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“The Supreme Court Fight Is About Democracy”: Conservatives Want To Bring Back Pre-New Deal Jurisprudence

There’s a reason beyond garden-variety partisanship that Senate Republicans resist even holding hearings on President Obama’s nomination of Merrick Garland to the Supreme Court. Their gambit evades a full and open debate over the conservative judicial agenda, which is to use the high court in an aggressive and political way to reverse decades of progressive legislation.

The central irony here: The very conservatives who use “judicial activism” as a battering ram against liberals are now the aggressive judicial activists. It’s precisely because Garland’s record reveals him to be a devout practitioner of judicial restraint that an intellectually frank dialogue over his nomination would be so dangerous to the right. It would expose the radicalism of their jurisprudence.

Some conservatives are quite open about this, and few have been more candid than George F. Will, my Post colleague. To begin with, he deserves credit for making clear in his most recent column that Garland really is a stout advocate of judicial “deference” and for pointing out the absurdity of the Republicans’ refusal to take up his nomination. And in the past, Will has been unusually direct in defining the stakes in our battles over the role of the courts.

In a 2014 column aptly headlined “Judicial activism isn’t a bad thing,” he wrote: “Conservatives clamoring for judicial restraint, meaning deference to legislatures, are waving a banner unfurled a century ago by progressives eager to emancipate government, freeing it to pursue whatever collective endeavors it fancies, sacrificing individual rights to a spurious majoritarian ethic.”

Will’s attack on “a spurious majoritarian ethic,” of course, is another way of criticizing the workings of democracy. Where does this lead?

It leads to the Citizens United decision (which Will supports as emphatically as I oppose it) that overthrew decades of precedent and a century of practice involving limits on the power of big money in politics; to the Supreme Court’s evisceration of the Voting Rights Act; and to the scrapping of all manner of legislation aimed at protecting workers’ rights, the environment and consumers. Historically, it’s an approach that, more often than not, leans toward employers over employees, creditors over debtors, property owners over less affluent citizens, and corporations over individuals.

We know what this approach looks like because it’s the one the court pursued for decades before the New Deal. It is this pre-New Deal jurisprudence that conservatives want to bring back. Some conservatives have talked openly about the “Constitution in Exile,” referring to the way our founding document was once read to overturn many New Deal and Progressive Era laws. Starting in the late 1930s, the court moved to a different approach that gave Congress broad latitude to legislate on matters related to social justice and economics and saw its task as intervening primarily on behalf of individual rights.

Will’s outright embrace of “judicial activism” has brought him some critics on the right. One of them is Ed Whelan, president of the Ethics and Public Policy Center and a leading defender of the Senate Republicans’ current strategy. “Most contemporary conservative proponents of judicial restraint,” Whelan has written, “are also proponents of originalism and see judicial restraint merely as supplementing originalist methodology when that methodology fails to yield a sufficiently clear answer to a constitutional question.”

Whelan added that his approach would, like Will’s, allow judges to “enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth.” But it would also “prevent judges from inventing rights and powers that are not in the Constitution.”

Here’s my translation of Whelan: He’s instructing Will to notice how originalism — the conservative theory that insists we can apply the original meaning of the Constitution’s words and the Founders’ intentions with some ease — leaves judges with plenty of power to toss out progressive laws. At the same time, it gives conservatives grounds to oppose liberals on such issues as abortion and gay marriage.

I’ll stipulate that there are some legitimate conservative arguments against liberals on their own forms of social-issue activism. But I’d insist that we will understand this court battle better if we pay attention to Will’s straightforward language: Through originalism and other doctrines, conservatives have embraced an astonishingly aggressive approach to judging. It allows them to reach outcomes through the courts that they cannot achieve through the democratic process.

At heart, this is a debate over how we define democracy. It’s also a struggle over whether government will be able to serve as a countervailing force to concentrated economic power.


