THURSDAY, JULY 22, 2010 DAVID S. BRODER


With Kagan, change will surely come


B


uoyed by a 13 to 6 vote in the Senate Judi- ciary Committee, Elena Kagan is on her way to the Supreme Court. The talk in


Washington is what the impending elevation of the former Harvard Law School dean and solicitor general will mean for the capstone of the judiciary. Seated next to a former attorney general at a dinner party last weekend, I put the question to him — and received what is probably the conventional wisdom. “It won’t change any- thing,” he said, because Kagan’s moderate lib- eral philosophy is unlikely to deviate often from that of the justice she will replace, John Paul Stevens, often described as the leader of the four-member liberal minority. Not until one of the five conservative justices steps down will President Obama have an opportu- nity to remake the judicial branch. That is what they say, and I have no legal credentials to challenge their conclusion. But, as I told my dinner companion, I suspect that he is wrong and that Kagan’s joining Justices Ruth Bader Ginsburg and Sonia Sotomayor on the bench will change the high court in ways that no one foresees. I say this based on what I saw happen in The


Post’s newsroom and many others when female reporters and editors arrived, in in- creasing numbers, starting in the 1970s and ’80s. They changed the culture of the news- paper business and altered the way everyone, male or female, did the work. The women who came onto the political


beat asked candidates questions that would not have occurred to male reporters. They saw the candidates’ lives whole, while we were much more likely to deal only with the official part of it. So the scope of the candidate profiles expanded, and the realm of privacy began to shrink. They also changed the rules for reporters themselves. When I joined the press corps in the 1960 presidential campaign, I was formal- ly instructed by a senior reporter for the New York Times on the “west of the Potomac rule.” What happened between consenting adults west of the Potomac was not to be discussed with bosses, friends and especially family members east of the Potomac. It was a protective, chauvinistic culture, and it changed dramatically when more than the occasional female reporter boarded the bus or plane. I don’t know how having three strong- minded female justices serving simultaneous- ly for the first time will change the world of the Supreme Court. But I will not be surprised if this small society does not change for all its members. Meantime, Kagan’s passage through the


Senate Judiciary Committee left at least two important markers for the future. In what is undoubtedly his last Supreme


Court confirmation debate, Arlen Specter of Pennsylvania repeated his fervent plea that those selected to serve on that panel develop a greater degree of candor about their judicial philosophy — and stronger adherence to the pledges they give in seeking confirmation. While he voted to confirm Kagan for the bench after opposing her for solicitor general, Specter properly lamented her “repeat per- formance” of the deliberately bland responses the White House now recommends for ap- pointees of both parties. Ever since Robert Bork answered candidly and in full — and was rejected — it has become increasingly difficult for senators to learn where prospective justices stand. And, as Specter said, one of the most important as- pects of “congressional power has been taken away.”


On the other hand, Sen. Lindsey Graham of South Carolina, the only Republican on the committee to support Kagan, once again warned his colleagues about the danger in im- porting the ideological conflicts of their cam- paigns into deliberations about the judiciary. That “fragile” branch deserves protection, he said, not the pummeling that results from making it a battlefield. Acknowledge that elec- tions have consequences and focus on intellec- tual and temperamental qualifications, he ad- vised. Good advice for both sides to remember. davidbroder@washpost.com


E.J. DIONNE JR.


t’s rare to see a dry run for an elec- tion campaign. But over the next month, Australia will provide a test- ing ground for some of the core themes in this November’s American elections. Prime Minister Julia Gillard, who


took office in June after the fall of her predecessor, Kevin Rudd, has called an election for Aug. 21 — they do things fast down there — in which her Labor Party will be using a central argument that U.S. Democrats hope to invoke against the Republicans. Gillard’s statement opening the cam- paign left no ambiguity about Labor’s message. “This election will revolve around a clear choice,” she declared, “whether we want Australia to move forward or back.” In one minute and 41 seconds, Gillard used a variation of “move forward” six times and “go back” four. Labor’s slogan, “Let’s move Australia


forward,” is thus all about its subtext: that Australians don’t want to return to conservatives who governed the coun- try for 11 years before Labor’s 2007 victory.


And in the coming months, one of the Democratic Party’s very favorite words will be “Bush,” as in George W. Bush, by way of making the same point.


A Democratic model Down Under I


Democrats hope they can persuade vot- ers to see their ballots in this year’s midterm elections not as an up-or- down vote on their own stewardship but as a choice between — well, going forward, or moving back to the Bush era.


