“Not A Chance”: Does The Supreme Court Care A Whit About The Public’s Opinion Of The Obamacare Ruling?
As we edge closer to this month’s Supreme Court decision on the future of the Affordable Care Act—or lack of any such future—many liberal pundits are pinning their hopes for a happy ending on Chief Justice John Roberts voting to uphold the law in response to the court’s poor showing in recent polls on the issue of the court’s political objectivity.
Of the many concerns that fall to a Chief Justice—whose name will forever attach to the decisions of the court over which he or she presides—public polls would have to be at the very lowest rung on the list.
A recent New York Times/CBS News poll reveals that public support for SCOTUS is at just 44 percent, with 76 percent believing that the justices, at least some of the time, base their rulings on their personal and political views.
This rather dismal opinion of our one government institution— that is supposed to be high above petty political concerns—prompted former Clinton Labor Secretary, Robert Reich, to write in the Christian Science Monitor –
The immediate question is whether the Chief Justice, John Roberts, understands the tenuous position of the Court he now runs. If he does, he’ll do whatever he can to avoid another 5-4 split on the upcoming decision over the constitutionality of the Obama healthcare law.
My guess is he’ll try to get Anthony Kennedy to join with him and with the four Democratic appointees to uphold the law’s constitutionality, relying primarily on an opinion by Judge Laurence Silberman of the Court of Appeals for the District of Columbia – a Republican appointee with impeccable conservative credentials, who found the law to be constitutional.
While I would love to believe that Reich has this right, I’m afraid the Secretary is engaging in some very wishful thinking. It’s just not going to happen that way.
This is not to say that the Chief Justice may not, ultimately, find the law to be constitutional.
I have previously suggested that writing off Robert’s vote in support would be a mistake— in no small measure because of his high regard for the opinions of Judge Silberman who did, as Reich reports, vote to uphold Obamacare in the DC Court of Appeals and did so in a highly compelling opinion that cannot be ignored.
Silberman is a major legal influence on conservative judges throughout the nation and, in my opinion, the most likely next appointee to the Supreme Court should a Republican president make the choice.
At the very least, it is reasonable to expect that Justice Roberts might be far more open to considering the less comfortable approach to the law than he might otherwise have been had Judge Silberman seen things differently. In the end, Judge Silberman’s well thought out opinion may turn out to be the difference between Obamacare surviving or not.
But will the Chief Justice ‘tilt’ his vote in a scheme designed to protect the status of the court in the public’s perception?
Not a chance.
If Roberts concludes that the law should be upheld, he may go after Justice Kennedy’s vote, as Secretary Reich suggests, but he would do so with the understanding that on issues as important as the healthcare decision, a 5-4 vote would leave the issue settled—but in a highly unsettling way. When it comes to critical rulings, any Chief Justice greatly prefers that the decision not be carried by a tie-breaker vote as it forever remains more suspect than a 6-3 determination.
We should also keep in mind that The Roberts Court is far from the first controversial Supreme Court in our history. Nor is the current crop of justices the first to experience a bumpy road when it comes to public opinion. We need only recall the huge public outcries engendered by the Warren Court—a version of the Supreme Court which upended the legal status quo in this country in ways never previously seen, enraging many Americans in the process.
Chief Justice Roberts may vote to uphold the Affordable Care Act—including the controversial mandate provisions. I certainly hope that this is the case. And should things go this way, there is no doubt that Roberts’ opinion will go a long way to encourage confidence in our Chief Justice who, by voting to uphold, would reveal himself as a man committed to correctly interpreting the law—even when it may be in opposition to what we suspect might be the dictates of his personal belief.
But if the Chief Justice does this, it will not be the result of some PR effort to raise the level of esteem for the Court among the American public—it will be because he will have correctly understood that, like the law or not, the Affordable Care Act passes Constitutional muster.
By: Rick Ungar, Forbes, June 17, 2012
Republicans are bobbing, ducking and weaving around President Barack Obama’s move to allow hundreds of thousands of young illegal immigrants to stay in the country, fearing a lose-lose proposition no matter how they weigh in on the policy shift.
While most Republicans criticized Obama for circumventing Congress, they are far more circumspect about the plan’s merits or their preferred method of dealing with the 800,000 young illegals who will be affected by the order.
The GOP fear boils down to this: If it backs the plan, it would infuriate the right flank of the party, which considers the policy nothing short of “amnesty” for lawbreakers. But if Republicans attack it, it could turn off scores of Latino voters who are poised to play a huge role in crucial battleground states this November.
So the Republican response? Say very little.
Senate Minority Leader Mitch McConnell said the GOP would follow the direction of Mitt Romney, who in turn has called on Congress to deal with the matter without laying out specifics himself. Arizona Sen. John McCain said Republicans are ready to embrace a proposal under development by Sen. Marco Rubio, but the Florida freshman now plans to shelve the proposal until after the election.
And there’s been virtual silence on the Senate floor from Republicans who have shied away from talking about the matter publicly.
