The Supreme Court two years ago issued the Citizens United decision, allowing both corporations and unions to spend unlimited sums of money in U.S. elections.
To a degree this was a balanced decision because while corporate spending on elections is much higher than union spending, it is also true that corporations heavily support Republican candidates while unions heavily support Democratic candidates in terms of their political donations.
This week however, the same Supreme Court ruled that unions must get an 'opt-in' from members before making political donations while corporations do not need any permission from shareholders.
If it wasn't clear before (think stopping the Florida recount in 2000,) it is now: the Supreme Court is not an independent branch of government. Whether because the majority of the court is in fact made up of Republicans, and/or because several judges are now in their seventies and may be considering who will replace them, the high court has a cynical political agenda to elect Republican candidates. Let's be perfectly clear about that.
Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts
Saturday, June 23, 2012
Tuesday, March 27, 2012
Did Verrilli lose on the Mandate on Purpose?
A lot of the discussion about today's Supreme Court argument has been about how bad a job administration legal counsel Donald Verrilli Jr. did in defending the mandate.
In fact, I've been predicting for some time that the mandate (which candidate Obama conspicuously opposed and which was included in the health care law not because the administration wanted it, but because it was necessary to win the votes of insurance state Senators Joe Liebermann of Connecticut and Ben Nelson of Nebraska) would be thrown out, leaving the rest of the bill intact. That would include (especially) the state level exchanges where people who cannot now afford health insurance could choose from an array of government-subsidized private health insurance plans.
I believe that even without the mandate, most people who now can't afford insurance, will buy it when the exchanges are set up. This was the administration's goal anyway, and not forcing people to buy insurance is in keeping with the position that Barack Obama had when he was elected. Of course given that the bill was passed as a package it would have been politically impossible to not defend the whole thing, but if Verrilli 'mysteriously' improves over the next few days, it almost WILL suggest that he was trying to 'throw' this one without saying so openly.
Politically, removing the mandate but keeping the rest of the law intact (as several lower courts have done) represents a win for the President as well. The truth is, if you go point by point, most of the rest of the law, whether we are talking about the exchanges, ending the Medicare prescription drug 'doughnut hole,' ending pre-existing condition exclusions, ending 'recission' (the practice by which insurance companies arbitrarily canceled 20,000 policies per year after people got sick and began needing them,) allowing the parents of college age young people to include them on their plan, or an end to lifetime caps on coverage, has been very popular.
Remove the mandate, and the right loses their best argument for why people shouldn't like Obamacare. Trying to run a campaign on repealing Obamacare (i.e. bringing back recissions and caps and kicking people off of insurance) won't get them very far after that.
If Verrilli's arguments are much better put together tomorrow, then it may very well be that there was indeed a plan to 'throw' the argument on the mandate, and defend everything else. I'm not the only blogger who has considered that, either.
In fact, I've been predicting for some time that the mandate (which candidate Obama conspicuously opposed and which was included in the health care law not because the administration wanted it, but because it was necessary to win the votes of insurance state Senators Joe Liebermann of Connecticut and Ben Nelson of Nebraska) would be thrown out, leaving the rest of the bill intact. That would include (especially) the state level exchanges where people who cannot now afford health insurance could choose from an array of government-subsidized private health insurance plans.
I believe that even without the mandate, most people who now can't afford insurance, will buy it when the exchanges are set up. This was the administration's goal anyway, and not forcing people to buy insurance is in keeping with the position that Barack Obama had when he was elected. Of course given that the bill was passed as a package it would have been politically impossible to not defend the whole thing, but if Verrilli 'mysteriously' improves over the next few days, it almost WILL suggest that he was trying to 'throw' this one without saying so openly.
Politically, removing the mandate but keeping the rest of the law intact (as several lower courts have done) represents a win for the President as well. The truth is, if you go point by point, most of the rest of the law, whether we are talking about the exchanges, ending the Medicare prescription drug 'doughnut hole,' ending pre-existing condition exclusions, ending 'recission' (the practice by which insurance companies arbitrarily canceled 20,000 policies per year after people got sick and began needing them,) allowing the parents of college age young people to include them on their plan, or an end to lifetime caps on coverage, has been very popular.
Remove the mandate, and the right loses their best argument for why people shouldn't like Obamacare. Trying to run a campaign on repealing Obamacare (i.e. bringing back recissions and caps and kicking people off of insurance) won't get them very far after that.
If Verrilli's arguments are much better put together tomorrow, then it may very well be that there was indeed a plan to 'throw' the argument on the mandate, and defend everything else. I'm not the only blogger who has considered that, either.
Saturday, September 03, 2011
What happens if the SCOTUS overturns only the mandate and nothing else?
It seems as though we are always having an 'all or nothing' debate on the health care law. Democrats seem compelled to follow the position of the administration that the whole Affordable Care Act should be defended, while Republicans are just as adamant that it should be repealed-- every jot and tittle.
It is true that because of the political realities in Washington during late 2009 when the bill was put together, it was a carefully crafted piece of legislation designed to appease both patient groups, medical providers and the insurance industry.
In particular, a key piece of the bill was the individual mandate-- the requirement that starting in 2014 all Americans must purchase health insurance or face tax penalties. Candidate Obama in 2008 had only supported the mandate for children (on the theory that children were unable to make their own decisions as to whether to purchase insurance or not and their parents should not have the right to put their childrens health and lives at risk by not purchasing insurance.) However, he had specifically opposed the mandate for adults (which helped distinguish him from Hillary Clinton in the primaries, as she supported it.) However, as the bill was warped to fit through the hoop of what was possible in the Senate (and key parts such as the public option were jettisoned) the mandate made its way back into the bill.
The reason why it did was the perfectly logical contention by the insurance industry that other provisions in the bill, which curbed their worst practices (like recission, the act of canceling someone's policy when they got sick; pre-existing condtion exclusions which effectively meant for example that cancer survivors could never buy health insurance; and lifetime caps on treatment) would drive up their costs as they were forced to cover the sickest patients and pay for their care. While it certainly can (and should) be argued that the purpose of health care is to take care of the sick, insurers did have a point about the cost. So, the mandate meant that they would in return vastly expand their market, by virtue of more people paying premiums. While they would now be required to cover sick people who previously could not get insurance, they would balance this with premiums paid by mostly young, healthy people who right now don't have insurance (and gamble that they won't suffer an accident or unexpected illness.)
There are some good reasons why one could argue for the mandate of course. Some people who could afford insurance choose not to get it now (you know who I'm talking about because you've met him too-- the young, indestructible stud who spends all his money on a hot car he can barely afford to put gas in.) Then, when they are in an accident from hot dogging it down the freeway they are unable to pay the hospital bill, and we all end up paying for it when they pass it on via exaggerated charges to us, the insured (which then the insurance company jacks up our premiums to get their loss back.) This kind of thing has been going on for years and it's why a lot of hospital administrators lose their hair early. But-- the mandate remains unpopular (after all, nobody wants to be told they HAVE to buy something) and it has been a point of attack by opponents of the law.
Adding the mandate to the bill helped nail down the votes of two key Senators with strong ties to the insurance industry, Independent Democrat Joe Lieberman of Connecticut (for a long time Hartford, the capital of Connecticut practically defined the insurance industry and is still the home of many major insurance companies) and Ben Nelson, D-Nebraska (whose state is the most Republican one in the nation to elect a Democrat to the Senate, and also the home of Mutual of Omaha, still a major player in the insurance industry.)
Almost from the moment the ACA was passed on March 21, 2010, Republican candidates at all levels have pledged to repeal it. And recognizing how politically balanced it was, they have pledged to repeal the whole law, but in arguing that it should be repealed have focused their rhetoric like a laser beam primarily on one particular provision-- the mandate. However, promises to repeal are essentially political posturing. Doing so would be a mammoth undertaking, and it is a fact that no matter how successful the GOP is at the ballot box it is virtually certain that there will still be at least 41 Democrats who voted for the law in the first place left in the Senate-- enough to mount a filibuster and prevent a repeal effort from going anywhere even if there is a GOP President, pen in hand, ready to sign it. And it's hard to see how promising to go back to the broken health care system we've had for the past couple of decades is going to be seen as a panacea if they repeal it (I know they said 'repeal and replace' but repealing it and then passing a different reform law is even more hard to visualize than just doing the first half of that and going back to start.)
