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an independent newspaper EDITORIALS


bers of the U.S. Senate most responsible for his confirmation.” Those words appeared on this page in 1991; nearly 20 years later, the body politic is still strug- gling with the question. Senators will have an- other opportunity to define and refine the process beginning Monday, when Elena Kagan appears before the Senate Judiciary Committee for the start of her confirmation hearings. In some respects, Ms. Kagan is much like the nominees who recently preceded her: an Ivy League graduate with a stellar academic record; an achievement-filled résumé that includes many firsts — the first woman to be dean of Harvard Law School, the first woman to be solicitor general of the United States. By all evidence, she possesses a top-rate mind, an inclusive and pragmatic ap- proach to problem-solving and the too-rare ability these days to appreciate divergent points of view. But, in one respect, Ms. Kagan presents the committee with a challenge it has not encoun-


“O Smart trade


Mr. Obama prioritizes a pact with South Korea.


ally, South Korea. The March sinking of a South Korean naval vessel by North Korean forces underscored the military danger that Kim Jong Il’s regime poses to the South, to Japan and to the U.S. troops who still stand guard almost six dec- ades since the end of the Korean War. Less spec- tacular, but no less ominous, in its own way, has been the recent progress toward free-trade agree- ments between South Korea and U.S. competi- tors in Europe and Canada. The U.S.-Korea Trade Promotion Agreement, negotiated during the George W. Bush administration, promises to shore up the U.S. position in the region both dip- lomatically and economically. But until now, the Obama administration, bowing to anti-free-trade sentiment in the Democratic Congress, has de- clined to pursue final approval of the agreement on Capitol Hill. Now, fortunately, that has changed. At the Group of 20 summit in Toronto, President Oba- ma announced that he wants to settle a few out- standing issues with Seoul in time for the next summit there, which is to be held in November. He would then submit the free-trade agreement to Congress after the November elections. The strategy promises that lawmakers can consider the treaty at a time of relatively muted political pressure. And that’s good, because, if it had been considered strictly on the merits, this deal would have passed long ago. It slashes tariffs and non- tariff barriers across the board on both sides, opening the trillion-dollar Korean economy to a wide range of U.S. products and services. This will go a long way toward helping Mr. Obama meet his goal of doubling U.S. exports over the next half-decade. What lingering opposition there is focuses on the agreement’s alleged failure to open the Ko- rean market sufficiently to U.S. autos and beef. On autos, the objections reflect the concerns of the United Auto Workers and U.S. automakers — except for General Motors. The fact is, however, that the agreement offers U.S. carmakers far bet- ter access to the Korean market than they have known and allows the United States to reinstate tariffs on South Korean vehicles if Seoul creates new nontariff barriers on American vehicles. The beef issue is complicated, reflecting the South’s exaggerated response to a 2003 outbreak of mad- cow disease in the United States. But Korean con- cerns over the issue have calmed recently and — after the North Korean attack — Korean appreci- ation for good relations with the United States has grown. That should make it possible for U.S. and Korean negotiators to paper over their re- maining differences in this regard. To be sure, congressional opponents of the deal remain wary and determined. But Mr. Obama’s wise decision vastly increases the chances for success. If he devotes even a fraction of the en- ergy to passing this agreement that he dedicated to health care and financial regulation, it should win a large, bipartisan majority.


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ECENT EVENTS on the Korean Peninsu- la have demonstrated how vital the re- gion is to U.S. interests and how danger- ous it would be to neglect our democratic


The confirmation hearings of Elena Kagan


NE OF THE truly unsettled ques- tions in American politics is how a prospective justice of the Su- preme Court should be interro- gated and judged by those mem-


tered for four decades: how to judge a nominee with no prior judicial experience. The absence of time on the bench is by no means disqualifying; many Supreme Court justices lacked this creden- tial, including the late chief justice William H. Rehnquist, who was a Justice Department official when he was nominated by President Richard M. Nixon. But it does mean that the committee and the country do not have the benefit of judicial opinions to shed light on how Ms. Kagan ap- proaches legal questions or how she thinks about the law. This vacuum should be filled with a can- did and substantive discussion to avoid what Ms. Kagan has called the “vapid and hollow charade” of some confirmation hearings past. This process has limits. Senators should not ask