By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, March 20, 2016

March 23, 2016 Posted by | Conservatives, Democracy, Senate Republicans | , , , , , , , , , | Leave a comment

“Four Years Of Peace, Love, And Single-Payer Health Care?”: In That Old Volkswagen Bus With Bernie, Rolling Toward 1972

Unpack your old tie-dyed T-shirts, roll yourself a fat doobie, and warm up the ancient VW bus. We’re going to do Woodstock and the 1972 presidential election all over again. And this time, the hippies are going to win! Four years of peace, love, and single-payer health care.

But do take care to clear the path for Bernie Sanders. Because if he steps in something the dog left behind, he’s going to blame Wall Street and start yelling and waving his arms around.

And you know how much that upsets Republican congressmen who are otherwise so eager to oblige his plans to soak the rich and give everybody free college, free health care, free bubble-up and rainbow stew—as the old Merle Haggard song had it.

OK, so I’m being a smart-aleck. I was moved to satire by a couple of moments from last week’s Democratic and Republican presidential debates. First, Sen. Sanders, boasting about a Wall Street Journal/NBC News poll that shows him beating Donald Trump by 15 points—54 to 39. Hillary Clinton tops Trump only 51-41.

Both would be huge landslides. In 1972, Richard Nixon defeated George McGovern 61-38. The Democrat won only Massachusetts.

The part Sanders left out and that Hillary was also wise enough to leave unmentioned is that the same poll shows her leading him 59 to 34 percent in the Democratic primary contest nationally. Twenty-five points.

She’d have to be a fool to take that to the bank, although it does demonstrate why a lot of the horse-race commentary has the narrative upside down. See, unless Bernie manages to prevail in the Iowa caucuses, his campaign pretty much goes on life support. A New Englander nearly always wins in New Hampshire, and rarely goes anywhere after that.

Almost needless to say, all polls are individually suspect. Moreover, the national media give far more play to surveys depicting a close contest; they’re better for journalists’ careers.

That would be true even if you didn’t know that bringing Hillary Clinton down has been an obsessive quest in Washington and New York newsrooms for twenty-four years.

During most of which time it’s been “Bernie who?” That Vermont socialist who’s all the time yelling? That guy?

Yeah, him. The guy with the Brooklyn accent and the Wacky Prof look who says “billionaire” the way some people say “Ebola.” Not that there’s anything wrong with that.

The same guy Ohio Gov. John Kasich boldly predicted would lose all 50 states if Democrats were foolish enough to nominate him. Actually, I’m confident Sanders would carry Vermont and probably Massachusetts against any Republican nominee. But New Hampshire and Maine could be out of reach.

Even against Trump? Well theoretical matchups mean next to nothing this far out. And I suspect that Bernie’s big advantage–hard for politically active readers to believe—is that most voters know almost nothing about him except that he’s neither Hillary nor The Donald.

I also suspect that a Trump vs. Sanders matchup would bring a serious third-party challenge. Let the GOP attack machine get to work on Sanders and I’m guessing we’d soon learn that there’s no great yearning among the electorate for socialismdemocratic or not.

Did you know, for example, that Sanders took a honeymoon trip to the Soviet Union in 1988? George Will does.

Does that make him disloyal? Of course not, merely a bit of a crank. As Sanders loyalists are quick to remind you, President Reagan went to Moscow to negotiate nuclear arms reductions with Gorbachev that same year.

As a personal matter, I got my fill of Marxist faculty lounge lizards back in that tie-dyed, VW bus era. Disagree with them, and you’re an immoral sellout. That gets old really fast.

Writing in The Washington Monthly, David Atkins does a brave job of trying to explain away a Gallup poll showing that while 38 percent of Americans say  they’d never vote for a Muslim president, and 40 percent wouldn’t support an atheist, fully 50 percent said no socialists need apply.

Can Bernie persuade them otherwise? I don’t see how. Most Americans don’t actually hate the rich, and his despairing portrait of contemporary American life doesn’t square with most people’s experience.

