Mother Jones Doesn't Understand Obama's War On MMJ Either

Mother Jones magazine recounts the sudden policy reversal of the Obama Administration on medical marijuana, but can't explain it.

Obama Made First Pardons This Month

President Obama made his first pardons, nine of them, earlier this month. The numbers are historically low.

Federal Court Nominations Scorecard

President Obama's progress in making appointments to the federal appellate courts is par for the course based upon recent history.

But, President Obama has lagged in nominating federal trial court judges. He has nominated 59 trial court judges to date, of whom 30 have been confirmed, compared to George W. Bush, who had nominated 94 federal trial court judges at the same point in his presidency, of whom 64 had been confirmed. The urgency of the lag is exacerbated by the fact that there have been 14 more federal trial court vacancies in the Obama administration than in the administration of George W. Bush.

So, there are currently 55 federal trial court vacancies for which President Obama has made no nominations at this time, while there were just 2 at the same point in the administration of Geroge W. bush.

10 Obama nominees have been confirmed to the federal circuit courts to date. At the same point in George W. Bush’s presidency (September 13, 2002), 13 of his nominees had been confirmed to the circuit courts. . . . Obama has also placed two justices on the Supreme Court. George W. Bush secured appointments of two Supreme Court justices but not until his second term in office. . . . at the same point in his first term, Clinton had placed thirteen circuit court judges and two Supreme Court Justices . . . . There are currently 20 vacancies in the circuit courts. On September 13, 2002 there were 28 circuit court vacancies. . . .

So far, 30 individuals nominated by Obama have been confirmed to the district courts. By September 13, 2002, 64 district court judges nominated by George W. Bush had been confirmed by the Senate. (Clinton had placed 70 district court judges at the same point in his presidency.) . . . there are currently 84 vacancies in the district courts. On September 13, 2002, there were just 32 district court vacancies for George W. Bush to fill. . . . Right now, there are only 29 pending nominations for district court judgeships. Half of those have been pending only since May of this year. On September 13, 2002, George W. Bush had 30 pending nominations for the 32 district court vacancies he faced.

From here.

President Obama has also made one nomination for a U.S. District Court post where a resignation has been announced but not yet taken effect, which is not included in the total above.

As of today, September 15, one of the circuit court vacancies described above has been filled, and there are 19 U.S. circuit court vacancies and 11 nominees pending for those posts. So, there are only 8 circuit court vacancies for which no nominations have been made by President Obama. They are, with the date the vacancy arose;

04 - CCA 07/08/2009
09 - CCA 06/12/2010
09 - CCA 12/31/2004
10 - CCA 06/30/2010
11 - CCA 08/29/2010
DC - CCA 11/01/2008
DC - CCA 09/29/2005
FD - CCA 06/30/2010

Senatorial privilege per se doesn't apply to circuit court of appeals appointments, but there are some rather complex traditions involved in appointments to the regional circuit court of appeals designed to balance appointments of judges so that all states in the numbered regional circuit are represented by some judges, and so that Senators from the affected states have a particularly large say in the discussion of those nominees. There are five vacancies on regional circuit courts of appeal for which no nominations have yet been made by the President.

Judicial appointments to the DC Circuit and to the Federal Circuit, like appointments to the U.S. Supreme Court, are largely in the President's discretion, so long as the nominee can secure a filibuster proof majority, which the vast majority of nominees do. Some members of the minority party usually agree to an up or down vote on any judicial nominee unless the particular individual is particularly polarizing, and a nominee who any filibuster threat to receive an up or down vote is almost always approved. There are three vacancies on these court for which no nomination has been made at this point.

In the case of four of the eight vacancies for which no nomination has been made, this is probably simply a consequence of the fact that the vacancies are only about three months or less old.