— and Ms. Kagan should not answer — questions about whether she agrees with the conclusions reached in particular cases. In this term, the court found itself grappling with a set of 19th-century precedents that had direct relevance to a Second Amendment case before it. Justices can never be certain — no matter how many times they chant the words “stare decisis” — which issues and prec- edents they will be asked to revisit. But it should be possible to engage in a con-


versation about the processes employed by judges without inappropriately boxing Ms. Kagan into a corner or improperly seeking her commitment on a future vote. A discussion of this type would provide a valuable and public test of Ms. Kagan’s knowledge of the law, her appreciation or dis- pleasure with different theories, and her skill in communicating clearly and in layman’s terms. This last skill is often underrated, but it is impor- tant that those who interpret the law are able to spell out their thoughts clearly for the lower-court judges and citizens who have to live by their rulings. The run-up to the hearings has been typical and disappointing: Republican senators predictably began raising questions about her qualifications and ideology even before her nomination was for- mally announced. Democrats rarely missed an op- portunity to cheerlead, even though had Ms. Ka- gan been nominated by a Republican many would be blasting her for the strong national security po- sitions she took on behalf of the president. It is time for senators to demand of themselves what they expect of any Supreme Court nominee: Do your homework, know your stuff and keep an open mind.


TOM TOLES


MONDAY, JUNE 28, 2010


LETTERS TO THE EDITOR dletters@washpost.com


Afghanistan after the shake-up


Regarding Michael Gerson’s June 25 op-ed col- umn, “Obama’s conflicted call”: There are generals who distinguish themselves on the battlefield but are found wanting when giv- en command of a desk, for the skill sets are differ- ent. Stanley A. McChrystal is in this category, as are Civil War generals Phil Sheridan and William Te- cumseh Sherman and George Patton of World War II fame. Conversely, there are those who do splendidly at


a desk but never get to show their command mettle on a field of battle. George Marshall and Colin Pow- ell come to mind.


And then there are men, such as George Wash-


ington, Dwight D. Eisenhower and pre-Korea Doug- las MacArthur, who perform with distinction in both commands. Gen. David H. Petraeus may belong in this latter


category as well. His appointment to replace Gen. McChrystal is appropriate based on his demon- strated performance in Iraq and on the fact that his strong recommendation was responsible for Gen. McChrystal’s promotion to the Afghan command. Now he gets to clean up whatever mess his protege made.


PAUL BLOUSTEIN, Cincinnati 


With the change of command in Afghanistan, it is time to increase diplomatic efforts and gradually decrease our military presence. Included in such efforts ought to be an increased presence in that country of human and civil rights experts, proponents of social justice, and peace- makers. We should place greater emphasis on teaching tolerance, the merits of diversity, affirma- tive action and equal opportunity for all Afghans. These experts should be deployed to the tribal areas where their skills are most needed. Sponsoring an- ger management courses for the Taliban and other jihadists, as well as holding prayer breakfasts with warlords, should be considered. If war is not the answer, maybe we will find out


what is. The military could then withdraw to rest and refit.


SARAH BOTSAI, Rockville


The judge was right about drilling Ruth Marcus couldn’t have been more off-base in


attacking U.S. District Judge Martin L.C. Feldman’s decision lifting the deepwater drilling moratorium [op-ed, June 25]. Judge Feldman’s decision was a demand for rea- soning regarding government decisions, of which there has been precious little regarding offshore re- source management. The Post’s reporting on seven-minute reviews by


the Minerals Management Service for approval of complicated drilling plans [front page, June 10] showed that lack of reasoning. It appears to extend to the most senior levels of the Interior Department and the White House, given the decision for a six- month moratorium on all deepwater drilling with- out any showing of a systemic risk related to depth. The political desire to act does not justify aban- doning a sound basis for doing so. The decision to open the deepwater outer continental shelf to explo- ration, and the requirements for exploration, were the subject of an environmental impact statement. Permits were issued through that process — includ- ing the one issued to BP for Deepwater Horizon un- der Interior Secretary Ken Salazar and President Obama.


Although I’m horrified by the incredible waste of resources (pelicans and oil alike) and the sheer mag- nitude of the devastation from the gulf oil spill, we are not well served by knee-jerk political responses. Thank you, Judge Feldman, for demanding rea- soned decisions.