Over the past few weeks, a series of Republican tactical errors helped inject the Bush legacy into the political dia- logue. When Republicans went on the offensive in calling for a renewal of the Bush-era tax cuts for the wealthiest Americans, Democrats were given the opportunity to assail one of the former president’s least popular initiatives. And when the heads of the Repub- lican campaign committees for the House and Senate, Rep. Pete Sessions and Sen. John Cornyn, defended the Bush record on Sunday on “Meet the Press,” Democrats pounced. They quickly produced an online ad-


vertisement that repeatedly quoted Sessions saying “we need to go back to the exact same agenda,” and suggesting that the agenda he had in mind was Bush’s. A party spokesman insisted that the


quotation in question was not a refer- ence to Bush, although Sessions had said earlier in the show: “People had


EUGENE ROBINSON Standing up to the Breitbarts A


fter the Shirley Sherrod epi- sode, there’s no longer any need to mince words: A


cynical right-wing propaganda machine is peddling the poison- ous fiction that when African Americans or other minorities reach positions of power, they seek some kind of revenge against whites. A few of the purveyors of this


bigoted nonsense might actually believe it. Most of them, however, are merely seeking political gain by inviting white voters to ques- tion the motives and good faith of the nation’s first African Amer- ican president. This is really about tearing Barack Obama down.


Sherrod, until Monday an offi- cial with the Agriculture Depart- ment, was supposed to be mere collateral damage. Andrew Breit- bart, a smarmy provocateur who often speaks at Tea Party rallies, posted on his Web site a video snippet of a speech that Sherrod, who is African American, gave at an NAACP meeting this year. In it, Sherrod seemed to boast of hav- ing withheld from a white farmer some measure of aid that she would have given to a black farmer. It looked like a clear case of black racism in action. Within hours, Agriculture Secretary Tom Vilsack had forced her to resign. The NAACP, under attack from the right for having denounced racism in the Tea Party move- ment, issued a statement blasting Sherrod and condemning her atti- tude as unacceptable. But Breitbart had overstepped.


The full video of Sherrod’s speech showed that she wasn’t bragging about being a racist, she was tell- ing what amounted to a parable about prejudice and reconcilia- tion. For one thing, the incident happened in 1986, when she was working for a nonprofit, long be- fore she joined the federal gov- ernment. For another, she helped that white man and his family save their farm, and they became friends. Through him, she said, she learned to look past race toward our common humanity. In effect, she was telling the


story of America’s struggle with race, but with the roles reversed. For hundreds of years, black peo- ple were enslaved, oppressed and discriminated against by whites — until the civil rights movement gave us all a path toward redemp-


THE PLUM LINE


Excerpts from Greg Sargent’s blog on domestic politics and debate on the Hill: voices.washingtonpost.com/plum-line


Gibbs calls out the media


At Wednesday afternoon’s brief-


ing, White House press secretary Robert Gibbs delicately pointed out to the assembled reporters that their news organizations had also been too quick to accept at face val- ue the video that sparked the Shir- ley Sherrod controversy. This is important because it hints


at frustration that the White House rarely voices publicly: that Obama administration officials are often forced to respond to stories ginned up by the right because other news organizations too readily give them credibility. The key moment came when Gibbs was asked by a reporter if the moral of this story is “don’t trust the


Internet.”


Gibbs replied that news organiza- tions had asked the White House for a response to a 21


⁄2 -minute video


posted by conservative blogger An- drew Breitbart, when the speech was more than 43 minutes. “I had a lot of people asking for a response to the 21


⁄2


said. “My guess is you heard from a lot of your editors saying, ‘Go get re- action to this story.’ ”


Gibbs then described the media process as: “You all see it, you all want reaction, we get reaction.” He lamented that news organizations then aired the controversial snip- pet, as well as the White House reac- tion based on that snippet, without seeking fuller context themselves. Gibbs suggested that media or-


ganizations, too, should ask them- selves if they handled this properly. “I don’t think there’s anybody in-


volved in that chain that wouldn’t think, from start to finish, that this shouldn’t have been handled differently.” Translation: Maybe you all should stop using Breitbart as your assign- ment editor. There’s no excusing the adminis-


minutes,” Gibbs


tration’s conduct on this story, as Gibbs himself said repeatedly. The administration both fell prey to and enabled the process Gibbs is com- plaining about. And in this case, news organizations did show appro- priate skepticism about the Breit- bart video.


But Gibbs did make an important


larger point here: Big news organi- zations are far too willing to take their cues from people who are known to cook the facts on a regular basis. We should all keep this in mind the next time a Breitbart video floats to the surface.