More significantly, various Republican groups (most notably a coalition of Republican state Attorneys General) have filed suit in courts all over the country attempting to overturn the law.
So far, at the level of the federal appeals courts, the results have been decidedly mixed. Six rulings have so far been issued. Three of them have upheld the law, and the other three have ruled against it. This is likely to end up in the Supreme Court next year and everyone is basing their thinking on the assumption that the court will either rule for the entire law or against the entire law.
BUT-- ONLY ONE of the three rulings against it overturned the whole law. The other two overturned the individual mandate only and upheld everything else of significance (including the reforms mentioned above preventing insurers from denying coverage and insurance exchanges where people who couldn't afford it otherwise could buy private insurance with premiums that are partly paid by the federal government.)
Well, it took a former Senate Republican-- and a formerly very influential one at that, former Majority Leader Bill Frist to ask the obvious question:
WHAT HAPPENS IF THE SUPREME COURT OVERTURNS ONLY THE MANDATE and leaves the rest of the law intact?
After all, the Supreme Court has a long history of ignoring whatever the legislative dealmaking was in getting laws passed and overturning certain provisions while leaving others alone.
The first thing that will happen in that case is that the insurance industry executives will need their own services after having a heart attack. Suddenly faced with not getting the increased revenue they have been counting on but still on the hook for universal coverage, they will try to make this up in one (or more probably both) of two ways:
1. Significantly increase premiums. This would increase costs both to people who pay them, and also to the government. As passed, the OMB found that because of a number of taxes included in the bill the ACA actually reduces the projected deficit by $143 billion (another irony in Republican calls to trim the deficit, when this is something that actually more than pays for itself.) But if the mandate is repealed all bets are off the table because the necessary government subsidies on insurance would spike upward sharply and begin to play into the deficit.
2. Begin an intensive lobbying campaign to be relieved of the burden they now have (and as part of the overall package were willing to accept for a few years) of caring for the sickest without revoking their insurance, turning them away or limiting the total cost of their care.) While it is conceivable they could convince Congress and some future administration to repeal the rest of the law, I believe this is unlikely because many of the provisions are not only popular, but are well ingrained by now. Passing a bill that explicity gave insurance companies the right to screw people (even if it's how they used to screw them) would be very unpopular and no politician will want to touch it. So instead of that they might have more success if there was some other way in which these very sick patients who were no longer profitable to treat could be taken off their ledgers. But that would require that they be given to someone else to pay for. And clearly no insurance company will want to only get people who have been rejected as too costly or too risky by other insurance companies. So that leaves-- that's right, the government. So, in that case it's entirely plausible that the insurance industry itself would end up pushing for a public option (albeit one only open to people the insurance companies don't want.)
Nevertheless this is a good thing. If the Supreme Court throws away the mandate we could end up in a society in which you may not be compelled to buy insurance but insurers are compelled to sell it to you and on top of that we get a public option after all.
It is true that because of the political realities in Washington during late 2009 when the bill was put together, it was a carefully crafted piece of legislation designed to appease both patient groups, medical providers and the insurance industry.
In particular, a key piece of the bill was the individual mandate-- the requirement that starting in 2014 all Americans must purchase health insurance or face tax penalties. Candidate Obama in 2008 had only supported the mandate for children (on the theory that children were unable to make their own decisions as to whether to purchase insurance or not and their parents should not have the right to put their childrens health and lives at risk by not purchasing insurance.) However, he had specifically opposed the mandate for adults (which helped distinguish him from Hillary Clinton in the primaries, as she supported it.) However, as the bill was warped to fit through the hoop of what was possible in the Senate (and key parts such as the public option were jettisoned) the mandate made its way back into the bill.
The reason why it did was the perfectly logical contention by the insurance industry that other provisions in the bill, which curbed their worst practices (like recission, the act of canceling someone's policy when they got sick; pre-existing condtion exclusions which effectively meant for example that cancer survivors could never buy health insurance; and lifetime caps on treatment) would drive up their costs as they were forced to cover the sickest patients and pay for their care. While it certainly can (and should) be argued that the purpose of health care is to take care of the sick, insurers did have a point about the cost. So, the mandate meant that they would in return vastly expand their market, by virtue of more people paying premiums. While they would now be required to cover sick people who previously could not get insurance, they would balance this with premiums paid by mostly young, healthy people who right now don't have insurance (and gamble that they won't suffer an accident or unexpected illness.)
There are some good reasons why one could argue for the mandate of course. Some people who could afford insurance choose not to get it now (you know who I'm talking about because you've met him too-- the young, indestructible stud who spends all his money on a hot car he can barely afford to put gas in.) Then, when they are in an accident from hot dogging it down the freeway they are unable to pay the hospital bill, and we all end up paying for it when they pass it on via exaggerated charges to us, the insured (which then the insurance company jacks up our premiums to get their loss back.) This kind of thing has been going on for years and it's why a lot of hospital administrators lose their hair early. But-- the mandate remains unpopular (after all, nobody wants to be told they HAVE to buy something) and it has been a point of attack by opponents of the law.
Adding the mandate to the bill helped nail down the votes of two key Senators with strong ties to the insurance industry, Independent Democrat Joe Lieberman of Connecticut (for a long time Hartford, the capital of Connecticut practically defined the insurance industry and is still the home of many major insurance companies) and Ben Nelson, D-Nebraska (whose state is the most Republican one in the nation to elect a Democrat to the Senate, and also the home of Mutual of Omaha, still a major player in the insurance industry.)
Almost from the moment the ACA was passed on March 21, 2010, Republican candidates at all levels have pledged to repeal it. And recognizing how politically balanced it was, they have pledged to repeal the whole law, but in arguing that it should be repealed have focused their rhetoric like a laser beam primarily on one particular provision-- the mandate. However, promises to repeal are essentially political posturing. Doing so would be a mammoth undertaking, and it is a fact that no matter how successful the GOP is at the ballot box it is virtually certain that there will still be at least 41 Democrats who voted for the law in the first place left in the Senate-- enough to mount a filibuster and prevent a repeal effort from going anywhere even if there is a GOP President, pen in hand, ready to sign it. And it's hard to see how promising to go back to the broken health care system we've had for the past couple of decades is going to be seen as a panacea if they repeal it (I know they said 'repeal and replace' but repealing it and then passing a different reform law is even more hard to visualize than just doing the first half of that and going back to start.)
More significantly, various Republican groups (most notably a coalition of Republican state Attorneys General) have filed suit in courts all over the country attempting to overturn the law.
So far, at the level of the federal appeals courts, the results have been decidedly mixed. Six rulings have so far been issued. Three of them have upheld the law, and the other three have ruled against it. This is likely to end up in the Supreme Court next year and everyone is basing their thinking on the assumption that the court will either rule for the entire law or against the entire law.
BUT-- ONLY ONE of the three rulings against it overturned the whole law. The other two overturned the individual mandate only and upheld everything else of significance (including the reforms mentioned above preventing insurers from denying coverage and insurance exchanges where people who couldn't afford it otherwise could buy private insurance with premiums that are partly paid by the federal government.)
Well, it took a former Senate Republican-- and a formerly very influential one at that, former Majority Leader Bill Frist to ask the obvious question:
WHAT HAPPENS IF THE SUPREME COURT OVERTURNS ONLY THE MANDATE and leaves the rest of the law intact?
After all, the Supreme Court has a long history of ignoring whatever the legislative dealmaking was in getting laws passed and overturning certain provisions while leaving others alone.
The first thing that will happen in that case is that the insurance industry executives will need their own services after having a heart attack. Suddenly faced with not getting the increased revenue they have been counting on but still on the hook for universal coverage, they will try to make this up in one (or more probably both) of two ways:
1. Significantly increase premiums. This would increase costs both to people who pay them, and also to the government. As passed, the OMB found that because of a number of taxes included in the bill the ACA actually reduces the projected deficit by $143 billion (another irony in Republican calls to trim the deficit, when this is something that actually more than pays for itself.) But if the mandate is repealed all bets are off the table because the necessary government subsidies on insurance would spike upward sharply and begin to play into the deficit.
