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“Searching Her Own Soul”: Hillary Clinton’s Evolution On Marriage Equality Shows How Change Happens, And Why Parties Matter

Over the last few days, Chris Geidner of Buzzfeed has been documenting Hillary Clinton’s evolution on the issue of same-sex marriage, an evolution that may now finally be complete. First Geidner posted some interesting documents from the 1990s showing Clinton and her husband explaining their opposition to marriage rights, then he got the Clinton campaign on record saying that she now hopes the Supreme Court will rule that there is a constitutional right to marriage for all Americans, which is actually a change from what she was saying just a year ago, when her position was that this was an issue best decided state by state.

So does this all tell us that Hillary Clinton is a chameleon willing to shift with the political winds, lacking in any moral core? Not really. Like every politician, she’ll tell you that her shift on this issue was a result of talking to people and searching her own soul, not some political calculation. If that’s true, then it mirrors how millions of Americans have changed their own minds. But even if it isn’t true, it doesn’t matter. She is where she is now, and if she becomes president, her policies will reflect her current position, whether it’s sincere or not. That’s how change happens.

We spend a lot of time in campaigns trying to figure out if politicians are honest or authentic or real, and one of the supposedly important data points in that assessment is whether they’ve changed their positions on any important issues. “Flip-floppers” are supposed to be feared and hated. But most of the time, that judgment is utterly irrelevant to what they would actually do in office.

For instance, few party nominees had in their history the kind of wholesale ideological reinvention that Mitt Romney went through. But what does that actually mean for the kind of president he would have been? Does anyone seriously believe that had he been elected, Romney would have flipped back to becoming a moderate Republican, just because deep down he’s a flip-flopper? Of course he wouldn’t have. Romney changed when his sights moved from liberal Massachusetts to the national stage, which also happened during a period when his party became more conservative. He would have governed as the conservative he became.

When public opinion on an important issue is in flux, politicians are emphatic followers. They figure out what’s happening, particularly within their own party, and then accommodate themselves to that change. It often looks like they’re leading when what they’re actually doing is taking the change in sentiment that has occurred and translating it into policy change. For instance, Barack Obama has taken a number of steps to expand gay rights, like ending the ban on gays serving in the military and pushing the Supreme Court to strike down the Defense of Marriage Act. But he did all that after public opinion demanded it, not before.

In the end, what’s in a politician’s heart may be interesting to understand, but it doesn’t make much of a practical difference. Does it matter that Lyndon Johnson was personally a racist who spent his early career as a segregationist? No, it doesn’t: When his own party and the American public more broadly moved to support civil rights for African Americans, he passed the Civil Rights Act and Voting Rights Act and became an advocate for equality.

It’s possible that Hillary Clinton believed in marriage equality all along, but didn’t have the courage to advocate it publicly until she finally did so in 2013. Or maybe every shift in her public stance was a perfectly accurate reflection of her views at that moment. Either way, now that the Democratic Party is firmly in support of marriage equality for everyone in every state, that position is going to guide her if she wins.

And let’s not forget that almost every major Republican politician has gone through their own evolution on this issue as well. The first time it was a major issue in a presidential race, in 2004, Republicans advocated a constitutional amendment to ban same-sex marriage everywhere. Most of them even opposed civil unions. But today, the opinion supported by every presidential contender who has been explicit on the topic is that the decision should be left up to the states, meaning it’s OK with them if some states have marriage equality while others don’t. A few do advocate a constitutional amendment—but not one to ban same-sex marriage nationwide, just one to preserve the ability of individual states to ban it if they choose.

That’s where the Republican Party is now, so that’s what the next Republican president’s policies will reflect. Until they evolve again.

 

By: Paul Waldman, Senior Writer, The American Prospect, April 16, 2015

April 19, 2015 Posted by | GOP Presidential Candidates, Hillary Clinton, Marriage Equality | , , , , , , , | Leave a comment

“More Consequential And Far-Reaching”: Why The Supreme Court Should Be The Biggest Issue Of The 2016 Campaign

Supreme Court justice and pop culture icon Ruth Bader Ginsburg left the hospital yesterday after having a heart stent implanted and expects to be back at work Monday. Despite various health issues over the years, Ginsburg insists that she is still of sound body at age 81 (her mind isn’t in question) and has no plans to retire before the end of President Obama’s term to ensure a Democratic replacement. If she keeps to that pledge, and presuming there are no other retirements in the next two years, the makeup of the Supreme Court could be a bigger campaign issue in 2016 than ever before. It certainly ought to be.

