Republican Pressuring of Justices is.... Par for the Course?

Ah, memories....

Novelist John Grisham could hardly spin a more provocative fiction: The Republican Party and its surrogates mount an aggressive campaign to intimidate the chief justice of the United States, implying ruin and ridicule for his failure to vote in a pivotal case according to the political party's wishes.

If only it were fiction.

The justice is, of course, John Roberts, and the case involves the Affordable Care Act (ACA), aka "Obamacare," which would be affordable only if the court upheld the individual mandate requiring all Americans to buy health insurance.

The right's narrative goes as follows: If the justices don't side with the Obama administration, they will be viewed as brilliant and nonpartisan. If the reverse occurs, why then, the justices are partisan, judicial activists who have delegitimized the court.

Right-wing radio personality, Bryan Fischer laid it out for Roberts, whose vote proved decisive: Roberts "is going down in history as the justice that shredded the Constitution and turned it into a worthless piece of parchment," adding that Roberts acted "more like a demolitions expert" than as an "umpire". Rep. Mike Pence (R-IN) compared the health care ruling to Sept. 11. Breitbart News editor Ben Shapiro sniffed that Roberts "was the worst part of the Bush legacy". Of course, had the Roberts court struck down health-care reform by a partisan 5-4 vote, then the chief justice's performance of his role as a conservative arbiter who puts law ahead of politics would be championed as an unqualified success.

Lest there be any lingering confusion, permit me: You didn't vote our way, Justice Roberts, so you will go down in history as having abrogated your duty; your reputation will be destroyed; and the country will hold you accountable not only for upholding legal concepts that were once embraced but now rejected by conservatives, but also for setting back the Republican political agenda.

In so many words.

Wait, the Republican political agenda? Yes, according to many on the right, including David Frum, by failing to roll back Obamacare, Republicans "will have to fight inch by bloody inch for changes they could have had for the asking in 2010". Legal scholars on the left insist otherwise, noting that lawyers for the defendants were explicit in denying any interest in judicial activism and simply asked the court to respect the democratic process.

I leave this debate to others more worthy, but the idea that decisions must be popular and/or bipartisan is silly on its face. Just because something is uppopular doesn't make it "wrong" or legally incorrect. And, difficult as this is to accept in our Twitter culture, Supreme Court justices needn't be popular.

Nevertheless, the right is pushing many such non-legal arguments, including that the court should have overturned a "constitutional" legislative act. Even the Republican notables like Rand Paul advanced this argument as recently as yesterday, arguing "Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so", although the ACA has, in fact, been held constitutional.

One could easily forget that Republican notables like John Cornyn (R-TX) and Chuck Grassley (R-IA) once argued, respectively, "Unelected and serving with lifetime tenure, and substituting their view for the views of the people’s…the people and their elected representatives. That’s not the way our democracy is supposed to work" and "Judges are not policymakers. That’s what we are in the Congress of the United States. Judges are called on to decide the facts and to apply the law".

This not-so-stealth campaign to influence the Supreme Court is obnoxious, if not unethical. It is also factually challenged. Upholding a law, even a controversial law, is not be unprecedented or extraordinary, as any first-year law student could tell you.

It happens. Yet criticizing the Supreme Court is a consistent refrain from the political right, which has spent many decades attacking judges and courts as activist and partisan. In his 2008 campaign presumed Republican presidential nominee Mitt Romney asserted, "The Bill of Rights are under constant assault from activist judges". Rep. Steve King (R-IA) speaks of "the judicial activism that’s begun to break down this civilization, and this culture".

Publicly chastising the court -- and now taunting Roberts specifically -- seems to have two purposes. One is to get under Roberts' skin in hopes that he'll rule the "correct" if not necessarily "legally correct" way. Two is to lay the groundwork for declaring the court illegitimate if Roberts again upholds legislation to which the Republican Party objects.

Either way, it's politics at its filthiest.