2. Begin an intensive lobbying campaign to be relieved of the burden they now have (and as part of the overall package were willing to accept for a few years) of caring for the sickest without revoking their insurance, turning them away or limiting the total cost of their care.) While it is conceivable they could convince Congress and some future administration to repeal the rest of the law, I believe this is unlikely because many of the provisions are not only popular, but are well ingrained by now. Passing a bill that explicity gave insurance companies the right to screw people (even if it's how they used to screw them) would be very unpopular and no politician will want to touch it. So instead of that they might have more success if there was some other way in which these very sick patients who were no longer profitable to treat could be taken off their ledgers. But that would require that they be given to someone else to pay for. And clearly no insurance company will want to only get people who have been rejected as too costly or too risky by other insurance companies. So that leaves-- that's right, the government. So, in that case it's entirely plausible that the insurance industry itself would end up pushing for a public option (albeit one only open to people the insurance companies don't want.)
Nevertheless this is a good thing. If the Supreme Court throws away the mandate we could end up in a society in which you may not be compelled to buy insurance but insurers are compelled to sell it to you and on top of that we get a public option after all.
Thursday, July 16, 2009
What Sotomayor SHOULD say: Why NOT use my experience to help with decisions?
Why shouldn't a judge on the United States Supreme Court use her personal knowlege as gained by life experience as one component of what goes into making decisions?
Conservatives claim to be 'strict constructionists,' regarding the Constitution and claim that judges should relate everything back to it (well, except for the fourth amendment, the fifth if accused of a drug crime and the sixth regarding Jose Padilla, and portions of the first, also not Article 4, Section 1 as relates to marriages performed in New England states.) They blithely preach the Constitutional gospel like it is the answer to all life's questions, even though the founding fathers themselves took pains to make it clear that it only served as a guideline. For example, conservatives love to remind you that there is no explicit right to privacy in the Constitution. There doesn't have to be, thanks to the ninth amendment which explicitly states that the fact that a right is not enumerated in the Constitution does NOT construe that there is no such right. It's up to judges then to enumerate what additional rights the ninth amendment refers to and more than 90 years ago they decided that privacy was one of those rights.
Obviously to conservatives though these apparent contradictions of their dogma with the Constitution are mere inconveniences. According to them, Ben Franklin and John Adams must have agreed (and agreed with their view) on medicinal marijuana and funding for English learner classes, it's in there if you look hard enough. And then see what you want to see.
Only problem is, if it was that easy the case wouldn't make it to the Supreme Court in the first place. If the Constitution clearly spelled it out then you wouldn't even need judges at all, just a bubble sheet with questions about the case on it and a computerized flowchart.
The cases that the SCOTUS even accepts have been appealed all the way up through the process precisely because there are often contradictory Constitutional provisions, clauses or amendment which can be construed as favorable to either side. In other cases there is simply no Constitutional precedent at all.
In these cases, why isn't it apropos for a judge to use all sources available to arrive at a decision, including her own experiences? The Constitution may not provide a clear enough answer to a problem that was not even conceived of two centuries ago, and in that case the judge has to have something to go on, be it her own judgements, international law or whatever else. So why make it a bad thing to use her best judgement?
Conservatives claim to be 'strict constructionists,' regarding the Constitution and claim that judges should relate everything back to it (well, except for the fourth amendment, the fifth if accused of a drug crime and the sixth regarding Jose Padilla, and portions of the first, also not Article 4, Section 1 as relates to marriages performed in New England states.) They blithely preach the Constitutional gospel like it is the answer to all life's questions, even though the founding fathers themselves took pains to make it clear that it only served as a guideline. For example, conservatives love to remind you that there is no explicit right to privacy in the Constitution. There doesn't have to be, thanks to the ninth amendment which explicitly states that the fact that a right is not enumerated in the Constitution does NOT construe that there is no such right. It's up to judges then to enumerate what additional rights the ninth amendment refers to and more than 90 years ago they decided that privacy was one of those rights.
Obviously to conservatives though these apparent contradictions of their dogma with the Constitution are mere inconveniences. According to them, Ben Franklin and John Adams must have agreed (and agreed with their view) on medicinal marijuana and funding for English learner classes, it's in there if you look hard enough. And then see what you want to see.
Only problem is, if it was that easy the case wouldn't make it to the Supreme Court in the first place. If the Constitution clearly spelled it out then you wouldn't even need judges at all, just a bubble sheet with questions about the case on it and a computerized flowchart.
The cases that the SCOTUS even accepts have been appealed all the way up through the process precisely because there are often contradictory Constitutional provisions, clauses or amendment which can be construed as favorable to either side. In other cases there is simply no Constitutional precedent at all.
In these cases, why isn't it apropos for a judge to use all sources available to arrive at a decision, including her own experiences? The Constitution may not provide a clear enough answer to a problem that was not even conceived of two centuries ago, and in that case the judge has to have something to go on, be it her own judgements, international law or whatever else. So why make it a bad thing to use her best judgement?
Wednesday, June 10, 2009
McConnell way off on Sotomayor timeline
Minority Leader Mitch McConnell (R-KY) was a little upset that Senator Patrick Leahy (D-VT) scheduled the confirmation hearing for Sonia Sotomayor to begin on July 13. McConnell wants to do it in September.
Fair enough, he wants more time to dig for dirt and/or drag it out in order to clog up the calendar and slow down other Democratic agenda items, especially health care overhaul. I don't blame him for wanting to do that, as the minority leader he's expected to try and do things like that. Harry Reid would want the same thing if their shoes were reversed.
But McConnell, never satisfied with just making his case, told a bit of a nose-puller. He said that Sotomayor's proposed nomination timeline would be the shortest in recent memory.
Yes, that's what he said.
They want the shortest confirmation timeline in recent memory for someone with the longest record in recent memory,
Recall that Sotomayor was nominated on May 25. So if her nomination were processed through the committee and voted on all on the same day, July 13, her timeline would be 49 days. But in fact the hearing, committee vote, and then floor debate and vote by the full Senate will take a couple of weeks beyond that, so figure her timeline will actually be about 60 days. However, whether you figure 49 days or about 60 days, if you read further down in the link we find that it would be very typical of what these things seem to take:
• Samuel Alito: 70 days
• John Roberts: Seven days after announced as chief justice replacement; 55 days after initial nomination
• Stephen Breyer: 60 days
• Ruth Bader Ginsburg: 36 days
• Clarence Thomas: 71 days
• David Souter: 52 days
• Anthony Kennedy: 33 days
• Robert Bork: 76 days
• Antonin Scalia: 49 days
• William Rehnquist: 42 days
• Sandra Day O'Connor: 64 days
• John Paul Stevens: 10 days
• Rehnquist (nominated by former President Nixon to replace Associate Justice John Harlan): 13 days
What would be unusually long would be if the Senate did wait until after the August recess and begin the hearing when they return after Labor Day, probably the next day, September 8. If that were the date the hearing began, the timeline would be a minimum of 106 days and more likely close to 120.
Well, if the facts are not on your side, apparently Mitch McConnell thinks the way to fix that problem is to make up some new facts.
Fair enough, he wants more time to dig for dirt and/or drag it out in order to clog up the calendar and slow down other Democratic agenda items, especially health care overhaul. I don't blame him for wanting to do that, as the minority leader he's expected to try and do things like that. Harry Reid would want the same thing if their shoes were reversed.
But McConnell, never satisfied with just making his case, told a bit of a nose-puller. He said that Sotomayor's proposed nomination timeline would be the shortest in recent memory.
Yes, that's what he said.
They want the shortest confirmation timeline in recent memory for someone with the longest record in recent memory,
Recall that Sotomayor was nominated on May 25. So if her nomination were processed through the committee and voted on all on the same day, July 13, her timeline would be 49 days. But in fact the hearing, committee vote, and then floor debate and vote by the full Senate will take a couple of weeks beyond that, so figure her timeline will actually be about 60 days. However, whether you figure 49 days or about 60 days, if you read further down in the link we find that it would be very typical of what these things seem to take:
• Samuel Alito: 70 days
• John Roberts: Seven days after announced as chief justice replacement; 55 days after initial nomination
• Stephen Breyer: 60 days
• Ruth Bader Ginsburg: 36 days
• Clarence Thomas: 71 days
• David Souter: 52 days
• Anthony Kennedy: 33 days
• Robert Bork: 76 days
• Antonin Scalia: 49 days
• William Rehnquist: 42 days
• Sandra Day O'Connor: 64 days
• John Paul Stevens: 10 days
• Rehnquist (nominated by former President Nixon to replace Associate Justice John Harlan): 13 days
What would be unusually long would be if the Senate did wait until after the August recess and begin the hearing when they return after Labor Day, probably the next day, September 8. If that were the date the hearing began, the timeline would be a minimum of 106 days and more likely close to 120.
