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“A Counterrevolutionary Supreme Court Litmus Test In The Making”: Prospective Justices Must Have Willingness To Ignore Both Other Branches Of Government

I really do appreciate the efforts of Constitutional Conservative legal beagles Randy Barnett of Georgetown and Josh Blackman of South Texas College of Law in laying out in some detail–and not in a legal journal but in the Weekly Standard–rules for examining future Republican Supreme Court appointments. It’s not just a litmus test in the making–which presidential candidates in both parties typically say they do not want to administer–but a rationale for a litmus test. And their piece has the advantage of being very clear on the key points.

To Barnett and Blackman, who first discuss the notorious history of Republican SCOTUS appointments they view as betrayals, the big thing is that prospective Justices have a clearly documented willingness to ignore both other branches of government–the principle behind the receding Republican doctrine of “judicial restraint”–and stare decisis–the principle against overturning well-settled Court precedent–in pursuit of the “original” meaning of the Constitution. That means treating SCOTUS as an all-powerful institution communing with eighteenth century Founders–or worse yet, Con Con mythologies about those Founders–and empowered to kill many decades of decisions by all three branches of government, precedent and democracy be damned. No wonder they talk repeatedly about needing Justices–and presidents–with courage! And the dividing line between good and bad “conservative” Justices could not be made much clearer: Alito goooood! Roberts baaaaaad! Barnett and Blackman even suggest their rules should be made clear to and then demanded by presidential primary voters!

If that actually starts happening, it will be as or even more important to watch as any other discussions of any other issues. As Brian Beutler recently noted in an important piece at TNR, Barnett and Blackman are among other things leading advocates for a return to the Lochner era of jurisprudence, whereby most regulations of private economic activity by the executive or legislative branches would be declared unconstitutional as an abridgement of “natural law” concepts in the original Constitution and an exotic understanding of the due process clauses in the 5th and 14th amendments. These are dangerous people to let anywhere near a Supreme Court nomination. But they and many others like them, who now play a dominant role in the very powerful conservative legal fraternity the Federalist Society, are likely to be right there with their litmus test in hand.

Anyone who thinks it doesn’t matter who wins the 2016 presidential election because the two parties are both loaded with corporate stooges needs to pay attention to this issue. Barnett and Blackman are very clearly pointing the way to abolition of the entire New Deal/Great Society legacy via rulings by judges serving lifetime terms. If that doesn’t matter to you, I’m not sure what does.


By: Ed Kilgore, Contributing Writer, Political Animal Blog, The Washington Monthly, September 4, 2015

September 6, 2015 Posted by | Conservatives, U. S. Constitution, U. S. Supreme Court | , , , , , , , | Leave a comment

“The Roots Of The GOP’s Race Problem”: Half A Century Later, One Of Our Two Parties Is Still Dedicated To Fighting Against Civil Rights

Fifty years ago Thursday, Lyndon Johnson delivered the commencement address at the University of Michigan and first uttered the words “great society.” Before you click away, this is not one of those columns soberly assessing his vision’s accomplishments and failures. Rather, I ask a different question: What if there had been no civil-rights revolution, and we’d taken conservatives’ advice?

This question struck me as I was reading through a Great Society-at-50 assessment by Nicholas Eberstadt of the American Enterprise Institute. Being an AEI scholar, Eberstadt is, as you’d imagine, quite critical of a lot of Great Society anti-poverty and other “transfer” programs. But he ungrudgingly acknowledges one point: With respect to the civil rights revolution, which obviously was a key part of the Great Society, ending legal segregation really did take a massive effort, one that could only have been led by the federal government.

The country was largely united behind this effort by 1964. But not conservatives. Of course, most of those conservatives were Southern Democrats. Not all of them, though. 1964 was the year of Barry Goldwater, when the nascent conservative movement that had started in the 1950s took control—for the time being—of the GOP. Today, Goldwater is a hero of the conservative movement. Here is how he thought segregation could be ended in the United States, in a quote from his famous 1960 book, The Conscience of a Conservative: “I believe that the problem of race relations, like all social and cultural problems, is best handled by the people directly concerned. Social and cultural change, however desirable, should not be effected by the engines of national power. Let us, through persuasion and education, seek to improve institutions we deem defective. But let us, in doing so, respect the orderly processes of the law. Any other course enthrones tyrants and dooms freedom.”