Two of the vacancies on the 9th Circuit and one of the vacancies on the D.C. Circuit, however, predate President Obama's election, and one vacancy on the 4th Circuit is more than fourteen months old. Presumably, the circuit court judgeship vacancies that pre-date President Obama's election are vacancies that Democrats, including President Obama when he served in the U.S. Senate, fought hard to prevent President Bush from filling. So, the delay in these nominiations is hard to understand.

What Proportion Of Judgeships Are Vacant?

As of today, there are a total of 876 Article III judgeships in the United States:

Supreme Court 9 (No vacancies)
Court of Appeals: (11 nominations for 19 vacancies)
Regional Courts of Appeals 167
Federal Circuit 12
District Courts: (31 nominations for 84 vacancies and 1 pending vacancy)
Article III 675
Territorial Courts 4
Court of International Trade 9 (No vacancies)

Is It Bad To Prioritize Appellate Court Nominations?

Some pundits have faulted President Obama for prioritizing appellate court nominations over trial court nominations, but I don't agree.

Appellate court nomination fights are more likely to provoke partisan fights in the U.S. Senate. Given the political reality that the President's party almost always loses some ground in Congress in midterm elections, it makes sense to try to resolve as many potentially controversial appellate court nominations as possible before the political composition of the U.S. Senate changes.

Vacancies in federal trial courts are much less likely to provoke partisan fights since the Senators from the state involved have generally already signed on to the nomination. Also, federal trial court judges don't make binding precedents interpreting the law. This is not to say that they aren't important or don't have great discretion that hinges on ideology, particularly in the area of criminal sentencing, but it makes their decisions less relevant to Senators in other states.

A filibuster of a federal trial court nominee isn't enitrely unheard of, but it would be unusual.

Why Are There So Many U.S. District Court Judicial Vacancies?

Failure to act on Presidential nominations to the judiciary is the fault of the U.S. Senate, and not the President, of course. But, the failure to nominate judges may be only partially the President's fault.

Under the tradition of Senatorial privilege, a federal trial judge nomination will be considered by the U.S. Senate only if both U.S. Senators from the state where the judge will serve agree with the President's nominee. It would be foolhardy for a President to nominate a federal trial court judge without receiving approval in advance from that state's U.S. Senators.

It is possible that what we are seeing now is that Republican Senators are continuing their strategy of all but a handful of moderate Republican Senators this legislative session of refusing to compromise to any extent with the President on almost anything, even if they might have supported a compromise in prior administrations.

If Republican Senators are refusing to agree to judges who aren't strong ideological conservatives for federal trial court vacancies in their states, this could explain why there have been fewer nominations in the past twenty months for federal trial court posts than in prior administrations.

Does this hypothesis pan out? If the federal trial court vacancies for which there have been no nominations made are disproportionatley in states with one or more Republican Senators, the Senatorial privilege explaination is a plausibe one. If the vacancies don't show that pattern, then this explanation may not hold up to scrutiny.

A list from the administrative office of the courts shows the current judicial vacancies. I have thinned it out to highlight those without a nominee and the date that vacancy arose, followed by the number of Republicans Senators from that state and the number of months that the vacancy has existed:

