The NPR Politics Podcast - Roundup: Repealing Iraq War Approval; SCOTUS Has No Ethics Code

Episode Date: March 17, 2023

A bill ending Iraq war authorizations has cleared a procedural hurdle in the Senate and is expected to be taken up by the chamber for a final vote next week, coinciding with the 20th anniversary of the U.S. invasion of Iraq. Federal judges are all bound by an ethics code — so why aren't Supreme Court justices?This episode: White House correspondent Tamara Keith, political correspondent Susan Davis, senior political editor and correspondent Ron Elving, legal affairs correspondent Nina Totenberg, and national justice correspondent Carrie Johnson.The podcast is produced by Elena Moore and Casey Morell. It is edited by Eric McDaniel. Our executive producer is Muthoni Muturi. Research and fact-checking by Devin Speak.Unlock access to this and other bonus content by supporting The NPR Politics Podcast+. Sign up via Apple Podcasts or at plus.npr.org. Giveaway: npr.org/politicsplusgiveaway Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, this is Tom, and I'm getting ready for St. Paddy's. Got my corned beef and cabbage going and my potatoes. This podcast was recorded at... 12.07 p.m. on Friday, the 17th of March, St. Paddy's Day. Things may have changed by the time you hear this, but one thing's for sure, I'll be enjoying a Guinness later on today. Okay, here's the show. Erin Gobra. Totally solid choices there, all of them. Hey there, it's the NPR Politics Podcast.

I'm Tamara Keith. I cover the White House. I'm Susan Davis. I cover politics. And I'm Ron Elving, editor correspondent. It has been 20 years since the start of the Iraq War. And now all these years later, the Senate is on track to repeal two so-called AUMF resolutions that authorize the use of military force in Iraq. Sue, you have been following this. What are they doing here? Well, it is largely a symbolic action, but it's happening at a really symbolic time. The debate in the Senate that should dominate most of the week next week, if not longer, comes on the 20th anniversary of the invasion of Iraq. And I don't think it's an understatement to say that the decision to go to war with Iraq had political and global ramifications that this country is still dealing with today. This is an effort that is not new. It is already passed in the House before,

but it has never come up for a vote in the Senate. It's being led by a bipartisan group of senators led by Tim Kaine, a Democrat from Virginia, and Todd Young, a the 1991 AUMF that was authorized under former President George H.W. Bush that opened the door for the Gulf War, as well as the 2002 authorization that allowed President George W. Bush to invade Iraq, are both fully repealed. Do you have any sense of what the practical effect of that would be? Well, I think when you talk to the sponsors of the bill, they say, one, it's just the right thing to do. You know, combat operations in Iraq ended over a decade ago. And they also see the symbolism here of Congress acting to take back or rescind war authority. This has been a bigger philosophical debate in Washington for decades now. And Congress over the years, particularly after the terrorist attacks of 9-11, increasingly sort of seemed willing, and this is true of both parties, and no one party is to blame here, ceding the kind of authority it takes to engage in military action directly to the president. Although the Constitution is pretty clear that the authority to declare and wage war lies with Congress. So there is, on a weightier level, part of this is about Congress reasserting its own war powers and learning the lessons of the Iraq War, which I

think it's not out of the mainstream position to say that most lawmakers, I think even George W. Bush has at times acknowledged that the war was a mistake and that it was predicated on wrong information that Iraq had and was seeking to use weapons of mass destruction. We know that was not the case. So I think part of this is trying to fully close the chapter on what has been a very complicated and complex war in American history, and also a Congress saying, look, we need to change where we just give a president war authority and never take it back. Tim Kaine, who I spoke to this week, made the point that Congress has not voted to rescind a war authorization since 1971.