Incredible. “The people directly concerned.” That was the whole problem—they were handling it, in their inimitable way.  Those sheriff’s deputies turning dogs and fire hoses on children—why, they weren’t being racist at all. They were dethroning tyranny.

Goldwater had a long history of racist positions, going back to his opposition to the Supreme Court’s Brown v. Board of Education decision. The American people largely thought him a crazy man in 1964, and of course he lost to Johnson by titanic proportions. But let’s just say he’d won. What might have happened, had we followed his suggested path? How much longer would legal segregation have remained in place in the South? How much innocent blood would have been emptied onto Southern streets? We’d have had a race war on our hands that would have made Watts look like an episode of The Flip Wilson Show.

How long would Southern states have remained segregated? When would those states have integrated of their own volition, because it was the right thing to do? Hard to say. Probably once the citizens of Alabama came face to face with the reality that they couldn’t win a national championship with an all-white team. But that would have been, with a federal government sitting on the sidelines, something like 1974. In the meantime, we might well have had a second civil war.

But we didn’t, and we didn’t for one reason: government. The federal government stepped in and made integration happen. Only the federal government could have done it. The end of legal segregation remains America’s greatest triumph. And it didn’t take a village. It took a government.

I like the way today’s conservatives rush to point out, as they will in this comment thread, that most of the opposition to the civil rights bill was Democratic, as I noted above. There’s no denying that. But the more relevant point for today is this: Over the next few years, those people left the Democratic Party. They knew there was no place for them there.

In today’s GOP, however, the successors to the Richard Russells and Harry Byrds have been welcomed with open arms. And Barry Goldwater is not merely one guy among many guys they kind of like from the past. He is conservatism’s great hero! And 1964 is thought of as a shining moment in their movement’s history! And here we are, 50 years later, with the Republican Party looking as if it just might nominate for president a guy (Rand Paul) who once admitted that he’d have opposed the Civil Rights Act and basically was still against it (and Paul is one of the better Republicans on race!). Half a century, and society has changed for the better in amazing ways. But one of our two parties is still dedicated to fighting it.


By: Michael Tomasky, The Daily Beast, May 22, 2014


May 22, 2014 Posted by | Civil Rights Act, Republicans | , , , , , , , | 1 Comment

“What Neocon Revival?”: The Illusion Of GOP Ideological Diversity

It’s a bit startling to see the New York Times‘ David Brooks pen a column headlined “The Neocon Revival,” which speaks confidently about “neoconservatism” as an internally consistent perspective on public life that once dominated the conservative movement and the Republican Party (and apparently should again!). In 2004, the self-same David Brooks contributed an essay to a book entitled The Neocon Reader that suggested the very label was more or less an anti-Semitic slur (“If you ever read a sentence that starts with ‘Neocons believe,’ there is a 99.44 per cent chance everything else in that sentence will be untrue.”).

If Brooks is now giving us all permission to talk about neoconservatism without raising a presumption of ethnic or partisan poison, I’d argue that his brief manifesto is curiously detached from both the historical and contemporary realities of conservatism and of the Republican Party. Brooks is right that “neoconservatism” (a term actually popularized by democratic socialist Michael Harrington to refer to thinkers and doers who were largely still on the ideological Left and/or affiliated with the Democratic Party) was originally “about” domestic as much as international policy. Its most recent identification with George W. Bush’s foreign policies, or with post-Bush advocates of an aggressive internationalism and often of Islamophobia, is hardly an accident, but also isn’t the whole story.

Having said that, Brooks commits an act of grand larceny in claiming for neoconservatism the legacy of Ronald Reagan, not to mention that of Teddy and Franklin Roosevelt, with whom he shoehorns RR in an unlikely triptych. At least that seems to be what he is doing; the column constantly shifts from politicians to writers ranging from Irving Kristol to Richard John Neuhaus and even George Will in defining the kind of conservatism Brooks identifies with “neoconservatism” and with the successful GOP of the 1980s, which happily accepted the modern welfare state and simply wanted to harness it to conservative social goals and to national greatness.