Nothing Says "Sexist" Like Fighting Sexism

John Casey reads Peggy Noonan so you don't have to.

All He Has To Do To Win....

In a column by Maureen Dowd that you'll be shocked to know, isn't really worth reading, she shares this insight:

Charlie Peters, the legendary former editor of the liberal Washington Monthly who ran Jack Kennedy’s campaign in Kanawha County, W. Va., said Obama should study how J.F.K. managed to win there despite raging anti-Catholicism.

* * *

“The point of West Virginia in 1960 is that you can change attitudes,” Peters, an Obama supporter, said on Tuesday evening. “But if you don’t act to change them, he could lose West Virginia and I think he could lose the country.

“He has to change those perceptions of the people who think he could actually agree with the Rev. Wright.

* * *

Peters says Obama needs imagination and a “tremendous effort” to dispel bias in West Virginia, and quickly, “because once it’s set in concrete, you’ll have a hell of a time.”

This, to me, is barely above saying, "If he wants to win, all he has to do is convince more than half of the people in each state to vote for him." It's not quite that bad, because Peters ties things back to Rev. Wright. But the problem with Obama's distancing himself from Rev. Wright, or from the whisper campaign that he's actually a Muslim, is that nothing he can say or do will convince people who believe such things otherwise. They aren't interested in looking at his record, and they don't believe his denials.

In this regard, I think it will take the strong effort of people who already have credibility with the doubters to make a clear case that in fact Obama is telling the truth. That, of course, would have to overcome a simultaneous GOP smear campaign intending to convince people otherwise. That smear campaign is underway, as highlighted by this absurdity from Kent County, Michigan. Daniel Larison (who, as if it needs to be said about an amconmag.com contributor, does not support Obama) reacts,

I don’t know what I find more depressing–that the GOP is so absolutely, unspeakably intellectually bankrupt that this is all it has to offer, or that this sort of tactic might very well win them the presidential election.

It's much easier to engage in this type of "see what sticks" mudslinging than it is to refute each new smear.

There are two sources of "bias" that Obama arguably needs to "overcome". One, racism, already is "set in stone". He's not going to budge more than a tiny number of the people who will not vote for him because of his race. How much effort should he direct at those people? None. The likely return on investment of time and resources is vanishingly small.

That's not to say that he can't shift perceptions of himself, such that he's more of a "Colin Powell" black man than a "Rev. Wright" black man.

Susan Dzimian, a Clinton supporter who owns residential properties, said outside a polling location in Kokomo that race was a factor in how she viewed Obama. "I think if it was somebody other than him, I'd accept it," she said of a black candidate. "If Colin Powell had run, I would be willing to accept him."

That's the kind of voter who had Peggy Noonan tied up in knots, before the Rev. Wright story emerged and enabled the political right to start painting Obama as a "scary black man".

As for the skeptics of Obama who are less concerned about race, but are concerned about issues like Rev. Wright, the whispered smears that Obama's secretly a muslim or is hostile to Israel, or the overt Republican attacks on Obama's patriotism, as I previously indicated, Obama's teaming up with credible people who will refute those charges could help him gain votes. For those who think an Obama-Clinton "unity ticket" is the thing? So far, Clinton has chosen to benefit from those concerns rather than trying to shift voters toward more accurate views. I don't see how she can credibly commence with a defense of Obama, let alone be a credible running mate at the bottom of the ticket, given that history. As for McCain, it's pretty clear that he intends to run a dirty campaign if that's what it takes to win, and he has lots of proxies (for example, the Kent County GOP) willing to roll around in the gutter on his behalf.

To put it mildly, in terms of making solid inroads with voters who are hostile to him, Obama and his allies have a lot of work to do.
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Update: Giving credit where credit is due, Hillary Clinton is coming out against McCain's "Hamas" smear.