“Against these liabilities,” observes Jonathan Chait, “Sanders offers the left-wing version of a hoary political fantasy: that a more pure candidate can rally the People into a righteous uprising that would unsettle the conventional laws of politics.”

Meanwhile, not only has Sanders presented no realistic political scenario for enacting his vaunted reforms, serious observers also question their substance.

Writes liberal MVP Paul Krugman:

“To be harsh but accurate: the Sanders health plan looks a little bit like a standard Republican tax-cut plan, which relies on fantasies about huge supply-side effects to make the numbers supposedly add up.”

During the last Democratic debate, Bernie accused Hillary of failing to take his candidacy seriously. Fair enough. But has he?


By: Gene Lyons, The National Memo, January 20, 2016

January 29, 2016 Posted by | Bernie Sanders, Democratic Presidential Primaries, Hillary Clinton | , , , , , , , , | 1 Comment

“Unbridled Opportunism”: Republicans Want You To Be Terrified Of Ebola—So You’ll Vote For Them

The first transmission of Ebola within the United States, from Liberian visitor Thomas Eric Duncan to a Dallas nurse, marked a turning point in the political dialogue surrounding the virus toward an unbridled opportunism. The subsequent diagnosis of a second nurse and other revelationsthat she took a flight shortly before she began showing symptoms, apparently with Centers for Disease Control’s approvalhave only accelerated it. Obviously a degree of paranoia and sensationalism has colored the Ebola story since long before this week. But this week’s developments provided conservatives the psychological ammunition they needed to justify using the specter of a major Ebola outbreak as an election-year base-mobilization strategy.

Republican candidates like Scott Brown are now in on the game, and so is House Speaker John Boehner. Fox News, with the exception of Shepard Smith, is ginning up more Ebola terror than CNN, which had been the vanguard of Ebola hysteria until this week. Matt Drudge’s call to panic was not only deranged

but unintentionally self-defeating, as one cannot vote if one is self-quarantined.

Engaging in the politics of fear requires a pretense. You can find people who hype mortal danger, without a sheen of plausibility, shouting into bullhorns on street corners. Politicians and their enablers need persuasive stories that make the threats sound real. And the story that many conservatives are telling about Ebola goes something like this: We’d love to eschew hysteria, and we’d love to believe our public health officials can break the chain of transmission within the U.S., but the Obama administration has proven itself untrustworthy.

“This is an episode when people want to trust the government, people need to trust the government and they can’t,” columnist George Will intoned on Fox News earlier this month. “What was happening exactly 12 months ago? A government shutdown and the disastrous rollout of Since then we’ve had intelligence failures regarding ISIS; we’ve had the debacle of the veterans handling of healthcare; and the Secret Service that couldn’t lock the front door of the White House. So people think this is a gang that can’t shoot straight.”

University of Tennessee law professor Glenn Reynolds repackaged Will’s basic argument in USA Today on Monday. Among those he cited was “Meet the Press” host Chuck Todd, who added lost IRS emails, Edward Snowden’s NSA disclosures, and the child-migrant crisis to the litany. Members of the media are enabling this opportunism. They should be anathematizing it.

The competence argument is appealing because it doesn’t require dabbling in pseudoscience or xenophobiajust healthy skepticism of our governing institutions. Moreover, I’m certain this sort of skepticism does help explain why a large minority of people in the U.S. feels at risk of contracting Ebola. But they are at no great risk. That the risk is provably infinitesimal underscores the fact that the issue with Ebola isn’t the virus itself so much as paranoia about it.

Even if each of the failures and crises enumerated above were as unambiguous and damning as the administration’s critics claim, it doesn’t follow that federal health officials aren’t up to the task of controlling Ebola, or that the public at large faces any meaningful risk. It might follow that we shouldn’t believe this season’s Affordable Care Act enrollment period will be glitch-free, and that the Vetrerans Affairs’s problems won’t be solved with new management alone. The point is not that we should never draw inferences from this administration’s previous failings. But it’s a fallacy to arbitrarily extend that second-guessing to the Ebola containment effort, while at the same time happily taking it for granted that the vast majority of things we entrust the government to do will continue apace.