Reading this piece, you might well forget about Ronald Reagan’s deep roots in conservative rejection of the New Deal and Great Society (he opposed both Medicare and the Civil Rights Act), or his administration’s efforts (not ultimately very successful) to use the budget process and executive powers to unravel the social safety net. You might also skip over, as Brooks does, the conservatism of the 1990s (which is interesting insofar as Brooks cut his teeth at The Weekly Standard–itself often associated with “neoconservatism”–which proclaimed itself the tribune of a “Republican Revolution” that would roll back liberalism’s accomplishments in every direction). And only someone with a wildly exaggerated idea of “compassionate conservatism” would conclude that the George W. Bush era of the GOP was characterized by happy acceptance of the welfare state.

But the oddest thing about Brooks’ column is its headline, to which he should have objected violently if he did not suggest it himself. If “neocons,” defined as people who look fondly on TR and FDR as well as that sunny welfare state advocate Ronald Reagan, are enjoying some sort of “revival,” where is it? Brooks himself says “[t]he Republican Party is drifting back to a place where it appears hostile to the basic pillars of the welfare state: to food stamps, for example.” It’s pretty hilarious to call that a “drift,” or to attribute it to some long-lost pre-Reagan impulse. The Reagan administration tried to dump the food stamp program on the states as a way station to its elimination, even as it sought to “cap” federal responsibility for Medicaid, much as Paul Ryan is trying to do today. Beyond that, who among major Republican politicians is resisting this supposed “drift,” and where is the “revival” of a tradition opposing it?

In this as in other respects, Brooks resembles other “conservative reformers” (notably his New York Times colleague Ross Douthat) who regularly lay out policy prescriptions that would get them tarred and feathered in any gathering of rank-and-file Republicans, but then more or less loyally follow the party line anyway, creating the illusion of ideological diversity. Douthat and Reihen Salam wrote an interesting book in 2009 prescribing the same sort of welfare-state-accomodation strategy that Brooks seems to be endorsing. It became associated by rhetorical osmosis with Tim Pawlenty, because they used his motto of “Sam’s Club Republicanism.” T-Paw promptly ran for president in 2012 and staked his candidacy to a failed effort to become an electable right-wing alternative to Mitt Romney. Was he a “Sam’s Club Republican” happily arguing for a more family-friendly welfare state? Probably not on the day that he signed onto the vicious “Cut, Cap, Balance” pledge that represents a death sentence for the New Deal and Great Society.

The trouble is that the conservative movement and Republican Party that Brooks and Douthat like to talk about has never existed in living memory, and isn’t likely to exist in the foreseeable future. Perhaps they have other reasons for affiliating with a political movement that so routinely ignores their advice (in Douthat’s case, I suspect his RTL self-identification is the crucial factor).

With respect to the column at hand, the very slim case for a “neocon revival” now depends on politicians like Chris Christie and Marco Rubio who are almost certainly about to spend the next couple of years snuggling up to the Tea Folk and disagreeing with Rand Paul or Ted Cruz mainly on the foreign policy grounds Brooks tells us don’t actually define neoconservatism. But by 2016, I’m reasonably sure David will have found in Christie or Rubio or someone else the flickering flame of an ideology that he mistakenly remembers as Ronald Reagan’s and mistakenly projects as the wave of the future.


By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, August 3, 2013

August 5, 2013 Posted by | Republicans | , , , , , , , , | Leave a comment

Romney’s Stupidest Idea Of The Week

One of the signature policy proposals that Mitt Romney outlined in his economic plan and highlighted in his USA Today op-ed last week is a policy that is as pernicious in practice as it sounds unthreatening. On page 61 of his plan, Romney proposes to cap the rate at which agencies would impose new regulations at zero. This means that if an agency is required by law to issue a new regulation, it must offset the costs, presumably by eliminating some other regulations. Essentially, Romney is proposing to adopt pay-as-you-go budgeting to regulations.

It’s not entirely clear if this rule applies to each agency—would the Food and Drug Administration have to eliminate some food inspection rules if they created some new regulations of food?—or if this is government-wide policy, so if the government creates rules in one area, it would be required to undo rules in another, unrelated area. But either way, this policy would have far-reaching negative consequences. Imagine, for instance, if a cap on regulations was in place after the financial crisis, when lack of regulation of Wall Street led to the cratering of the economy. Under this proposal, in order to regulate Wall Street to ensure that economic devastation couldn’t happen again, the federal government would have to eliminate regulations on food or water or air, or some other protections. Where is the logic of undoing clean air regulations because new consumer protections are needed?