Texas Sen. John Cornyn — the ranking member on a key immigration subcommittee and head of the powerful National Republican Senatorial Committee — was asked if the GOP needed its own policy proposal on the matter this election year.
“We were working on that, and the president basically undercut it by trying to do this unilaterally, something he said a year ago he couldn’t do,” Cornyn told POLITICO. “This isn’t going to get implemented in the next 140 days before the election.
“The most important thing we can do is to get America back to work.”
Republicans are in virtual agreement on that. The election, they believe, will turn on Obama’s stewardship of the economy, something they think will resonate with Latinos also frustrated with the president’s failure to deliver on comprehensive immigration reform.
But there’s far less unanimity among Republicans on how to deal with the emotional issue of children of illegals brought to the U.S. through no fault of their own.
Speaking to reporters Tuesday after a party lunch, McConnell refused several times to weigh in on the substance of the change, instead deferring to the party’s presumptive presidential nominee to address it at the National Association of Latino Elected and Appointed Officials convention Thursday in Orlando, Fla.
“I think most of my members are interested in learning what Gov. Romney has to say about this issue, and we’re going to withhold judgment — most of us — until that time,” McConnell said.
Romney — who along with Obama will speak at the three-day convention — repeatedly declined to answer on CBS’s “Face the Nation” Sunday whether he as president would make the same policy change as Obama did. Instead, Romney criticized the process by which Obama enacted the move.
McConnell declined to answer what should happen to young children and adults who are in the country illegally and would qualify under the new policy. He also deflected questions about whether the new policy constitutes “amnesty,” as immigration hard-liners charge.
“If it leads to citizenship as a reward for some kind of illegal entry, that could be argued,” McConnell said on amnesty. “But I think we’re going to wait and see what Gov. Romney has to say and then our members are going to be discussing his views on this and I think many of them will have similar views, others may not.”
But like other top GOP officials, the Kentucky Republican criticized Obama over his process.
“What I can say for sure is, the president said a year ago he didn’t believe he had the authority to do what he announces he was going to do last week. And I don’t think that’s an irrelevant thing to discuss,” McConnell said. “I mean, did he have the authority to do what he did?”
Twenty Republican senators, including McConnell, released a letter sent to Obama Tuesday demanding a detailed response from the White House on its authority to issue such a broad move. But the missive stopped short of picking apart the policy itself.
In the House, Speaker John Boehner said the immigration move puts “everyone in a difficult position” and accused the president of trying to shift the debate away from his stewardship of the economy.
South Dakota Sen. John Thune , No. 3 in the Senate GOP leadership, called Obama’s move “politically motivated” but acknowledged that “he’ll probably stand to benefit politically from doing that.”
Asked about the GOP approach, Thune said he preferred a broader solution, something he believed Romney was in the “process of formulating.” Like other Republicans, Thune said the president undermined the Rubio effort.
Rubio announced Monday he would likely punt the matter until after the election, since the president’s move sapped the legislative momentum out of his push — a decision that appears to have caught many Republicans flat-footed.
McCain, the 2008 presidential nominee, said Republicans should talk about the matter “as an issue of compassion and concern.”
Asked if the GOP needed a legislative proposal to show voters, McCain said: “Well, Marco Rubio had one that obviously was nearing completion.”
Informed that Rubio appeared likely to drop the effort now, McCain said: “Well, I don’t know what his decision is — but I know he’s close to completing one.”
There were many similarities between Obama’s and Rubio’s plans.
Rubio’s plan would have legalized undocumented children brought to the United States at an early age provided they have no criminal record and have completed high school. It would grant them “non-immigrant” visas and allow them to stay in the country and access the existing immigration system, through which they could eventually become green card holders or naturalized citizens.
Similarly, Obama’s executive action said that those who entered the United States before the age of 16, are younger than 30 and pose no security threat, served in the military and completed minimum levels of education can get a two-year deferral from deportation and apply for work permits.
The Democrats’ DREAM Act — which Obama supports and Romney promised to veto during the primary campaign — would provide a direct pathway to citizenship by providing green cards to children seeking higher education or military service of at least two years.
At least one Republican praised Obama’s decision: Sen. Dick Lugar (R-Ind.), whose support for the DREAM Act became a political liability in his losing primary bid.
“The executive action is controversial,” Lugar said, “but nevertheless, on balance, it seems to me that it was a constructive move.”
By: Seung Min Kim and Manu Raju, Politico, June 19, 2012
The system of checks and balances works best when the separate branches of government are inherently and proudly adversarial toward one another. But that can’t happen when partisanship defines when and how accountability moments play out.
House Oversight and Government Reform Committee chairman Darrell Issa — the headline-hungry California Republican who on Wednesday engineered a committee vote to hold Attorney General Eric Holder in contempt — forgot that essential rule.
He failed to build a credible case or a credible coalition for his initiative. After a day of increasingly ridiculous posturing, Issa secured the contempt citation he sought. But it came on a straight party-line vote that rendered the decision all but meaningless.
The chairman’s heavy-handed style invoted the reproach that the contempt vote was “nothing more than a political witch hunt,” as People for the American Way president Michael Keegan termed it.
