Government Executive - Authors - Andrew Cohen

Analysis: Racial Issues Sink a Nomination for a Civil Rights Chief

Andrew Cohen, The Atlantic — Thu, 06 Mar 2014 11:48:12 -0500

By an excruciating bipartisan vote of 52-47, the Senate on Wednesday rejected lawyer Debo Adegbile for a non-life-tenured position as chief of the Justice Department's Civil Rights Division. The vote teaches us at least three disturbing things about politics in America today— beyond the fact that we now have proof that dozens of senators don't believe the head of the nation's civil-rights office should actually care about civil rights.

1. Willie Horton never really went away: We will never know whether and to what extent Wednesday's vote would have been different—and whether the entire debate over his qualifications would have been different—if Adegbile were white and had a name that everyone could easily pronounce. But we know precisely how his opponents in and out of office used his race and his name against him. Nothing better symbolizes the racial component to this story, the Willie Hortonization of this man, more than this image from talk-radio host Michael Graham's website :

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It's not news that this sort of ugly racial identification still occurs 25 years after Willie Horton made his sensational debut onto the national scene. It is not news that the conservative spin machine would turn this complicated legal narrative into headlines like " Senate Democrats and a Cop Killer " over a photo of Adegbile. The news here is that seven meek Democrats , along with so-called "moderate" Republicans like Orrin Hatch and John McCain, failed to stand up to it on Wednesday. In the Senate, in the year 2014, it didn't matter what the American Bar Association or Paul Clement said about him.

2. Anyone you represent can and will be used against you: The Adegbile vote also reveals that it is now acceptable in politics to blame a lawyer for the clients he represented in the past—not just the clients he represented personally, but also those that his organization had long represented before the lawyer joined up. And not just in a hopeless case in which frivolous claims are made, but in a close case in which a conservative federal appeals court ultimately endorses the lawyer's views.

The most significant opposition to Adegbile's nomination came in response to his participation in the NAACP Legal Defense Fund's representation of Mumia Abu-Jamal, the man convicted of killing a Philadelphia police officer in 1981. Adegbile did not represent the defendant at trial. He did not declare his client to be innocent. Instead, he worked on a series of briefs supporting an appeal that made a legitimate legal argument. He did, in other words, precisely what he was expected to do on behalf of an organization dedicated to civil rights. For this he was deemed unfit to run the Civil Rights Division.

Yet not one of the senators who decried this connection to the NAACP LDF, an organization with a long, rich history of working against the racial disparities in the nation's capital-punishment regime, decried the similar connection between John Roberts and John Ferguson, a mentally ill prisoner executed last year . Long before he became chief justice of the United States, Roberts worked to help Ferguson, a serial killer, yet we barely about it during either of Roberts's two federal judicial-confirmation hearings.

The punchline? Roberts's law firm failed to get much relief for Ferguson. The Legal Defense Fund, on the other hand, generated a unanimous ruling from the Third Circuit in favor of Abu-Jamal. So a lawyer who upheld the Constitution and whose work was acknowledged as doing so by the federal courts was nonetheless shunned by the Senate.

Remember this the next time Hatch, lion of the Judiciary Committee, unleashes one of his epic riffs about the majesty of the Constitution and the rule of law and the need to put aside "political expediency" in the name of neutral principles. Today's vote will chill the work of every public-minded attorney who thinks she may one day want to become a public servant. That's a tragedy that transcends the Adegbile nomination.

3. When all else fails, pretend business will be overrun by felons: When Adegbile's critics became worried late in the game that the racially tinged attacks upon his past legal work might not gain enough traction in the Senate they ginned up a brilliantly cynical approach: When in doubt, scare the business community by warning them that a black federal nominee wants to force them to hire murderers and rapists. You can see the results here at the Washington Examiner in a piece that cites one long-time administration foe after another.

So added to the list of the nominee's sins was the tepid support he offered at his confirmation hearing for existing federal guidelines (at the Equal Employment Opportunity Commission, no less, and not at Justice) that urge businesses not to reject job applicants simply because they may have criminal backgrounds. It's a legitimate issue to discuss—especially with the " Ban the Box " movement—but it bears no resemblance to headlines like, " Should government force businesses to hire felons? Obama nominee Debo Adegbile says yes ."