That's when they voted to repeal the Gulf of Tonkin resolution that had provided authority for the Vietnam War. Ron, as Sue says, this is an incredibly rare step. And it's something that I've been fascinated with for quite some time now, which is just that Congress really has ceded this power. Abdicated, you could say. Ceded the power is another way to put it. And perhaps that was inevitable in the nuclear age. The ultimate military act that a president is empowered to make would be responding to a nuclear attack by another nuclear power. That would have to happen without Congress being convened, or it would have to happen in a matter of seconds, minutes at most, and Congress could not possibly act in that kind of a time frame. So in a sense, we have been for the whole period

since World War II in a kind of mindset in which Congress has implicitly ceded certain very specific kinds of military decision-making to the president. But that was made very explicit, as Sue said, in the Gulf of Tonkin. That's how we were essentially escalating the Vietnam War to the scale that it reached in the years thereafter with half a million American personnel in Vietnam and so forth, that was done under a very loose resolution that basically said, oh, gee, the president needs to respond to this threat. After 9-11, of course, there was an AUMF pass that is not being repealed that gave the president huge blanket authority to respond to

anything that was seen as a terrorist threat, specifically al-Qaeda, of course, going after Osama bin Laden and others directly involved in 9-11. But of course, it was then the basis for the same kind of momentum behind the 2002 AUMF that is being repealed here that was specifically about Iraq. So I do want to go back to the repeal of these Iraq war related AUMFs. Some senators don't support this. And I think it's good to understand why they don't. Yeah, I mean, this is a question. And part of what's so fascinating about this debate is how it exposes some divisions within the Republican Party. Now, look, there's no Republican senators saying that we should be engaging in military operations in Iraq. That's not what this is about.

But because this is largely a symbolic debate, there is a lot of questions about the message that this sends. And one Republican I talked to this week, Jim Lankford, is a Republican from Oklahoma, said he was leaning towards voting against it. And his argument, which I think is shared by critics of this move, is that it's going to send the wrong message to the Middle East, that he has heard from leaders in the Middle East that as the U.S. foreign policy has shifted more squarely to China, the pivot to Asia that is, you know, so often cited, that it has actually made our Middle East allies feel that the U.S. is turning its attention away from the region. And he thinks this kind of action could send or

amplify a message that they are getting from that. So I think part of the opposition to this is from the Republicans who are likely to oppose it. It's unlikely that any Democrat will oppose it. It's more that a protest to say that there should still be sustained U.S. interest in the Middle East and a message to the Biden administration that they don't think that the president is doing enough to make Middle East allies feel like the U.S. is engaged in the region. And we should say that today there are still some U.S. troops in Iraq in an advise and train capacity, not in an active combat role, but they are there in Iraq still to this day at the invitation of the Iraqi government. You know, this is in a way this would put a period on on that era. But in another way, it's still kind of ongoing and the bill

keeps tacking up. You know, cost is not an insignificant thing to raise, Tam, not just only in the cost of lives and diplomacy. I mean, we could have any number of conversations around that. But the hard dollar costs of the post 9-11 war era has taken a tremendous toll on the United States. There are, you know, estimates from Brown University, which has studied war spending, that estimates that it's cost somewhere around $8 trillion. Of that $8 trillion, about two to three trillion of it was spent in the Iraq war alone. If you consider that now in the modern day debate, and I think the Iraq war factors into almost every modern day political debate still, it was a huge contributor to the annual deficits and the national debt because cost of it is just one component, but it is a significant component when I think the debt as we sit here today is just under 32 trillion and about a quarter of that was from post 9-11 wars. And Ron, as we close this out, I'm hoping you could talk about sort of the enduring political mark here from this war. This is a defining moment of the modern political atmosphere.

Perhaps the most immediate piece was that in 2006, the Democrats were able to take control of both the House and the Senate in an election that would have to be seen largely as a referendum on Iraq and what had happened there, not just the initial invasion, but the occupation period, how far things had soured. Then in 2008, probably no other issue really divided Senator Hillary Clinton from New York and Senator Barack Obama from Illinois when they were running for the presidential nomination of the Democratic Party was Hillary's vote in 2002 to authorize that use of military force to invade Iraq. She didn't obviously vote for an invasion. She said we should use force.

We should use whatever the president deems necessary. Obama was not in the Senate at the time, but he was back in Illinois saying that he didn't think that that was a good idea and that he opposed it. So he was able to run on that all those years later in 2008 and say, I wouldn't have made that mistake. So right there, you get an enormous change in our political history. And it really became the one thing on which George W. Bush was most remembered for. And since then, arguably, the Republican Party has been moving away from its longtime internationalist inclinations and being much more questioning of overseas commitments. We see that in Donald Trump's current attitude and what we're hearing from some other Republicans as well about Ukraine.