KLMNO


R


A19


Why Arizona had to be challenged


by Doris Meissner and James W. Ziglar


whatever the litigation’s eventual outcome. Our experiences administering the nation’s


T MANUEL BALCE CENETA/ASSOCIATED PRESS


Protesters outside the Agriculture Department building in Washington demand the reinstatement of fired employee Shirley Sherrod.


tion.


With the Obama presidency, though, has come a flurry of charges — from the likes of Breit- bart but also from more sub- stantial conservative figures — about alleged incidences of racial discrimination against whites by blacks and other minorities. Re- call, for example, the way Oba- ma’s critics had a fit when he of- fered an opinion about the con- frontation between Harvard professor Henry Louis Gates Jr. and a white police officer. Re- member the over-the-top reaction when it was learned that Justice Sonia Sotomayor had once talked about how being a “wise Latina” might affect her thinking. Newt Gingrich called Soto-


mayor a racist. He was lightning- quick to call Sherrod a racist, too. I’d suggest that the former House speaker consider switching to de- caf, but I think he knows exactly what he’s doing. These allegations of anti-white


racism are being deliberately hyped and exaggerated because they are designed to make whites fearful. It won’t work with most people, of course, but it works with some — enough, perhaps, to help erode Obama’s political standing and damage his party’s prospects at the polls. Before Sherrod, the cause ce- lebre of the “You Must Fear Oba- ma” campaign involved some-


thing called the New Black Pan- ther Party. Never heard of it? That’s because it’s a tiny group that exists mainly in the fevered imaginations of its few members. Also in the alternate reality of Fox News: One of the network’s hosts has devoted more than three hours of air time in recent weeks to the grave threat posed by the NBPP. Actually, I suspect that this excess is at least partly an attempt by a relatively obscure anchor to boost her own notoriety. The Sherrod case has fully ex- posed the right-wing campaign to use racial fear to destroy Obama’s presidency, and I hope the effect is to finally stiffen some spines in the administration. The way to deal with bullies is to confront them, not run away. Yet Sherrod was fired before even being al- lowed to tell her side of the story. She said the official who carried out the execution explained that she had to resign immediately be- cause the story was going to be on Glenn Beck’s show that evening. Ironically, Beck was the only Fox host who, upon hearing the rest of Sherrod’s speech, promptly called for her to be reinstated. On Wednesday, Vilsack offered to re- hire her. Shirley Sherrod stuck to her principles and stood her ground. I hope the White House learns a lesson.


eugenerobinson@washpost.com


immigration system, under Republican and Democratic presidents, have convinced us that the challenge to Arizona’s statute is es- sential to clarify, once again, who in our feder- al system has responsibility for setting immi- gration policy. At first blush, Arizona’s approach may ap- pear to be a rational response to its burdens as the key gateway for illegal immigration at the Southwest border. But since the mid-1800s, the Supreme Court has upheld and expanded the federal government’s primacy in estab- lishing and enforcing immigration policy. When Arizona lawmakers passed S.B. 1070, a significant challenge to this settled constitu- tional principle, they virtually guaranteed that the federal courts would have to judge the constitutionality of their actions. Allowing states to set their own immigra- tion policies fails to solve the overall problem of illegal immigration and violates the su- premacy clause of the Constitution. The feder- al government can permit states and localities to act on its behalf in immigration matters, but it must expressly delegate that authority. To that end, Congress passed legislation in 1996 that allows the Department of Home- land Security to make agreements with states and localities — called 287 (g)s for the applica- ble code section — to assist in immigration enforcement.


DHS has signed more than 70 such agree- ments, including with the state of Arizona and some of its municipalities. This program, while controversial, appears to be constitu- tionally sound because it supplements — not supplants — federal authority based on a spe- cific delegation. Arizona’s controversial law, however, appears to go well beyond the intent of 287(g), asserting for itself even greater pow- ers to fashion immigration policy. Its ap- proach invites a patchwork of inconsistent state policies, with results as untenable as having states set their own defense or foreign policies. Likewise, S.B. 1070 impedes the federal gov- ernment’s ability to meet law enforcement ob- jectives set by Congress and the president to protect public safety broadly. Such duties re- quire a coordinated federal system that recon- ciles competing demands with available re- sources and shifting priorities. In the 1990s, for example, immigration policy focused on strengthening border security. After the Sept. 11, 2001, attacks, priorities shifted to national security targets. More recently, the adminis- tration has directed resources toward helping Mexico eliminate drug cartel violence. Immi- gration officials must be able to adjust en- forcement priorities and practices in light of changing circumstances.