Alas, what none of these hit pieces seemed to mention is that the EEOC policy to which Adegbile was linked—which he did not promise to copy at the Justice Department, and which no court (that I could find) has yet ruled unlawful—is similar to one that Clarence Thomas endorsed during his stint at the EEOC in 1987 . Just as I wonder what Chief Justice Roberts thinks of the way Adegbile was slandered for representing a convicted murderer, I wonder what Justice Thomas thinks of the way Adegbile was linked to this EEOC business.

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So now the Obama Administration will nominate another decent, qualified lawyer willing to take a dramatic pay cut to run the Civil Rights Division. That person will try to do what Adegbile would have done to protect the rights of dispossessed and marginalized and underserved citizens—the right to vote, for example, or to be free from discrimination—who are not otherwise adequately protected by our nation's laws and lawmakers.

But the irony is dense. The Senate's rejection of Adegbile, in the fashion in which it occurred, demonstrates how much work is left to do on civil rights in America. In a month, Debo Adegbile went from being a man poised to fight against America's deep racial divide to being a victim of that divide. There have been worse days in the recent history of the Senate, but few that I can remember.

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The Obscure Law That Governs Shutdowns

Andrew Cohen, The Atlantic — Mon, 30 Sep 2013 08:11:16 -0400

If rogue Republicans do not relent over the budget impasse by October 1, whatever pandemonium happens next will largely be governed by a federal statute you likely have never heard of: the Antideficiency Act. You can call it the "anti-deadbeat" law -- a collection of statutory and administrative provisions, really -- that forbid federal officials from entering into financial obligations for which they do not have funding, like paying the salaries of their employees or buying the things they need to run the government. It's also the law that wisely permits certain "essential" government functions -- like the military and the courts, for example -- to keep operating even in the absence of authorized legislative funding.

Predictably, there aren't many legal experts who have built careers around the Antideficiency Act, but I managed to corral a few. The most important messages they offer are these: 1) It's not just present federal work that's affected by the shutdown, it's future work, too; and 2) shutting down the federal government is terribly wasteful and expensive because of the re-start costs involved.

That's the point made by the acclaimed dean of Antideficiency Act scholars, University of Baltimore Law Professor Charles Tiefer ("For obscure details," he told me, "you've come to the right guy."). It's not just that many federal operations will shut down next week, Tiefer said, it's that "all kinds of planning and preparation for federal activity in the months and weeks to come" will become "increasingly neglected and disjointed if the showdown lasts more than a couple of days." Here's a key passage from the statute:

An officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property ...

As used in this section, the term "emergencies involving the safety of human life or the protection of property" does not include ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property.

Preparing for the Shutdown

Here is an example of what is happening right now within federal agencies and bureaus. Earlier this week, U.S. District Judge John Bates, a George W. Bush appointee who now is director of the Administrative Office of the U.S. Courts, sent an open letter to all departments within the federal judiciary. The letter set forth in detail the protocol for what will (and will not) happen in our nation's courts if as expected the money runs out next week. Bates wrote (emphasis in original):

If Congress fails to enact a CR by October 1, 2013, most federal entities will have to implement shut-down plans effective immediately. The Judiciary, however, will not shut down immediately. We will continue operations utilizing fees and no-year appropriations for an estimated 10 business days (through approximately October 15, 2013).

During these first 10 business days of a lapse in appropriations, the Judiciary will use available fee and no-year balances to pay judges, court employees and FDO employees, and to maintain court and federal defender operations. Courts and FDOs will continue to operate, but funding should be conserved as much as possible by delaying or deferring expenses not critical to the performance of your Constitutional responsibilities.

All Judiciary and FDO employees should continue reporting to work and they will be in full-pay status during this period. After the 10-day period, if there is still no appropriation, the Judiciary will operate under terms of the Anti-Deficiency Act, which allows "essential work" to continue during a lapse in appropriations. Among the definitions of "essential work" are powers exercised under the Constitution, which include activities to support the exercise of Article III judicial powers, specifically the resolution of cases.

Each court and FDO will determine the court staff, probation and pretrial services officers and FDO staff necessary to support the exercise of Article III judicial powers. Staff performing essential functions will report to work in a non-pay status. Other staff will be furloughed.

