“Sotomayor, Kagan Ready For Battles”: You May Have The Votes Conservatives, But You’re Going To Have A Fight
For a quarter-century, Antonin Scalia has been the reigning bully of the Supreme Court, but finally a couple of justices are willing to face him down.
As it happens, the two manning up to take on Nino the Terrible are women: the court’s newest members, Sonia Sotomayor and Elena Kagan.
The acerbic Scalia, the court’s longest-serving justice, got his latest comeuppance Wednesday morning, as he tried to make the absurd argument that Congress’s renewal of the Voting Rights Act in 2006 by votes of 98 to 0 in the Senate and 390 to 33 in the House did not mean that Congress actually supported the act. Scalia, assuming powers of clairvoyance, argued that the lawmakers were secretly afraid to vote against this “perpetuation of racial entitlement.”
Kagan wasn’t about to let him get away with that. In a breach of decorum, she interrupted his questioning of counsel to argue with him directly. “Well, that sounds like a good argument to me, Justice Scalia,” she said. “It was clear to 98 senators, including every senator from a covered state, who decided that there was a continuing need for this piece of legislation.”
Scalia replied to Kagan, “Or decided that perhaps they’d better not vote against it, that there’s nothing, that there’s no — none of their interests in voting against it.”
Justice Stephen Breyer defused the tension. “I don’t know what they’re thinking exactly,” he said, changing the subject.
The styles of the two Obama appointees are different. Sotomayor is blunt and caustic, repeatedly interrupting. In an opinion this week, she harshly criticized a Texas prosecutor for a racist line of questioning. She has been on the interview circuit publicizing her memoir.
Kagan is choosier about when to interject herself, but she’s sardonic and sharp-witted. (“Well, that’s a big, new power that you are giving us,” she said, mockingly, when a lawyer tried to argue that the justices should overrule Congress’s discrimination findings.)
Both are more forceful than the Clinton appointees, the amiable Breyer and the frail Ruth Bader Ginsburg. The two new justices are sending a message to the court’s conservative majority: You may have the votes, but you’re going to have a fight.
Wednesday’s voting rights case was typical. Surprisingly, the five conservative justices seemed willing to strike down a landmark civil rights law (the provision that gives extra scrutiny to states with past discrimination) that was renewed with near-unanimous votes in Congress. Conservative jurists usually claim deference to the elected branches, but in this case they look an awful lot like activist judges legislating from the bench.
Sotomayor allowed the lawyer for the Alabama county seeking to overturn the law to get just four sentences into his argument before interrupting him. “Assuming I accept your premise — and there’s some question about that — that some portions of the South have changed, your county pretty much hasn’t,” she charged. “Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?”
Moments later, Kagan pointed out that “Alabama has no black statewide elected officials” and has one of the worst records of voting rights violations.
Scalia and Justice Samuel Alito tried to assist the Alabama county’s lawyer by offering some friendly hypotheticals, but Sotomayor wasn’t interested in hearing that. “The problem with those hypotheticals is obvious,” she said, because “it’s a real record as to what Alabama has done to earn its place on the list.”
Sotomayor continued questioning as if she were the only jurist in the room. “Discrimination is discrimination,” she informed him, “and what Congress said is it continues.”
At one point, Justice Anthony Kennedy tried to quiet her. “I would like to hear the answer to the question,” he said. The lawyer got out a few more sentences — and then Kagan broke in.
Sotomayor continued to pipe up, even when Solicitor General Donald Verrilli was defending the Voting Rights Act — at one point breaking in as Alito was attempting to speak. Chief Justice John Roberts overruled her. “Justice Alito,” he directed.
Scalia was not about to surrender his title of worst-behaved justice. He mocked the civil rights law as he questioned the government lawyer. “Even the name of it is wonderful,” he said. “The Voting Rights Act: Who is going to vote against that?” (Verrilli cautioned him not to ignore actual votes of Congress in favor of “motive analysis.”)
But Scalia’s mouth was no longer the loudest in the room. When the Alabama county’s lawyer returned for his rebuttal, he managed to utter only five words — “Thank you, Mr. Chief Justice” — before Sotomayor broke in.
By: Dana Milbank, Opinion Writer, The Washington Post, February 27, 2013
“So Much For Economic Uncertainty”: Republicans Have Decided To Govern Through Series Of Self Imposed Crises
In 2009 and 2010, the single most common Republican talking point on economic policy included the word “uncertainty.” I did a search of House Speaker John Boehner’s (R-Ohio) site for the phrase “economic uncertainty” and found over 500 results, which shows, at a minimum, real message discipline.