All right. Well, that is where we're going to leave it for now. Sue, thank you so much. You're welcome. And Ron, stick around. We will bring you back at the end for Can't Let It Go. And we're back with National Justice Correspondent Carrie Johnson. Hey, Carrie. Hey, Tam. And Legal Affairs Correspondent Nina Totenberg. Hi there.

There is a growing call for the Supreme Court to establish an ethics code, like the one that applies to the rest of the federal judiciary. So, Nina, let's lay the context here. The reputation of the court, and at least some of its members, has really taken a hit in recent years with swirling ethics questions. Well, those, you know, range from those involving Justice Thomas and his wife's participation in the effort to discredit the Biden win of the election, and then that case or parts of that case going to the Supreme Court and Thomas not recusing himself. And then also we had the Dobbs leak, the abortion case leak, in which the chief justice instituted an investigation, which predictably, as most leak investigations are, was a road to nowhere, but also made the court look worse because the justices

were not questioned the way other people who work at the court were. And there's just lots more of this stuff. Justices speaking at ideological conferences, it just has been a bad look. And the justices have come, I think, at least some of them, to understand that this is a problem. They've talked about it. There have been reports of repeated efforts to do something, but they have done nothing. They cannot appear to agree on what might be in the code or even whether they should have a code. And outside groups are pushing for them to have some sort of ethics code. What do these outside groups want to see? Well, there have been a couple of proposals of late, one from Senator Durbin and other leaders in the Senate and House, but they are largely Democrats

at this point. And others are sort of good government groups, which have actually written a proposed model code. And it includes things like not speaking at overtly ideological groups that have cases before the Supreme Court or not themselves or lobbying groups that have cases before the Supreme Court, ideological lobbying groups, not appearing at sort of what have come to be sometimes victory celebrations in front of ideological groups after someone is confirmed, announcing why you are recusing from a case, why you're not participating in a case. There are a lot of good ideas here, and they, I think, most outsiders pretty much agree on the general outlines. And what about the insiders?

They don't seem to agree, and the problem is, who's going to tell these people what to do, okay? There are nine people that are appointed for life once they're on the bench, and they're basically masters and mistresses of their own fate. And while public opinion polls reflect that public confidence in the court has really dipped precipitously in the last couple of years in particular, and good government groups point out that when the Supreme Court looks bad, the rest of the federal courts look bad, even though those folks do have an ethics code they need to abide by. The big question, Nina, is who enforces any kind of discipline on these justices?

And that's exactly the point. If they don't agree on an ethics code themselves, if they say to that, which most people would say to yourselves, look, I see this is a big problem. We ought to write our own ethics code. Either they don't agree on that, or they don't agree on what's in it. And even if only one or two members of the court were to say, I'm not signing on, then it doesn't become a self-enforcing mechanism that the other justices can make happen, make work. And as a result, the court looks like it's oblivious, like it doesn't really understand that it's got a problem here. And Carrie, other federal judges do have a code of conduct, right? They do have a code of conduct. And one of the most important standards is the need to recuse if the appearance of impartiality could reasonably be questioned. So if any reasonable man or woman or person on the street has an idea that you are not impartial because you own stock, for instance, or because your child works for an investment bank and a case involving that bank could be coming before the court. Judges on the lower courts do have

ethics guidelines. And one question I have is why justices on the Supreme Court are allowed to manage their own stock portfolios to this day? I mean, it's very, very confusing given there are only nine of them and many, many cases involving businesses come before this court. Most of them have divested most, if not all, of their holdings that they can. But some of them haven't. A few of them haven't. I don't know what the reason is. There may be a real financial reason, a real financial hit to it, or they just don't want to. They don't want to be pushed around. There are some people who think they just don't want to be pushed around. I think that's right. And then so the question is, we have outside groups who are pushing Congress to try to limit the court's budget potentially. It's spending power in some way to try to get

the court to do something. I don't know that that would even be legal or constitutional. In the last analysis, they decide what's constitutional. So if Congress passes an ethics code and they don't like it, they could say it's unconstitutional. Even the American Bar Association, the House of Delegates, which is not some little elite committee. It's people from all over the country, rural and urban, and they say they should write their own ethics code. I think we're getting the message. The question is whether the justices are. Right, right. Well, Nina, thank you so much. One more break, and then it's time for Can't Let It Go. And we're back.