Staff who are furloughed cannot work voluntarily or be required to work. Staff performing essential functions and working in a non-pay status should expect to be paid once appropriations are enacted; Congress will have to take affirmative action to authorize pay for staff who are furloughed.

The details will be different in each instance, but you can be sure that all over the federal government this week these sorts of letters were being written and sent in preparation for the showdown. Here is the current OMB memo that outlines protocols. Here is a April 2011 White House memo that also adds context. Some workers will simply be sent home. Others will have to work with only the promise of pay. And Congress will have the obligation, moral if not political, to clean up whatever mess it and the White House create in the next few days and weeks.

The History of the Act
"Those who disburse the money are like a saucy boy who knows his grandfather will gratify him, and over-turns the sum allowed him at pleasure," Rep. John Randolph of Virginia said in 1806. The "saucy boy" here was the executive branch, the grandfather Congress. Georgetown University Law Professor Timothy Westmoreland, who has a background in congressional politics, wrote via email:

All civics students learn that the Congress has "the power of the purse." The Constitution gives the Congress the decision about whether to spend money or not. This shows up in Article I of the Constitution, where it says, "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." The Executive Branch cannot make a decision on its own to spend money -- and that's clearly what the Framers wanted.

That seems fairly straightforward, but almost from the beginning of the Nation, the Executive Branch tried different ways to dodge that fundamental restriction.I've seen references to congressional complaints about this all the way back to John Calhoun in 1816 and Henry Clay in 1819.

Not incidentally, who were these congressional titans complaining about? Presidents James Madison and James Monroe. Westmoreland continues:

The most obvious tactic was for Executive Branch officials to make contracts without already having the money from the Congress. If that happened, the Congress was backed into a corner: a commitment by the U.S. had already been made by the Executive, so the Congress felt it had to make the funds available because of some sense of a moral or good-faith obligation. This was called creating a "coercive deficiency." In the early days, most of this appears to have been done by the military, but that may not be surprising since so much of the early Federal spending was for the military.

To take back its control of the spending power, the Congress passed laws just after the Civil War that made such actions illegal. The main one is the Antideficiency Act, which prohibits Executive Branch officials from obligating or spending money before it is given to them by the Congress. It also prohibits these officials from taking money given to them for one purpose and using it for another. There are civil and criminal penalties for violating the law, as well as extensive auditing and reporting requirements.

Westmoreland continues:

A version of this 19th Century statute is still the law. Agencies themselves, Inspectors General, and the Government Accountability Office (GAO) all look into potential violations, and they are found every year. Some of them are simple errors. Some are disputes over bookkeeping rules or over interpreting legislation. Some are relatively small. Others are in the hundreds of millions. In Fiscal 2012, GAO reported 20 violations --ranging from a $50,000 violation in the National Guard to an $800 million one by the SEC. Civil servants can be disciplined or fired for violating the law. They can be criminally prosecuted for a willful violation, although I don't think anyone has ever been convicted.

The Act becomes especially significant when the Congress fails to provide appropriations. At that point, government employees are legally prohibited from spending money, because they haven't been given any money to spend. So an agency head cannot authorize a government employee to come to work; that would be incurring a government obligation without having an appropriation. The law also prohibits accepting voluntary services for the government, so the agency head can't even allow people to volunteer to do their jobs.

Who Does the Act Affect?
The act "definitely applies to government employees and officials of the core executive and independent agencies," Harvard Law Professor Howell E. Jackson, a budget and regulatory expert, told me. This means the vast majority of federal workers will be told to go home next week in the absence of a budget deal. Those who get to stay will come from two groups -- one in which federal workers have been explicitly exempted and one in which workers have been deemed to be "essential" through analysis. "It's complicated," Jackson said, "where the lines are drawn and sources of legal authority are not precise."

Perhaps the most interesting example of a "specific exemption," Jackson says, is the Food and Forage Act of 1861 -- near the start of the Civil War. As the title suggests, that law permitted soldiers to graze their horses and take whatever other necessities were required to live on horseback. It's a law that was invoked in a decidedly non-horsey sense during the Vietnam War, again during Operation Desert Shield in Iraq in 1990, and, for a brief time, immediately following the terror attacks of September 11, 2001.