Ebola carries a crucial mix of novelty, visibility, and lethality that ripens it for demagogy. But conservatives have selected a familiar line of demagogythat you can’t trust the government to administer things and solve problemsand imposed it on to a situation where stoking reflexive distrust of the government tugs at the lid of a big Pandora’s box.

The sad irony is that state and local institutions, so beloved on the right, were apparently out to sea when Ebola arrived in Dallas, and health officials there would have let things drift further into chaos had the federal government not intruded further. Not that they’ve performed flawlessly, but we need more of their expertise and involvement, not less. Texas Governor Rick Perrywho in gentler times plays footsie with secessionis grateful for this intrusion, and has “great faith” that their efforts will succeed. Perhaps he’ll surprise us further by dismissing the idea that the federal officials who’ve stepped up against Ebola shouldn’t be trusted because about a year ago, some federal healthcare website was beset by glitches.


By: Brian Beutler, The New Republic, October 16, 2014

October 17, 2014 Posted by | Ebola, Midterm Elections, Republicans | , , , , , , , , | Leave a comment

“A Stroll Down Memory Lane”: Sometimes, ‘What Would Reagan Do?’ Is The Wrong Question

After the public learned last week that Malaysia Airlines Flight 17 had been shot down, killing all 298 people on board, it wasn’t long before an obvious comparison came to mind: in September 1983, a Russian fighter jet shot down Korean Air Lines Flight 007. The attack left 269 passengers and crew dead, 62 of whom were American, including a member of Congress.

Olivia Kittel noted that for many Republicans, President Obama should not only follow Ronald Reagan’s example from 31 years ago, but also that Obama is already falling short of the Reagan example.

In the wake of a Malaysia Airlines jetliner crash, Fox News has rushed to conveniently rewrite history to disparage President Obama by drawing false comparisons to former President Ronald Reagan’s response to a 1983 attack on a Korean airliner.

After Fox News said Obama wasn’t Reagan-esque enough, plenty of other conservatives soon followed.

Let’s take a brief stroll down memory lane in case some have forgotten what actually happened in 1983.

After the Soviet pilot killed 269 people on a civilian airliner, Reagan’s aides didn’t bother to wake him up to tell him what happened. When the president was eventually briefed on developments, Reagan, who was on vacation in California at the time, announced he did not intend to cut his trip short. (Reagan’s aides later convinced him to return to the White House.)

Last week, Obama delivered a public address on the Malaysia Airlines plane about 24 hours after it was shot down, calling the incident an “outrage of unspeakable proportions.” Reagan also delivered stern words, but in contrast, he waited four days to deliver public remarks.

So what is Fox talking about?

More from Kittel’s report:

On the July 17 edition of Fox News’ The Kelly File, host Megyn Kelly connected the July 17 tragedy to the 1983 Korean airliner crash, highlighting Reagan’s speech in response and noting in comparison that Obama has “been accused of ‘leading from behind.’ ” Fox contributor Chris Stirewalt compared Reagan’s response to Obama’s, saying Reagan’s response made Americans feel “reassured and resolute,” and Kelly echoed that Obama’s response “makes him look unconnected and makes a lot of Americans feel unrepresented.” […]

Such comparisons applauding Reagan’s 1983 response to attack Obama have reverberated throughout Fox News. Andrew Napolitano invoked Reagan’s response to insist Obama should “get on national television and call Vladimir Putin a killer.” Fox correspondent Peter Johnson Jr. said of Obama, “I think the president needs to take a page out of Ronald Reagan,” while Fox strategic analyst Ralph Peters suggested Obama’s strategy should reflect “clear speech, a la Ronald Reagan, backed up by firm action and with follow-through.”

This over-the-top Reagan worship isn’t just wrong; it’s ironic. In 1983, some of the prominent conservative media voices of the day actually complained bitterly that Reagan’s response was wholly inadequate.