Well, if the facts are not on your side, apparently Mitch McConnell thinks the way to fix that problem is to make up some new facts.
Tuesday, May 26, 2009
Ebullient about Sonia!
President Obama has made his first Supreme Court pick, Appeals Court Judge Sonia Sotomayor. And it's a great choice.
The one point that Republicans have is that her compelling personal story-- raised by a single mother in a tenement in the Bronx and doing well enough in school to earn her own way into Princeton University-- is irrelevant to how qualified she is as a judge.
So let's focus on how qualified she is as a judge. The answer is very. Academically, there is no question about her intellect. Sotomayor graduated Summa cum Laude, at the top of her class at Princeton. Then she went on to Yale Law School and earned her law degree.
After school she earned a reputation as a tough and effective prosecutor, which led to her appointment to the federal bench eighteen years ago by President George H.W. Bush. Later she was appointed to the second circuit court by President Clinton, and has served on that court-- one step below the Supreme Court for more than a decade.
Conservatives tried to kneecap Sotomayor early on in the process. They sent hitman Jeffrey Rosen, who wrote a scathing critique, all based on 'anonymous sources.' Those anonymous sources questioned her intelligence, apparently following after Karl Rove's tactics of attacking someone's strength first. Only Rosen failed miserably, since he couldn't find anyone willing to put their name on the record so it ends up looking like a bunch of unsubstantiated innuendo. For all you can tell, Rosen's 'anonymous source' might have been himself.
They will bring up Sotomayor's comments in the past suggesting that judicial decisions should also be made with a view as to their impact on those directly affected and on others. This is a good thing however. As a baseball fan, I am grateful that Sotomayor considered the interests of fans and of the public when she issued a ruling in 1995 to force players and owners back to the negotiating table. Baseball, as I've noted on several occasions, still has not recovered as "America's pastime" (in third place in most measures of fan popularity behind football and basketball, and not all that far ahead of NASCAR.) Sotomayor is the reason why baseball resumed in 1995 at all, and in retrospect it is clear that she made the right decision.
They will likely bring up the case of Ricci vs. DiStefano, the New Haven, CT case in which the results of a test were thrown out by the city. Conservatives are criticizing Sotomayor for being a member of a three judge panel which sided with the city and ruled against the plaintiff. However, the fact that the case even worked its way up to the second circuit should be proof that it was never the slam-dunk case conservatives seem to believe to begin with, so if she doesn't agree with them then she is not the first. I doubt it will be a unanimous ruling by the Supreme Court either (though it will be interesting to see how David Souter casts his vote on the case.) If Sotomayor and her colleagues on the panel can be faulted it is for not being more explicit in their opinion, but not forgoing a lengthy opinion in a case which is decided by a panel is by no means unusual (and the justice who penned the opinion in the case was one of the other panel members anyway.)
As far as her position on the court, keep in mind that Souter is considered part of the court's liberal wing anyway. We have essentially a 4-1-4 split on the court-- four liberals, four conservatives and Anthony Kennedy the guy everyone is trying to convince. The only way that Sotomayor really helps the liberal wing is that we are replacing Souter, a guy who hated every minute of his work on the Supreme Court, with a justice who is enthusiastic about the opportunity and at 54 will probably be on the court for a long time. The two justices with serious health issues, Justices Stevens and Ginsburg, remain on the court.
In fact, while Sotomayor is certainly liberal on many issues, she isn't necessarily always liberal. In her only ruling on abortion in fact, she backed the Bush administration's anti-abortion stance in dismissing the suit on the part of abortion rights groups to force the administration to reverse the so-called 'Mexico City rule' and provide funds for foreign organizations that counseled abortion. Sotomayor ruled on the case in 2002 that the government had the freedom to direct U.S. funds to or not to foreign interests. In another ruling that is at odds with liberal orthodoxy she struck down a law used by the city of White Plains, NY to ban religious displays in a city park. So clearly she will have a few surprises in store, though I expect that she will probably be about as liberal as David Souter was (a justice who surprised his Republican backers twenty years ago.)
On the other hand, I don't want a pure doctrinaire liberal either. I want someone who thinks things through and one hallmark of that is occasional unpredictability. All in all, I am very happy with President Obama's choice.
The one point that Republicans have is that her compelling personal story-- raised by a single mother in a tenement in the Bronx and doing well enough in school to earn her own way into Princeton University-- is irrelevant to how qualified she is as a judge.
So let's focus on how qualified she is as a judge. The answer is very. Academically, there is no question about her intellect. Sotomayor graduated Summa cum Laude, at the top of her class at Princeton. Then she went on to Yale Law School and earned her law degree.
After school she earned a reputation as a tough and effective prosecutor, which led to her appointment to the federal bench eighteen years ago by President George H.W. Bush. Later she was appointed to the second circuit court by President Clinton, and has served on that court-- one step below the Supreme Court for more than a decade.
Conservatives tried to kneecap Sotomayor early on in the process. They sent hitman Jeffrey Rosen, who wrote a scathing critique, all based on 'anonymous sources.' Those anonymous sources questioned her intelligence, apparently following after Karl Rove's tactics of attacking someone's strength first. Only Rosen failed miserably, since he couldn't find anyone willing to put their name on the record so it ends up looking like a bunch of unsubstantiated innuendo. For all you can tell, Rosen's 'anonymous source' might have been himself.
They will bring up Sotomayor's comments in the past suggesting that judicial decisions should also be made with a view as to their impact on those directly affected and on others. This is a good thing however. As a baseball fan, I am grateful that Sotomayor considered the interests of fans and of the public when she issued a ruling in 1995 to force players and owners back to the negotiating table. Baseball, as I've noted on several occasions, still has not recovered as "America's pastime" (in third place in most measures of fan popularity behind football and basketball, and not all that far ahead of NASCAR.) Sotomayor is the reason why baseball resumed in 1995 at all, and in retrospect it is clear that she made the right decision.
They will likely bring up the case of Ricci vs. DiStefano, the New Haven, CT case in which the results of a test were thrown out by the city. Conservatives are criticizing Sotomayor for being a member of a three judge panel which sided with the city and ruled against the plaintiff. However, the fact that the case even worked its way up to the second circuit should be proof that it was never the slam-dunk case conservatives seem to believe to begin with, so if she doesn't agree with them then she is not the first. I doubt it will be a unanimous ruling by the Supreme Court either (though it will be interesting to see how David Souter casts his vote on the case.) If Sotomayor and her colleagues on the panel can be faulted it is for not being more explicit in their opinion, but not forgoing a lengthy opinion in a case which is decided by a panel is by no means unusual (and the justice who penned the opinion in the case was one of the other panel members anyway.)
As far as her position on the court, keep in mind that Souter is considered part of the court's liberal wing anyway. We have essentially a 4-1-4 split on the court-- four liberals, four conservatives and Anthony Kennedy the guy everyone is trying to convince. The only way that Sotomayor really helps the liberal wing is that we are replacing Souter, a guy who hated every minute of his work on the Supreme Court, with a justice who is enthusiastic about the opportunity and at 54 will probably be on the court for a long time. The two justices with serious health issues, Justices Stevens and Ginsburg, remain on the court.
In fact, while Sotomayor is certainly liberal on many issues, she isn't necessarily always liberal. In her only ruling on abortion in fact, she backed the Bush administration's anti-abortion stance in dismissing the suit on the part of abortion rights groups to force the administration to reverse the so-called 'Mexico City rule' and provide funds for foreign organizations that counseled abortion. Sotomayor ruled on the case in 2002 that the government had the freedom to direct U.S. funds to or not to foreign interests. In another ruling that is at odds with liberal orthodoxy she struck down a law used by the city of White Plains, NY to ban religious displays in a city park. So clearly she will have a few surprises in store, though I expect that she will probably be about as liberal as David Souter was (a justice who surprised his Republican backers twenty years ago.)