“To be sure, Congress has a legitimate interest in investigating Operation Fast and Furious, but Chairman Issa and Republican majority on the Committee appear to be more interested in scoring political points than in getting to the bottom of what happened,” argued Keegan, who added that, “The hoops the Committee is demanding the Attorney General jump through illustrate that these contempt hearings are as partisan as they are extreme. Over the course of this ‘investigation,’ the Committee has ordered the A.G. to produce documents whose confidentiality is protected by federal law, has refused to subpoena Bush Administration officials to testify about their knowledge of the operation during their time in office, has refused to allow public testimony from officials whose testimony counters Issa’s partisan narrative, and has repeatedly rejected the A.G.’s efforts to accommodate the committee, making compliance all but impossible.”
Issa’s actions undermined not just his own credibility but any sense that he and his allies might be acting in defense of — or with any regard for — the Constitution.
There is no reason to suggest that Holder is above criticism for his actions as Attorney General. He has been called out by Democrats as well as Republicans on a variety of issues. And he has not always managed his response to Issa’s abuses well. Nor should anyone who values transparency and government oversight be pleased when a president determines that it is necessary to invoke “executive privilege” in a fight with Congress, as Barack Obama has done to thwart Issa’s demands.
But it is Issa whose actions have been contemptible. He is demanding deliberative documents that are ordinarily off-limits to Congress, a big ask, yet he has not built a credible coalition of supporters for the demand. And when the details of the documents and the issues involved are laid out—along with the offers by Holder to brief the committee—it quickly becomes evident that the committee chairman is so unwilling to compromise that he won’t take “yes” for an answer.
Issa has failed to respect the House as an institution, or to make even the most basic moves to organize the chamber for a challenge to the executive branch. Instead, he’s gone to hyper-partisan and divisive extreme, redesigning the Oversight Committee’s website to look like a Fox News “alert”—with dubious images of Holder and headlines reading “Contempt” splashed all over the page.
Indeed, says Maryland Congressman Elijah Cummings, the committee’s ranking Democrat, Issa has pursued Holder throughout the wrangling over the bungled “Fast and Furious” program with his “mind made up” to provoke. Cummings has argued that the tensions between the committee and the Department of Justice—which extend from Issa’s demands for documents relating to the US Bureau of Alcohol, Tobacco, Firearms and Explosives in Arizona’s approach to intercepting weapons believed to be illicitly purchased, as part of a scheme to track weapons to high-level arms traffickers—could have been resolved easily. Instead, he says, Issa has evidenced “no intention” of cooperating with the Department of Justice and the Obama administration to achieve a resolution.
Instead, argues Cummings, Issa has resorted to “partisan and inflammatory personal attacks.”
For the partisan punditocracy, Cummings’s comments will be dismissed as tit-for-tat politics. But that misses the point of Issa’s responsibility as chairman of a key committee.
His first job was to get at least some Democrats to work with him, just as former House Judiciary Committee chairman Peter Rodino, D-New Jersey, organized Republican support for Democratic moves to hold President Nixon to account during the Watergate era; just as former House Judiciary Committee chairman James Sensenbrenner, R-Wisconsin, tried to get Democrats to back Republican attempts to challenge President Clinton in the 1990s.
Could Issa have built a bipartisan coalition in favor of transparency and accountability?
The current Oversight and Government Reform Committee has many maverick Democrats, independent thinkers and straight shooters on its membership roll. Indeed, if ever there was a House Committee that was well-suited for a reasonable bipartisan push on behalf of White House accountability, this is it.
Several Democrats on the Committee have records of breaking with and criticizing the Obama administration when they disagree with the president and his appointees. Some, like Tennessee’s Jim Cooper, have done so from the right. Others, like Vermont’s Peter Welch, have done so from the left.
Then there is Ohio Congressman Dennis Kucinich, the most independent of House Democrats, a frequent critic of the current administration and a member with a long history of fighting for open government, transparency and checks on the executive branch. Kucinich, recently defeated for reelection in a Democratic primary but still highly engaged, was a natural ally for Issa, if the chairman’s push was going to be a serious and legitimate challenge to executive overreach.
Kucinich has challenged Holder before, and he will do so again.
Yet, as tensions spiked Wednesday, Kucinich was not at Issa’s side.
Instead, the Ohio Congressman was calling for postponement of any contempt vote.
“It would be a shame to produce a titanic contest between two branches of government,” said Kucinich, who objected that there was no need for a contempt vote when it was so obvious that differences could be quickly and easily resolved.
The shame is on Issa. He knew full well that he was making a rare demand of an administration with which he has tangled before. He knows that to make such a demand, he needed to attract support from independent Democrats. He could have done so. But Issa chose instead to play purely partisan politics.
That’s damaging to the committee’s credibility.
That’s damaging to Congress.
That’s damaging to the Constitution, which establishes a system of checks and balances that is essential to the right functioning of the republic. If Issa respected Congress and the Constitution, he would have raised a credible challenge to the White House. Instead, he played politics. Badly.
By: John Nichols, The Nation, June 20, 2012