01 - ME 04/30/2010 (2) 5 months
01 - RI 12/01/2006 (0) 46 months
02 - NYE 10/16/2008 (0) 23 months
02 - NYN 03/13/2006 (0) 54 months
02 - NYS 06/01/2009 (0) 15 months
02 - NYS 04/22/2010 (0) 4 months
02 - NYS 09/17/2009 (0) 12 months
02 - NYS 08/11/2010 (0) 1 month
02 - NYS 09/01/2010 (0) Two weeks
02 - NYW 03/03/2009 (0) 6 months
03 - DE 07/31/2010 (0) 1 month
03 - NJ 05/30/2010 (0) 4 months
03 - NJ 02/09/2010 (0) 7 months
03 - PAE 06/08/2009 (0) 15 months
03 - PAE 07/31/2010 (0) 1 month
03 - PAM 03/31/2009 (0) 17 months
03 - PAM 01/30/2009 (0) 20 months
03 - PAM 04/21/2010 (0) 5 months
03 - PAW 03/15/2007 (0) 42 months
04 - NCE 12/31/2005 (1) 56 months
04 - SC 12/27/2009 (2) 9 months
04 - VAW 07/01/2010 (0) 2 months
04 - WVN 12/18/2006 (0) 45 months
05 - LAE 12/15/2008 (1) 21 months
05 - TXE 01/01/2010 (2) 8 months
05 - TXS 11/12/2009 (2) 10 months
05 - TXS 06/11/2010 (2) 3 months
05 - TXW 02/26/2009 (2) 7 months
05 - TXW 11/30/2008 (2) 21 months
06 - MIE 01/01/2009 (0) 20 months
06 - MIE 05/25/2010 (0) 3 months
06 - OHN 06/01/2010 (1) 3 months
06 - TNM 03/01/2007 (2) 42 months
07 - ILC 02/28/2010 (0) 7 months
07 - ILN 08/12/2009 (0) 13 months
07 - ILN 07/31/2010 (0) 1 month
07 - ILN 02/01/2010 (0) 7 months
08 - ARE 09/30/2008 (0) 23 months
08 - ARW 10/31/2008 (0) 22 months
08 - MOE 12/31/2009 (1) 8 months
09 - AZ 08/03/2010 (2) 1 month
09 - CAC 11/02/2009 (0) 9 months
09 - CAC 01/15/2010 (0) 8 months
09 - CAN 04/03/2008 (0) 29 months
09 - CAS 08/15/2010 (0) 1 month
09 - CAS 06/06/2010 (0) 3 months
09 - MP 02/28/2010 (NA) 7 months
09 - WAE 07/12/2009 (0) 14 months
10 - CO 01/05/2008 (0) 20 months
10 - OKN 01/04/2010 (2) 8 months
10 - UT 11/30/2009 (2) 10 months
11 - FLM 04/08/2010 (1) 5 months
11 - FLS 08/31/2010 (1) 1 month
11 - GAN 01/20/2010 (2) 7 months
11 - GAN 02/09/2009 (2) 19 months

There are 19 vacancies on the list for which no nomination has been made where there could be Republican objections. There are 36 vacancies on the list for which no nomination has been made for which there could not be an exercise of Senatorial privilege by a Republican. The breakdown is quite similar to the partisan breakdown of the U.S. Senate as a whole.

There is also no strong relationship between the number of monnths that a U.S. District Court judgeship has been vacant and the partisan affiliations of the U.S. Senators from that state. Many of the oldest vacancies for which there has been no nomination come fromm states where both Senators are Democrats.

So, the hypothesis that Senatorial privilege is an important factor that is holding up the process of making nominations to federal trial courts, while plausible, isn't well supported by the facts.

Instead, the main factor in the number of district court vacancies seems to be simply delay in naming nominees to those positions by President Obama, perhaps because he feels the need to focus his finite political capital on matters with a strong Democratic majority in the U.S. Senate is necessary to secure his long term objectives.

Elegant International Tax Reform

A good deal of the press coverage of the Obama administration's proposed international taxation reforms suggests that they are little more than a crude tax grab that tries to get revenue from transactions that other developed countries don't even bother to tax.

A May 6 posting by tax professor and tax blogger James Edward Maule (which I didn't have time to blog when I first read it), however, suggests that the international tax proposals involve more good tax policy and conceptual elegance than general press coverage of the proposals would suggest. Sometimes long winded Maule manages to sum up this major international taxation reform package in just a few words (references to non-international tax law proposals omitted):

The changes would require companies that defer taxation of foreign income to also defer deductions, would preclude the foreign tax credit . . . for foreign taxes paid on income not taxed by the U.S., would prohibit companies from treating certain foreign subsidiaries as disregarded entities for tax purposes . . . and . . . would require U.S taxpayers who transmit money to banks that do not cooperate with the U.S. Treasury to rebut the presumption that they were engaging in tax fraud. . . .