On the other hand, I don't want a pure doctrinaire liberal either. I want someone who thinks things through and one hallmark of that is occasional unpredictability. All in all, I am very happy with President Obama's choice.
Saturday, May 02, 2009
We don't know who the nominee is yet but the 'party of no' is already against him or her.
If I read this article right, It won't matter who the President picks as a replacement for retiring Supreme Court Justice David Souter.
Phone lines around Washington began burning this morning as conservative organizations kicked off preparations for the fight over President Obama's eventual Supreme Court nominee.
Associate Justice David Souter's decision to step down at the end of this term has awakened a long-dormant network of conservative organizations that will do their best to augment — and at times pressure — Senate Republican efforts to frame Obama's eventual choice....
Groups like the American Center for Law & Justice, the Coalition for a Fair Judiciary and the Committee for Justice will all prepare background research on potential nominees, setting up the eventual, inevitable attacks on the nominee as a left-wing extremist....
Interpretation: It won't matter who Obama picks. You will hear the same attacks anyway, just because it is an Obama pick.
Phone lines around Washington began burning this morning as conservative organizations kicked off preparations for the fight over President Obama's eventual Supreme Court nominee.
Associate Justice David Souter's decision to step down at the end of this term has awakened a long-dormant network of conservative organizations that will do their best to augment — and at times pressure — Senate Republican efforts to frame Obama's eventual choice....
Groups like the American Center for Law & Justice, the Coalition for a Fair Judiciary and the Committee for Justice will all prepare background research on potential nominees, setting up the eventual, inevitable attacks on the nominee as a left-wing extremist....
Interpretation: It won't matter who Obama picks. You will hear the same attacks anyway, just because it is an Obama pick.
Friday, January 30, 2009
President Obama signs the Ledbetter Fair Pay Act
Lilly Ledbetter worked for nearly twenty years at the Goodyear Tire plant in Gadsden, Alabama. She became a supervisor at the plant and filed suit in 1998 after learning that she had been paid hundreds of dollars less per month than even the lowest paid man (a relatively new hire) who was doing her same job. This comes as no surprise to working women, who even after the 'seniority' argument that had been made during the 1970's and 1980's as to why men were typically paid more has played itself out, still see that women are paid only $.78 per hour for every dollar a man earns for doing the same job.
After a series of victories in the lower courts, the Eleventh Circuit court reversed the lower court decisions, and when it went to the Supreme Court Ledbetter lost last year on a 5-4 vote. Though the Supreme Court agreed that she did have both identical job titles and duties to men who were being paid a lot more than she was, they argued that she was only entitled to additional back pay for 180 days prior to the date of her filing the suit and could not challenge decisions that had been made before that even though the discriminatory pay rates had been going on for years without her knowledge (and her fruitless attempt to get the problem fixed internally at Goodyear worked against her because it delayed her filing the suit.) The focus of the suit is what is known as 'paycheck accruel,' a longstanding precedent in which the clock on filing a discrimination case resets with every paycheck. The Supreme Court ruling upholding the eleventh circuit essentially voided that provision and therefore ruled that only the 180 day limit set under Title VII applied.
The pay difference that she experienced over years, and which many, many women still suffer from is exacerbated because it compounds into lower Social Security after retirement.
Last year after the Supreme Court decision, Congress tried to pass the Ledbetter Fair Pay Act which stipulates that women who can prove that they were discriminated against at work are entitled to up to two years of back pay differential to make up the difference, and more importantly specifically writes 'paycheck accruel' into law. The bill was blocked by a Republican filibuster (and it became an issue that Barack Obama made some ground on during the campaign since John McCain had made a speech opposing it, and Obama aired a commercial featuring Lilly Ledbetter that may have helped him re-open the gender gap that McCain had closed a bit when he picked Sarah Palin.)
This year it passed, with unanimous support from Senate Democrats, plus five Republicans-- significantly including all four of the Republican women in the Senate (and two of them, Lisa Murkowski and Kay Bailey Hutchison, are considered conservative). House Republicans were House Republicans, with only three voting in favor.
President Obama has now signed the law, the first piece of legislation he has signed that was passed by the new Congress. Besides equal pay for women, it represents a direct and specific repudiation of the Supreme Court, essentially restoring the law back to what lower courts had held, but now spelled out and codified as Federal law.
After a series of victories in the lower courts, the Eleventh Circuit court reversed the lower court decisions, and when it went to the Supreme Court Ledbetter lost last year on a 5-4 vote. Though the Supreme Court agreed that she did have both identical job titles and duties to men who were being paid a lot more than she was, they argued that she was only entitled to additional back pay for 180 days prior to the date of her filing the suit and could not challenge decisions that had been made before that even though the discriminatory pay rates had been going on for years without her knowledge (and her fruitless attempt to get the problem fixed internally at Goodyear worked against her because it delayed her filing the suit.) The focus of the suit is what is known as 'paycheck accruel,' a longstanding precedent in which the clock on filing a discrimination case resets with every paycheck. The Supreme Court ruling upholding the eleventh circuit essentially voided that provision and therefore ruled that only the 180 day limit set under Title VII applied.
The pay difference that she experienced over years, and which many, many women still suffer from is exacerbated because it compounds into lower Social Security after retirement.
Last year after the Supreme Court decision, Congress tried to pass the Ledbetter Fair Pay Act which stipulates that women who can prove that they were discriminated against at work are entitled to up to two years of back pay differential to make up the difference, and more importantly specifically writes 'paycheck accruel' into law. The bill was blocked by a Republican filibuster (and it became an issue that Barack Obama made some ground on during the campaign since John McCain had made a speech opposing it, and Obama aired a commercial featuring Lilly Ledbetter that may have helped him re-open the gender gap that McCain had closed a bit when he picked Sarah Palin.)
This year it passed, with unanimous support from Senate Democrats, plus five Republicans-- significantly including all four of the Republican women in the Senate (and two of them, Lisa Murkowski and Kay Bailey Hutchison, are considered conservative). House Republicans were House Republicans, with only three voting in favor.
President Obama has now signed the law, the first piece of legislation he has signed that was passed by the new Congress. Besides equal pay for women, it represents a direct and specific repudiation of the Supreme Court, essentially restoring the law back to what lower courts had held, but now spelled out and codified as Federal law.
Thursday, July 03, 2008
Obama's 'flip-flops' are greatly exaggerated.
A lot has been made about Barack Obama's supposed 'flip-flops.' First there was the campaign finance issue, when he reversed a pledge to accept public financing because he can raise a lot more on the internet. Then on each of the Supreme Court rulings last week he came down on what could be considered the conservative side (disagreeing with the ruling outlawing executing child rapists and agreeing with the ruling that the District of Columbia can't ban all handguns.) Then he said he will vote for the latest incarnation of the FISA bill despite it giving telecom companies immunity, and today while campaigning in North Dakota he made a statement that he would withdraw troops from Iraq on a pace subject to the safety and security of the troops and the need to maintain stability.
There is a lot to say here. First, most of the supposed 'flip-flops' are greatly exagerrated when put in the context of what he has said in the past. And where they aren't, so what? No one is suggesting that Barack Obama isn't a politician. Would you rather have John McCain, who if elected pledges to continue virtually all of the Bush administration's policies? What makes Barack Obama special is his ability to inspire millions of people. That is not contradictory to also being a politician. Franklin Roosevelt and John F. Kennedy were politicians to the core, but that was not contradictory to their also being inspirational leaders.
The most clear flip-flop is on the campaign finance issue, so let's start with it. A long time ago, during the primary season, Barack Obama did pledge to take public financing in the general if his Republican opponent did likewise. That is true. But he did reverse himself. However, let's be clear here-- there is little doubt that he can raise as much as three or four times as much on the internet as the $84 million he would otherwise get in general election financing. For that matter, do you honestly believe that if John McCain had a way to raise hundreds of millions of dollars he wouldn't take it? That is the reason why Mitt Romney is still on McCain's list as a veep candidate. So for Obama to limit himself to a third of the resources he would otherwise have would be stupid. He proved he isn't stupid. Next issue?