George Will – yes, that George Will – called the Reagan White House’s arguments “pathetic” at the time, insisting, “It’s time for [Reagan] to act.”

The president responded publicly with rhetoric that made the president sound rather helpless. “Short of going to war, what would they have us do?” Reagan said. “I know that some of our critics have sounded off that somehow we haven’t exacted enough vengeance. Well, vengeance isn’t the name of the game in this.”

One wonders what the reaction would have been from the right and the Beltway media if Obama responded with similar rhetoric to a comparable situation.


By: Steve Benen, The Maddow Blog, July 21, 2014

July 22, 2014 Posted by | Fox News, Republicans, Ronald Reagan | , , , , , , , | Leave a comment

“Denier Vigilantes”: Why It’s So Sad When Conservatives Try To Play The Underdog

Jeffrey Toobin once described the career of John Roberts, the conservative chief justice of the Supreme Court, this way: “In every major case since he became the nation’s 17th chief justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.”

This is a raw expression of one of the most basic forms of conservatism: The defense of incumbent holders of wealth and power. Of course, it doesn’t account for the whole of American conservatism, but it’s no secret that conservatives are the most outspoken defenders of the 1 percent, from the Wall Street Journal editorial board to the vast bulk of the Republican contingent in Congress.

The rise of the social justice movement has thus presented a persistent rhetorical problem for conservatives. Members of this movement have made a compelling case that the powerful have rigged society against certain groups: minorities, women, the poor, transgender folks, and so on. That rhetorical strength has been a great source of temptation for conservatives, who would strongly like to cast themselves as heroic underdogs fighting against a vile and oppressive regime.

We saw this tendency at work this week, when Bill Nye the Science Guy was on CNN’s defibrillated new version of Crossfire. Nye kept emphasizing that conservatives are simply unwilling to accept the scientific conclusions on climate change, which predict highly alarming consequences if we stay on our current emissions path. In response, host S.E. Cupp accused him of trying to “bully…anyone who dares question” the science.

Take a look:

Similarly, George Will, the conservative columnist at The Washington Post, recently used conservative conspiracy theories to assert that climate scientists have “interests” that have biased their analysis. “If you want money from the biggest source of direct research in this country, the federal government, don’t question its orthodoxy,” he continued.

Set aside the fact that these conservatives conveniently accept the logic of social justice only when it suits them. The real problem with this kind of analysis is that it makes no sense if you think about it for even five seconds. They have the power imbalance completely backward. Carbon-mining companies are, in fact, among the most profitable industries that have ever existed. Climate scientists have, in fact, been legally and personally harassed by denier vigilantes and their pet hack journalists.

Wouldn’t the incomprehensibly huge piles of money the oil industry spends on political organizing count as some kind of interest that influences society? Not to George Will, which is why he doesn’t provide any evidence whatsoever that there is an actual conspiracy. There is none, because it doesn’t exist. It’s derp all the way down.

And thus we see the problem with Cupp’s analysis as well. Accusations of bullying only make sense if there is an insanely wealthy cabal of climate scientists oppressing someone unjustly. But Nye is simply correct in his description of almost total unanimity on questions of climate change. In particular, he’s right to say that more global warming means more extreme weather, the fact of which conservatives are constantly trying to fudge.

Cupp isn’t being bullied; she’s wrong on the facts, and appropriating social justice rhetoric in the most ham-fisted way to put that position out of reach of criticism.

It’s ludicrous, and people shouldn’t stand for it. But more than that, it’s just kind of sad. Just consider the bizarre spectacle of billionaire Charles Koch, who has whined piteously about a bunch of powerless leftists calling him names. You would think conservatives would be more comfortable being on the side with all the power and money, instead of trying to be something they’re not.

By: Ryan Cooper, The Week, May 9, 2014

May 12, 2014 Posted by | Climate Change, Conservatives, Conspiracy Theories | , , , , , , , , | Leave a comment

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