Fixed Terms for SCOTUS

Jack Balkin and Matt Yglesias are both talking about the merits of having a fixed term for a Supreme Court justice. Balkin suggests 18 years, Yglesias 9-12 years. I can see this making sense, as it would remove some of the political pressure of justices to, you know, wait until a like-minded President is in office to step aside. It’s a fairly arbitrary way of running a court system and having regular changes would ensure that there isn’t as much of a pressure to outlast any electoral deadlines, only serve your single term on the bench. And as Yglesias points out, it also would allow for the most qualified person, not the most qualified person under 50, to be considered. So much emphasis is now placed on finding a judge who can serve three or even four decades on the bench. It’s that way because of the requirements of the system as it stands now, but it doesn’t really make things any better.

I don’t expect there to be any changes to how the Supreme Court works, but it certainly is interesting to think about better systems than the life-time appointments we currently have.

Three Yards and A Cloud of Dust

Cenky Uygur has a must-read diary up on Daily Kos in which he lays out a very detailed critique of how the Kagan pick is a sign of the failures of the Obama presidency from a progressive perspective. Uygur makes a case that Obama simply isn’t doing enough to counteract the massive strides Bush and Cheney made to make America a more regressive country. He does so using a football analogy, similar to one I’ve been using for the last five  years:

Cheney and Bush moved the ball 80 yards down-field, whether that was on executive power, warrantless wiretapping, pre-emptive wars or just about any other issue you can think of. And Obama’s bold and brilliant response is to move the ball 10 yards in the opposite direction. Not good enough. Not remotely good enough.

The key here is that while the Republicans have made huge strides to unwind a century of government policy, the actions we are seeing from Obama are only small nibbles in the right direction. If this plays out at pace for the duration of the Obama administration, however long that is, then the Republicans will be poised to complete the job with another reactionary president who isn’t afraid to govern from his beliefs. And the consequences of that are terrifying.

Elena Kagan

I’m not a lawyer nor a legal scholar, but I can’t say that I’m excited about Elena Kagan’s pick to replace John Paul Stevens on the US Supreme Court. My biggest concern is that she is being given a lifetime seat – which for someone who is only fifty, could mean thirty years on the bench or more – but there is no clear indication that she is going to be a liberal justice. The composition of the Court is important, as the Bush administration moved the Court far to the right with the appointments of Roberts and Alito. The Obama administration should have attempted to fortify the left flank of the Court and there is not only no indication that Kagan will do that, but that the Obama administration even considers shoring up the liberal side of the Court a goal they seek to achieve with their nominee.

Glenn Greenwald, who has made very persuasive arguments against Kagan’s pick over the last number of months, writes about the failure of Obama to advance a liberal composition on the Court:

The Right appoints people like John Roberts and Sam Alito, with long and clear records of what they believe because they’re eager to publicly defend their judicial philosophy and have the Court reflect their values. Beltway Democrats do the opposite: the last thing they want is to defend what progressives have always claimed is their worldview, either because they fear the debate or because they don’t really believe those things, so the path that enables them to avoid confrontation of ideas is always the most attractive, even if it risks moving the Court to the Right.

Why would the American public possibly embrace a set of beliefs when even its leading advocates are unwilling to publicly defend them and instead seek to avoid that debate at every turn?

As Glenn suggests, this is symptomatic with the larger Beltway Democrat modus operandi of not fighting for things they claim to believe in. Beyond the specific merits of Kagan versus other candidates on the short list, it is incredibly discouraging that the President does not want to have a large national debate about the importance of liberal interpretations of the Constitution and US law.

I expect many Democrats will be strongly behind Kagan because she is the President’s pick. It is a cynical play by Obama, made on the safe bet of Democratic tribalism. Of course, the alternative between tribal positions on the left and those of the right is the establishment of pessimism and ultimately sitting out the fights picked by Beltway Democrats to achieve weak positions or support ciphers in positions of prominence.