The FISA bill. It gives most of us on the left heartburn that Obama will vote for it. The bill puts into law immunity for telecom companies that broke the law (at the request of the Bush administration) when they violated your privacy and gave access to government snoops to your telephone calls without a warrant (you don't actually know for sure than nobody did listen to your calls, now do you?) It's true that he had pledged to vote against this earlier. He is saying that the new bill is an improvement, which is true, but the big issue, the immunity for the telecom companies is still in there. So while he can use the cover provided by the changes in the bill to say he didn't flip-flop, yeah he did. However this is hardly a reason to vote for John McCain. You know darn well he will vote for the FISA bill enthusiastically (assuming he bothers to show up at all-- his absentee rate is worse than Obama's in the U.S. Senate this year, negating an issue Republicans once thought they could use.)
Let's discuss the two Supreme Court rulings. I don't consider these to be flip-flops at all. Regarding the first, Obama has said in the past that he supports the death penalty for particularly heinous crimes. He never said whether he considered the rape of a child to qualify, until it became a valid question in the wake of last week's SCOTUS ruling. So if it's the first time he's commented on it, where is the flip-flop? I happen to disagree with him (I actually think the Supreme Court ruling is right-- if we have the death penalty at all then it should be used as an 'eye-for-an-eye' punishment, exclusively for murder) but there is no flip-flop in this case.
Then on the gun case, the Supreme Court ruled against the D.C. gun ban. The justices interpreted the Second Amendment as guaranteeing an individual right to bear arms, not just a collective right. Obama, who in the past has supported gun control laws, agreed with this interpretation. Again, there is no flip-flop. The court ruled the D.C. ban went too far in banning all guns of a certain type, but that isn't contradictory to jurisdictions regulating them. Senator Obama's past statements and his current support of the D.C. ruling are not contradictory in that regard.
For that matter, I agree with both Supreme Court rulings. This puts me in opposition to Senator Obama on the first, but not the second, and in opposition to some liberals on the second, but not the first. Proving what? Proving that in the Democratic party we can have disagreements on issues and still remain united.
OK, what about today's Iraq statement? It is no secret that Senator Obama has pledged to get us out of Iraq. So today he said,
"I’ve always said that the pace of withdrawal would be dictated by the safety and security of our troops and the need to maintain stability. That assessment has not changed. And when I go to Iraq and have a chance to talk to some of the commanders on the ground, I’m sure I’ll have more information and will continue to refine my policies.”
Again, where is the flip-flop? Look at this quote from a Democratic debate in 2007:
We must get out strategically and carefully, removing troops from secure areas first, and keeping troops in more volatile areas until later, but our drawdown should proceed at a steady pace of one or two brigades each month.
Which according to the article led to his taking some heat from some of the other candidates in the debate, particularly John Edwards and Bill Richardson.
That was last September. So what he said today is completely consistent with what he said then. Again, it isn't like he is talking about anything other than withdrawal. He is talking about using information he gathers (i.e. from his upcoming trip to Iraq) to develop a more informed plan for withdrawing. That in itself is a refreshing change from our current executive, who when he began talking about Iraq had his mind already made up what to do and ran an administration that cherry picked intelligence reports to only pick out any which supported their pre-drawn conclusion. I'd much rather have a President who is capable of adjusting the specifics of his policy when and if he receives new information.
Of course then John McCain isn't talking about withdrawing at all, he's talking about staying there for a hundred years. And while we are debating this the Bush administration is feverishly twisting arms in Iraq to try and get them to sign onto a 'treaty' that will involve our building and maintaining as many as sixty military bases in Iraq. What do we need sixty bases there for? Only if we plan on using Iraq as a base from which to exert military control throughout the middle east. Barack Obama opposed George Bush's stupid and criminal war in Iraq from the beginning and he is the only candidate talking about withdrawing from Iraq soon. That's a plain fact. What he said today is in no way contradictory to what he said then.
That said, the attempt by the right-wing media to paint him as a sellout is an attempt to drive a wedge between him and his supporters. And it's met with some success. Markos Moulitsas (Daily Kos) already announced that while he will endorse and vote for Obama, he has torn up the check he was writing him. And as Moulitsas goes so go many supporters. For Obama to realize his goal of raising $250 million online he needs that support.
To a degree Obama also is creating part of the problem by his attempt to 'seize the center.' That doesn't work. He is blessed with the ability to articulate policy positions. Look at what a couple of good orators who can speak directly to the people (mainly, Socialist Bernie Sanders but also Howard Dean) were able to accomplish in Vermont. It was such a Republican state for generations that it even voted against FDR in 1936. Jimmy Carter and Massachusetts neighbor Michael Dukakis couldn't crack it either. But by the late 1980's then-congressman Sanders had laid out such an articulate vision and in terms that anyone could understand that the whole state moved to the left. And unlike, for example, California, it was not an immigration-driven change. Most Vermonters were born and raised in Vermont. But the majority of them are now among the most liberal people in the country when a generation ago they were among the most conservative. Obama could make the same kind of change for America, and I believe it is a mistake for him not to do so.
In fact, exhibit A is Obama himself. He beat Hillary Clinton largely because she had spent six years in the Senate staking out the center, and a lot of activists (who especially were unhappy with her continuing support for the Iraq war long after it became clear to everyone else that it was an unnecessary mistake) by that time were ready to support anybody else who could beat her.
However, while I may have some concerns about Obama's small steps towards the center, let's be clear here-- they have been greatly exagerrated by those who attempt to paint him as a 'flip-flopper.' Those people have the ultimate goal of electing John McCain. And that would be a horrible mistake and a disaster for the country.
There is a lot to say here. First, most of the supposed 'flip-flops' are greatly exagerrated when put in the context of what he has said in the past. And where they aren't, so what? No one is suggesting that Barack Obama isn't a politician. Would you rather have John McCain, who if elected pledges to continue virtually all of the Bush administration's policies? What makes Barack Obama special is his ability to inspire millions of people. That is not contradictory to also being a politician. Franklin Roosevelt and John F. Kennedy were politicians to the core, but that was not contradictory to their also being inspirational leaders.
The most clear flip-flop is on the campaign finance issue, so let's start with it. A long time ago, during the primary season, Barack Obama did pledge to take public financing in the general if his Republican opponent did likewise. That is true. But he did reverse himself. However, let's be clear here-- there is little doubt that he can raise as much as three or four times as much on the internet as the $84 million he would otherwise get in general election financing. For that matter, do you honestly believe that if John McCain had a way to raise hundreds of millions of dollars he wouldn't take it? That is the reason why Mitt Romney is still on McCain's list as a veep candidate. So for Obama to limit himself to a third of the resources he would otherwise have would be stupid. He proved he isn't stupid. Next issue?
The FISA bill. It gives most of us on the left heartburn that Obama will vote for it. The bill puts into law immunity for telecom companies that broke the law (at the request of the Bush administration) when they violated your privacy and gave access to government snoops to your telephone calls without a warrant (you don't actually know for sure than nobody did listen to your calls, now do you?) It's true that he had pledged to vote against this earlier. He is saying that the new bill is an improvement, which is true, but the big issue, the immunity for the telecom companies is still in there. So while he can use the cover provided by the changes in the bill to say he didn't flip-flop, yeah he did. However this is hardly a reason to vote for John McCain. You know darn well he will vote for the FISA bill enthusiastically (assuming he bothers to show up at all-- his absentee rate is worse than Obama's in the U.S. Senate this year, negating an issue Republicans once thought they could use.)
Let's discuss the two Supreme Court rulings. I don't consider these to be flip-flops at all. Regarding the first, Obama has said in the past that he supports the death penalty for particularly heinous crimes. He never said whether he considered the rape of a child to qualify, until it became a valid question in the wake of last week's SCOTUS ruling. So if it's the first time he's commented on it, where is the flip-flop? I happen to disagree with him (I actually think the Supreme Court ruling is right-- if we have the death penalty at all then it should be used as an 'eye-for-an-eye' punishment, exclusively for murder) but there is no flip-flop in this case.