What is the sense of permitting taxpayers to defer taxation on foreign income while claiming current deductions for foreign expenses? Taxpayers who want to claim deductions in the current year should also report and pay tax on the income. Taxpayers who want to defer the income should defer the deductions. Not only does this make sense, it is fair.

What is the sense of permitting a foreign tax credit with respect to income on which U.S. income tax has not been paid? Is not the purpose of the foreign tax credit to reduce or eliminate double taxation of the same income by both the U.S. and a foreign nation? Where is the double taxation if there is no U.S. taxation of the income?

What is wrong with shifting the burden of proving the lack of tax fraud to individuals and companies that stash money in banks that advertise their willingness to thwart tax collectors? Should people who do business with enablers of tax fraud be blessed with a presumption of good intentions such that the IRS should have the burden of showing the fraudulent purpose? There are plenty of places to invest money that aren't trying to hide from the IRS. People who choose to do business with the tax evasion specialists ought not be complaining.

International tax is rocket science. Indeed, it is quite a bit more difficult. My fourth grader studies rocket science at school, while just starting to study how to calculate domestic sales taxes (let alone international tax law). But, these reforms are a model of simplicity for the field, and this gives them considerable political power, if this message can get through to political opinion makers.

Obama Good For Stock Market

Index ------Jan 20, 2009--May 4, 2009--% Change

NASDAQ ------1,440.86----1,763.56--- +22%
S&P 500 -----805.22--------907.24--- +13%
Dow Jones ---7,949.09----8,426.74--- +6%

From here.

When President Bush took office on January 20, 2001, the NASDAQ was at 2,770.38, the S&P 500 was at 1342.90, and the Dow Jones was at 10,587.60.

Wanted: One Supreme Court Justice

Justice Souter has tendered his resignation from the U.S. Supreme Court, effective this summer, so the race is on to fill the first U.S. Supreme Court vacancy of the Obama Presidency. Souter is one of the four judges who make up the liberal wing of the U.S. Supreme Court, despite the fact that Souter was appointed by George H.W. Bush, so the balance of power on the court will not be upset by an Obama appointment.

Moreover, given that there will be sixty Democrats in the U.S. Senate when the appointment is voted upon by the Senate, Obama has a free hand to make an appointment without worrying about a Republican led filibuster of an appointee.

The Souter resignation also increases the likely total number of appointments that President Obama will get to make during his term of office. Justice Souter is relatively young and in good health, unlike a number of is peers on the nation's highest court.

CIA Still Evil

The U.S. Central Intelligence Agency was used as a U.S. government authorized method of committing war crimes. The documents regarding the Bush Administration's use of the agency to engage in torture and secret indefinite detention without any semblance of due process or concern for human rights is detailed in a leaked memorandum that has now been leaked, although many of the details were leaked in less easily confirmed ways.

These policies have increased U.S. exposure to terrorist threats, and have produced casualties for U.S. troops in Iraq, by providing many who would not otherwise have supported or participated in anti-U.S. terrorism the justification for doing so. These policies have deprived the U.S. of foreign cooperation critical to fight terrorism, in one Italian case, even resulting in the ongoing prosecution of CIA personnel. These methods have also been proven time and again to be ineffective means of securing useful intelligence.

The biggest disappointment of the Obama Administration has been its steadfast refusal to disavow the Bush Administration legal doctrines that made this possible, or to pursue the criminals in the Bush Administration who carried out this regime (the Military Commission Act limits civil and criminal remedies available to punish these individuals, but we, the people in whose name these atrocities were committed, are, at least, owed the name of those involved and the details of what happened).

This isn't the first time that the agency once led by George H.W. Bush has abused its authority. The agency's culture remains rotten to the core. It repeatedly violates human rights, its covert actions frequently backfire disasterously, it is unaccountable, and it doesn't do a very good job of providing intelligence or carrying out covert action relative to private sector news agencies or other government agencies with parallel responsibilities such as the State Department, the FBI, and the U.S. military's special forces.

