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“There’s No Line Between Law And Politics”: A Reminder; Our Justices Are Politicians In Robes

Linda Greenhouse, the longtime Supreme Court reporter for the New York Times, declared surrender Thursday. For decades, she argued that the Court was a higher form of government, engaged in Law, not just politics. Now she has decided that the justices are politicians in robes.

The straw that broke her faith?  The Court’s decision to review King v. Burwell, a case confirming that Obamacare subsidies can go to people in insurance exchanges that the federal government sets up in states that haven’t created the exchanges themselves. Without those subsidies, the worst-case scenario has Obamacare entering a fiscal death spiral. The best case is that it would be another body blow to a law that is managing to work despite design flaws and relentless opposition.

Greenhouse is absolutely right that the Court’s hasty grab at a hot-button case it doesn’t need to decide is unseemly and partisan-feeling. And as Greenhouse is a very smart and sincere person who loves the Court and the law, her crie de coeur is striking.

But the Supreme Court has been political since the day it was born. It’s just that the way it is political today is a symptom of the nastiness and futility of our politics.

Cast an eye over the history of the Supreme Court, and you will see no golden age of apolitical judging. Today’s conservative judicial activists—especially the older generation, such as Justices Scalia and Thomas—came onto the Court in reaction against an earlier generation of liberal activists. The liberals had established abortion rights, extended constitutional equality to women, increased the rights of criminal defendants, and briefly declared the death penalty unconstitutional.

The conservatives saw all of this as blatantly political activism. They sought control of the Court to restore the Constitution and protect law from politics—at least as they understood it. Now those conservative restorationists are the partisan activists who have broken Linda Greenhouse’s faith.

And what about those liberal activists who made the young Scalia and Thomas so indignant? They were the children of another revolution. Their predecessors—and some of them—also came onto the Court to restore the Constitution and save the law from politics. Only the activists they overthrew were conservatives: anti-New Deal justices who upheld “economy liberty” and “limited government” by striking down minimum-wage laws and the first wave of Franklin Roosevelt’s legislation.

And so it goes, back through judicial struggles over Reconstruction, slavery, and the now-esoteric bloodletting of the early nineteenth century, which pivoted on questions like the constitutionality of the national bank. Someone has always been trying to save the law from politics and restore the Constitution. But when you look at it clearly, saving the law from politics turns out to be a thoroughly political job.

First you have to convince people to accept your version of the boundary between law and politics. Then you have to get judges onto the bench who agree with you. The history of law is the history of politics, and vice-versa.

So why do so many smart people believe in the difference between law and politics? Why do they sincerely try to restore, or preserve, the line between the two, and get heartbroken when the line fails?

It’s not just naivete. The special role of the American courts, particularly the Supreme Court, is to administer principles that have won so decisively in politics that they get taken off the table.

The triumph of the New Deal brought in a generation of judges who implemented new principles—above all, the legitimacy of the regulatory and welfare state—across the legal system as the shared framework of a national consensus. The era of the Civil Rights Movement and the Great Society led a generation of elite liberals, including many of the current Justices, to embrace broader principles of personal liberty and equality, which they saw as perfecting the American social compact. They were busily implementing these in cases like Roe v. Wade when a right-wing insurgency took them by surprise.

The fight that started then has only become more pitched. There’s no line between law and politics now because our politics is too divided to generate one. We cannot begin to agree which issues should be taken off the table and handed to courts.

The conservatives on the Supreme Court are aligned, intellectually, politically, and institutionally, with lawyers and activists who want to dismantle much of the regulatory and welfare state and stop or reverse the extension of civil rights and liberties.

The liberals are aligned with those who have opposite aims: preserving and extending civil rights and upholding the regulatory state as a legitimate aspect of government. The country is divided, sharply and unrelentingly, over the same questions. What one side tries to take off the table, to turn from “politics” into “law,” the other side is always trying to grab back. With every grab, the idea that law and politics are separate becomes harder for anyone to believe.

Politics gives law its premises, its basic commitments. Law has its own kind of integrity, based in applying principles consistently, integrating competing goals, giving the same words the same meaning in different places and explaining why not when it doesn’t. If you have worked closely with judges who practice this craft, you know it isn’t just politics, any more than architecture is just drawing.