The argument was never especially compelling from a substantive perspective. For Boehner and his party, President Obama was causing excessive “uncertainty” — through regulations, through the threat of tax increases, etc. — that held the recovery back. Investors were reluctant to invest, businesses were reluctant to hire, traders were reluctant to trade, all because the White House was creating conditions that made it hard for the private sector to plan ahead.
It was a dumb talking point borne of necessity — Republicans struggled to think of a way to blame Obama for a crisis that began long before the president took office — but the GOP stuck to it.
That is, Republican used to stick to it. Mysteriously, early in 2011, the “economic uncertainty” pitch slowly faded away without explanation. I have a hunch we know why: Republicans decided to govern through a series of self-imposed crises that have created more deliberate economic uncertainty than any conditions seen in the United States in recent memory.
E.J. Dionne Jr. had a great column on the larger pattern today.
Ever since they took control of the House of Representatives in 2011, Republicans have made journeys to the fiscal brink as commonplace as summertime visits to the beach or the ballpark. The country has been put through a series of destructive showdowns over budget issues we once resolved through the normal give-and-take of negotiations. […]
The nation is exhausted with fake crises that voters thought they ended with their verdict in the last election. Those responsible for the Washington horror show should be held accountable. And only one party is using shutdowns, cliffs and debt ceilings as routine political weapons.
Quite right. Looking back over the last two years — in fact, it’s closer to 22 months — Republicans have made three shutdown threats, forced two debt-ceiling standoffs, pushed the country towards a fiscal cliff, refused to compromise on a sequester, and have lined up even more related fiscal fights in the months ahead.
So, here’s the question for GOP leaders: where did your concern about “economic uncertainty” go? Here’s the follow-up: do you think a never-ending series of hostage standoffs inspire investors, reassure “job creators,” and improve consumer confidence?
Or is it more likely Republicans are doing the very thing they said they opposed in 2010?
By: Steve Benen, The Maddow Blog, February 28, 2013
“An Idiot?,Yes”: Oh Please, The White House Didn’t “Threaten” Bob Woodward
The country is in an uproar because people are saying that a senior White House official “threatened” legendary journalist Bob Woodward because of something he planned to publish.
Now, I haven’t seen the video of Bob Woodward talking about this incident, so I’m not sure whether Woodward actually said he was “threatened” or whether that’s a media amplification. But people are saying he was threatened. So…
If a very senior White House official did, in fact, “threaten” Woodward–if the official promised that a gang of thugs would drop by Woodward’s house later, for example, or even if the official said no one in the White House would ever speak to Woodward again–then, fine, this might be worth talking about.
But according to Ben Smith of BuzzFeed, here’s what the senior White House official actually said to Bob Woodward (in an email):
“You’re focusing on a few specific trees that give a very wrong impression of the forest. But perhaps we will just not see eye to eye here. … I think you will regret staking out that claim.”
That’s it?
That’s the “threat”?
The official wasn’t even saying that Woodward would “regret” publishing whatever he planned to publish because the official would get him back for it later. He was saying Woodward would regret it because Woodward would be proven wrong.
I’m not sure what it is that non-journalists think that aggressive public relations folks do for a living, but this is exactly what they do:
- They make friends
- They whisper sweet nothings
- They flatter
- They dole out information favors
- They guilt-trip
- They threaten
- They yell
- They bully
- They impose the silent treatment
- They say you are about to ruin your reputation and destroy your career
- They beg
- They plead
- They promise
- They push every button they can in the hopes of finding one that works
They do all this in the hope of influencing coverage in the way that they are paid to influence it.
Among a particular breed of PR professional, that’s all part of the job.
If you’re in the journalism business, meanwhile, growing a thick skin–and occasionally yelling right back–is also part of the job.
I am sure that on many occasions, White House officials have completely lost it at journalists, possibly even threatening them. But in the annals of PR professional-journalist communications, the “threatening” email that Woodward received is actually quite polite and respectful.
“Perhaps we will not see eye to eye here?”
The official didn’t even tell Woodward he was an idiot!