Then on the gun case, the Supreme Court ruled against the D.C. gun ban. The justices interpreted the Second Amendment as guaranteeing an individual right to bear arms, not just a collective right. Obama, who in the past has supported gun control laws, agreed with this interpretation. Again, there is no flip-flop. The court ruled the D.C. ban went too far in banning all guns of a certain type, but that isn't contradictory to jurisdictions regulating them. Senator Obama's past statements and his current support of the D.C. ruling are not contradictory in that regard.
For that matter, I agree with both Supreme Court rulings. This puts me in opposition to Senator Obama on the first, but not the second, and in opposition to some liberals on the second, but not the first. Proving what? Proving that in the Democratic party we can have disagreements on issues and still remain united.
OK, what about today's Iraq statement? It is no secret that Senator Obama has pledged to get us out of Iraq. So today he said,
"I’ve always said that the pace of withdrawal would be dictated by the safety and security of our troops and the need to maintain stability. That assessment has not changed. And when I go to Iraq and have a chance to talk to some of the commanders on the ground, I’m sure I’ll have more information and will continue to refine my policies.”
Again, where is the flip-flop? Look at this quote from a Democratic debate in 2007:
We must get out strategically and carefully, removing troops from secure areas first, and keeping troops in more volatile areas until later, but our drawdown should proceed at a steady pace of one or two brigades each month.
Which according to the article led to his taking some heat from some of the other candidates in the debate, particularly John Edwards and Bill Richardson.
That was last September. So what he said today is completely consistent with what he said then. Again, it isn't like he is talking about anything other than withdrawal. He is talking about using information he gathers (i.e. from his upcoming trip to Iraq) to develop a more informed plan for withdrawing. That in itself is a refreshing change from our current executive, who when he began talking about Iraq had his mind already made up what to do and ran an administration that cherry picked intelligence reports to only pick out any which supported their pre-drawn conclusion. I'd much rather have a President who is capable of adjusting the specifics of his policy when and if he receives new information.
Of course then John McCain isn't talking about withdrawing at all, he's talking about staying there for a hundred years. And while we are debating this the Bush administration is feverishly twisting arms in Iraq to try and get them to sign onto a 'treaty' that will involve our building and maintaining as many as sixty military bases in Iraq. What do we need sixty bases there for? Only if we plan on using Iraq as a base from which to exert military control throughout the middle east. Barack Obama opposed George Bush's stupid and criminal war in Iraq from the beginning and he is the only candidate talking about withdrawing from Iraq soon. That's a plain fact. What he said today is in no way contradictory to what he said then.
That said, the attempt by the right-wing media to paint him as a sellout is an attempt to drive a wedge between him and his supporters. And it's met with some success. Markos Moulitsas (Daily Kos) already announced that while he will endorse and vote for Obama, he has torn up the check he was writing him. And as Moulitsas goes so go many supporters. For Obama to realize his goal of raising $250 million online he needs that support.
To a degree Obama also is creating part of the problem by his attempt to 'seize the center.' That doesn't work. He is blessed with the ability to articulate policy positions. Look at what a couple of good orators who can speak directly to the people (mainly, Socialist Bernie Sanders but also Howard Dean) were able to accomplish in Vermont. It was such a Republican state for generations that it even voted against FDR in 1936. Jimmy Carter and Massachusetts neighbor Michael Dukakis couldn't crack it either. But by the late 1980's then-congressman Sanders had laid out such an articulate vision and in terms that anyone could understand that the whole state moved to the left. And unlike, for example, California, it was not an immigration-driven change. Most Vermonters were born and raised in Vermont. But the majority of them are now among the most liberal people in the country when a generation ago they were among the most conservative. Obama could make the same kind of change for America, and I believe it is a mistake for him not to do so.
In fact, exhibit A is Obama himself. He beat Hillary Clinton largely because she had spent six years in the Senate staking out the center, and a lot of activists (who especially were unhappy with her continuing support for the Iraq war long after it became clear to everyone else that it was an unnecessary mistake) by that time were ready to support anybody else who could beat her.
However, while I may have some concerns about Obama's small steps towards the center, let's be clear here-- they have been greatly exagerrated by those who attempt to paint him as a 'flip-flopper.' Those people have the ultimate goal of electing John McCain. And that would be a horrible mistake and a disaster for the country.
Monday, March 31, 2008
Supreme Court declines to intervene in Jefferson case.
The U.S. Supreme Court declined today to involve itself in the question of whether evidence the FBI seized from the Congressional Office of Congressman William Jefferson (D-LA) can be used when Jefferson is tried on corruption charges later this year.
WASHINGTON (CNN) -- The Supreme Court on Monday let stand a lower court decision that allowed a congressman to review and remove documents seized during a controversial FBI raid of his office.
Rep. William Jefferson, D-Louisiana, said he was the victim of an overly aggressive raid of his Capitol Hill offices in May 2006. He was indicted 13 months later on public corruption charges.
The investigators' raid of Jefferson's office sparked a furor among congressional leaders, including Republicans, who argued the search violated the Constitution's separation of powers and legislative privilege.
The FBI did not warn leaders about the raid before they searched Jefferson's office.
The high court without comment let a lower court ruling stand that allows Jefferson -- with court oversight -- to review the seized documents and take out those that are privileged.
I can only imagine my Congressman, Rick Renzi (R-AZ), also under indictment, slapping his forehead with his palm at today's ruling that in effect bars the use of documents seized from a Congressional Office in a corruption trial and muttering, "Dang! THAT'S where I should have kept it!"
Now, there is no question that with or without the evidence taken from the office, Jefferson stands a high probability of joining Duke Cunningham and Bob Ney in prison. The FBI still has plenty of evidence-- most notoriously $90,000 in cash seized from a refrigerator at the Congressman's home-- with which to build a case against Jefferson.
The lower court ruling is essentially correct, in my opinion. And the reasons are a lot deeper than William Jefferson, Rick Renzi or anyone else.
At issue is the scope of the 'speech and debate' clause regarding separation of powers in the U.S. Constitution and whether it bars the FBI, an agency within the executive branch (the FBI director reports to the Attorney General, who reports to the President) from executing a search warrant on the official offices of a member of Congress.
The executive and legislative branches have ever since the Constitution was ratified been in a struggle for power (one refereed by the courts). At times one has prevailed, at times the other. Under the Bush administration however, we've seen a great expansion of executive power, with the President often choosing to simply ignore laws passed by Congress (even, far more often and far most specifically than was ever done in the past) issuing 'signing statements' when signing laws saying that in effect the laws don't apply to members or agencies within the executive branch. But when the FBI raided Jefferson's office, in effect a raid on Congress itself, it was a clear attempt to put executive control (of a putative sort) on Congress itself. In the history of the Republic, there have been a lot of Congressmen convicted of a crime while in that office, but in not a single one of those cases did investigators believe there was any reason to raid a Congressional Office (or likely realized the Constitutional peril if they tried.)
As a matter of principle, I prefer a strong legislative branch to a strong executive (and yes, I felt the same way philosophically even when the shoe was on the other foot in the 1990's and I felt that Congressional Republicans were using their legislative power to conduct investigation after investigation after investigation.) A strong Congress, no matter how repulsive their positions and actions may be, is not going to move us in the direction of dictatorship. Even when Congress passes laws restricting personal freedoms, as we've seen the past few years (especially between 2001-2006), it is often a weak and spineless Congress following the request and lead of the executive branch.
That does not mean that I feel there should be a 'safe' zone where any criminal can stash evidence and escape prosecution. The whole idea makes the idea of justice a farce. Suppose, for example, that we had a law saying that the police could not search inside a cookie jar. Then guess were all the criminals would keep the evidence? In fact by pushing this confrontation where they did and failing the FBI almost is inviting the next corrupt Congress member to keep a file cabinet marked, "None of your business" in their office, smugly assured that even if it is carted off it can't be used in a trial.
The solution would be for Congressional leaders and members of the Justice Department to negotiate a plan for how such searches should be handled in the future (such as having the Capitol Hill Police, a branch of Congress, do the actual searching). The breach between the present administration and Congress has gotten so deep though that this might be something on the agenda for the next administration.
WASHINGTON (CNN) -- The Supreme Court on Monday let stand a lower court decision that allowed a congressman to review and remove documents seized during a controversial FBI raid of his office.
Rep. William Jefferson, D-Louisiana, said he was the victim of an overly aggressive raid of his Capitol Hill offices in May 2006. He was indicted 13 months later on public corruption charges.
