“As Lawless As The Pharaohs”: The Conservative Grip On Power
Writing in Salon, Natasha Lennard proposes that with the warm weather we can again expect the Occupy movement to shoot up. Arab Spring, American Spring. She’s right about one thing: Like in the decades before the Arab Spring, it has been a long, cold, American winter. In the 30 years since coming to power here, Republicans have used their initial ascent to power to seal themselves into office as tightly as the pharaohs. Smart commentators have noted how lawless the conservatives are in making substantive decisions, but that’s not the worst of it. The worst of it is how they use their tenure to make it increasingly impossible to oust them.
With this week’s Supreme Court hearings — which will end, liberals worry, with the justices overturning healthcare reform — we are nearing the apotheosis of conservative power. Let us recount how we got here: In 2000, a mob of conservative thugs stopped the vote recount in Florida. And that was before the court got involved, the five conservative justices seizing the election and handing the White House to George W. Bush. Secure in the tenure of their undemocratically selected president, the two older conservative justices, William Rehnquist and Sandra Day O’Connor, retired from the bench. Bush replaced them with two young conservatives, destined, by constitutional design and the miracles of modern medicine, to dominate the court into the foreseeable future. At the Supreme Court, it’s always winter (and never Christmas).
The stunningly inept performance by the Bush administration unforeseeably produced the first Democratic federal government since 1994. Immediately thereafter, the conservative Supreme Court majority ruled that the GOP’s wealthy sponsors could spend an unlimited amount of the money putting conservatives in office. Now, the conservative majority on the Supreme Court, appointed, in part, by the conservative president they put in the White House, is preparing to wipe from the statute books the only piece of meaningful progressive legislation in the last half century, passed during the brief Indian summer of a two-year Democratic majority.
And it’s not just the federal government. In 2010, fueled, in part, by the money the conservative justices unleashed, the conservatives took over state legislatures across the country. In power, they enacted a series of measures that should make Hosni Mubarak blush. They redrew the legislative maps to guarantee that they would hold a majority of the legislatures, state and federal, regardless of whether they failed to gain a majority of actual votes. (The design of the Senate, favoring sparsely populated rural states, already way overrepresents the Republicans.) Using a panoply of legislative strategies, they made it infinitely harder for the Democrats to register their supporters and for the Democratic voters, even if registered, to vote. Voters must be reported within 24 hours of being registered or penalties will be levied on the laggard registrars. Would-be voters must produce a fistful of identity documents, notoriously more common among old white (Republican) voters than the youthful and nonwhite Americans likely to support the Democrats. If they run the registration gauntlet, they must again verify their identity on Election Day, with the same culturally skewed set of papers. In the swing state of Florida, the New York Times reports, the activists have given up registering new voters: Too perilous.
True, the Democrats have not been models of political virtue. Cowardly when confronted by their powerful adversaries, confused about the moral grounding of their political vision, faithless to their allies, racketing from one trendy policy initiative to another, without anything resembling long-term planning — with enemies like the Democrats, who needs friends? But blaming the victim is way too easy. Democrats made the mistake of behaving as if the American rules of representative government still applied. Confronted with the lawless conservative Republicans, their fate was sealed.
By: Linda Hirshman, Salon, March 31, 2012
“An Alternative Legislature”: Judicial Activists In The Supreme Court
Three days of Supreme Court arguments over the health-care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee.
Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young. On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress “wouldn’t have been able to put together, cobble together, the votes to get it through.” Tell me again, was this a courtroom or a lobbyist’s office?
It fell to the court’s liberals — the so-called “judicial activists,” remember? — to remind their conservative brethren that legislative power is supposed to rest in our government’s elected branches.
Justice Stephen Breyer noted that some of the issues raised by opponents of the law were about “the merits of the bill,” a proper concern of Congress, not the courts. And in arguing for restraint, Justice Sonia Sotomayor asked what was wrong with leaving as much discretion as possible “in the hands of the people who should be fixing this, not us.” It was nice to be reminded that we’re a democracy, not a judicial dictatorship.
The conservative justices were obsessed with weird hypotheticals. If the federal government could make you buy health insurance, might it require you to buy broccoli, health club memberships, cellphones, burial services and cars? All of which have nothing to do with an uninsured person getting expensive treatment that others — often taxpayers — have to pay for.
Liberals should learn from this display that there is no point in catering to today’s hard-line conservatives. The individual mandate was a conservative idea that President Obama adopted to preserve the private market in health insurance rather than move toward a government-financed, single-payer system. What he got back from conservatives was not gratitude but charges of socialism — for adopting their own proposal.
The irony is that if the court’s conservatives overthrow the mandate, they will hasten the arrival of a more government-heavy system. Justice Anthony Kennedy even hinted that it might be more “honest” if government simply used “the tax power to raise revenue and to just have a national health service, single-payer.” Remember those words.
One of the most astonishing arguments came from Roberts, who spoke with alarm that people would be required to purchase coverage for issues they might never confront. He specifically cited “pediatric services” and “maternity services.”
Well, yes, men pay to cover maternity services while women pay for treating prostate problems. It’s called health insurance. Would it be better to segregate the insurance market along gender lines?
The court’s right-wing justices seemed to forget that the best argument for the individual mandate was made in 1989 by a respected conservative, the Heritage Foundation’s Stuart Butler.