"Federal employees can accept volunteers or go beyond their funding in cases of emergency involving the safety of human life or the protection of property," Westmoreland says. So federal firefighters and law enforcement officials clearly are exempt, Tiefer adds, as are judges presiding over criminal (but not necessarily civil) cases. Moreover, it's the OMB, with help from the Justice Department, that makes the call on who is essential and who is not, and each federal department, as we see above in the judicial example, has formulated its shutdown protocols. Westmoreland writes:

There has been a lot of legal interpretation (including during the Reagan and Clinton Administrations) of what this means. Overall, it has been interpreted narrowly but not rigidly. But the threat to life or property has to be "imminent." Air-traffic controllers and meat inspectors can generally keep working. People writing checks or doing maintenance generally cannot.

Worried about that federal payment that may be coming to you? You may be right to be concerned. Most payments will come, but others won't. As Jackson notes, new Social Security or Medicare checks or applications may not be processed as quickly (or not at all) until funding is restored. But Westmoreland says funding for Social Security doesn't go away on October 1:

There is also another group of activities that are not really an exception to the Act because they actually meet the terms of the Act: programs that already have received an appropriation from the Congress. Most government activities are funded by the Congress for just one year at a time. But some -- like Social Security -- have permanent funding in their statutes. Others may have multi-year funding that will not expire on September 30. Those programs won't shut down, although some of the staff who make the programs work more easily or more efficiently might have to stay home because their salaries are part of the annual spending bill.

So, barring a degree of political bipartisanship that seems increasingly unlikely, a dusty law designed in the 1880s to stop excessive federal spending will be employed next week to guide the government in a dispute over, well, excessive federal spending.

"The irony is that it always costs money to restart them and they typically get their back pay for the days they don't work, the government employees, and they have to catch up on the work that's not done while they are on these involuntary furloughs," Jackson said."So it's a very expensive way to play politics over the fiscal crisis."

Andrew Cohen is a contributing editor at The Atlantic (where this post originally appeared), 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists.

(Image via sergign/Shutterstock.com)

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How Eric Holder Can Help Public Defenders and Their Clients

Andrew Cohen, The Atlantic — Mon, 26 Aug 2013 11:09:17 -0400

For the past few months The Atlantic has been covering the sequester's growing impact on the ability of the federal judiciary to administer justice in a timely, fair and efficient manner without the money it needs. Judges and court administrators have been warning all along that litigants -- the American people -- would begin to feel more of the effects of the budget cuts as 2013 proceeded without a resolution of the sequester fight between Congress and the White House. It's now happening. Fewer courtroom hours. Longer waits for trials and rulings. Layoffs to courthouse personnel and public defenders. And it's going to get worse in 2014.

All of which is why Attorney General Eric Holder was right to write an op-ed Thursday in The Washington Post about the need for Congress to restore funding for federal public defenders who have been hammered by the sequester.It is comforting to see the nation's top prosecutor asking lawmakers to restore funding to the nation's court-appointed defense lawyers. And I think the attorney general genuinely cares about the faltering right to counsel and about the legacy of Gideon v. Wainwright 50 years after the Supreme Court issued that landmark ruling. Here is part of what Holder wrote in The Post:

I join with those judges, public defenders, legal scholars and countless other criminal justice professionals who have urged Congress to restore these resources, to provide needed funding for the federal public defender program and to fulfill the fundamental promise of our criminal justice system.

The Justice Department is strongly committed to supporting indigent defense efforts through an office known as the Access to Justice Initiative, which I launched in 2010, and a range of grant programs. The department took this commitment to a new level on Aug. 14 by filing a statement of interest in the case of Wilbur v. City of Mt. Vernon -- asserting that the federal government has a strong interest in ensuring that all jurisdictions are fulfilling their obligations under Gideon and endorsing limits on the caseloads of public defenders so they can provide quality representation to each client.

Read more at The Atlantic.

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Analysis: Sequestration Is Holding Up Our Legal System

Andrew Cohen, The Atlantic — Mon, 15 Jul 2013 10:44:05 -0400

It has been 134 days now -- roughly one-third of a year -- since the federal budget "sequester" formally took hold. And while members of Congress rushed a few months ago to ease the sequester's impact upon air traffic control -- that is, rushed to make sure their planes would take off on time as they got out of Washington for their long weekends -- there has been no such rush to protect the nation's legal system from the grim impact of the budget cuts. Our federal trials can be delayed at great cost to litigants, our nation's third branch may slide into third-world practices, but God forbid our planes should be late.