The investigators' raid of Jefferson's office sparked a furor among congressional leaders, including Republicans, who argued the search violated the Constitution's separation of powers and legislative privilege.
The FBI did not warn leaders about the raid before they searched Jefferson's office.
The high court without comment let a lower court ruling stand that allows Jefferson -- with court oversight -- to review the seized documents and take out those that are privileged.
I can only imagine my Congressman, Rick Renzi (R-AZ), also under indictment, slapping his forehead with his palm at today's ruling that in effect bars the use of documents seized from a Congressional Office in a corruption trial and muttering, "Dang! THAT'S where I should have kept it!"
Now, there is no question that with or without the evidence taken from the office, Jefferson stands a high probability of joining Duke Cunningham and Bob Ney in prison. The FBI still has plenty of evidence-- most notoriously $90,000 in cash seized from a refrigerator at the Congressman's home-- with which to build a case against Jefferson.
The lower court ruling is essentially correct, in my opinion. And the reasons are a lot deeper than William Jefferson, Rick Renzi or anyone else.
At issue is the scope of the 'speech and debate' clause regarding separation of powers in the U.S. Constitution and whether it bars the FBI, an agency within the executive branch (the FBI director reports to the Attorney General, who reports to the President) from executing a search warrant on the official offices of a member of Congress.
The executive and legislative branches have ever since the Constitution was ratified been in a struggle for power (one refereed by the courts). At times one has prevailed, at times the other. Under the Bush administration however, we've seen a great expansion of executive power, with the President often choosing to simply ignore laws passed by Congress (even, far more often and far most specifically than was ever done in the past) issuing 'signing statements' when signing laws saying that in effect the laws don't apply to members or agencies within the executive branch. But when the FBI raided Jefferson's office, in effect a raid on Congress itself, it was a clear attempt to put executive control (of a putative sort) on Congress itself. In the history of the Republic, there have been a lot of Congressmen convicted of a crime while in that office, but in not a single one of those cases did investigators believe there was any reason to raid a Congressional Office (or likely realized the Constitutional peril if they tried.)
As a matter of principle, I prefer a strong legislative branch to a strong executive (and yes, I felt the same way philosophically even when the shoe was on the other foot in the 1990's and I felt that Congressional Republicans were using their legislative power to conduct investigation after investigation after investigation.) A strong Congress, no matter how repulsive their positions and actions may be, is not going to move us in the direction of dictatorship. Even when Congress passes laws restricting personal freedoms, as we've seen the past few years (especially between 2001-2006), it is often a weak and spineless Congress following the request and lead of the executive branch.
That does not mean that I feel there should be a 'safe' zone where any criminal can stash evidence and escape prosecution. The whole idea makes the idea of justice a farce. Suppose, for example, that we had a law saying that the police could not search inside a cookie jar. Then guess were all the criminals would keep the evidence? In fact by pushing this confrontation where they did and failing the FBI almost is inviting the next corrupt Congress member to keep a file cabinet marked, "None of your business" in their office, smugly assured that even if it is carted off it can't be used in a trial.
The solution would be for Congressional leaders and members of the Justice Department to negotiate a plan for how such searches should be handled in the future (such as having the Capitol Hill Police, a branch of Congress, do the actual searching). The breach between the present administration and Congress has gotten so deep though that this might be something on the agenda for the next administration.
Monday, June 25, 2007
Supreme Court decides High School Principal outranks the First Amendment.
Quite a few years ago I was involved in helping to organize a union one of my former work places. At one point we decided that we wanted to have a peaceful picket and demonstration. So we petitioned management to allow us to demonstrate in a courtyard outside of their offices. They refused, so we picketed and demonstrated on a sidewalk, which in fact was along a road that major road that ran right through the middle of our workplace. In the end the management backed down and backed off of the specific decision they had made which prompted the demonstration, in no small part because of the citywide press coverage that the demonstration got (they'd have been much better off if they had approved the original site.)
The reason the sidewalk was chosen was very plain: it was public access. It was the one place on-site where management had no legal sway, and by law we had the right to demonstrate as long as we did so in a manner that did not block access for anyone else wanting to use the sidewalk or interfere with traffic.
And that is what makes today's Supreme Court decision very troubling. By a 6-3 majority, the court ruled to restrict free speech by students on a public sidewalk.
WASHINGTON (CNN) -- The Supreme Court ruled against a former high school student Monday in the "Bong Hits 4 Jesus" banner case -- a split decision that limits students' free speech rights.
Joseph Frederick was 18 when he unveiled the 14-foot paper sign on a public sidewalk outside his Juneau, Alaska, high school in 2002.
Principal Deborah Morse confiscated it and suspended Frederick. He sued, taking his case all the way to the nation's highest court.
The justices ruled 6-3 that Frederick's free speech rights were not violated by his suspension over what the majority's written opinion called a "sophomoric" banner...
"It was reasonable for (the principal) to conclude that the banner promoted illegal drug use-- and that failing to act would send a powerful message to the students in her charge," Chief Justice John Roberts wrote for the court's majority.
The substance of the banner is irrelevant. Either this student (and by implication all students, or all people) have a right to express their views in public, or they don't. In the end it is that simple.
Suppose that the banner had read, 'prayer 4 Jesus.' Would the conservative justices who voted against Frederick then vote to allow him to display his banner (or for that matter, it is fair to ask whether the three liberal justices who supported him would vote against him?) And if the answer is 'yes,' then wouldn't it plainly mean that the decision was based on the personal viewpoints of the justices and not the matter of free speech at all?
There is no question that the school has every right to control what is said on school grounds-- they have jurisdiction there, but with this decision can they then ban what students can say off campus? Could they enforce dress codes even when students are not at school? Could they punish students if they write a letter to the paper that portrays the school in an unflattering light? The implications are chilling.
And it won't stop with students. If Mr. Frederick can't display the banner across from his school, could you? Maybe prinicipal Morse might not have any jurisdiction over you, but the mayor would. Or the Governor. Or the President. This ruling represents a real restriction on the rights of all of us.
And don't let anyone fool you into thinking that it does not.
The reason the sidewalk was chosen was very plain: it was public access. It was the one place on-site where management had no legal sway, and by law we had the right to demonstrate as long as we did so in a manner that did not block access for anyone else wanting to use the sidewalk or interfere with traffic.
And that is what makes today's Supreme Court decision very troubling. By a 6-3 majority, the court ruled to restrict free speech by students on a public sidewalk.
WASHINGTON (CNN) -- The Supreme Court ruled against a former high school student Monday in the "Bong Hits 4 Jesus" banner case -- a split decision that limits students' free speech rights.
Joseph Frederick was 18 when he unveiled the 14-foot paper sign on a public sidewalk outside his Juneau, Alaska, high school in 2002.
Principal Deborah Morse confiscated it and suspended Frederick. He sued, taking his case all the way to the nation's highest court.
The justices ruled 6-3 that Frederick's free speech rights were not violated by his suspension over what the majority's written opinion called a "sophomoric" banner...
"It was reasonable for (the principal) to conclude that the banner promoted illegal drug use-- and that failing to act would send a powerful message to the students in her charge," Chief Justice John Roberts wrote for the court's majority.
The substance of the banner is irrelevant. Either this student (and by implication all students, or all people) have a right to express their views in public, or they don't. In the end it is that simple.
Suppose that the banner had read, 'prayer 4 Jesus.' Would the conservative justices who voted against Frederick then vote to allow him to display his banner (or for that matter, it is fair to ask whether the three liberal justices who supported him would vote against him?) And if the answer is 'yes,' then wouldn't it plainly mean that the decision was based on the personal viewpoints of the justices and not the matter of free speech at all?
There is no question that the school has every right to control what is said on school grounds-- they have jurisdiction there, but with this decision can they then ban what students can say off campus? Could they enforce dress codes even when students are not at school? Could they punish students if they write a letter to the paper that portrays the school in an unflattering light? The implications are chilling.
And it won't stop with students. If Mr. Frederick can't display the banner across from his school, could you? Maybe prinicipal Morse might not have any jurisdiction over you, but the mayor would. Or the Governor. Or the President. This ruling represents a real restriction on the rights of all of us.
And don't let anyone fool you into thinking that it does not.
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