cycle of violence in a way that all sides could hopefully live with. The Madisonian in me sense that Max is onto something here.

New blogroll addition Courtney of Great Satan's Girlfriend argues that Israel is getting ready to destroy Iran's nuclear infrastructure (not surprisingly, I disagree with the sentiment behind this, but it's a worthwhile read anyhow).

Fester at Newshoggers has a strong argument that the War on Drugs is having a tremendously destabilizing effect on American international relations on a global, regional, and even local scale.

Guilty In The Court Of Public Opinion

In the very gracious welcome that Mark extended to me, he also linked to an interesting post by E. D. Kain over at culture 11 regarding the controversy that swirls around Governor Blagojevich's decision to appoint Roland Burris to President Elect Barack Obama's vacated senate seat. What intrigued me so was not that Kain's opinion represents I would say the minority on this issue, but instead the driving force behind his argument:

Burris, who received his appointment from embattled Illinois Governor Rod Blagojevich after years of failed elections, has not been connected in any way with the seat-for-sale controversy. Nevertheless, Democrats in Congress have shown that guilt by association is enough to sidestep the law. What they forget is that despite the nature of the offense, despite his alleged corruption, Rod Blagojevich is, like every other American citizen, innocent until proven guilty.
He has not been removed from office, nor has he been relieved of his duties, one of which happens to be appointing a qualified individual to the United States Senate.

(Bold added for emphasis)

The defense of Blagojevich that he is entitled to the same rights as everyone else in this country, that he is innocent until proven guilty, is one that I've heard before, put forth by my fellow blogger at CFLF, Dr. Gail:

Rod Blagojevich is, indeed, innocent until proven guilty. It’s hard to imagine an innocent explanation for some of the allegations in the complaint, but he’s entitled to his day in court. He has not resigned his position as governor and, regardless of his motivation for refusing to resign, he is still the governor. It seems that everyone is so
busy piling on that they forget that.

To be fair, this is a reasonable opinion to have; after all, one of the great tenets of this country is the concept of innocence until guilt has been proven in the court of law. At the same time, in the realm of the political sphere, I also happen to believe that it is also inherently wrong.

One of the few positive aspects of this entire Blagojevich debacle is that it allows us to study the concepts and repurcussions of political guilt under unusual and revealing circumstances. Typically, when scandal arises, either the politician involved owns up to it and resigns, or fights it and either wins or loses. There are of course countless examples outside of these two basic templates, but a confluence of events have driven this specific scandal and its slowly unfurling aftermath under a microscope. These include a stubborn Governor who refuses to resign, and at the same time is terrible at defending himself, the highest profile senate seat open and up for grabs, controversy as to the confidence in said governor, etc.

What all of these things have conspired to do is bring to light another court not established by the constitution, nor any other formal document of governance; the court of public opinion, specifically how it relates to the political world.

Think about it for a moment. Paris Hilton is a banal airhead, Brittany Spears is a terrible mother, OJ actually is a murderer, and not only is Michael Richards not funny, he's also a bigot. Whether you admit it or not, there are pretty good odds that you have in your own mind judged some public figure in one way or another; Michael Jackson's a creepy pedophile, Michael Moore is a sensationalist socialist blowhard, etc.

And there's nothing wrong with that (or, there might be depending on your value system, but legally there's nothing wrong with that). As Americans we enjoy both the freedom of speech, and as a result, the freedom of thought. This is also one of the reasons why innocent until proven guilty is such an important protection provided by our legal system. When the punitive fate of a person relies upon public opinion which so easily jumps to that of mob mentality, evidence and facts are all too easily ignored in favor of storming the castle with torches and pitchforks.

This establishes a mechanic in which the populace are free to think and feel towards any one individual according to how they choose based upon the evidence available to them, specifically those veins of evidence that they choose to believe. We are all free to believe Michael Jackson is a big ol' pede, but in a court of law thankfully this allegation must be proven using more than simply the evidence provided in supermarket tabloids.

The mob is free to condemn and hate and treat that person however they please in accordance with the law of the land, but only through the courts can legal punitive action be taken. Mel Gibson may be an anti-Semite, and we are free to boycott his movies and hamstring his film career as a result, but we can't lock him up for it.

But let us apply this mechanic to the political realm. Politicians are as accountable to criminal and civil courts as any other American citizen (one hopes, anyway), but for them this court of public opinion takes on a different form. This is naturally because ultimately their political livelihood is dependent upon the opinion of the constituency since the electorate can choose whatever criteria they please in casting their vote.

Because this court of public opinion has no established and documented structure, it can be tough to pin down standard operating procedure, but usually it operates not unlike the established courts in this country. First you have the trial for guilt, typically played out in the media. Media coverage drives this phase of the trial, and ultimately we as a populace elect to either buy what we are being sold, or not.

Once that is done, we decide if and how to punish the politician for it (this is assuming that the politician doesn't first resign. This would be I suppose the equivalent of entering into a plea bargain). The most definitive instance would be the outcome of that politician's election, though this doesn't always play out as such.