It would be one thing if the federal judiciary's budget were bloated. But clearly it is not. "For every one thousand dollars ($1000) of federal spending, the Judicial Branch uses one dollar and eighty-nine cents ($1.89)," U.S. District Judge Fred Biery wrote last week in an open letter to members of the Texas delegation to Congress. "Of that amount," the judge added, "the Western District of Texas uses three pennies." The sequester, in West Texas and everywhere else in the United States, is about the willingness of Congress and the White House to hinder justice by squeezing pennies out of the nation's already-underfunded courts.

Few outside of legal circles want to talk about the impact of the cuts upon the administration of justice. It rarely makes news -- and certainly not television news since there are few images to broadcast. But the sequester's impact upon the federal courts is bad, and getting worse, and will reach constitutional crisis next year around this time if the budget cuts reach into the next fiscal year. In the past few days, I've rounded up a sampling of views from some federal trial judges on what this means for federal litigants today and what it portends for future litigants if Congress continues to fail or refuse to adequately fund the federal court system. Read this cogent "fact sheet" from the Federal Defenders Office if you want details.

Included below are the comments of several sitting federal trial judges who expressed concern to me not just about the cost-cutting that impacts their courtrooms now but also about the profound separation-of-powers principles implicated by the lingering political deadlock in Washington. The sequester, in other words, represents an assault by the legislative and executive branches upon core judicial functions. And if it lasts much longer, if the next fiscal budget is impacted, the sequester will strip Americans of their right to both serve upon and to be served by juries.

The Administrative Office of the United States already has indicated that it may be forced to eliminate civil jury trials in the month of September -- a whole month without federal civil trials anywhere in America! "If sufficient funding is not provided to the courts," 6th U.S. Circuit Court of Appeals Judge Julia Gibbons bluntly told lawmakers in March, "we cannot provide the people of the United States the type of justice system that has been a hallmark of our liberty throughout our nation's history." The sad truth is, however; few of the nation's political leaders, including the former constitutional scholar who now inhabits the White House, seem to care.

Read the full article at TheAtlantic.com.

(Image via bikeriderlondon/Shutterstock.com)

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Analysis: TRICARE Should Cover Physical Therapy Involving Horses

Andrew Cohen, The Atlantic — Fri, 26 Apr 2013 13:46:13 -0400

Congress has an opportunity now -- this week, this month, today even-- to do something truly noble; something that will help a disabled young woman, the daughter of a Navy captain, and thousands of other military families all across the country. Our federal lawmakers are about to contemplate the virtues and merits of a new military health insurance rule that clarifies the scope of reimbursement policies to ensure they cover an innovative form of physical therapy, called "hippotherapy," that has consistently proven to work on those who need it most.

The proposed measure introduced in the House of Representatives this week by Rep. Michael Burgess, a Texas Republican, is called "Kaitlyn's Law." You remember Kaitlyn Samuels, don't you? She's unforgettable. As chronicled last year in The Atlantic, she's the young woman whose physical disabilities make it impossible for her to walk or talk. In 2009, her loving parents discovered a form of physical therapy that helped Kaitlyn, body and soul. The therapy involves Kaitlyn sitting atop a horse, riding around a ring, allowing the animal's natural gait and rhythm to straighten her back, help her balance, and ease the pain from her severe scoliosis.

But when the Samuels' sought reimbursement for this professional therapy from TRICARE, the military's health care system, the request was denied. Such therapy, officials declared, was "unproven" and thus not reimbursable. What followed over the course of the next few years was a typical story of Pentagon mindlessness. Federal officials declared that they would reimburse the family for therapy that didn't work on Kaitlyn -- like sitting on a bench -- but would not reimburse the family for the physical therapy that did. The family's efforts to seek legal relief failed. The Pentagon said it needed additional guidance from Congress.

That was then. This is now. Since November, the family has received financial support from Jeff Gural, a racehorse owner and breeder and owner of racetracks in New York and New Jersey. (The ever-gracious family, in turn, re-donated some of that money to other children in need of hippotherapy.) The Samuels also have received legal help from Marcella Burke, a smart attorney with the powerful Akin Gump law firm. And, just in the past few days, the family finally has received a measure of political support from Rep. Burgess and Rep. Tom Cotton, an Arkansas Republican who served tours in Iraq and Afghanistan and who thus understands more than most the burdens TRICARE may impose on military families. Read the rest at TheAtlantic.com.