Free Tenzin Delek Rinpoche

The International Tibet Support Network has released an incredibly powerful video in support of the release of Tenzin Delek Rinpoche, a Tibetan monk who is sitting in jail for a crime he did not commit. He had previously been sentenced to death, but international outcry and pressure forced the Chinese government to commute it to life in prison. Remarkably, the video contains a short audio clip of TDR from within prison. In it, he says:

“I am not guilty, please appeal for justice for me….call all people together and do everything possible to help me overturn the verdict”.

ITSN notes what is happening within Tibet in support of Tenzin Delek:

In a recent remarkable act of support and bravery, 40,000 Tibetans in Tenzin Delek’s community signed petitions – many signatures being in the form of thumbprints – demanding justice for their leader.

Tenzin Delek was one of the most influential religious leaders in Lithang, Kham – which is in eastern Tibet. He was renowned as a reformer and advocate for the Tibetan people. He helped build schools, hospitals, orphanages, and monasteries and promoted the preservation of Tibetan cultural, as well as advocated against exploitative mining practices that rape the Tibetan plateau. Naturally, the Chinese government viewed his peaceful activism in support of the well-being of the Tibetan people as a threat to their national security and framed this peaceful monk as a violent terrorist.

On 3 April 2002, following a bomb blast in Chengdu, provincial capital of Sichuan province Lobsang Dhondup – who was a distant relative of Tenzin Delek Rinpoche was arrested. Four days later, Tenzin Delek Rinpoche was detained (along with four close associates) following a midnight raid on Jamyang Choekhorling monastery in Nyagchukha. Both men were convicted on 29 November 2002, after a 3-day closed trial, during Lobsang Dhondup was portrayed as the bomber and Tenzin Delek Rinpoche as the conspirator. The main evidence presented against Tenzin Delek Rinpoche was a confession from Lobsang Dhondup, who later retracted the statement claiming he had been tortured. The only other supposed evidence was the presence of political leaflets at the scene of the bombing which the authorities claimed where produced by Tenzin Delek Rinpoche and distributed by Lobsang Dhondup. However no specific evidence was provided actually linking either of them to the leaflets. Tenzin Delek Rinpoche has denied ever producing such leaflets. Throughout the proceedings the two accused had no access to independent legal counsel. During the trial, Tenzin Delek Rinpoche is reported to have claimed he was tortured and shouted out his support for the Dalai Lama. On 2 December 2002 both men were sentenced to death, with Tenzin Delek Rinpoche receiving a two-year reprieve.

As I mentioned above, the international outcry following Tenzin Delek’s railroading lead to the suspension and later commutation of his sentence. Sadly, Lobsand Dhondup was executed at the same time as TDR received his suspended sentence.

Other than the Panchen Lama, Tenzin Delek Rinpoche remains one of the highest profile Tibetan prisoners of conscience in China. Take action to call for his release here.

Oy

The United Nations could be a great force for human rights in the world. But I find it hard to believe it will reach any meaningful goal if it continues to avoid actually appointing people who have miserable records on human rights to the UN’s high commission on human rights. Ban Ki-Moon has appointed Croatian justice minister Ivan Simonovic to the top human rights post at the UN headquarters in New York (the position is the UN Assistant Secretary-General for human rights, who will liaise with the UN High Commissioner for Human rights, Navi Pillay, in Geneva). Simonovic has served in the Croatian government for over fifteen years, including during the Balkan wars where the Croatians conducted ethnic cleansing of Serbs. Simonovic has been criticized for not adequately pursuing accountability and justice, both at home and at The Hague, for Croatian war crimes.

There were many qualified candidates for this job, but one can’t help but wonder the extent to which Ban made the hire to avoid pissing off known human rights violators like the Chinese government.

China’s Growing Governance Problems

Yiyi Lu has a really interesting post on the Wall Street Journal Blog about the role of “contentious politics” in Chinese society. She looks at the dynamic local government authorities have used to deal with protests and dissent, ranging from suppression and jailing to bribery to assent to the demands. There is clearly a growing issue of so many protests taking place (87,000 in 2005, at which point the PRC stopped releasing these ever-increasing annual numbers to the public). The volume is so high that she reports the domestic public security budget is now $75.3 billion dollars annually, just below China’s annual defense budget.