To be clear, I am not disputing that the spy satellite and signals intelligence of the NRO and NSA may have an important role to play. I am not arguing that the U.S. should limit itself to investigating terrorist from its own territory. I am not even arguing that there isn't an important role to play for human covert intelligence, or rare covert actions.

Instead, I am arguing that the CIA has outlived its usefulness in serving these functions. The agency is a failed tool.

A good part of that agency's staff consist of analysts who can be more effective in the State Department where the institutional culture calls for secrecy to be maintained when necessary to serve large foreign policy goals, not simply for secrecy's stake.

The covert operations responsibilities of the CIA, including all detentions and arrests of persons targeted for action, need to be transferred to the U.S. military special forces where the military justice system, and internal military rules of engagement, at the very least, can provide some relief from abuses and public oversight. These rules of engagement furthermore, need to be consistent with what humanity tells us is right and experience tells us work, goals that fortunately are not inconsistent.

Where possible, human intelligence should be conducted as investigations by the FBI (which is authorized to have agents go under cover when necessary).

If this division of CIA responsibilities leaves the nation with no one capable of providing some kinds of human intelligence important to U.S. national security, which can be achieved without torture or detention or assassination, those residual CIA responsibilities should be transferred to a new, much smaller agency, created from scatch with a new institutional culture, that has no other responsibilities or mandate, its own inspector general, a public budget top line, and closer supervision from a mix of political appointees and senior civil servants.

Anything less than the dismantling of the CIA can't fix its failed legacy.

President Obama

In an hour and a half, the term of our 43rd President, George W. Bush, will end, and the term of President Barack Hussein Obama, our 44th President, will begin.

Bush leaves with Nixonian approval ratings, a widespread belief that his war in Iraq has accomplished nothing and that his war in Afghanistan is not going well, an economy in shambles, the legacy of losing a major American city in Hurricane Katrina, and international contempt.

Obama faces the highest expectations. He is seen as FDR to Bush 43's Herbert Hoover. His biography bears similarities to that of President Lincoln, another state senator from Illinois promising change. He is seen by many as bearing the mantle of Martin Luther King, Jr., completing our nation's journey towards racial harmony and equality. The French President proclaimed that under Obama, Europe will once again have a United States that shares its values. The youthfulness of Obama and his family, and his idealism, evoke John F. Kennedy's Camelot. He is compared to Moses, leading a people out of an oppressive period in their history, and Jesus, a Messiah to save us all.

The nation hungers for change, and Obama has the mandate and supporting cast in Congress, to accomplish a great deal. Through his campaign and transition team, Obama has already developed a reputation for being a consumate planner. His cabinet picks has been rushed through the Senate approval process, ready to fill their posts on day one, or close to it. The first 100 days legislative agenda is waiting in the wings, receiving finishing touches, but ready to define his admininstration and give it some consensus accomplishments. There are Executive Orders waiting in a stack, carefully vetted by his closest advisors and reviewed in detail, ready to be signed. Those Executive Orders will immediately turn back Bush Administration policies on key issues (like torture) in a way that prolonged efforts from Congress could not.

President Lyndon Johnson, like Obama, came from humble origins and had an amibtious legislative agenda. History remembers how he struggled to salvage his positive agenda from the all absorbing negativity of the Vietnam War that threatened it.

The consensus of Congress, Barack Obama, Hillary Clinton, and the Iraqi civilian government, a consensus that ultimately absorbed even John McCain who had proclaimed a willingness to fight a hundred year war in Iraq, forced the hand of President Bush who cut a deal with the Iraqi government that is already winding down the war in Iraq. An era of impunity for occupying foreign military forces ended with the New Year, under the new status of forces agreement there. U.S. troops (there are scarcely any other memebers of the "Coalition of the Willing" left), are scheduled with withdraw from Iraqi cities in June. There is a date on the calendar for complete withdrawal of U.S. troops, and there is every reason to believe that substantial withdrawals of U.S. forces will take place before then.

