THE ROBERT'S SUPREME COURT AND OBAMACARE PART 2

Winston Churchill, famously said, that you can trust America to do the right thing - after they have tried everything else! After almost 70 years of Presidential attempts, including Roosevelt, Truman and Nixon, to reform health care, the Obama Affordable Health Care Act is, finally, a reality.

The Founding Fathers in their "naive" wisdom left the final decision making, on what was to be "constitutional" or not, to 9 individuals, appointed for life. They were to arbitrate the rules as to the way the country was to be run. While, these venerable well intentioned patricians, could not have envisioned PACS and the like, they were ultimately relying on the conscience and responsibility of individuals, given this single honor, to make "the right calls".

JAY H. Ell expected this Health Care decision as he could not believe that a Chief Justice, who has the responsibility of the Court's legacy, would allow this law to be rescinded. (Blog The Robert's Supreme Court and Obamacare). The only sadness is that Roberts could not convince any of the other Conservative "wise" men to see, what was happening in an historical context. It was left to him alone.

EXPECTATIONS AND RESPONSE.

In the days leading up to the decision you could not find a pundit, commentator or journalist who predicted this outcome. Jeffrey Toobin, the CNN legal analyst had written off Obama's case as a "train wreck". Bill O'Reilly the Fox talk show host had stated that there was no way on earth that the individual mandate would be declared constitutional. Very few, if anyone were prepared for this outcome.

 The Republican response to the Robert's Supreme Court decision was vitriolic. Their media leader Rush Limbaugh implied that Roberts was a Judas and berated "that idiot" Bush who appointed him. The Republican leader of the House maintained that it may be constitutional but it was wrong. The Republican leader of the Senate said that the Court had endorsed a solution to a disease that was worse than the problem. The Republican Presidential candidate, Romney, who introduced this exact same program in Massachusetts, capsulated the Republican opposition to the decision, "On the first day of his Presidency he would move to reverse Obamacare". 

The Democratic response was stunned shock. Then unashamed jubilation followed. Obama had a host of responses prepared and to his joy he could dust off his "victory" speech -  He did not do this for political reasons he did it because it was right. It was time to move on. This was good for all of America, ( not to mention his goodself who had achieved what everyone else has been trying to do for generations).

 

WHY

The American Supreme Court has the potential for disaster - especially in this day and age of political polarization. The Judges are political appointees who are appointed for life. (Although in the case of Scalia it seems forever!). The last 4 Chief Justices have all been appointed by Republicans Presidents.

 

Yet, other than for the past two Rehnquest decades, the Court has had a strong societal bent. Even during Rehnquest's reign there was only one short period when they went totally "political". This after Sandra Day O' Connor had resigned. (In her days there were two swing votes hers and Kennedy.) Her departure gave us the Bush v Gore decision which had ziltch constitutional support. (The Court refused to allow a recount in Florida reversing a decision of the Florida Supreme Court in an area which was totally under State control. However, as Justice Scalia says every time he is questioned about it, "We were the laughing stock of the world with this hiatus. It is time to move on and forget about it".)

 

REPUBLICAN CHIEF JUSTICES.

 

In 1953 Eisenhower appointed Earl Warren as Chief Justice. He had stellar Republican credentials.  He had been Dewey's Vice Presidential running mate in the 1948 election when Truman beat Dewey against all odds. He had been Republican Governor of California 3 times. He was considered a true blue Conservative. He declared the American Japanese a threat during World 11 and was a mover of having them interned. (A decision he subsequently deeply regretted).

 

In no time at all he set about revoltionizing American Society. Brown v Board of Education was the beginning of the end of segregated schools. Warren worked night and day to get a unanimous decision. The mantra that separate facilities were inherently unequal was born and this began the unraveling of segregation in the USA. Several other judgments seperating State and Church followed such as no school prayers. Civil rights and due process were two other areas he advanced. No wonder Eisenhower maintained that appointing Warren as Chief Justice was "The biggest damn fool decision I ever made".

 

WARREN E BURGER 1969 

 

Warren Burger was appointed by Richard Nixon in 1969. He was thought to be a strict constructionist and had given speeches on the subject. He had criticized Earl Warren. Yet by the 70's it was more than evident that he would expand on Warren's liberal legacy. Rulings on abortion, school segregation, capitol punishment and Church and State seperation emanated from his bench.