As Yiyi points out, the current model is untenable. Government won’t work when it is arbitrary and there is no uniform rule of law in China. She concludes:

The establishment of the rule of law will require systemic changes to the Chinese polity, and it is uncertain when and how it will happen. Until it happens, the only thing the government can count on is that there will be ever more contentious politics for it to deal with, and they will be organised in ever more ingenious ways, in order to create as big ruckuses as possible.

Yes, there will be ruckus. And there isn’t any area that the Chinese government fears more than their citizenry. In the absence of uniform and just laws, there really is no other predictable reaction from the people of China. It’s a very simple situation of the government reaping what it has sown.

Update on Hu Jia

Hu Jia is one of China’s most prominent prisoners of conscience. He’s a thirty-six year old dissident who has fought for democratic reform, as well as advocacy for HIV/AIDS patients. He was thrown in jail in 2007 following his advocacy for Chinese peasants’ rights, though the technical charge was “the crime of inciting the overthrow of the state.” He’s most of the way through a three and a half year prison sentence, but a new blog post from his wife Zeng Jinyan reveals that he is incredibly sick and has a tumor on his liver that the Chinese authorities are refusing to allow him to be treated for. While Zeng’s post is heartbreaking to read, this passage about how Hu is passing his time in jail and uncompromising in his commitment to rights and democracy in China stands out.

The subscriptions to the magazines and newspapers that Hu Jia reads in prison come to most of his living expenses. He follows current events even more closely than we who live outside prison do. He asked me to make a contribution on his behalf for the Sichuan earthquake victims, to buy annual editions of books, to speak out for educational reform, and to cast a ballot for the election of Han Han as one of Time Magazines 100 most influential people. When he speaks with us, he speaks very mildly. The most something upsets him, such as solitary confinement or illness) the more lightly he speaks of it to us. This reassures us some, and makes us feel that his spirit has not been broken. I can go so far as to say with a teary smile, the disaster of prison has tempered both Hu Jia and myself. This tempering has made us more mature and steady.

As I wrote last week, the election of Han Han as Time Magazine’s second most influential person in the world is an incredible step forward in the push for change in China. That one of China’s most high-profile jailed dissidents would see the value of this magazine poll as a force for change is a testament to the importance of Han Han and dissident writers in the Chinese blogosphere. The internet is an incredibly powerful force for democracy and we are only beginning to see its power begin to become manifest in China.

Best of luck and best of health to Hu Jia for the duration of his prison sentence. I hope he’s reunited with his wife soon and he finds a more free China when he does.

They Just Want To Be Tibetans

Tencho Gyatso at the International Campaign for Tibet’s blog writes on the impact of the Kyegudo earthquake on the people in this uniquely Tibetan city and region:

The majority of Tibetans are simple folks; they ask for nothing much but they would like to live their lives as Tibetans. They would like to see the Dalai Lama once in their lifetime, most especially in moments of crisis and tragedy like now. They would like to lead lives of their own choice. They would like to have their monks and monasteries left intact and be accessible to them. They just want to be Tibetans. But they are now caught up in something beyond their control – the politics of greed and power are threatening to shift their ground again even as they mourn their losses. And in the midst of this, I wonder what kind of a new Kyegu will emerge from these ruins? Will there be some resemblance of the charming Tibetan town that was Kyegu, or will it become another faceless pre-fab Chinese town built on the ruins of a Tibetan gem?

Go read all of Tencho-la’s piece. It is a hallmark to what I’ve written about here before in the context of the Chinese colonization and occupation of Tibet – namely that the Tibetan cultural identity is in peril. The severity of the tragedy doesn’t change who Tibetans are, nor does it change what they want in their lives. Increased pressure and efforts by the Chinese government to destroy the Tibetan identity through the rebuilding of Kyegu will not have the effect they are looking for. You can’t force healing or mandate a resumption of normal life after a catastrophe like this, especially when the response has been so lacking from the Chinese government. If the Chinese government uses this earthquake as an excuse to try to fundamentally change Kyegu and its people, they will only succeed in missing an opportunity to show understanding, compassion, and actual benefit for Tibetans from their occupation. I don’t expect that the Chinese government will see repair and reconstruction through the lens of what Tibetans need or want and it is this reality that will likely contribute most heavily to the eventual end of China’s occupation of Tibet.