Ordinarily, the Supreme Court is brought up almost as an afterthought in presidential campaigns. The potential for a swing in the court is used to motivate activists to volunteer and work hard, and the candidates usually have to answer a debate question or two about it, which they do in utterly predictable ways (“I’m just going to look for the best person for the job”). We don’t usually spend a great deal of time talking about what a change in the court is likely to mean. But the next president is highly likely to have the chance to engineer a swing in the court. The consequences for Americans’ lives will probably be more consequential and far-reaching than any other issue the candidates will be arguing about.

As much as we’ve debated Supreme Court cases in recent years, we haven’t given much attention to the idea of a shift in the court’s ideology because for so long the court has been essentially the same: divided 5-4, with conservatives having the advantage yet liberals winning the occasional significant victory when a swing justice moves to their side. And though a couple of recent confirmations have sparked controversy (Samuel Alito and Sonia Sotomayor were both the target of failed attempts to derail their nominations), all of the retirements in the last three presidencies were of justices from the same general ideology as the sitting president. The last time a new justice was radically different from the outgoing one was when Clarence Thomas replaced Thurgood Marshall — 23 years ago.

Whether a Democrat or a Republican wins in 2016, he or she may well have the chance to shift the court’s ideological balance. Ginsburg is the oldest justice at 81; Antonin Scalia and Anthony Kennedy are both 78, and Stephen Breyer is 76. If the right person is elected and the right justice retires, it could be an earthquake.

Consider this scenario: Hillary Clinton becomes president in 2017, and sometime later one of the conservative justices retires. Now there would be a liberal majority on the court, a complete transformation in its balance. A court that now consistently favors those with power, whether corporations or the government, would become much more likely to rule in favor of workers, criminal defendants and those with civil rights claims. Or alternately: The Republican nominee wins, and one of the liberal justices retires. With conservatives in control not by 5-4 but 6-3, there would be a cascade of even more conservative decisions. The overturning of Roe v. Wade would be just the beginning.

Look at what the Supreme Court has done recently. It gutted the Voting Rights Act, said that corporations could have religious beliefs, simultaneously upheld and hobbled the Affordable Care Act, struck down a key part of the Defense of Marriage Act and moved toward legalizing same-sex marriage, all but outlawed affirmative action, gave corporations and wealthy individuals the ability to dominate elections and created an individual right to own guns — and that’s just in the last few years.

Whether you’re a Democrat or a Republican, there is probably no single issue you ought to be more concerned about in the 2016 campaign than what the court will look like after the next president gets the opportunity to make an appointment or two. The implications are enormous. It’s not too early to start considering them.

 

By: Paul Waldman, Contributing Editor, The American Prospect; The Plum Line, The Washington Post, November 28, 2014

November 29, 2014 Posted by | Election 2016, Ruth Bader Ginsburg, U. S. Supreme Court | , , , , , , , | 2 Comments

“It’s Your Money”: Speaker Boehner’s Lawyer Is Charging The American Taxpayer $500 An Hour To Sue Obama

Last January, a Washington attorney named David Rivkin co-authored an article in Politico Magazine that laid out a legal theory that Speaker John Boehner (R-OH) now plans to use to sue President Obama because the president is not implementing Obamacare fast enough. Yet, as ThinkProgress laid out shortly after Boehner announced that he would file the lawsuit, Rivkin’s legal theory rests upon “a glaring misrepresentation of a recent Supreme Court decision that undermines much of the basis for this lawsuit.

Nevertheless, Boehner decided to hire Rivkin to represent the GOP-led House in its suit against the president. Rivkin’s price? $500 an hour, all charged to the American taxpayer.