 

WILLIAM REHNQUEST  1986

 

Not only was Rehnquest the longest serving Chief Justice, serving in that capacity until 2005, he had been on the Supreme Court since 1972 as an Associate Justice. Ironically, he is best known for his minority opinions in the Burger Court opposing most of the Progressive legislation. His association with the Highest Court goes back even further. He was a clerk to Justice Jackson in 1952 - 1953 and was said to have drafted an opinion against the Brown v Board of Education majority opinion. He denied this in the 1986 Senate hearings on his appointment as Chief Justice.

He was legal advisor to Barry Goldwater in his 1964 presidential bid. Thus his Conservative credentials were impeccable.

 

While he was a strict Constructionist and the Associate Judges appointed to his Court became more and more conservative, most commentators believe that he made little impact on the existing social order as defined by his predecessors. He is most famous for the Bush v Gore decision and for better or worse that will be his legacy. As his term progressed the court became more and politically polarized. This particularly so with the substitution of  Justice Allito for Sandra O' Conner.

 

He was very popular with his colleagues affording them respect and equal opportunity to write opnions.

 

JOHN ROBERTS  2005

 

It was in this mileu that Chief Justice Roberts entered the arena. In his confirmation hearings it was quite clear that he is constructionist. However, as a Chief Justice he would believe that one should act more like an "umpire' than a judicial activist. He quoted Oliver Wendell Holmes, the celebrated jurist, that where there is a close call on an Act of Congress's constitutionality, one should favor Congress. 

 

Also, as a result, particularly, of his Court's decisions on equating money as free speech and thereby opening the floodgates to election money, he recognized and stated that the Supreme Court was loosing it's credibility as an Independant Branch of Government. In polls over half the population believed that it was merely an extension of the partisan legislative divide between Democrats and Republicans. His Court was known as the Kennedy court as a result of that Justice being considered the swing vote in every 5-4 decision. A Time Cover had depicted Kennedy not Roberts as the decider in legislation.  His Court and his leadership was being marginalized.

 

Roberts also has a sense of history. Much of what the Warren and Burger Courts did is the unchallenged way of the land today - desegregation, civil liberties and the like. He was now on the cusp of two historical decisions. The legitimacy of the Arizona's far reaching immigration law and Health Care. He could still get on the right side of history, in terms of being a Constructionist.

 

One cannot see the Immigration problem with 12,000,000 illegal souls being solved the draconian Arizona way. The constitutional solution to that challenge was relatively simple. You cannot have 52  State Immigration policies and this is clearly a Federal Government activity so the harsh Arizona legislation could be struck down. Furthemore, the Court invited a challenge on the one provision ruled constitutional - the "show your papers" component. 

 

The Affordable Health Care Act was not so easy to solve in terms of his philosophy. It does not present as easy a Consitutional out as did the Arizona Immigration Laws.  However it was an Act of Congress and one could envision in a few decades that Universal Health Care will as much be part of the landscape as Medicare, Social Security, desegregation, voting rights and the like. In order to support this Act he ignored totally the Government argument for it's legitimacy - Commerce and defined the Compulsory Mandate as a tax which the Federal Government are perfectly entitled to institute.

 

THE FUTURE

 

Much depends on who the future Associate Judges will be. However, it is highly unlikely that the Court will go back into it's partisan stupor. Nor is it likely that Robert's will sit idly by and let an Associate Judge define the legacy of his Court.

Also there is no chance that Obamacare will be repealed. In the unlikely event that Romney was elected he would need 60 Senate votes to repeal it and that is not going to happen.

ROMNEY - GOP'S LAST WHITE HOPE

There is little doubt that the "Old grey donkey ain't what she used to be", and JAY H. ELL has blogged about this in one way or another for some time, for example in ROMNEY THE GOP'S LAST HOORAH. For practical purposes the party's platform has been hijacked by the Tea Party and they are really a right wing, social conservative Liberterian party who do not tolerate compromise. 

In fact we are witnessing the demise of the GOP as we have known it in the twentieth century. The only reason it is somehow hanging together is because it's Presidential nominee, who to get the nomination took over the right wing Tea Party manifesto, was a standard bearer of the old GOP philosophy. So the establishment GOP live in the hope that, when this nightmare ends and Romney is elected President, he will be kissed on the head by Karl Rove and wake up as a Reagan/Bush compassionate compromising conservative. 

It is not going to happen. In the highly unlikely event that Romney does get elected he will be a prisoner of the right. The majority Tea Party controlled Republican Congress has allowed Speaker Boehner to be their spokesperson at a steep price. He made a tax/slashed expenditure deal with Obama and the Tea Party axed it. Romney too would do what he was told. There is nothing in his behavior that can make one believe otherwise. His only consistent goal has been his desire to become President.