By: Henry Blodget, Business Insider, February 27, 2013
“Scalia’s Weird Voting Rights Act Spat”: A Perpetuation Of A White Supremist Argument
It is hard to overstate the importance of the Voting Rights Act of 1965. At the heart of the law that ended decades of disenfranchisement in former Confederate states is Section 5, the “preclearance” provision. Section 5 requires jurisdictions with a history of discrimination to get prior federal approval for any changes to state voting laws. The necessity of this provision was clear: without it, states had been able to nullify the commands of the 15th Amendment by passing measures that were formally race-neutral but were discriminatory in practice.
Regrettably, the Supreme Court appears poised to eliminate one of the proudest achievements of American democracy. As Esquire‘s Charles Pierce puts it, striking down Section 5 would constitute “the final victory of the long march against the achievements of the Civil Rights Movement that began almost before the ink dried on the bill in 1965.”
The most remarkable example of the contemporary Republican hostility to civil rights came, unsurprisingly, from Antonin Scalia. Ensuring equal access to the ballot, asserted Scalia, represents “a phenomenon that has been called the perpetuation of racial entitlement.” As it happens, Scalia’s argument has precedent … in the white supremacist arguments made by the Supreme Court in the 19th Century when it was dismantling Reconstruction. In the Civil Rights Cases, the majority opinion sniffed as it struck down the Civil Rights Act of 1875 that “there must be some stage in the progress of his elevation when [the freed slave] takes the rank of a mere citizen and ceases to be the special favorite of the laws.” As Justice Harlan noted in dissent, this line of argument was nonsense: “What the nation, through Congress, has sought to accomplish in reference to [African-Americans] is what had already been done in every State of the Union for the white race—to secure and protect rights belonging to them as freemen and citizens, nothing more.” Harlan was right then, and he’s even more obviously right now. Ensuring equal access to the ballot does not represent a “perpetuation of racial entitlement.” It simply provides the foundation for equal citizenship.
Scalia’s arguments about “racial entitlements” also represent an odd theory of democracy. The strong support for the VRA, Scalia argues, is just a product of the fact that “when a society enacts racial entitlements, it is very difficult to get out of them through the ordinary political process.” Note, first of all, the hostility evident in Scalia’s phrasing: he seems to take for granted that it’s an important goal to “get rid of” what he erroneously calls a “racial entitlement.” And leaving that aside, his argument perversely assumes the effectiveness of the bill and the political support it generated are reasons the Court should strike it down. This makes no sense. As Justice Breyer noted, it’s not irrational for legislators to want to continue to apply a remedy that has largely (but not fully) eradicated the disease of disenfranchisement. Nor is Scalia’s belief that politics compels legislators in every state to vote for the bill (a Republican would lose a Senate seat in Utah or Mississippi if he voted against it? Really?) particularly plausible.
Scalia has made similar arguments before. The last time the Supreme Court heard arguments about the VRA, Scalia argued that the 98-0 vote was irrelevant because “The Israeli supreme court … used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.” As is Scalia’s trademark, the argument is a superficially clever one that collapses on the slightest inspection. Most democratic jury systems—including the American one—are premised on the idea that a unanimous jury is more reliable one than a non-unanimous one, for the obvious reason that this is true. And while the unanimity of the Senate does not in and of itself ensure that the act is constitutional, it should certainly make the Court more reluctant to strike it down.
The rest of the points made by the conservative justices today made clear that not only are they likely to find Section 5 unconstitutional in this form, but in any possible form. They questioned whether a history of discrimination was sufficient reason to apply preclearance requirements to the nine states covered by Section 5. Could Congress avoid this problem by covering everyone? Apparently not. After the Solicitor General responded to Justice Kennedy’s question about whether the “preclearance device could be enacted to the entire United States” by saying that this would not be justified based on the current record, Kennedy responded “there is a federalism interest in making each state responsible” for enforcing voting rights.
Congress can’t win—given that Kennedy is the swing vote, whether the legislative body applies preclearance selectively or uniformly, its actions will likely be struck down by a Court that values “states’ rights” over fundamental human rights.
This is the wrong approach. The Fifteenth Amendment gives Congress broad discretion to enforce voting rights, and the Court should defer to to Congress barring much stronger arguments than are currently being advanced against the VRA. The relative success of the Act and the strong bipartisan support it enjoys are reasons to uphold it, not to strike it down. States remain capable of devising creative new ways to disenfrachise voters. And as Justice Scalia (perhaps inadvertently) let out of the bag, if the Court strikes it down it will not be because it is compelled to by the text of the Constitution, but because of conservative hostility to the idea of civil rights and a broad franchise.