The contract caps Rivkin’s fees at a total of $350,000, although, if past is prologue, this cap will rise quickly. During the litigation challenging the Defense of Marriage Act, Boehner hired former Solicitor General Paul Clement to defend anti-gay discrimination at a fee of $520 per hour. Although an early iteration of Clement’s contract capped his total fees at $500,000, the total cost of Boehner’s legal services rose to $2.3 million. Clement’s legal fees were also charged to the American taxpayer.

However much money Rivkin ultimately collects from the American people, he is unlikely to win his lawsuit if the judges who consider it follow existing law. As a general rule, a plaintiff bringing a lawsuit must have actually been injured in some way by the person they are suing. Neither Boehner nor any other member of Congress, however, has been injured by President Obama’s decision to delay implementation of the provision of the Affordable Care Act at issue in this case. Additionally, in a 1997 case called Raines v. Byrd, the Supreme Court explained that suits brought by members of Congress alleging that their institutional rights as lawmakers have been injured are highly discouraged.

Nevertheless, it’s worth noting that the Roberts Court has shown a willingness to abandon established law when Obamacare is involved, so there is no guarantee that Rivkin will lose.

 

By: Ian Millhiser, Think Progress, August 25, 2014

August 28, 2014 Posted by | House Republicans, John Boehner, Taxpayers | , , , , , , , | Leave a comment

“Someone Has To Do It”: Congressional Gridlock Leaves Lawmaking To The Supreme Court

One is the loneliest number and only one in 10 Americans trusts the United States Congress. And who can blame people?

The most visible congressional failure was the Senate vote that killed background checks on people who want to buy guns. It was a perfectly reasonable proposal. No one’s guns would have been taken away and national polls showed that nine in 10 Americans supported the proposal.

But that didn’t matter because the Senate was more responsive to pressure from the National Rifle Association than it was to public opinion. Gridley, damm public opinion, full speed backward!

The same tragedy is about to unfold with immigration reform. The Senate passed a compromise immigration proposal under which undocumented immigrants would have to get over a series of hurdles higher than the border fence to become citizens. To get the measure passed, Democrats agreed to GOP demands to hire 20,000 more border control agents. That’s enough of a force to conquer Mexico and more than enough to guard the border we share with our neighbor to the south.

Despite these concessions, House Republicans are doing everything they can to stop reform, and they will probably succeed even though national polls show strong support for citizenship for undocumented people if they meet a long list of requirements.

I could go on and on and on. What happens to a democracy when democratic institutions aren’t democratic anymore? Nothing good.

What if they gave an election and no one came. Well, we almost found out in two recent elections. Turnout was abysmal in the race for mayor in Los Angles and in the special Senate election in Massachusetts to select a replacement for John Kerry. Voters don’t see the point in going out to vote to elect people who can’t or won’t do anything to tackle the challenges facing the nation.

Nature abhors a vacuum and so does the Supreme Court.

When democratic institutions fail, undemocratic institutions step in. When the legislature stops legislating, the unelected Supreme Court rushes in to fill the vacuum. Someone has to make laws, and if Congress doesn’t legislate the federal court system will step in to fix problems. Like it or not, unelected or not, the Supreme Court has filled the vacuum that Congress created.

Historically, the Supreme Court has always been reluctant to void laws passed by the peoples’ elected representatives. But the court did just that on successive days last month. On day one, the high court nullified part of the Voting Rights Act. The next day, the court consigned the Defense of Marriage Act to the dustbin of history where it belonged.

The high court’s message to Congress was do something, just don’t stand there. Standard operating procedure in Congress these days is don’t do anything, just stand there. The world does not come to a grinding halt to accommodate Congress when it can’t get its act together.

When he ran for president in 1996, Ross Perot proposed the idea of having national referendums to make decisions on issues. Americans like the idea. A recent Gallup survey showed that two in three Americans supported it. Somebody has to make decisions. It’s a dirty job,  but someone has to do it.