Law, in this sense, is essential work, but its fabric gets torn when the premises change—like ripping a weaving project suddenly into a new kind of garment. It changed in the Civil Rights era, and in the New Deal. And then it stabilized. Now it is not stabilizing, and the constant contest at all levels, from basic premises to craft, means that, increasingly, everything feels partisan. All that is solid melts into fetid air.

We’ve been denied what Americans seem perennially to wish for—a Supreme Court that is better than we are—surer, clearer, wiser and more unified. It turns out that was really a wish to be a better version of ourselves. On the one hand, it’s good to be rid of the illusion and stand on the real ground of democratic politics. On the other hand, what broken and disappointing ground it is.


By: Jedediah Purdy, Robinson O. Everett Professor of Law at the Duke University School of Law; The Daily Beast, November 13, 2014

November 18, 2014 Posted by | Judicial System, Politics, U. S. Supreme Court | , , , , , , , , | Leave a comment

“Congratulations Mitch”: The New Cruzians Are Ready To Make Life Hell For Mitch McConnell

Congratulations, Mitch McConnell! You now have the hardest job in Washington.

That dubious distinction used to belong to belong to House Speaker John Boehner, who has struggled since 2011 to manage a GOP majority so unwieldy he called it everything from “frogs in a wheelbarrow” to the “knucklehead” caucus.

But as the incoming Senate majority leader, it will now fall to McConnell to receive legislation from the House, shepherd it past his 53-member majority, and deliver completed bills to the president, all while keeping the government open for business.

McConnell’s difficult job will be made enormously more complicated by the makeup of his incoming three-seat majority. It includes at least three senators eyeing a run for president (Ted Cruz, Marco Rubio, and Rand Paul), and 11 new Republican members, three of whom have been pegged by grassroots activists as the conservative cavalry riding in as reinforcements for the Cruz wing of the party.

Those senators—Joni Ernst of Iowa, Tom Cotton of Arkansas, and Ben Sasse from Nebraska—were all breakout stars for activists in the 2014 cycle. They raked in millions of dollars from outside groups like the Senate Conservatives Fund, and are the three that conservatives like Steve Deace, the nationally syndicated conservative radio host from Iowa, say they expect the most from.

“What I heard from conservatives I talked to around the country during the election was ‘Who is going to go there and help out Cruz and [Sen. Mike] Lee? Who is going to help out the wacko birds?’” said Deace, referring to the derisive term Sen. John McCain once used to describe Cruz that conservatives now wear as a badge of honor. “Our expectation is that [Ernst, Cotton and Sasse] are going to join the ranks of the wacko birds. That’s our expectation.”

Deace and his listeners won’t be the only ones looking to the trio to for results. So will conservative donors. The Senate Conservatives Fund and its affiliate Senate Conservatives Action, for example, plowed millions into the Iowa, Nebraska and Arkansas races. Ernst received nearly $450,000 in bundled contributions and $475,000 in independent expenditures from the groups for her race. Sasse got $487,000 in bundled contributions and more than $835,000 in outside expenditures in his GOP primary. Cotton picked up about $200,000 in bundled SCF money and saw more than $500,000 in outside SCF money in his race against Democratic Sen. Mark Pryor.

Another major conservative group, Club for Growth Action, poured more than $800,000 into Cotton’s race against Pryor, about $500,000 against Sasse’s primary opponents, and another $297,151 and $186,587 in bundled donations for Cotton and Sasse, respectively.

The first place conservatives will look to the new freshmen to make their voices heard is on immigration, which Ernst and SCF both call “executive amnesty.” The president has indicated he’ll soon take sweeping unilateral action, a move McConnell said won’t draw him into a government shutdown fight when he takes over the majority.

“There won’t be a government shutdown,” McConnell pledged Thursday, a commitment that left conservatives livid.

“Mitch McConnell is making promises he can’t keep,” Deace said. “Whatever enjoyment McConnell got out of being elected leader, enjoy it. Because from this point forward, power is going to be leaving his hands.”

Jim Manley, a former top aide to Senate Majority Leader Harry Reid, predicted that McConnell and the Republicans will safely navigate the lame-duck session, but once the new senators are sworn in, “All bets are off.”