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Analysis: It's Time for the Feds to Investigate Prison Abuse

Andrew Cohen, The Atlantic — Wed, 20 Mar 2013 11:43:56 -0400

"The department is much more than just a federal agency," declared Michael Horowitz, the Inspector General of the Justice Department, in his opening statement Thursday at an oversight hearing before a House Appropriations subcommittee. "It is the guardian of our system of justice, and is responsible for enforcing our laws fairly without bias and above all with the utmost of integrity."

As if to prove his point, Horowitz had come to Capitol Hill to update lawmakers on the various good works the Office of the Inspector General (OIG) has performed since last September, when he came to talk with them about the "Fast and Furious" gun program. Last December, for example, the OIG issued a trenchant report on Clarence Aaron's clemency petition. And, last week, there was a detailed report criticizing the Justice Department for continued partisan rancor within its Voting Rights section (but exonerating Labor nominee Thomas Perez of more serious misconduct).

It was a polite hearing on Thursday. There were several jokes. And questions about the Voting Rights Act that no one expected Horowitz to answer. There was talk about gun violence and background checks. But not a single lawmaker asked Horowitz why the OIG isn't investigating the Bureau of Prison over policies and practices that have resulted in two new pending federal lawsuits in Colorado alleging shocking patterns of abuse and neglect of the nation's prisoners.

Read more at The Atlantic.

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Analysis: Labor Nominee Draws Unfair Criticism

Andrew Cohen, The Atlantic — Fri, 15 Mar 2013 09:59:00 -0400

There are reasonable criticisms one could make about Thomas Perez's work as a federal official as he nears his confirmation fight for Secretary of Labor. This, from Jennifer Rubin, in which she cites a blogger at the American Spectator, is not one of them:

Quin Hillyer documents that as the chief of the Justice Deaprtment's (sic) civil rights division Perez proved to be a cruddy lawyer:

He has led the administration's racial scaremongering against voter ID laws, but got smacked down hard by the U.S. District Court for the D.C. Circuit, so that elections in South Carolina this week will go ahead with the law in effect. (This wasn't a partisan decision: The unanimous three-judge panel included Clinton appointee Colleen Kollar-Kotelly.)

Even leaving the "racial scaremongering" junk aside, this assertion is unsupported by fact. Whatever faults he may have as an administrator (faults that the Office of Inspector General detailed earlier this week), Perez and his colleagues in the Voting Rights Section achieved consistent success last year invoking federal law to block discriminatory voting practices.

Read more at The Atlantic.

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7 Questions About Managing Wild Horses for Interior Nominee Sally Jewell

Andrew Cohen, The Atlantic — Wed, 06 Mar 2013 17:02:12 -0500

On Thursday on Capitol Hill, the Senate Energy and Natural Resources Committee will hold a confirmation hearing to consider the nomination of Sally Jewell for the position of Secretary of the Interior. She comes to the room offering some measure of comfort to two of the primary constituencies that care most about the post. Big oil? Check -- she worked for years for Mobil Oil, out in the oil and gas fields of Oklahoma. Environmentalists? Check -- she comes to Washington, D.C., from R.E.I., the "outdoor recreation" company, where she was a longtime advocate for conservation.

But Jewell is mostly a blank slate when it comes to two key areas of the Interior Department's portfolio which are in famous and direct conflict with one another. The first relates to the federal government's complicated relationship with the ranching and livestock industries. Jewell does not appear to have much of a public record when it comes to her views on the concept of welfare ranching -- the age-old, under-reported pork-barrel policy by which the federal government practically gives away the use of our public land to private ranching and farming interests by means of well-below-market lease rates.

Read the entire story at The Atlantic.

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The Interior contender who could save America's wild horses

Andrew Cohen, The Atlantic — Thu, 31 Jan 2013 16:11:31 -0500

When Ken Salazar announced his resignation earlier this month as Secretary of the Interior, it set off quivers of speculation among wild horse advocates about who might replace him in the post most important to the fate of the nation's vulnerable herds. Salazar, a longtime Colorado rancher, was never trusted by the wild horse community. Under his direction, the Bureau of Land Management has left the horses more exposed, literally and figuratively, than they've been in decades.

