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Wednesday, September 26, 2018

A Thought on Nominating Supreme Court Judges


The current furor over the approval of President Trump’s nominee to the Supreme Court got me thinking. . .
            The Constitution requires that all federal judges—including the Supreme Court—are nominated by the President, approved by the Senate, and get what are, in effect, lifetime appointments.  The concern today and at other times over the years has been to ensure that judges are not appointed based on short-term political considerations but for their legal wisdom and judgment.  Today, we are seeing that, in a time when our politics are polarized, avoiding political considerations is harder than ever.
            I would argue that we might want to reconsider the Constitutional requirements for nomination and approval.  When the Constitution was written, there were very few federal judges.  Today, however, there 870 federal judges, including 673 district judges, 179 appeals judges, 9 international trade judges and, of course, 9 Supreme Course judges.  All of these judges have been nominated by a President and approved by the U.S. Senate and serve lifelong appointments.
            One way to minimize the politicization of the courts would be to change the selection process for new judges.  Here’s an option:  When a Supreme Court vacancy opens, the current roster of federal judges would recommend to the President a list of five nominees.  The President would then select one of the recommended candidates to forward to the Senate and another two to be considered if the first candidate withdraws or is not approved.  The Senate would then either confirm the candidate or send the nomination back to the President.
            Obviously, this does not totally eliminate political considerations, since all judges will have already gone through the process of presidential nomination themselves and since the President would continue to be the nominator.  However, it would perhaps provide a buffer against pure politics as a determiner of nomination decisions. 
            Thoughts??

Thursday, September 20, 2018

A Lesson from Joe Biden


I am reading Promise Me, Dad, Joe Biden’s memoir of a year when he struggled to lead the U.S. response to international issues in Latin America, Ukraine, Iraq and elsewhere and decide whether or not to run for the Presidency in 2016, all the while suffering the pain of his son Beau’s fight against terminal brain cancer.  It is an amazing book by an amazing, if often under-appreciated leader.
At one point, Biden gives us a look at his own political philosophy:

My old friend Tip O’Neill, the twentieth century’s most colorful and successful Speaker of the House, famously said, ‘All politics is local.’  I’ve been around long enough to improve on that statement.  I believe all politics is personal, because at the bottom, politics depends on trust, and unless you can establish a personal relationship, it’s awfully hard to build trust.  This is especially true in foreign policy, because people from different countries often know little about one another, and have little shared history and experience.  I have spent countless hours trying to build trust across those divides, and I have always followed my father’s advice:  Never tell a man what his interests are.  Be straight and open with him about your own interests.  And try to put yourself in his shoes.  Try to understand his hopes and his limitations, and never insist that he do something you know he cannot.  It’s really just about making the effort to make a personal connection.

It is a perspective on leadership in a democracy that we need to keep in mind as the mid-term election approaches.   

Tuesday, September 4, 2018

Net Neutrality


I wrote to my Senators and Congressional Representative recently to encourage them to support “net neutrality” of the Internet.  I argued that the Internet is the Information Age equivalent to the national road system in the Industrial Age: a public service that must be equally available to all citizens.
            One Pennsylvania Senator responded, in part, “Like many Americans, I support an Internet free from government control. While I understand the concerns expressed by those who support net neutrality regulations, I believe that such federal mandates would unduly inhibit this industry's investment in new technology and job creation.”
            His response raised some questions for me.  One is the definition of the parties involved. The Senator talked about “government control.”  I see government as an agency of the citizenry.  In that sense, “government control” is “citizen control”—it means that U.S. citizens, through the agency of our elected representatives, should control public resources like the Internet, just as we control our interstate highway system.  It is worth noting that the Internet emerged from projects—ARPANET, for example—that were funded by U.S. tax dollars through the Department of Defense and other agencies, including some in the United Kingdom, France, and Switzerland.  Much of the research was conducted at public universities.  The first web browser was developed at the University of Illinois, for instance.  Over time, the system was made increasingly available to for-profit companies.
            While I am not entirely sure what the Senator includes in the phrase “this industry,” my own sense is that the Internet itself is not an industry.  Instead, it is an infrastructure sort of like an online town square or agora—a meeting space where both social and business transactions of many kinds can be conducted.  That—rather than the Internet itself—is where “industry” comes in.  Some of the industry actors in this arena are major corporations and commercial retailers who are not responsible to citizens but to their investors. Their decisions are made on the basis of what will better enrich their stockholders and leadership.  As a result, it is important that we protect citizen rights and interests in the process of making the Internet attractive to businesses.  The policy goal is to balance citizen rights with citizen access to services.
            Commercial exploitation of the Internet may lead to “investment in new technology,” but that will not necessarily lead to jobs for Americans.  The Internet makes make location irrelevant.  While commercial use of the Internet is sure to create jobs, there is no reason to assume that those jobs will be in the United States.  Our concern should not be simply the potential for the Internet to create jobs by creating commerce.  It should be to ensure that all citizens have equal access to services—for-profit and otherwise—that may be available online.
            While it makes good sense for the public, through our government, to encourage use of the Internet for a variety of business concerns, the underlying public interest issue—the issue that our Federal government must address as it encourages commercial applications—should be to ensure that any commercial use of the Internet treats all citizens fairly and equally.  Our goal must be to ensure that the Internet remains openly accessible to all citizens and, at the same time, that it provides effective and secure access for groups that may want to deliver products/services to people.  This requires that we make a distinction between these products/services and the basic information highway structure itself. 
            In this light, it is appropriate for citizens, through our government representatives, to set some rules for how the Internet is maintained and made available to all citizens and, in the process, to create an environment that ensures that the Internet can be used appropriately for profit-making purposes while, at the same time, protecting general access for all and ensuring that it is used for the public good.  It is a bit amazing that, this long into the Information Revolution, public officials cannot see the value of public access to the new communication environment.  There is room for both public access and profit in this environment.  The incredible success of both Apple and Amazon.com—both trillion-dollar corporations now—is evidence that we can use the technology for both service and profit without hurting either.  Policy makers need to find the new middle ground and not get caught up in “tribal” oppositions.  We need to work together to find the common ground on which future innovations will be built.