WHY THE END

Opinion polls are invariably about national viewpoints. The Presidency is not a national election but rather a State one. The largest states getting the most electoral votes. Thus California, New York and Illinois - all certain states for Obama already give him a 108 votes of the 270 he needs to be elected. (Obama received 360 electoral votes in 2008). Also, the States that are marginal have increasing numbers of Latino voters. To a lesser extent there are greater increases of African American voters and youth as well. All demographics which favor Obama. Also women who are more consistent voters than men favor Obama.

(The Latinos are the fastest growing section in the USA and together with other minority groups are scheduled to be in the majority in America by mid century).

Thus for this election the key demographic is the Latin American vote. The latter favor Obama by 63% to 23%. The Latin American TV channels, that are extremely influential, favor Obama. Romney went all the way to the right on the "immigration problem". He really has no hope of cutting into that lead. And for the Republican Party this is only going to grow much worse. The Tea Party dominated party are supporting and initiating even more legislation perceived as anti Latino. They support the demand of "papers" from every suspicious individual who could be "illegal".  (Shades of the South African apartheid "pass" laws). The controversial Arizona immigration law is about to be tested in the Supreme Court and if stands there are other Republican Governors ready to follow suit. Hardly a recipe to attract the Latin American vote.

BACK TO THIS ELECTION

Obama just has to hold on to some of the marginal states that he won in the last election and several of the marginal states have potentially far more additional Latino votes. (There are other marginal states with other factors that give Obama an edge that are not going to be dealt with in this blog). 

In the marginal States that the Republicans would like to win back from the Democrats the latter's 2008 majority is reflected first and  additional potential Latino vote in the next column:

FLORIDA:           234,000   710,000
COLORADO:      219,000   243,000
NEW MEXICO:  126,000   203,000
VIRGINIA:          235,000   201,000
NEVADA:           121,000   182,000

In a few states that the Republicans won there are also large potential additional Latino voters that may influence the outcome. The Republican majority is mentioned first and the additional potential Latino vote in the next column:

GEORGIA:        205,000  208,000
ARIZONA:       195,000   575,000
TEXAS:            950,000   800,000

Thus with all the crucial demographics in his favor Obama has to be the odds on favorite to win. Remember Obama can even loose a few states and still win. 

IMPACT ON REPUBLICAN PARTY

For this election Romney is soldiering on and to these realities he replies, "It is the economy stupid".

However for the Republican party there has to be a reinvention. The demographics are going to get worse and they can no longer be a party just attractive to White elderly males. The most important reality is that they have to recognize that the minorities are on their way to being the majority and the Party has to recognize their needs. Also they have to recognize that compromise is the name of the game in US politics. The Tea Party agenda is not going to cut it.

Party reinventions are about as old as American Politics. It was after all a Republican, Lincoln who fought the Civil War to release slaves. It was about a half a century ago when the Lyndon Johnson had to shed the Democratically controlled South to the Republicans with the introduction of Civil Rights. We are obviously due for another one if the Republicans are going to remain competitive.

BUSH 45?

Jed Bush has already gone against party orthodoxy by attacking the party's agenda in the throes of an election. This is an unheared of heresy by such a high profile Republican.

Jed, a former highly successful Floridian Governor, said what all the Republican establishment are thinking. This no compromise attitude is getting the Republicans nowhere. This immediately brought Grover Norquist, the Republican patrician, to maintain that Bush was foolish and bizarre. Norquist is the activist that had all the Republicans sign pledges that they would not increase taxes under any circumstances. Jed Bush reminded the faithful that this Republican party would not have embraced "even" Ronald Reagan.

Jed Bush is one of the few Republicans that has some credibility among the Latin American community. He married one of them and converted to Catholicism. He is also considered the brightest of the Bush progeny. Barbara Bush remarked when George W. was elected that she would never have imagined that he would be the one to follow his dad. Jed seemed far more likely to do so.

So it looks as if there is already is a champion to remodel the GOP.

Can you imagine 2016 with a Bush versus a Clinton? It would be like old times. And there is always Chelsea and a Bush grandchild to look forward to!

......... In the meantime Obama has fired his first shot across the bows to retain and increase the Latino vote. He has ordered no more deportations of young "illegal" Latinos and those who have served in the military. Latinos are ecstatic and the current GOP have gone ballistic.