Those Ungrateful Bla... Afric... Obamas

Recently, Peggy Noonan wrote,

The Democrats have it exactly wrong. Hillary is the easier candidate, Mr. Obama the tougher. Hillary brings negative; it's fair to hit her back with negative. Mr. Obama brings hope, and speaks of a better way. He's not Bambi, he's bulletproof.

The biggest problem for the Republicans will be that no matter what they say that is not issue oriented--"He's too young, he's never run anything, he's not fully baked"--the mainstream media will tag them as dealing in racial overtones, or undertones. You can bet on this. Go to the bank on it.

You would think, as somebody who recognizes the racial subtext in attacks on the Obamas, that Noonan might be careful. Or perhaps she has decided that, whatever the risks, she needs to remind her readers, "The Obamas are black - and they're ungrateful." Speaking of Michelle Obama, Noonan writes,

I wonder if she knows that some people look at her and think "Man, she got it all." Intelligent, strong, tall, beautiful, Princeton, Harvard, black at a time when America was trying to make up for its sins and be helpful, and from a working-class family with two functioning parents who made sure she got to school

Noonan's choice of words is not accidental. She first attempts to invoke "Black English", and next suggests that Michelle Obama is not sufficiently grateful for having benefited from affirmative action. She goes on to admit that she doesn't actually care about the facts of Michelle Obama's background - "That's the great divide in modern America, whether or not you had a functioning family, and she apparently came from the privileged part of that divide". It would take her how many seconds to find a biography of Michelle Obama, or to contact somebody within the Obama campaign who could fill her in? No, the point here is to remind everybody that the Obama's are African American, probably only got where they are through affirmative action, and are committing the capital sin of being ungrateful. And in case you missed it,

A lot of white working-class Americans didn't come up with those things. Some of them were raised by a TV and a microwave and love our country anyway, every day.

(Does Noonan truly believe that "pride" and "love" are synonyms?)

After this column, it seems apparent that Noonan's concern is not that the media will wrongly infer racial overtones from Republican attacks on the Obamas. It's that when people like her attempt to inject racial overtones into the debate, they risk having somebody call them out.

Cambodia

In a line of argument even Powerline seems to regard as nutty, Ben Stein, Peggy Noonan and Pat Buchanan are attacking "Deep Throat" for supposedly causing Pol Pot's genocide in Cambodia (by participating in events which led to Nixon's resignation from office when, in Stein's words, "No one doubts RN would never have let this happen") I am left wondering... given Nixon's 1970 expression on Cambodia's civil war, what would he have done? He wasn't even particularly committed to standing against public opinion at that time ("A majority of the American people want to end this war rather than to have it drag on interminably. The action I have taken tonight will serve that purpose.") The Watergate break-in occurred more than two years after he gave that speech.

Further, it could be suggested quite plausibly that the roots of the Cambodian civil war lie with Nixon's secret war in Cambodia (with its estimated 600,000 casualties), and with U.S. support for the corrupt and incompetent government of Lon Nol.

Also, Pol Pot did not take power until 1975 - so is the suggestion that but for a scandal which started in June of 1972, Nixon would not have brokered a 1973 peace deal with North Vietnam, would have conqured the North, and would have kept a significant U.S. military presence to stabilize both the reunified Vietnam and Cambodia, and thereby would have prevented the rise of Pol Pot? It seems to me that events that led to the "victory with honor" withdrawal from Vietnam were well in progress prior to the Watergate scandal.

Am I wrong in suggesting that, but for the intervening years of Gerald Ford's Presidency, at least Noonan and Buchanan would be blaming Carter for the genocide as well? Can anybody find a single word from any of the critics, which in any way, shape or form is approving of Vietnam for invading Cambodia and bringing Pol Pot's brutal reign to an end? Did any of them criticize Ronald Reagan, following Vietnam's invasion, for insisting upon the continued recognition of the Khmer Rouge as the official government in exile of Cambodia?

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Updated to remove reference to the wrong Ben. Ben Stiller? What was I thinking....