Politics vs. Policy

Thers, at Eschaton:

I can’t help thinking that in some big giant wheels-of-the-gods grindingly exceedingly small fashion, one of the lessons of the current mess in the Gulf is that when you try to make policy based on the politics as opposed to the merits, you always, always, always get bit in the ass. Maybe in the future the Democrats will support some horrible fuckup of a war and come to regret it, and then they’ll learn this lesson forevermore. One can but hope.

Yeah. Part of the problem with Obama coming out in favor of offshore drilling recently is that while it may be politically expedient, it is just a bad idea from a policy perspective.  The reality that Democrats oftentimes (er, always) seem to expect when embracing Republican ideas for perceived political gains is that there is such a thing as a good idea and a bad idea. Some ideas are right. Some ideas are stupid. And there is not often any increased correctness by using the other side’s ideas in pursuit of bipartisan appeal. Most importantly, government policies have real world consequences. This catastrophe in the Gulf of Mexico is a direct consequence of energy policies that included off-shore drilling.

Han Han: Let the Sunshine In

This is really important. Han Han is a Chinese race car driver, singer, author and the country’s most prominent blogger. He was just voted #2 most influential person in the world in Time Magazine’s Top 100 poll. In response to being nominated, he penned a blog post earlier this month called “Let the Sunshine In” that is a dramatic call for fundamental changes to how the Chinese Communist Party governs the country, including an end to internet censorship, detention for thought crimes, and torture. According to China Digital Times, which has posted a translation of Han Han’s post, the post has over 25,000 comments, 45,000 direct links, and 1.2 million views. While the post has been pulled down from a number of his blogs (it is common for prominent bloggers in China & Tibet to maintain multiple home sites, to reduce the likelihood of a post being entirely deleted by internet censors), the original has now been up for three weeks.

Here is China Digital Times translation (with my emphasis added):

Yesterday, I saw a news report which said that I am a candidate for the list of the 200 most globally influential people from Time magazine. Sensitive word, sensitive word, and sensitive word from China are also candidates. At the moment [I heard this news] I was digging up bamboo shoots in my village (I was digging in my family’s field), so I did not pay too much attention. Later I saw there were lots of text messages on my cell phone, asking my take on this. I only replied to two friends in the Beijing News and Southern Metropolis Daily; all the other things written in other media are friendly imaginations based on my personality. I did not realize that so many people care about this, so I will just write about it here all together.

First of all, I sighed and felt regret. Why do others have such news media? When Time puts out a list of influential people, it makes waves within other countries. How much I desire that our China can have such media. When this media selects people, it also gets attention from the whole world. We cannot say such media is completely fair, but they do have public credibility. How much I desire that our country has this as well. But regrettably we do not. This is not to say that our journalists are not as good as journalists from other places, it is because ….. those reasons that everyone knows. I will just stop here; if I say more about this I will be dead, and my dead body will be whipped as well.

I often ask myself, what contribution have I made to this society which is full of sensitive words? Maybe in the end, all I contribute is another sensitive word which is my name. That’s all. Everyday I get out of bed around noon, often wasting money on digital gadgets, and I’m very picky about food. Thank goodness that I did not add more load or sin to this society, at least so far. I do not have a grand vision; I only want the relevant departments to treat art, literature and the news media better, to not impose too many restrictions and censorship, and to not use the power of the government or the name of the State to block or slander any artist or journalist. If this can be done, you do not need to spend a fortune; this country will automatically produce art work and news media which can be exported to the West, and our small readers, listeners, audience, netizens, urban dwellers and citizens can all enjoy this benefit. I may not have the talent and ability to write great things, but some others do. But you [the goverment] should not castrate people or glorify those who have been castrated.