Very quickly, two main streams of thought emerged. Some horse activists worry that President Barack Obama will appoint Washington Governor Christine Gregoire to the post. The National Journal noted glowingly two weeks ago that as "a former head of Washington state's Department of Ecology, Gregoire is steeped in experience in energy and environmental issues. Her enthusiastic support for renewable energy has won plaudits from environmentalists."

But that's not how wild horse and other wildlife advocates necessarily see her. In November, in aWildlife News piece headlined "Governor Gregoire's Troubling Livestock Legacy," the lead paragraph offered another view of the potential nominee:

Washington Governor Christine Gregoire is rumored to be a front-runner for nomination as Secretary of the Interior, where she would oversee millions of acres of public land. But a livestock "pilot" program she instituted in Washington, which fast-tracked the introduction of livestock grazing on Washington Wildlife Areas free of charge to ranchers, while running roughshod over the concerns of agency wildlife biologists, should give wildlife advocates pause.

The other theme that quickly blossomed after Salazar's resignation announcement was the notion that the best candidate to replace him is Representative Raul Grijalva, a Democrat who has represented Arizona's 7th District in Congress since 2003. "He has been the most staunch supporter of wild horses in Congress for many years now," said Carol Walker, a renowned wild horse photographer who closely tracks the herds. Meanwhile, the folks at the American Wild Horse Preservation Campaign, representing 50 such horse organizations, quickly launched an online petition to support Grijalva's undeclared candidacy.

Read the rest at The Atlantic.

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The big issues Obama left out of his inaugural address

Andrew Cohen, The Atlantic — Tue, 22 Jan 2013 11:27:39 -0500

"And we must be a source of hope to the poor, the sick, the marginalized, the victims of prejudice- not out of mere charity, but because peace in our time requires the constant advance of those principles that our common creed describes: tolerance and opportunity; human dignity and justice."
-- Barack Obama, January 21, 2013

Perhaps the most memorable paragraph of the president's second Inaugural Address -- a paradoxical line likely to resonate, offered without any evident trace of irony, and proof again that it's always easier in politics to be more candid about someone else's problems than your own -- was uttered not about the United States but about the rest of the world. "We will support democracy from Asia to Africa, from the Americas to the Middle East," Obama said Monday, "because our interests and our conscience compels us to act on behalf of those who long for freedom."

And then he spoke the words highlighted above, an RFK-style "ripples of hope" riff if there ever were one. Except it was not here a call to arms in the name of "our wives, our mothers and daughters," or in the name of "our gay brothers and sisters," or in the name of "striving, hopeful immigrants," or in the name of "all our children," or in the name of an America that has ever existed or which exists today. It was instead a call to arms on behalf of ordinary people who live in other countries, as if our own democracy is so safe and vibrant that we have extra time and energy to preach it to others.

In support of the exercise of democracy here at home, after a presidential election marked by awidespread partisan voter suppression, the president was oddly passive. "Our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote," he said Monday, standing on Martin Luther King Day near icons who had suffered for that most basic of civil rights. The line was as vague and as was Obama's election-night throwaway-- "we have to fix that," he said early on November 7 -- and made no mention of the continuing vitality of the Voting Rights Act, which the Supreme Court is poised to strike down this very term.

Read more at The Atlantic.

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The Pentagon says no to disabled daughter of Navy captain

Andrew Cohen, The Atlantic — Tue, 04 Dec 2012 11:15:47 -0500

The story of Kaitlyn N. Samuels is an infuriating one. It blends together the senselessness of our military bureaucracy with the powerlessness of individual veterans and their families. It mocks the professed patriotism of our politicians, who pledge endlessly that they will do all they can to make life easier for our military families. It favors insurance policy at the expense of medicine. It's an instance where the Obama Administration turned a smart solution into a problem. And it is a case where the Pentagon has said no to a severely disabled teenage girl.

I'll leave it to the Dallas Observer, which has been covering this story well, to introduce to youSamuels, age 16, and her parents, Jennifer and Mark, the latter a longtime Navy captain:

When Kaitlyn Samuels was 4 months old, her parents, Mark and Jennifer, worried that she couldn't reach for her toys. Doctors initially assured them that it was probably normal, but after two months brought little improvement they ordered a battery of neurological tests that revealed Kaitlyn had a very rare and very serious brain malfunction.