For example, let's take a look at President Elect Barack Obama, and a potential scandal that would sink many a politician; prior drug use. When he first threw his hat into the ring, there had been some ado made regarding the Illinois Senator's drug use in the past--in fact he actually wrote about it in his published memoirs, Dreams of My Father. Guilt in this instance was easily obtained despite the fact that he had never been brought up on drug charges in a court of law; Barack Obama in his past did in fact snort some coke and smoke some weed and you would have a hard time finding someone who didn't know and believe this.

But as far as punitive action, the court of Public Opinion decided to give the presidential candidate a pass--aside from a few off hand remarks from surrogates supporting other candidates, the issue never developed into a major campaign theme, and polls consistently indicated that people just didn't care and weren't using the indiscretion in making their decision on whom they would prefer occupied the Oval Office for the next four years.

Looking back, we know that the President Elect was forgiven his prior drug use by the mere fact that he is the President Elect, thus making this the public opinion equivalent of Jury Nullification. Another example of political Jury Nullification in the political arena may be seen in the impeachment of President William Jefferson Clinton. Though he was impeached and brought to trial, not only was he aquitted in court, he was also ultimately forgiven by the public as evidenced by the fact that he left office with an approval rating of 65%.

Mentioning Clinton also brings up another important point; not always are politicians afforded the ability to have their day in court with election day serving as a venue. In such instances, public polling often serves in the stead of an official election. Which brings us back to Rod Blagojevich, his own court of public opinion, the final verdict and punishment, and what that means in the case of Roland Burris.

Blagojevich opted to make things difficult because he didn't do what I think most politicians would have done in his place--resign, or at the very least, step aside while the ongoing investigation resolves itself. Not every politician does this whenever they are arrested or even being investigated, but the severity not only of the allegations, but the evidence presented to the court of public opinion in the form of the transcripts already released by Special Investigator Fitzgerald I believe created an environment wherein most politicians would have gone for the public opinion plea bargain.

But he didn't, and unfortunately for everyone, the Illinois legislature simply couldn't impeach him fast enough to take from him the legal power to appoint the next US Senator from Illinois.

The resulting problem is thus. In the court of Public Opinion, Blagojevich was found irrefutably guilty, with approximately seventy percent of his constituency believing his term should be prematurely ended either through resignation or impeachment. Further, a majority are also of the opinion that his appointment to the Senate be blocked.

What happened?

The scandal hit, and Blagojevich was found almost immediately guilty based upon the sheer audacity of the evidence at hand. The public, not able to vote him out of office in time, and unable to impeach, essentially opted to make Blagojevich's punishment a severe vote of no confidence. Given the nature of his crimes, the very last thing he should be entrusted with is appointed the senate seat in question given that he was caught red handed trying to auction the thing off.

When Senator Reid (and believe me, Democrat and liberal I may be, I am no fan of Reid's) said that Burris would carry with him a "taint", he was essentially correct--given the judgement of the court of public opinion, it would be difficult if not impossible for Burris to come into office with the confidence of the people he is supposed to represent.

That Senator Reid is highly inept in many political areas himself has only managed to confuse things even more.

But it is there in the open, despite the ruling of official courts; Blagojevich is a servent of the people, and the people feel that he greatly betrayed that trust. It is the will of the people that he not be allowed to further betray that trust by filling the very same senate seat that kicked this entire ordeal off in the first place. Unfortunately the people were not adequately armed to take the drastic actions necessary in such a short time to prevent Blagojevich from making the appointment if he so chose.

It was, in fact, a legal appointment. But also is there legal justification for blocking the appointment in the Senate as well. As stated in the Constitution, Article I, Section 5, Paragraph 1:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Of particular import is the first bit, "Each House shall be the Judge of the... Qualifcations of its own Members..." Sure, it's up for interpretation, but it also gives both the House and the Senate the wiggle room necessary to block incoming members, though, as I'm sure you would agree with me, this should only be done in moments of extreme circumstances.

Thus the appointment is legal, but federal attempts to block that appointment do also have a basis in law.

How this specific situation ultimately ends is anybody's guess. Again, while Reid may know how to get reelected, and how to win the job of Senate Majority leader, there are definitely areas where he has the political instincts of an intoxicated mule, and the power play that ensued between himself and the embattled Illinois governor is a good example.

As for Burris, whether he is qualified or not is irrelevent. What is relevent is the fact that he was appointed under circumstances that lacked the confidence of the people, and as such fails in the court of Public Opinion. In truth, he's not guilty of anything, but instead yet another victim in Blagojevich's corruption, but there are more than enough grounds for which his appointment should not stand.

Getting out of the weeds, there is a greater point to all of this, though. Or perhaps just a desire for awareness. People in the public eye are not merely subjected like you and I to the rule of the courts, whether we think it fair or not. For celebrities, their lives under the jurisdiction of the court of Public Opinion is incidental, a price that must be paid for a life of fame and fortune. For politicians it is a necessity, a by product of this two century long experiment in democracy and freedom of thought and expression. At times the court of public opinion isn't fair. Consider Truman who left office with approval ratings in the twenties, and whose legacy was only salvaged decades later by the good graces of history.

But while public opinion may not be fair from time to time, while its courts are not bound by law or carefully deliberated edict, they are just as binding, and just as important to the integrity of this democracy, for public opinion is nothing more and nothing less than the will of the people enacting that most important principle of this country; that of self-governance.

[Ed. Note: block quotes fixed due to Blogger's terrible publishing software]