A journalist asked me over the phone: In some places it’s been said that you are colluding with Western anti-China forces. I said this [accusation] is expected. They [the government] has used this method for sixty years. During the earlier several decades they may have genuinely believed this, but in recent decades, this is just a means of slander. I am just a person that often almost did not get my visa when I participated in competitions abroad because my documents were incomplete. What kind of Western forces are they talking about? What age is it now, that they still use the word “colluding”? That’s sounds so pathetic. If there is a comrade who is listening to my phone everyday, you must be very clear about what kind of person I am. What do you say, my friend? In front of a computer screen there must be a friend who smiles as he understands what I am talking about. But I am just curious, that after so many decades [the government] still only has this one position [in screwing people]. He is not tired of it, but the other party is sick of it.

However, I clearly recognize their existence. You always need both sides, positive and negative, camp A and camp B. If in our country, when we cannot agree with each other, we can leave each other alone, instead of censoring those that do not agree with us, then that would be huge progress. We will work hard towards this day.

Later the same journalist sent me another short text message: In other words, your views and expressions fit with Western values. Don’t you think so?
I replied to him: Don’t [my views and expression] fit Chinese values as well?

I believe that there may be different values between earthlings and aliens. But for Westerners and Easterners? Other then different living habits, how much different could the values be? Why do we have to fight over this?

At last, let me return to the point of so-called influence. I often feel very ashamed. I am just a person with a pen. Maybe my writings make people feel like they are releasing some of their anger or resentment. But other than that what’s the real use? The so-called influence is illusory. In China, those who have influence are those who have power. Those who can make rain from clouds, those who can decide if you live or die, or keep you somewhere in between life and death. They are the people who really have influence. However, I am not sure it is just because they are afraid of search engines or they are too fragile to be searched; we often cannot find them by using search engines. We are just a small role on the stage, under the spotlight. But they own the theater. They can at any time bring the curtain down, turn off the lights, close the door and let the dogs out. Later the dogs all disappear and the sky is blue again; there is no trace of what has happened. I just wish those people could really put their influence into good use. And those of us on this stage, even those who built this theater in the past, should make efforts to gradually take down those high walls and light bulbs. Let the sunshine in. That kind of light, no one can extinguish it again.

I’ve read a lot of the writings of dissident Chinese and Tibetan writers. I’ve seen a lot of bold ideas come forth in the last three years and watched them spread like wildfire around the Chinese and Tibetan blogospheres. But rarely has someone achieved such prominence as Han Han and never, with the possible exception of famed architect Ai WeiWei, has a Chinese thinker used their position of celebrity to put such revolutionary  words out into the world. I’ve read this piece about five times in the last twelve hours and each time it gives me goosebumps.

Over the last decade, I’ve often had friends ask me how I think Tibet will be free and what the likelihood of regime change in China happening.  I’ve always had intellectual answers of how change can occur to respond with. But for the first time, it is clear. Han Han and people like Liu Xiabo, Woeser, and Ai WeiWei are how the Chinese Communist Party will lose their hold on power.  Han Han’s celebrity is clearly protecting his ideas, but how the Chinese government responds to him in the future is critically important. His ideas are clearly a forerunner to regime change. The CCP is now in a Catch-22. If he is jailed or beaten or torture or murdered in response for his ideas, the public outcry could be a precursor to revolution. But if he and other people like him are allowed to continually push for freedom and democracy, then too will the table be set for the public to throw the CCP out of power.

Read Han Han’s post above again. As you do so, make sure you keep in mind that he knows exactly what words will trigger censors, what words will prompt government officials to call him in to have tea and talk about the things that he must not do.  He knows the weight and consequence of each turn of phrase, even going so far as to highlight that the names of other Time nominated influentials are in fact sensitive words. He critiques the government’s actions in the leadup to the Beijing Olympics (ridding the city of dogs, temporarily clearing smog). He even takes a direct shot at the Party’s fear of a mere search engine. These are not subtle critiques. These are direct shots, or at least as direct as he can reasonably make without guaranteeing a sentence of patriotic reeducation through labor.

I don’t know what will happen next. But for now, I am in awe of the power, passion, and patriotism of Han Han, in penning what I think is going to be the most important individual blog post in 2010.