“Sen. McConnell has got a whole bunch of people in his caucus, including those up in 2016, who realize the current strategy [of obstruction] is not going to work, and they need to put some legislative points on the scoreboard,” Manley said. “But whether that’s going to play out remains to be seen, in part because there are three Republicans running for president, none of whom care much about the Senate as an institution nor about their other colleagues’ views, quite frankly. And there are a handful of incoming senators who are very, very conservative.”

But Ron Bonjean, who was a senior staffer to Sen. Trent Lott when he was majority leader, said McConnell not only will have to consider the instincts of conservatives during those votes, but also the needs of several Republicans like Pat Toomey, who is up for reelection in 2016 the blue state of Pennsylvania.

“I do think McConnell knows how to manage his caucus,” Bonjean said. “While there will definitely be turbulence because he has more members to deal with, there are also some other dynamics at play for some of these members.”

Bonjean predicted that like Boehner, McConnell will need to have a majority of his majority on board to get a bill to the floor, but also will have to make the bills bipartisan enough to avoid a Democratic filibuster.

“Here’s the problem: Even if McConnell has all 53 Republicans, he’s got to get to 60 votes,” Bonjean said. “That’s very difficult to do, so they’re going to have to go for bipartisan victories to begin with, low-hanging fruit that can move through the Senate to show that they can get the work done.”

But low-hanging, bipartisan bills are exactly what Cruz and the grassroots conservatives backing Ernst, Sasse, and Cotton say they don’t want, especially in the face of an Obama executive order.

“I took an hour of calls yesterday asking what Congress should do if the president acts alone on immigration,” Deace said. “Every call, all over the country, men and women, all said the same thing: Impeach him.”


By: Patricia Murphy, The Daily Beast, November 17, 2014

November 18, 2014 Posted by | Mitch Mc Connell, Republicans, Senate | , , , , , , , , , | Leave a comment

“Republicans Were Not Elected To Govern”: Rush Limbaugh Is Emblematic Of Our Political Rot

It is stunning that leading conservative thinkers are arguing that the Republican majority in Congress is a mandate for even more gridlock. Rush Limbaugh says Republicans weren’t elected “to make Congress work. They weren’t sent there to get along.” Instead, Limbaugh argues, their mandate is “to stop Barack Obama. Republicans were not elected to govern.”

The National Review, an influential conservative publication, says the GOP should focus on creating the best possible climate for electing a Republican president in 2016: “Not much progress is possible until we have a better president. Getting one ought to be conservatism’s main political goal over the next two years.”

It is small wonder that a growing number of citizens aren’t voting, reasoning that their ballot won’t change anything. And why many exhort via bumper stickers: “Don’t Vote! It Only Encourages Them!”

In this election, turnout was just 36 percent, the lowest turnout since 1942. It is particularly young voters that are not bothering to vote. They are beginning to look for other ways to bring about social change. A new youth radicalization has begun.

For many Americans, Congress is dysfunctional and deeply corrupt. For these voters, Abraham Lincoln’s notion that Congress is “government of the people, by the people, for the people” has become laughable. The more the citizens don’t feel their political institutions reflect their will, the more they question the legitimacy and applicability of the institutions’ decisions.

The American political sociologist Seymour Martin Lipset wrote that legitimacy is “the capacity of a political system to engender and maintain the belief that existing political institutions are the most appropriate and proper ones for the society.” The ongoing abuse of trust by office holders is the product of widespread rot. The result is a full-blown crisis in legitimacy.

The solution isn’t to allow online voting or other methods of increasing the turnout. We need more than changes to politics. It’s time to reinvent democracy itself.

The first era of democracy created representative institutions, but with weak mandates, passive citizens and politicians beholden to powerful funders and special interests. Call it “broadcast democracy.” It was only a matter of time before such a model ran its course.

We need to replace this old model with a new era of “participatory democracy” built around five principles.

1. Integrity, which is basically about doing the right thing. To rebuild the public’s trust in political institutions, elected officials need to embrace integrity – which is honesty and consideration. Honest politicians establish trusting relationships with voters, politicians need to be open and fairly disclose information. They must be truthful, accurate, and complete in communications. They must not mislead or be perceived to mislead.

Considerate officials don’t cause traffic jams for those who disagree with them. They have regard for the interests, desires, or feelings of others especially the electorate. They don’t spy on their citizens and undermine their basic right to privacy. They don’t kill good political discussion with negative attack ads. Politicians everywhere know that negative advertising is toxic to democracy, poisons reasoned political debate and dumbs down the discussion. Nevertheless, they trash their opponents with attack ads alienating voters and adding to the legitimacy crisis.