The years since then have been a struggle, as Kaitlyn has suffered the effects of epilepsy, cerebral palsy and all sorts of related complications. She can't speak or walk by herself. Her food has to be blended into liquid form because she can't chew. Her brain is frozen in perpetual toddlerhood.

Kaitlyn also suffers from severe scoliosis. Left unchecked, the condition would get progressively worse, with the increasing curvature of the spine diminishing lung capacity, popping joints out of socket and eventually killing her by crushing her internal organs. It can be treated with physical therapy, but traditional methods didn't work for Kaitlyn; she would grow bored and shut down, rendering the session worthless.

By 2009, the family and its doctors had come up with an excellent solution. Twice a week, for 30 minutes at a time, Kaitlyn would ride atop a horse, around and around in a circle, in an exercise that stretched her muscles, worked her back and legs, and kept her focused on sitting upright. To the family, the sound exercise is a creative and successful form of physical therapy. To the government, the exercise is called "hippotherapy"-- a controversial designation that has allowed the feds to malign its usefulness.

Read more at The Atlantic.

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Analysis: A perfect new mission for Eric Holder

Andrew Cohen, The Atlantic — Fri, 09 Nov 2012 12:00:00 -0500

Attorney General Eric Holder was ambivalent Thursday on the topic of returning to the Justice Department for President Barack Obama's second term. He said he is asking himself these days if he has "any gas left in the tank" to continue at his post and I don't blame him the soul-search. Battered by Republicans over thecontroversial Fast and Furious program, precluded by narrow-minded officials of both parties from prosecuting terror detainees in federal civilian court, embarrassed by the acquittal of Roger Clemens in an unpopular perjury trial, it's easy to see why Holder would be thinking of moving on to the next phase of his distinguished career in law and politics.

Challenge? Meet opportunity. Eric Holder should resign his post at Justice to lead the new Commission on Election Reform that President Obama must empanel to investigate voter suppression, voter fraud, and all other threats to voting rights. The Commission should be charged with recommending to Congress what legal changes are necessary to ensure that American citizens do not have to be put through the indignities they suffered this year when they tried to register and vote. If the president is serious about the topic-- "we have to fix that," he said early Wednesday morning in his victory speech, referring to outrageously long voting lines this year-- this would surely be a good way to show it.

Read the entire story at The Atlantic.

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Quietly, U.S. moves to block lawsuits by military families

Andrew Cohen, The Atlantic — Tue, 31 Jan 2012 14:46:00 -0500

Politicians and bureaucrats of all persuasions typically trip over themselves when it comes to praising the values and virtues, the courage and the sacrifice, of America's military families. East Coast. West Coast. Red State. Blue State. Democrats. Republicans. It doesn't matter. Everyone wants to stand up in public and say that brave and stoic military families should get the best that America can offer (cue the applause). Take the first lady herself, Michelle Obama, who has worked consistently with and for these families since 2009.

Commemorating the 10th anniversary of the terror attacks on America, Mrs. Obama wrote in USA Today:

As we reaffirm our commitment to hold dear the heroism, strength and compassion we saw on Sept. 11, let's also pledge to keep our military families in our hearts long after this anniversary has passed. These men, women and children have served valiantly in the decade since that fateful day. Now it's up to us to serve them as well.

Amen. But while public officials are out waving the flag toward these families, federal lawyers in court are now quietly trying to expand the U.S. government's legal immunity from exposure to medical malpractice claims brought by those very same military folks. Now, the feds want the courts to recognize a bold application of an old doctrine -- an already heavily criticized old doctrine -- that would bar many plaintiffs, whose loved ones serve their country, from exercising the right merely to be able to present the substance of their claims at trial.

Worse, Congress has consistently refused over the past 60 years to ensure that courthouse doors remain open to military personnel and their families. In one recent iteration of this battle, in 2009, it was reported that congressional Republicans refused to go along because doing so it would allow more malpractice cases to get to trial, a goal many of those very same Republicans find contrary to their so-called "tort reform" agenda. It's a legal issue, it's a political issue, and its a moral one: How much do we really care about these families?

Read more at The Atlantic.

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