 

By: Brad Bannon, U. S. News and World Report, July 11, 2013

July 12, 2013 Posted by | Congress, Lawmakers | , , , , , , , | Leave a comment

“One More Card To Play”: How Religious Conservatives Plan To Regroup After Losing Marriage Discrimination

Last week was not a good one for Team Anti-Gay. The Supreme Court struck the unconstitutional Defense of Marriage Act, and the nation’s largest state resumed marriages for same-sex couples. Nor is the future likely to be any better for opponents of equality. As conservative Justice Antonin Scalia complains in dissent, the Court’s opinion striking DOMA is riddled with language that can be used to attack anti-gay state laws. Moreover, two cases squarely presenting the issue of whether states must provide gay couples with the equal protection of the law are now ripe for review by the left-leaning United States Court of Appeals for the Ninth Circuit. The question of full, nationwide marriage equality could be before the justices in as little as two years.

And even if a majority of the Court does reject this final push for marriage equality, time is simply not on the side of discrimination. Nearly 7 in 10 Americans under 40 approve of the Supreme Court’s recent pro-marriage decision. The only age cohort where a majority oppose that decision are people over age 65. In twenty years, supporters of equality will run the country from top to bottom, and most opponents will be dead.

Religious conservatives, however, still have one more card to play in their efforts to deny equal rights to LGBT Americans. As the socially conservative writer Ross Douthat suggested shortly after the Court struck DOMA, the best way to continue to limit the rights of gay people is to “build in as many protections for religious liberty as possible along the way.”

It’s clear that anti-gay leaders are already executing this contingency plan. Heritage Foundation President Jim DeMint claimed on Tuesday that marriage equality “means trampling First Amendment religious liberty protections along the way.” At least fifteen anti-gay individuals, ranging from wedding cake bakers to bed and breakfast owners to t-shirt makers, have claimed the right to discriminate against gay people — often in direct violation of the law — with many citing their religious beliefs as justification. The conservative U.S. Conference of Catholic Bishops claimed in a brief they filed in the Supreme Court that treating anti-gay discrimination permissively “protects the religious liberty of those employers with a religious objection to providing” health coverage to same-sex partners.

The Bishops’ brief may be the biggest window into how religious conservatives plan to construct a wall around their own right to discriminate. At the same time that the Bishops urged the justices to protect a special right to deny health care to gay people, numerous employers — with the enthusiastic backing of the Bishops themselves — are litigating the question of whether their religious objections to birth control give them the right to ignore a federal rule requiring them to include it in their employees’ health plans. Last week, a federal appeals court embraced a particularly aggressive reading of religious liberty that not only held that for profit companies may refuse to comply with the birth control rule, it also included language suggesting that a religious employer could refuse to comply with anti-discrimination law if they believed discrimination was compelled by their faith.

This, simply put, is the social conservative end game. They are not going to succeed in blocking marriage equality. But if they can exempt the very people who are most likely to engage in invidious discrimination against gay people from laws prohibiting such discrimination, then they can suck the life out of many pro-gay laws. Their exaggerated view of “religious liberty” can no more be squared with equality than it could when Bob Jones University claimed a similar religious right to engage in race discrimination.

Ultimately, social conservatives’ efforts to expand religious rights to the point where they devour other essential freedoms such as the right to be free from discrimination are likely to backfire. In the 1980s, the Supreme Court developed a workable framework for religious liberty. Such liberty is robust, but it does not include the right to engage in invidious discrimination, and it does not give businesses a right to “impose the employer’s religious faith on the employees.” Then, in 1990, Justice Scalia blew up this framework with his majority opinion in Employment Div. v. Smith. Smith shrunk religious liberty far more than many Americans were willing to tolerate; Congress passed the Religious Freedom Restoration Act of 1993 (RFRA) to restore the religious liberties lost in Smith almost unanimously, and it was signed into law by President Clinton.

Now, however, religious conservatives want to go far beyond the 1980s framework that RFRA restored. They claim both the right to defy anti-discrimination law and the right to ignore the Supreme Court’s decision in United States v. Lee, which held that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” Religious liberties are rightfully enshrined in our Constitution, but they have not been understood as a sweeping right to deny equally important liberties to others. If religious conservatives insist upon the right to do so, the consensus that led to RFRA’s passage is likely to break down, and people of faith could ultimately wind up with fewer protections than they enjoyed before a small number of religious conservatives decided to overreach.

 

By: Ian Millhiser, Think Progress, July 3, 2013

July 6, 2013 Posted by | Marriage Equality | , , , , , , , | Leave a comment

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