2. Accountability to the electorate. We need to divorce politicians from relying on big money. US citizens thought they had a system that limited big donations, but the right-wing Supreme Court clearly became alarmed at the possibility of wealthy donors not being able to influence elections. In the notorious Citizens United case, the court effectively lifted the limits on political donations, and a casino magnate promptly pledged $100 million to fight Obama’s re-election in 2012. Stanford Law Professor Larry Lessig is right that we need to adopt the policies of other countries that place strict controls on campaign financing.

3. Interdependence. Elected officials need to recognize that the public, private sector and civil society all have a role to play in sustaining a healthy society. As Jeffrey Sachs has argued there is a price to civilization and we need strong, good government. When politicians say the best role of government is “to get out of the way,” they are shirking their responsibilities. Strong regulations saved Canadian banks from being sucked into the US sub-prime mortgage crisis. The banks and Canada are healthier because of this. Similarly corporations and NGOPs are becoming pillars of society and we all need new ways of collaborating on shared interests.

4. Engagement with citizens. We need ongoing mechanisms for government to benefit from the wisdom and insight that a nation can collectively offer. Using the Net, citizens can become involved, learn from each other, take responsibility for their communities and country, learn from and influence elected officials and vice versa. It is now possible to have a three-day “digital brainstorm” with the entire electorate of a country. Challenges, participatory budgeting, electronic town halls, have all proven effective in turning voters into participants in democracy.

5. Transparency. Almost everything should be done in the full light of day. Sunshine is the best disinfectant, and the Internet is the perfect vehicle to achieve this. Transparency is critical to trust. The question “What are they hiding?” encapsulates the relationship between transparency and trust. It implies that if government leaders hold secrets, they do so for a nefarious reason and therefore are un-deserving of trust. Citizens know that the fewer secrets leaders keep, the more likely they will be trusted. Transparency, even radical transparency is becoming central to building trust between stakeholders and their institutions.

To restore legitimacy and trust we need a second era of democracy based on integrity and accountability, and with stronger, more open institutions, active citizen citizenship and a culture of public discourse and participation.


By: Don Tapscott, The Huffington Post Blog, November 17, 2014






November 18, 2014 Posted by | Campaign Financing, Democracy, Rush Limbaugh | , , , , , , , , | Leave a comment

“Wall Street Takes Over More Statehouses”: Public Pension Wall Street Feeding Frenzy About To Get Worse

No runoff will be needed to declare one unambiguous winner in this month’s gubernatorial elections: the financial services industry. From Illinois to Massachusetts, voters effectively placed more than $100 billion worth of public pension investments under the control of executives-turned-politicians whose firms profit by managing state pension money.

The elections played out as states and cities across the country debate the merits of shifting public pension money — the retirement savings for police, firefighters, teachers and other public employees — from plain vanilla investments such as index funds into higher-risk alternatives like hedge funds and private equity funds.

Critics argue that this course has often failed to boost returns enough to compensate for taxpayer-financed fees paid to the financial services companies that manage the money. Wall Street firms and executives have poured campaign contributions into states that have embraced the strategy, eager for expanded opportunities. The election results affirmed that this money was well spent: More public pension money will now likely be entrusted to the financial services industry.

In Illinois, Democratic incumbent Pat Quinn was defeated by Republican challenger Bruce Rauner, who made his fortune as an executive at a financial firm called GTCR, which rakes in fees from pension investments. Rauner — who retains an ownership stake in at least 15 separate GTCR entities, according to his financial disclosure forms — will now be fully in charge of his state’s pension system.

In Rhode Island, venture capitalist Gina Raimondo, a Democrat, defeated Republican Allan Fung. Raimondo retains an ownership stake in a firm that manages funds from Rhode Island’s $7 billion pension system. Raimondo’s campaign received hundreds of thousands of dollars from financial industry donors. She was also aided by six-figure PAC donations from former Enron trader John Arnold, who has waged a national campaign to slash workers’ pensions.