All Americans should demand that their


government meet its constitutional responsi- bilities. But the remedy for failure or policy disagreements is not to ignore the constitu- tional principles that bind us. Rather, it is to secure accountability for government per- formance or changes through the ballot box. The most important fact driving the Ari-


zona action is a question: Why are an estimat- ed 11 million people in this country illegally? It is not because they preferred to come ille- gally, with the inherent dangers of exploita- tion, uncertainty and even physical danger for themselves and their families. The simple an- swer is that our immigration laws provide in- adequate legal avenues to enter the United States for employment purposes at levels that our economy demands. Congress has refused to deal with this reality for decades. The mismatch is stark. Only 5,000 visas are


available for low-skilled workers, whereas un- til 2008, the unauthorized population grew annually by about 500,000 mostly low-skilled workers. Even in this recession, more jobs are filled at high rates by immigrants, including unauthorized immigrants, than our outdated visa allocations can accommodate. A Mexican national, for example, would wait 10 years or more to get a visa under today’s system. It is not surprising that we have so many unau- thorized people among us because employers and workers obey market, not government, rules.


Tightening border controls, while essential,


jobs when Republicans were, not only in charge, but George Bush was there.” With polls showing voters more in- clined to blame Bush than President Obama for the economic mess, all such statements by Republicans will come at a high price.


Can the forward-or-back theme work? That’s where Gillard’s Australian experiment comes in. In many ways, her center-left Labor Party is in a far better position than the Democrats. The Australian economy is a global marvel. It never went into recession, and Australia’s unemployment rate is an astonishingly low 5.2 percent. Given the country’s buoyant econo-


my, it is remarkable that Labor mem- bers of Parliament even considered ousting Rudd. But Rudd was dropping in the polls, hurt by his government’s mishandling of cap-and-trade legisla- tion and controversy over its proposed tax on soaring mining profits. Rudd’s colleagues panicked and, lacking a strong base in the party’s fac- tions, he was forced aside for his depu- ty, Gillard, who moved promptly for an election to legitimize her leadership. The switch at the top halted the mo- mentum of the opposition Liberal Party (which, just to keep Americans con-


fused, is actually the conservative par- ty) and its leader, Tony Abbott. And to make the trans-Pacific com- parison even more interesting, Abbott’s party is running on themes the Repub- licans hope to use here. Its latest ad- vertisement includes the tagline: “More Labor. More Waste. More Debt. More Taxes.” To drive home the Liberals’ point that new leadership has not al- tered the incumbent government’s di- rection, an announcer opens and closes with: “Nothing’s changed. It’s the same Labor.” For now, Gillard has pulled ahead in the polls, partly by virtue of a disci- plined personal performance in her first weeks in office and also by tying Abbott to the earlier conservative gov- ernment’s unpopular labor relations policies — even though Abbott has said he would not reintroduce them. As Australia goes, so goes America?


Not necessarily. But for the past decade, politics in the two countries have run in tandem, with Rudd’s 2007 victory pre- figuring Obama’s. At the very least, when Democrats say our election is about whether we want to move for- ward or go back, they can give a re- spectful nod to Prime Minister Gillard. ejdionne@washpost.com


has exacerbated the problem. Today, our bor- ders are more secure than ever — so those here illegally stay because re-entry is perilous. Other perverse consequences will continue until the underlying causes of illegal immigra- tion diminish. Calls for “enforcement first” may have political appeal, but they are un- workable without a simultaneous federal overhaul of our immigration laws that in- cludes effective enforcement, legal immigra- tion reform and legalization for unauthorized immigrants. We sympathize with the public frustration


reflected in Arizona’s law. We hope it pushes Congress to reclaim federal leadership in ad- dressing the nation’s immigration challenges. However aggrieved Arizona may be, allowing states to set immigration policies violates es- tablished constitutional principles and fails to solve the overall problem. Any administra- tion, Democratic or Republican, would have to challenge Arizona’s statute. In court Thurs- day, the Obama administration is defending a core constitutional principle that makes it possible for immigration to continue to serve important national interests.


Doris Meissner and James W. Ziglar are senior fellows at the Migration Policy Institute. Meissner served as commissioner of the U.S. Immigration and Naturalization Service from 1993 to 2000. Ziglar, who is a member of the Arizona bar, served as INS commissioner from 2001 to 2002.


he Obama administration had no choice but to challenge the constitutionality of Arizona’s far-reaching immigration law,


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