There is every reason to be optimistic about Obama's handling of the economy. The "Great Recession" is already so far advanced that its end is, while not around the corner, not hopelessly distant either. Obama can be trusted to do, at least, some of the right things from a policy perspective, to address the financial crisis, and to put together a group of people who understand and are skilled at working with government to implement those policies appropriately.

The greatest anxiety is that a weak economy and possibly escalating conflicts in Afghanistan may derail Obama's positive social agenda on issues like major health care reform to cover the bulk of the uninsured, and reforms designed to improve access to higher education. For now, all we can do is hope, wait and see.

But, today, I still have hope, higher than I've had for a very long time, that we are heading on the right track.

Obama On Tort Law

Anthony J. Sebok, writing for Findlaw, offers a brief analysis of the impact that an Obama administration may have on tort law. He concludes that tort reform may stop dead in its tracks, but that Obama will have little impact on this area of law and that Congress will be more important.

My reaction is that Sebok is "not even wrong." Nothing he says is obviously inaccurate, but he missed the point. He is unaware of, or overlooked, the real key tort issues of the last eight years, many of which are thoroughly within the President's province.

The most important tort issue during the Bush Administration has been the degree to which federal regulatory involvement or national security concerns pre-empt state and federal tort remedies. The Bush Administration have frequently taken this position, often over staff recommendations from within regulatory agencies, and is currently pushing a final raft of regulations to achieve the same result before President Bush's term ends on January 20, 2009.

For example, a product liability case pending now involves a drug which was approved by the Food and Drug Administration on the basis of fraudulent and incomplete information provided to the agency, and that approval was later revoked. A Michigan statute allows a product liability suit to proceed to trial if the injured party can prove that the normally pre-emptive FDA approval was based upon fraud and is no longer in force. The Bush Administration has argued to the U.S. Supreme Court that state lawsuits should be barred in all cases by an FDA approval, even if it appear in hindsight to have been improperly secured. The policy argument made has been the highly disputed claim that this would unduly burden the FDA with requests for information and testimony related to product liability lawsuits.

An Obama administration very likely would not have asserted FDA pre-emption at all in this situation, in accordance with FDA staff recommendation, rather than taking politically motivated action to protect industry bad actors.

Similarly, the Bush Administration has largely taken the position that military contractors are immune from civil liability in either Iraq or the U.S., even for intentional torts like rape, committed against fellow U.S. contractors. Many states, however, while permitting waivers of liability for negligence, do not give effect to contractual waivers related to intentional torts and assume jurisdiction in cases where there is a U.S. party who is connected to the incident as either a Plaintiff or a Defendant, particularly if there is no other forum available for the suit. Many U.S. Courts would also permit rescission of a contractual waiver, if a party to that waiver did not act in good faith to make its obligation to provide a fair forum for disputes arising under the employment contract of the parties.

As a third example, the Bush Administration has used the claim of a state secrets privilege as a complete defense to a variety of suits against the government, even where the party suing is not a party to a privacy agreement with the government. The doctrine was invented in a plane accident where the state secret assertions made by the federal government were lies, and it is not at all clear that the doctrine was ever intended to be more than an evidence rule, as opposed to a form of governmental immunity. An Obama administration is likely to take a less hard line in this kind of case.

Finally, the Bush Administration and its relevant appointees, have taken a very hard line in interpreting law designed to protect employees in unions, in the civil service, and in private employment, both against direct violations of rights, and involving retaliation or whistle blowing. An Obama administration is likely to take a more balanced approach to employment law, a good portion of which is administered by federal agencies.

Obama On Kenya

Obama has written a letter to the editor of a Kenyan paper on their current crisis. His words are those of a poised statesman and I'm encouraged by his judgment.

(No, I haven't made up my mind between Clinton and Obama yet. But, I'm continuing to learn more and would be happy with either as a nominee.)