And it's time to end the show like we do every week with Can't Let It Go, the part of the pod where we talk about the things from the week that we just cannot stop talking about, politics or otherwise. And Ron is back. Hello, Ron. Good to be with you, Tam. Would you like to go first? I will go first because it's March Madness. And that's what I can't let go.

And look, I don't have anywhere near the commitment to sports that I once had. But this is one thing. You know, you've got 64 women's teams, 68 men's teams. You have wild games. We've already had some wild upsets. Last second, three-pointers. You know wild games. We've already had some wild upsets. Last second, three pointers, you know, Furman knocks off Virginia, Princeton knocks off Arizona, which was one of the teams with a real shot at winning it all. It's just too much. It's just too exciting. And it reminds us of

what we came to sports for in the first place. And it goes on for almost three weeks. And it just is a real antidote to so much else that's going on in the world. It sounds like your brackets have not yet been busted, Mr. Elving. Well, let me just say that I quit doing brackets because it took way too long to make and way too little time to break. Well, and the president picked Arizona to go all the way, so his bracket is already busted. My bracket is okay. My bracket, which is basically like a blind squirrel finds a nut occasionally kind of bracket. But I was like, hey, I'm going to pick Furman. No.

And then they won. That's incredible. Let me just say that I understand. I don't know this. I don't have the data, but I understand that billable hours go down at law firms and other places where they measure what people are doing and actually accomplishing because there are so many people who cannot stop watching even during the day. Based on what I saw at NPR headquarters, I think our billable hours went down as well on the podcast team. Hey, Carrie, what can't you let go of? Oh, the headline says it all. Residents right to be rude upheld by Massachusetts Supreme Court.

Okay. So a town in Massachusetts had a civility code and basically said that people have to behave in respectful ways at public meetings at the town and they can't be rude or sling nasty remarks at officials. But the highest court in Massachusetts struck that rule down and said that people can basically say what they want to say. It's protected by the First Amendment. The question now is, you know, how out of line people might get in the state of Massachusetts, especially after we've seen lots and lots of very rancorous public meetings over education and coronavirus issues across the country over the years. But at least in Massachusetts, the Supreme Judicial Court says

people can basically let it all hang out when it comes to their rhetoric at these public sessions. Well, just because you can be a jerk, I don't know that that means that the Constitution says you should be a jerk. Just a hazard to guess, is it possible that the town that had this rule in place that was struck down by the court, that that town was not named Boston? You have hit on something, Mr. Albee. You have hit on something important. It was not Boston proper. And Tam, what can't you let go of this week? Well, this is kind of old news, but I haven't been on the pod for on a Friday in a little while. But the American Girl doll people who put out

historical dolls are out with a historical doll from the 1990s. In fact, they are twins, Isabel and Nikki. And they have all kinds of awesome 1990s accessories

like normal, old-fashioned alarm clocks and a Discman. You know, back before we just listened to music on our phones, we had to carry around a tiny CD player. And that was a huge innovation. Damn, Doc Martens flannel. What are we talking about? You know, I don't see Doc Martens, but I haven't gone through all of the accessory bundles yet here on the website. I will say that they also have a very large cordless phone and a giant computer that has, you know, like disk drives. Walkman. those. So I'm alarmed by this, of course, as someone who was a child in the 1990s, that a doll replicating my life would be considered historical. But then I did some math. And, you know, like,

that would be like me in the 1990s, having a doll from the 1970s. And frankly, I was kind of obsessed with the late 60s and early 70s when I was that age. So there you have it. All right, that is a wrap for today. Our executive producer is Mithani Mathuri. Our editor is Eric McDaniel. Our producers are Elena Moore and Casey Morrell. Research and fact-checking by our intern, Devin Speak. Thanks to Krishna Dev Kalamer and Lexi Shapiddle. I'm Tamara Keith. I cover the White House. I'm Carrie Johnson. I cover the Justice Department. And I'm Ron Elving, editor-correspondent.

And thank you for listening to the NPR Politics Podcast.