A Way Forward in Ukraine
I know this newsletter goes by the name Home & Away, but this week at least we will start with Away. Charlie Kupchan and I have written an article just published by Foreign Affairs that puts forward a new strategy for Ukraine. We argue that the United States should pursue a sequenced approach, providing increased military and economic support to Ukraine and then pushing for a new diplomatic initiative if (and we believe when) it becomes clear that Ukraine cannot fully realize its objectives on the battlefield. We worry that without such an approach – and staring at the potential for a protracted conflict – there is the danger that Western support for Ukraine will decline. We also worry about the human and economic price Ukraine is paying for the war and about the impact the war is having on the U.S. ability to protect its other global interests.
We decided to write such a piece some months ago when we both found ourselves uneasy with what seemed to be the consensus at the annual security conference in Munich. Much of the gathering understandably focused on Russia’s war against Ukraine, but the conversation did not go much beyond advocating for the U.S. and European governments to shed their inhibitions and provide Ukraine with the most advanced equipment available. The assumption was that if that were to happen Ukraine would seize the initiative and put itself in a position to regain lands taken by Russia in 2014 and more recently.
Neither of us is at all sure that even if Ukraine were to receive greater military and economic support it would transform the battlefield in its favor. We are also uncomfortable with the notion that it is up to Ukraine to determine what constitutes success given how ambitious its aims have become and that the United States invariably has broader concerns. I would add that neither of us is at all confident Russia would accept any proposal that includes meaningful compromise on its part. If not, the effort would still not be in vain, as it would expose Putin’s (and Xi’s) lack of interest in diplomacy, and as a result make it less difficult to sustain American and Western support for Ukraine.
Hence this article, which attempts to square the circle by blending the desirable with the feasible and principle with pragmatism. We expect it will be rejected by some as overly ambitious and by others on the grounds it is not ambitious enough. So be it. What we hope, though, is that the piece contributes to a necessary debate and even more helps to shape it.
Before turning away from Away, I need to say a few things about French President Emmanuel Macron and his disastrous trip to China. There is no way France and Europe could insulate themselves from what would be the economic and strategic effects of Chinese aggression against Taiwan. Worse yet, he only makes such aggression more likely by suggesting it would not be France’s problem.
It is equally hard to see how France and European stability more broadly would benefit from a weaker relationship with the United States. It is also all too apparent that France and Europe more generally are unprepared to take up the burden of their security even if they claim to want to do so. As Polish Prime Minister Mateusz Morawiecki remarked earlier this week, “Without the United States, Ukraine would no longer exist today.”
Finally, Macron, who appears to be channeling his inner Charles de Gaulle, is kidding himself if he thinks such global pronouncements will earn him any credit with the many Frenchmen taking to the streets over pension reform. One can only hope Mr. Macron will decide to give his passport a rest after this series of truly unhelpful, unserious comments.
Here at home, I want to highlight what is going on in the courts. First, though, some relevant history. The judiciary gets mentioned only after the legislature and the executive in the Constitution and then only receives a scant six paragraphs. Alexander Hamilton predicted it would be the weakest branch of government, saying the judiciary “will always be the least dangerous to the political rights of the Constitution.”
This all began to change in 1803 with the landmark case of Marbury v. Madison and what became known as judicial review, which gave the Courts the ability to adjudicate between differing interpretations of the Constitution. The judiciary thus became something of a referee between the President and Congress, between the federal government and states, and between individual citizens and governmental authority.
The courts (above all, the Supreme Court) have been able to perform this function in no small part because they were widely seen as cautious, principled institutionalists, men and women motivated mostly by what they saw as right according to the law rather than by their personal political preferences. This perception gave judges great legitimacy and authority. Increasingly, though, too many judges appear to be little more than just another political actor, individuals straining to find legal arguments to buttress their political agenda. The most recent example of such behavior, of course, is U.S. District Judge Matthew Kacsmaryk’s decision to suspend the FDA’s decision allowing the sale of the abortion drug mifepristone.
This is less a bolt from the blue and more another example of the accelerating politicization (or, more accurately, radicalization) of the judiciary, which in the past few years has included Mitch McConnell’s norm-busting refusal to allow the confirmation of Merrick Garland, his subsequent rushed confirmation of Amy Coney Barrett, the precedent-ignoring Dobbs decision that overturned Roe V. Wade, and much, much more. Reports of Clarence Thomas (who in many ways has replaced Chief Justice John Roberts as the Supreme Court’s most influential jurist) failing to report multiple gifts and favors from (not to mention business deals with) a wealthy conservative benefactor only reinforces the view that the ultimate upholders of the law are now operating outside it.
Suggestions that rulings of the Court be ignored or that the Court be packed risk making a bad situation worse. The best way to protect citizens from judicial overreach will be political action at the state and federal levels. I say this acknowledging that, in many cases, it will prove difficult to make such political action effective. All of which means that for now and for some time to come American democracy will be operating without much in the way of a backstop, a sobering reality that bodes badly for individual rights and societal peace.
As always, some links to click on. Along with some announcements re the coming week. And feel free to share Home & Away.
In the news
Monday, April 10: MSNBC Morning Joe on the mifepristone drug ruling in Texas and the politicization of the courts.
Articles:
In Foreign Affairs on a new strategy for the West in Ukraine.
Next week:
Tuesday, April 18: “Think” at 1pm Central on KERA FM or as a podcast
Thursday, April 20: Open Book with Anthony Scaramucci podcast on The Bill of Obligations: The Ten Habits of Good Citizens; and Texas A&M University Bush School of Government & Foreign Service "The Foreign Policy of President George H.W. Bush” at The Bush School DC at 5:00 p.m.