Behind this policy response is a simple animosity towards any rules for businesses that come at the expense of profits. Republicans have been arguing that regulatory uncertainty is hurting job growth because businesses supposedly refuse to make hiring decisions when they don’t know what the rules will be. But if anything were going to feed uncertainty, it would be a rule that haphazardly and randomly picks old rules to eliminate once new rules were created. Companies make decisions about their future assuming those regulations stay in place; eliminating old regulations will simply favor some firms over others.

The bigger point to be made, however, is that regulations are not what are ailing our economy now, nor are they hindering growth. McClatchy recently surveyed small business owners on why they weren’t employing additional people—none offered regulation among the barriers to hiring. (That’s why it’s particularly unfortunate that the president recently fed the Republican obsession with his suspension of the ozone rule, citing “regulatory uncertainty, particularly as our economy continues to recover,” as part of his rationale.) In fact, if anything, greater regulation can be correlated with greater growth: Over the last 50 years, the decades of the highest growth rates for our economy saw the greatest expansion of government and its regulations. Growth rates were highest in the 1960s at 4.55 percent for the decade, when we created Medicare, Medicaid, and the Great Society poverty programs—our greatest expansion of government. And growth rates were the lowest in the last decade, averaging only 1.38 percent. I think it is safe to say George Bush was not a friend of regulation.

But if regulations aren’t the culprit, what is? What’s holding up hiring now is that there is not enough demand in the economy. Even bond traders like Bill Gross acknowledge the need for direct federal help for job creation and growth. To actually create jobs, Republicans should come to the table with the president and pass ideas they have supported in the past, like investment in roads and bridges and hiring teachers who have been laid off. But because Republican ideology will not tolerate federal policies that actually help create jobs, they are reduced to pithy sounding policies on regulations that are just another way of getting rid of protections for consumers in order to help corporations.

As a former policy director on a presidential campaign, I am sympathetic to the desire to try to propose “new” policy ideas that sound good in a speech or a press paper. In the back and forth of a campaign, reporters, campaign press staff, and even the candidates can demand new policies in areas that have been well-trodden and don’t typically make for exciting speeches. But a serious candidate has to put forward serious ideas to solve actual problems. And for a candidate trying to distinguish himself from a Texas governor ready to shoot from the hip, Mitt Romney’s cap on regulation does not meet that test.


By: Neera Tanden, COO, Center for American Progress, Published in The New Republic, September 12, 2011

September 12, 2011 Posted by | Businesses, Congress, Conservatives, Consumers, Corporations, Democrats, Economic Recovery, Economy, Elections, Environment, GOP, Government, Ideologues, Ideology, Jobs, Lawmakers, Medicaid, Medicare, Middle Class, Politics, Public, Regulations, Republicans, Right Wing, Teaparty, Voters | , , , , | Leave a comment

Justifying Cuts: A Well-Used But Misleading Medicaid Statistic

“Cash-strapped states are also feeling the burden of the Medicaid
entitlement. The program consumes nearly 22 percent of states’ budgets today, and things are about to get a whole lot worse.”

— Sen. Orrin Hatch (R-Utah), June 23, 2011, at a hearing of the Senate Finance Committee

“Medicaid is the lion’s share of that spending burden as it now consumes about 22 percent of state budgets now and will consume $4.6 trillion of Washington’s budget over the next ten years.”

— Former Kentucky governor Ernest Lee Fletcher (R), June 23, 2011, at the same hearing

“Across the country, governors are concerned about the burgeoning cost of Medicaid, which in fiscal 2010 consumed nearly 22 percent of state budgets, according the National Association of State Budget Officers. That’s larger than what states spent on K-12 public schools.”

Washington Post front page article, June 14, 2011

When a statistic is universally tossed around as a certified fact, it’s time to get suspicious.

Such is the case with this oft-cited statistic that 22 percent of state budgets is being gobbled up by Medicaid, the state-federal program that provides health coverage for the poor and the disabled. Medicaid supposedly is even dwarfing what is spent on educating children and teenagers.

But note the phrase “state-federal.” There’s billions of dollars in federal money involved, and the “22-percent” statistic obscures that fact. Let’s dig a little deeper into the numbers.