“If a man is struck down by a heart attack in the street,” Butler said, “Americans will care for him whether or not he has insurance. If we find that he has spent his money on other things rather than insurance, we may be angry but we will not deny him services — even if that means more prudent citizens end up paying the tab. A mandate on individuals recognizes this implicit contract.”
Justice Antonin Scalia seemed to reject the sense of solidarity that Butler embraced. When Solicitor General Donald Verrilli explained that “we’ve obligated ourselves so that people get health care,” Scalia replied coolly: “Well, don’t obligate yourself to that.” Does this mean letting Butler’s uninsured guy die?
Slate’s Dahlia Lithwick called attention to this exchange and was eloquent in describing its meaning. “This case isn’t so much about freedom from government-mandated broccoli or gyms,” Lithwick wrote. “It’s about freedom from our obligations to one another . . . the freedom to ignore the injured” and to “walk away from those in peril.”
This is what conservative justices will do if they strike down or cripple the health-care law. And a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, March 28, 2012
Wisconsin Supreme Court Election: Every Vote Must Be Counted
Many voters went to sleep in Wisconsin and thought they woke up in Florida on Friday after a “Republican activist” county clerk announced that she discovered an extra 14,315 votes in a hotly contested Supreme Court race. Not surprisingly, the votes went to the conservative candidate giving incumbent justice David Prosser a 7,500 lead over challenger Joanne Kloppenburg. Oddly, 7500 was the exact number of votes Prosser needed to avoid a statewide recount.
The Supreme Court race has garnered national attention as a proxy vote on Governor Scott Walker’s radical proposal to end collective bargaining in the state and cut a billion dollars from public schools.
Long Time Republican Apparatchik
The county clerk in question is long-time Republican apparatchik Kathy Nickolaus. Nickolaus got her start in GOP politics in 1995 when the Republican Speaker of the Assembly was – that’s right – David Prosser. She worked for Prosser’s Republican Assembly Caucus, one of four GOP and Democratic legislative groups that were shut down following a criminal investigation for illegal campaign activity on state time.
Nickolaus first came to public attention in 2001 when she was granted immunity from criminal prosecution in exchange for testimony against her bosses at the Assembly Caucus. The case resulted in unprecedented convictions of Democratic and Republican legislators on felony counts of misconduct in office and arranging for illegal campaign contributions. Both Democratic and Republican leaders were sentenced to jail time.
In the caucus, Nickolaus was the person who ran the numbers, creating databases for illegal donations, partisan mailings and the like. When she escaped criminal prosecution, she hightailed it to Waukesha where she ran for county clerk in the conservative county in 2002.
She later botched a 2006 vote and stirred controversy by placing the entire voting system on her own personal computer. Prompting the County Corporation Counsel to charge: “If she wants to keep everything secret, she probably can.”
On Thursday of this week, she called a press conference to announce the new vote totals that put Prosser over the top and blamed “human error.” She claimed that the canvass was a “open and transparent” process, yet she found the error at noon on Wednesday and sat on the information for 29 hours, not even telling top election officials at the Government Accountability Board. According to election observers, the issue of 14,315 additional votes from Brookfield was never discussed at the canvass. But, this information somehow made its way to right wing bloggers before her press conference.
Reaction Swift
Wisconsin Citizen Action has demanded that federal prosecutors step in, confiscate her computer and start an investigation. “In the current political climate in Wisconsin, only an investigation by a U.S. Attorney can be seen by all citizens of the state as independent and above politics,” said Robert Kraig.
The Kloppenburg campaign has demanded “a full explanation of how and why these 14,315 votes from an entire city were missed.” As part of the search for that explanation, the campaign plans to file open records requests for relevant documents.
Meanwhile, both Kloppenburg and Prosser have lawyered-up. Kloppenburg is being represented by Marc Elias, the attorney who handled Al Franken’s U.S. Senate recount fight in Minnesota. Prosser is being represented by Ben Ginsberg, who served as national counsel to former President George W. Bush’s campaigns in 2000 and 2004 and was central to the 2000 Florida recount.
Lessons from Bush v. Gore Florida Recount
The Florida 2000 recount is on the mind of many Wisconsin voters. The big lesson from the nightmarish “hanging-chads” recount “is that you need a total statewide recount. If you only recount select counties the perception is you are only selecting counties that favor you,” says Jay Heck, the head of Wisconsin Common Cause.
Heck issued a statement on Friday:
The incredible and almost unbelievable events of the last two days with regard to the reporting of votes in the City of Brookfield in Waukesha County in Tuesday’s election for the State Supreme Court warrant a full investigation by the Wisconsin Government Accountability Board, the U.S. Attorney for the Eastern District of Wisconsin, the Wisconsin Department of Justice and the District Attorney of Waukesha County. Furthermore, the Government Accountability should authorize and supervise a statewide recount of all ballots cast in Tuesday’s elections and such a recount should be funded by the State of Wisconsin.
Why so many parties? Because this is the same constellation of offices that investigated the 2002 caucus scandal, giving voters more confidence that the manner was being handled appropriately and in a bipartisan fashion.
If Wisconsin is not to irreparably harm its reputation as a functional and relatively noncorrupt state, many Cheeseheads believe that a statewide recount is a necessity.
By: Mary Bottari, Center for Media and Democracy, April 9, 2011
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