By: Scott Lemieux, The American Prospect, February 27, 2013
“Stop Indulging Him”: Bob Woodward Demands Law-Ignoring, Mind-Controlling Presidential Leadership
Bob Woodward rocked Washington this weekend with an editorial that hammered President Obama for inventing “the sequester” and then being rude enough to ask that Congress not make us have the sequester. Woodward went on “Morning Joe” this morning, and he continued his brutal assault:
“Can you imagine Ronald Reagan sitting there and saying ‘Oh, by the way, I can’t do this because of some budget document?’” Woodward said Wednesday on MSNBC’s “Morning Joe.”
“Or George W. Bush saying, ‘You know, I’m not going to invade Iraq because I can’t get the aircraft carriers I need’ or even Bill Clinton saying, ‘You know, I’m not going to attack Saddam Hussein’s intelligence headquarters,’ as he did when Clinton was president because of some budget document?” Woodward added. “Under the Constitution, the president is commander-in-chief and employs the force. And so we now have the president going out because of this piece of paper and this agreement, I can’t do what I need to do to protect the country. That’s a kind of madness that I haven’t seen in a long time.”
Speaking of kinds of madness, Woodward’s actual position here is insane. As Dave Weigel points out, “some budget document” is a law, passed by Congress and signed by the president. Woodward is saying, why won’t the president just ignore the law, because he is the commander in chief, and laws should not apply to him. That is a really interesting perspective, from a man who is famous for his reporting on the extralegal activities of a guy who is considered a very bad president!
Also, that George W. Bush analogy is amazing. It would have been a good thing for him to invade and occupy Iraq without congressional approval? Say what you will about George W. Bush, at least he was really, really devoted to invading Iraq. (And yes the Reagan line, lol.)
There is nothing less important about “the sequester” than the question of whose idea it originally was. So, naturally, that is the question that much of the political press is obsessed with, to the exclusion of almost everything else. Republicans have been making the slightly incoherent argument that a) the sequester, which is a bad thing, is entirely Obama’s fault, b) Obama is exaggerating how bad the sequester will be, and c) the sequester, which is Obama’s fault, is preferable to not having the sequester. Woodward has lately been fixated on Obama’s responsibility for the idea of the sequester, but at this point, the important question is who will be responsible if it actually happens. On that question, Woodward, and others, have taken the position that it will be Obama’s fault because he has failed to “show leadership.” But laws come from Congress. The president signs or vetoes them. Republicans in the House are unwilling and unable to repeal the law Congress passed creating the sequester. All Obama can do is ask them to pass such a law, and to make the case to the public that they should pass such a law. And Obama has been doing those things, a lot.
Woodward’s most recent Obama book also took the position that presidents “should work their will … on important matters of national business,” though how one’s will should be worked on a congressional opposition party led by a weak leader and unwilling even to negotiate with the president is never really explained. As Jonathan Chait points out, “use mind control to get your way” is an incredibly popular argument among centrist establishment political reporters and analysts. It is a convenient way of taking a debate where most people agree that one side has a reasonable position and the other side an unreasonable position and making it still something you can blame “both sides” for. Sure, the Republicans are both hapless and fanatical, but the president should make them not be.
Bob Woodward’s name is synonymous with Quality Journalism, mostly because of one really good movie. The movie, based on a book that is riddled with exaggeration and misdirection, permanently established Woodward as the best shoe-leather reporter in politics, though his modern reporting style does not put too much of a strain on his Ferragamo loafers: He simply talks to powerful people in his kitchen and then “re-creates” events based on what they tell him. Powerful people talk to Woodward because of his reputation, and because talking to Woodward is the best way to ensure that they come across well in his best-selling books. They talk because they figure if they don’t give him a self-serving account of events, someone else will give him a version that makes them look bad. My dream is a Washington where no one talks to Woodward, but until that happens people will continue to pay attention to his biennial book-promoting cable news blitzes and occasional appearances in the pages of the newspaper that continued to pay him a salary — despite his withholding most of his original reporting from that newspaper — until quite recently.
In 2010 he said a Hillary Clinton-Joe Biden switch was “on the table,” although it was not. He suffered no professional consequences for saying made-up nonsense. Bob Woodward has lost it, let’s all stop indulging him.
By: Alex Pareene, Salon, February 27, 2013
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