In New York, Gov. Andrew Cuomo, a Democrat, handily defeated his Republican opponent, Rob Astorino, after raising millions of dollars from the finance industry. The New York legislature is set to send Cuomo a bill that would permit the New York state and city pension funds to move an additional $7 billion into hedge funds, private equity and other high-fee “alternative” investments. Cuomo has not taken a public position on the bill, but his party in the legislature passed it by a wide margin, and he is widely expected to sign it into law.

In Massachusetts, Republican Charlie Baker appeared early Wednesday to have secured a narrow victory over Massachusetts Attorney General Martha Coakley. Baker was on the board of mutual funds managed by a financial firm that has also managed funds from Massachusetts’ $53 billion pension system. Baker is also the subject of a New Jersey investigation over his $10,000 contribution to the New Jersey State Republican Party just months before New Jersey Gov. Chris Christie’s officials awarded his firm a state pension deal.

In all, Republicans won 18 gubernatorial races thanks, in part, to the robust fundraising of Christie’s Republican Governors Association. Some of that organization’s top donors are the financial investment firms that manage public pension systems.

Former Securities and Exchange Commission attorney Edward Siedle said campaign cash from the financial industry is fundamentally shaping the debate over how to manage state pension systems.

“Why have all pension reform candidates concluded that workers’ retirement benefits must be harshly cut, but, on the other hand, fees to Wall Street be exponentially increased?” said Siedle, who has published a series of forensic reports critical of politicians shifting ever more pension money to Wall Street. “The answer, of course, is that more money than ever is being spent by billionaires to support a public pension Wall Street feeding frenzy.”

After the 2014 election, that feeding frenzy is only going to intensify.


By: David Sirota, Senior Writer at The International Business Times; Published in The National Memo, November 14, 2014

November 18, 2014 Posted by | Financial Industry, Public Pension System, Wall Street | , , , , , , , | Leave a comment

“Boehner Wants To Expand Magic Obama Lawsuit”: Another Sign Republicans Don’t Have Specific Policies To Articulate And Fight For

House Speaker John Boehner’s magic lawsuit against President Barack Obama is back! And he’s considering whether to try to use it to solve his immigration problem.

Initially, the suit was intended to address a real issue for the Speaker and his party: Many Republicans were fed up with the normal frustrations of separated institutions sharing powers under divided government. Their answer was to take dramatic – but counterproductive – action, such as impeaching the president.

The lawsuit was Boehner’s solution. It was enough of a radical gesture that Republicans could feel they were doing something about the lawless Kenyan socialist in the Oval Office. But, unlike impeachment or shutting down the government, it wasn’t so radical that it would make Republicans sound like a bunch of crazy people to the 80 percent of the electorate that doesn’t get all its information from conservative talk radio.

One of the drawbacks, however, is that every precedent suggests the courts would dismiss the suit because the House doesn’t have standing to sue the president. The Republicans’ solution? Make a big fuss about the suit, even have the House vote to authorize it (thus allowing Republicans to claim they voted to Do Something about Obama), but neglect to actually file it.

The brilliance of this tactic is becoming obvious, because it turns out that the hypothetical lawsuit — which hasn’t been filed and dismissed — can be expanded to cover any new White House outrage. Magic!

So with Obama reportedly about to take executive action on immigration — which Republicans assume he has no authority to do based on their narrow, Obama-specific reading of presidential powers — Boehner once against needs to distract his cohorts from talking about impeachment or shutting down the government. Will the lawsuit do the trick? It just might.

By the way, frustration is inherent to the U.S. political system and normal political parties just try to make the best possible deal. Republicans, however, are faced with a rank and file that sees compromise as evil. And on several issues, including immigration, they don’t have a specific policy to articulate and fight for.

That is what makes magic lawsuits an ideal solution. The goal isn’t public policy; it’s expressions of outrage. And the job for Republican leaders isn’t to move public policy as close to their ideal as possible, it’s to find ways to channel the most potent expressions of outrage without hurting the party’s standing with voters.

I have no idea how long the magic lawsuit will work, but it succeeded admirably over the summer, and maybe it’s still potent enough for this immigration situation, too. And that’s also part of the reason Boehner continues to be an underrated Speaker of the House.


By: Jonathan Bernstein, Bloomberg View; The National Memo, November 17, 2014


November 18, 2014 Posted by | GOP, John Boehner, Republicans | , , , , , | Leave a comment

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