WISCONSIN, THE GOP, OBAMA AND LABOR

 Governor Walker of Wisconsin has survived a recall election contest that was hyped up to be a barometer of the Republican's chances for this year's Presidential election. It was hyped up by the media and the Republican Party. The Democratic establishment gave the whole exercise a bye. Walker had infringed Trade Union bargaining rights and had incensed a large section of the Democratic and Trade Union establishment enough for them to obtain a million and a half signatures for a recall vote. 


Walker received massive support from the Republican establishment with Governor after Governor making pilgrimage to Wisconsin in support of him. More significant is the $30 million Karl Rove and his cohorts threw into the race - by far the majority coming from outside Wisconsin. The Democratic contender, the Milwaukee Mayor Barrett, by contrast garnered $4 million nearly all of it from Wisconsin. 


The lack of Democratic establishment support was highlighted by liberal Ed Schultz of MSNBC Television who had passionately campaigned for Walker's ouster. One night, in Prime Time, he implored Deborah Wasserman, the DNC National Chairman, to cut a check for $500,000 for expenses needed by the recall Walker campaign. He just could not understand the Democratic establishment's disinterest in this race.


WHY NO DEMOCRATIC NATIONAL INVOLVEMENT.


The one skill that the Obama team has, is undoubtedly in electioneering. They after all outmanouvered the Clintons. The issue in Wisconsin was about Union bargaining rights. The latter something dear and central to Democratic hearts. However, the whole confrontation took place in an atmosphere where there is an over 8% unemployment rate. The Democratic powers that be obviously read that the Independents, especially the unemployed ones, would have scant sympathy for the bewailing of loss of rights of those employed versus those that have no employment at all. They therefore felt they would risk Union ire by not giving money and high powered official presence but just pay lip service to the Unions' "just" cause.


IT WORKED


The exit polling data proved the Dems right. Obama was supported 51% to between 41% and 44% as the Presidential choice by the recall voters. Most significantly the same percentages confirmed that Obama was more likely to improve the middle class economic plight than Romney. So Obama and the Democratic establishment non involvement had succeeded in not clouding the swing voters' minds. They seperated the Walker recall from the Obama election manifesto.


As a bonus to the Democratic cause was the fact that the Democrats won back the Wisconsin senate. A number of Republican senators were in recall elections as well. One of them lost and the Democrats now control the Wisconsin Senate. While this may seem a pyrhic victory as November is almost upon us and the Senate are not due to meet again, nothing can stop the Democratic majority from calling an emergency session to limit Walker's powers.


REALITY


Obama and the Democratic establishment are conducting a massive online financial drive which has been very successful. The newest incentive to get supporters to donate is - look what can happen when we are outspent 8 to 1! ( Incidentally, there is no way that the Democrats can be outspent 8 to 1 if they compete).


Walker has been thrust into the national limelight as a torchbearer for the Republican cause. The downside is that he is slap bang in the middle of an investigation on irregularities and embezzlement of funds in his campaign to become Governor. Thirteen Walker aides are prepared to give testimony against those already charged in this scandal. Walker himself has already withdrawn $160,000 from campaign funds for his own legal defense. The Republicans need a scandal of this nature for a newly anointed savior like a hole in the head. But there is nothing they can do to spin it as a "political" move. It has already gone too far. They have gone out on a limb to support Walker.


So while team Obama would have preferred a Walker ouster they were really in a win win situation. They have lost no ground in Wisconsin. The Unions will not desert them and even those voters who are prepared to support a Republican Governor a few months before an election would rather vote for Obama as President. And there is now a Democratic Wisconsin Senate. Not a bad way to lose.


So much for Wisconsin being a swing State.


THE REAL LOSER


The real loser was organized labor. It was a fight they had to fight and they lost. It will give those Republican Governors who are also thinking of cutting Union bargaining power courage to go ahead. There has been a steady whittling away of Union power for decades and this another landmark set back.

OBAMA AND SAME SEX MARRIAGE

CRASH BAM ALICAZAM...


A few months ago President Obama, ostensibly, out of the blue,   announced his support for same sex marriage. Well not quite out of the blue as he was "forced" into his announcement as a result of Vice President Biden, supposedly, shooting his mouth off at a "Meet The Press" interview. In the interview Biden articulated his support for same sex marriage. Biden has, publicly, apologized for putting the President in such a "tough spot". Obama has "forgiven" Biden because he knew Biden was speaking "from the heart".