The Facts

Medicaid was a central part of President Lyndon Johnson’s “Great Society” initiative in the mid-1960s. Each state administers its own Medicaid program, but with federal oversight, federal requirements—and plenty of federal dollars. On average, the federal government provides 57 percent of Medicaid funds.

Initially, Medicaid was focused low-income Americans, but elderly nursing home care has also become a big part of it. The new health care law would also greatly expand eligibility to people up to 133 percent of the official poverty line.

There’s no question that the recession has put pressure on Medicaid spending, as more people lost jobs or income and so became eligible for coverage. The new requirements of the health care law also will boost Medicaid spending.

The assertion that Medicaid is 22 percent of state spending, and thus now exceeds education spending, comes from an annual survey of the National Association of State Budget Officers (NASBO). But if you dig into the report — if you just go to page
one — you will see that this number includes the federal contribution, in what
is known as “total funds.”

If you want to see what states themselves are spending on Medicaid —“general funds” — you have to use another set of statistics.

As NASBO says on page one, “For estimated fiscal 2010, components of general fund spending are elementary and secondary education, 35.7 percent; Medicaid, 15.4 percent; higher education, 12.1 percent; corrections, 7.2 percent; public assistance, 1.9 percent; transportation, 0.8 percent; and all other expenditures, 27.0 percent.”

In other words, without the federal dollars included, Medicaid falls to second place, far behind education. It turns out that on average, states spend 15.4 percent of their funds on Medicaid — not 22 percent.

Brian Sigritz, NASBO’s director of state fiscal studies, said, “You are correct that there are several different ways of looking at Medicaid spending that you can use. If you consider just general funds, K-12 easily remains the largest component of general fund spending, as it historically has been.”

Indeed, when you look at NASBO’s historical data (table three of this report), it becomes clear that Medicaid spending, as a proportion of general funds, has remained relatively consistent since 1995 — about 15 percent — in contrast to the popular image of being a drain on state budgets.

Sigritz said that the two figures provide a different picture of state spending. “General funds gives you a sense of spending deriving from state revenue, while total funds gives you a sense of total state expenditures,” he said.  “Typically when you discuss overall state budgets you examine the various funding sources that go into them including general funds, other state funds, bonds, and federal funds.”

The Office of the Actuary for Medicare and Medicaid makes this distinction. The 2010 Actuarial Report for Medicaid notes the broad figure, but then takes pains to add: “This amount, however, includes all Federal contributions to State Medicaid spending, as well as spending from State general revenue funds and other State funds (which for Medicaid consists of provider taxes, fees, donations, assessments, and local funds).” The report concludes: “When only State general revenues are considered, however, Medicaid spending constitutes an estimated 16.2 percent of expenditures in 2009, placing it well behind education.”

Antonia Ferrier, a spokeswoman for Hatch, defended the 22-percent figure, noting its wide use. “It is part of their budgets, and there are many different streams of funding that fund those state budgets (including federal funding, taxes, etc.) that fund their many programs,” she said.

But Colleen Chapman, a spokeswoman for the Georgetown University Center for
Children and Families
, a policy and research center, said, “In the current budget debate, the data are being misused to argue that the Medicaid program in states is out of control and needs to be cut dramatically, when in fact, Medicaid is still much less of state spending than education and has not grown, as a portion of state budgets, in any way close to the mammoth way that others argue it has.”

The Pinocchio Test

We will label this with one of our rarely used categories: TRUE BUT FALSE.
(We still need to get an appropriate icon for this one — suggestions are welcome.)

Yes, the 22-percent figure is a valid number. But it is being used in an inappropriate way, and therefore is misleading. Hatch and Fletcher are only the latest in a long line of public figures — and news outlets — who have seized onto this number without apparently realizing that it is the wrong statistic to use. If people want to understand the impact the Medicaid is having on state budgets, politicians should begin to use the 15-percent figure — or at the least offer a caveat to the 22-percent number. Otherwise, there might be some Pinocchios in their future.


By: Glenn Kessler, The Fact Checker, The Washington Post, July 5, 2011

July 5, 2011 Posted by | Conservatives, Deficits, Economy, Education, GOP, Health Care, Ideologues, Ideology, Lawmakers, Medicaid, Middle Class, Politics, Republicans, State Legislatures, States | , , , , , , , , , , , , | Leave a comment

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