ROBERT BERMAN, Vienna Sanity restored Elected officials, not judges, write budgets.


he — not local elected officials — would deter- mine budget priorities in Prince George’s County. Last week, his decision was resoundingly re- versed by a panel of the U.S. Court of Appeals for the 4th Circuit. Local governments around the country should breathe a sigh of relief, and trial judges take note. Judge Williams, of the U.S. District Court for


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Maryland, ruled in favor of unions representing Prince George’s government workers who complained that the county had acted unconstitu- tionally by breaking their contract and imposing furloughs — in effect, pay cuts — in 2008. By im- posing furloughs, the county avoided layoffs. And it still managed to give its employees net salary increases thanks to across-the-board merit raises and cost-of-living adjustments. That wasn’t enough to satisfy the lawmaker lurking inside Judge Williams. He acknowledged that state and local governments are not tightly bound by contracts since they are also legally obli-


LEXANDER WILLIAMS JR., a federal judge in Maryland, committed one of the more egregious recent acts of judicial overreach last year when he decided that


gated to preserve key government functions and services during economic slumps. But he insisted that the county had better alternatives to fur- loughs — for instance, slashing funds for the com- munity college. Of course, those are exactly the sort of judgments that lawmakers, not judges, are elected to make. Writing for a unanimous three-judge panel,


Judge Robert B. King said that local governments are within their rights to furlough employees in fiscal emergencies. If unions representing government workers object to furloughs, the judge wrote, they may try to get the county to agree to rule them out as part of contract negotia- tions (though a county would be foolish to hamstring itself in that fashion). Barring that, the court decided, local governments have a good deal of leeway to make whatever budget cuts they wish. Judge Williams’s ruling last summer sent a chill through state and local governments nationwide, as elected officials wondered whether the courts would usurp one of their essential roles: setting budget priorities. With its ruling, the appeals court has restored some sanity.


LOCAL OPINIONS 3Join the debate at washingtonpost.com/localopinions


The Medical Center Metro station’s looming crisis


The June 22 Metro story “Few gains in safety since Metro crash” quoted Metro’s board chair- man as saying there is a financial conflict be- tween increasing safety and improving service. That is sometimes true but not always. At the Medical Center Metro station, we can


have better service and greater safety at the same time. This station has one set of slow escalators and one small, slow elevator on the west side of Rockville Pike for those with disabilities. This is grossly inadequate to evacuate the station in an emergency and far short of national standards. A WMATA study found that a bank of high- speed elevators on the Navy campus side of Rockville Pike would improve service for pas- sengers and be two to three times as safe. Addi- tional elevator modifications could make the sta- tion compliant with national standards.


But the Montgomery County Department of


Transportation rejects this opportunity to im- prove safety and service. The agency seeks to di- vert money from transit and pedestrian im- provements to build a highway underpass. This makes no sense. The Medical Center sta- tion serves two of this nation’s premier federal facilities, the National Institutes of Health and the National Naval Medical Center. Both cam- puses have undergone major renovation since the attacks of Sept. 11, 2001, to discourage acts of terrorism. The Metro station’s ridership is expec- ted to grow more than 50 percent by 2020. Let’s put safety back into the mix and invest in making Metro safe and accessible. RICHARDHOYE, Bethesda


The writer is chairman of the Pedestrian and Bicycle Committee of the Action Committee for Transit.


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Medicine fit for the World Bank? The timing of the June 25 news story “Pay raises at


World Bank, IMF draw criticism” could not have been more fitting after the World Bank announced its request for an $86.2 billion general capital in- crease in April. It’s curious that the World Bank rewards its own


staff with significant salary increases while simulta- neously preaching the gospel of austerity to devel- oping countries through its development policy lending operations. We maintain the belief that the $86 billion en- dowment must accompany significant reform at the World Bank. Case in point: While publicly grasping at the reins of the international climate funds, the bank continues to bankroll coal-fired power plants of the last century, despite the existence of viable and sustainable energy alternatives. In fiscal 2010 alone, which ends this week, the World Bank has tal- lied $4.7 billion in fossil fuel lending. This is hardly an enlightened approach in the era of climate concerns and emissions targets. If World Bank loans to developing countries are often predi- cated on reform, we believe it’s only fair that the bank tastes a bit of its own medicine. REBECCAHARRIS,Washington


The writer is information services coordinator for the Bank Information Center, which advocates for public accountability at the World Bank.


Hackers, come on in


The June 20 front-page story “iPhone insurgency stirs where BlackBerry rules” was interesting but neglected one extremely important point. Until the federal government can come up with a cohesive and enforceable internal policy on com- puter security (see the June 20 editorial “The un- readiness team,” regarding the Department of Homeland Security’s problems in securing cyber- space) it is ridiculous to think that allowing iPhone applications such as “four-way instant message chat” or “iPhone-based document scanner” are not an invitation for hackers to gain unprecedented ac- cess to sensitive information. DAVID BARRISH, Rockville


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