But Biden's "Meet The Press" interview was a reasoned defense of the Administration's position, in general, and his statement on same sex marriage was a touching statement of belief - and not a rash impromptu gaffe. Also what really is the evidence, that Obama finally, pronouncing the logical consequences of all his pro gay positions, is going to do him any harm in the forthcoming election? 

In fact if one wanted to be cynical the whole episode is a stroke of political genius. It looks like an evolutionary advance of Karl Rove's playbook. The latter Republican strategist, also referred to as "Bush's Brain", believes that you attack our opponent's strengths. Obama has taken this all one step further  - you lead with your supposed weaknesses.

OBAMA'S THOUGHT PROCESSES

Obama has been a most outspoken and proactive supporter of gay rights and as to regard to marriage, as Biden reminded us, was in the process of evolving his attitude. In his announcement Obama was very much in tune with the now slight majority of American opinion, on the subject, according to the latest Gallop Poll. This showed that, notwithstanding the State referendums, over 50% of Americans were in favor. Also he relayed his thinking process as being on the basis of fairness and anti discrimination - "How could he explain to his daughters why the parents of a one of their friends could not get married"?

He appeared to connect with the dilemna the religious were having between knowing and accepting same sex couples and the logical outcome of allowing them to marry. All this taking place in an environment where for decades decent caring individuals have "come out of the closet". There are TV programs about same  sex couples and scores of personalities are known and recognized as gay. In one sense he was even behind the curve and as has been said he did not want to be on the wrong side of history.

ROMNEY

This announcement was the last thing Romney wanted or expected. The ball was in his court. His response was insipid stating that he "understood that there were differing opinions", but he was against. He then kind of compromised and said adoption by gay couples, presumably not married, should be left up to the individual states. 


He maintained that the economy was the issue he wanted to focus on. Once again his statements of the 90's were trotted out where in the Senatorial race against Ted Kennedy he had claimed to be left of  Kennedy on the issue. An Obama advertisement, (that just happened to be ready), attacked him to be uncaring and discriminatory to couples that happened to be same sex. On top of that an article appeared in the Washington Post where he was shown to be a sadistic bully as a student who was perceived to be gay.


So Obama's statement served to put Romney once again on the defensive. Also it showed him once again as a flip flopping opportunist and an uncaring one at that.


MOBILIZATION OF THE BASE.

The gays and the lesbians have formed highly successful activist groups in the past and  have been a very vocal and active minority fighting for their rights. Gay interests are served in both main parties by national committees.  This pronouncement is certainly going to activate the Democratic group to work harder for Obama. There are a sizable group of Republican gays who have had to swallow their ambitions in favor of their other conservative convictions. Once again they are being asked to be second class citizens. It is fair to say that this state of affairs is hardly likely to make them work harder for Romney. 


While no-one really knows what numbers one is talking about, the percentage of gays is variously estimated as being between 4 and 10%, they are an important group politically. This particularly so when one realizes that only about 50% of the citizens vote and gays are politically far more aware than the general population.


DOWNSIDE


What if Santorum was right? He has stated that the President has given the GOP a great opportunity with this decision. He urged Romney to use it! The fundamentalist sermons have been that much more vehement against Obama. But were any of the choir going to vote for Obama anyway? Romney never took Santorum's advice and dropped the issue like a ton of bricks.


One group that could have produced a tinge of worry is his African American base.  They are the one group where the majority  are against same sex marriage. But the preachers, who are out in full force on Sundays, were for the most part against the policy but still for Obama. The polls now show that the majority of African American now favor same sex marriage.


AT THE END OF THE DAY.


This move put Romney on the defensive and emphasized his dependence on the Conservative Republican base. Romney is being given little breathing space to work on getting the centrist independents on board. He has been made to keep his eye on the base.  Also revered independent minded leaders such as Colin Powell have come out in favor of Obama's position.


Rove and his Political Action Committee will have to rethink their ads where they were going to say that, "Once re-elected Obama will advocate for same sex marriage", - he has already. So whether this has slightly hindered or helped Obama at this stage is not really the point. He has blunted the type of social attack that the Republicans have used in the past few elections to mobilize the base as election day approaches. 

However, this was a gutsy move by Obama and the jury is still out. It involved risk. However a few months after the event no - one is talking very much about it and Obama's move has probably proved the right one. The only two groups are still regarding it as central are the Gays and Lesbians and that can only be positive for Obama.


One only wishes Obama would take the same chances governing as he does electioneering.