“Who Are The Judicial Activists Now?”: People Like Ted Cruz Will Never Stop Screaming Judicial Activism
As is regularly the case in American politics, you have to hand it to Ted Cruz: His reaction to the Supreme Court’s order on same-sex marriage was the best one I came across Monday for sheer outrage-iness. “Judicial activism at its worst!” he thundered (okay, the exclamation point is mine). This, remember, in response to an inaction. The Court did exactly nothing. And now that’s judicial activism.
In fact, the Court took a pass, one presumes, because there weren’t two circuit-court decisions before it that presented conflicting legal interpretations of statute. In the absence of such a conflict, the Court did exactly what most experts I’ve read and spoken to over the last few months predicted it would do. But to Cruz, it’s “astonishing.” Ditto that the Court acted (or in-acted) “without providing any explanation whatsoever.” Which it never does in such instances, but never mind.
People like Cruz will never stop screaming judicial activism. No, wait: They will stop screaming judicial activism, at least on the question of same-sex marriage; and they will stop doing so sooner rater than later. This will constitute a major victory for the forces of light, one very much worth marking and thinking back over.
Ever since, well, Brown v. Board of Education, and probably before, conservatives have complained about judges making law against the will of the majority of voters. The critique extends into nearly every little crevice and lacuna of our civic life. Roe v. Wade was legislating from the bench; affirmative action; of course taking God out of the classroom; but basically anything any court did that conservatives didn’t approve of.
And let’s admit it—on at least the abstract level, the complaint has often had merit. I mean, there can be little doubt that public opinion in Dixie in 1954 opposed the integration of the schools. So the Court of 1954 was indeed making law from the bench. And thank God for it, since the problem is that public opinion was wrong. Not just wrong like “I think I’m not putting enough salt in my grits” wrong, but immorally wrong. What’s a court to do in such a case? Many forests have been sacrificed so that various scholars could take up this question, but the answer is really quite short and simple: The right thing.
And so liberalism has lived now with decades of such criticisms from conservatives, with the understanding that it’s far better to have won the right in question from a court than not to have won it at all—and the understanding that out there in America, yes, the backlash against these judges and the policies that grew from their decisions was probably brewing.
But same-sex marriage is different for two reasons. First, the amazing and oft-commented upon speed at which public opinion has flipped. And second, the fact that if the legal consensus can be said to be coming down on one side or the other, it’s clearly coming down on the side of same-sexers having the same constitutional matrimonial rights that the rest of us have. When federal judges in Oklahoma and Utah say it, it ain’t judicial activism, folks. It’s, you know, the more-or-less-impossible-to-deny law.
So the process by which same-sex marriage has advanced in this country hasn’t been overwhelmingly judicial at all. Until the Court’s announcement Monday, in fact, the tally was that gay marriage became legal by court decision in 13 states, and by the will of the people in 11 (legislative action in eight, popular referendum in three). And in most of the states where the change happened through the courts, the issue is decreasing in controversy, and public opinion is coming along.
You may remember that Iowa was the first unexpected heartland state where the state Supreme Court made gay marriage legal, back in 2009. It’s true that three judges who so ruled were removed from the bench in judicial retention elections in 2010. But by 2012, when the “values” crowd went after a fourth, they walked away scalpless: Judge David Wiggins retained his seat by a landslide 10-point margin. The temperature had cooled. Today, polling shows that public opinion in the state is still divided on same-sex marriage but is firmly against any kind of state constitutional amendment that would ban the practice.
So now, after what the Court did Monday, same-sex marriage is going to extend into 11 new states. It seems fair to say that majorities are against gay marriage in most of these states (the aforementioned Utah and Oklahoma, plus Kansas, Indiana, West Virginia, and the Carolinas). We’re going to see the usual skirmishes and hear the predictable sound bites. In political terms, if you’re a liberal who wants to read the tea leaves, keep an eye trained on the North Carolina Senate race.
Incumbent Democrat Kay Hagan is steadily but narrowly leading GOP challenger Thom Tillis. Hagan backs same-sex marriage. But the state voted overwhelmingly against it two years ago in a referendum. And now, as a part of the Fourth Judicial Circuit, North Carolina is about to have the sinful practice foisted on it. Public opinion in the state still runs strongly against same-sex marriage. I think we can reasonably expect Tillis to double down on the issue, and it would be horrible to see Hagan lose because of it.
It’ll take time in these states, but the same thing will happen in them as is happening in Iowa. People will adjust. Gay couples will marry. Straight couples will see that their own marriages were somehow not sullied after all.
This is the core dilemma for conservatives on same-sex marriage: The more widespread its practice, the more accepted it becomes. This is the exact opposite of abortion and affirmative action, two red-hot issues on which the right has used the “judicial activism” charge to great effect in recent history. If you think abortion is murder, then the more widespread its practice, the more aghast you are. If you oppose racial preferences, then ditto. But that isn’t how same-sex marriage works. It takes nothing away from heterosexual couples, or for that matter anyone.
Eventually, the Supreme Court will rule 5-4 (with Kennedy) or maybe even 6-3 (with Roberts—not completely impossible) in favor of gay marriage, because the law is clear, and because the Court isn’t going to tell many thousands of married couples in 30 states that they’re suddenly not married. Judicial activism? No. Just the right thing. The judicial activists will be those, led by their godhead Scalia, who will try to invent new ways to march backwards while pretending that they themselves aren’t trying to dictate morality from the bench. And the charge of judicial activism, which hurt liberalism because it resonated with a resentment that millions of average Americans felt, will lose its sting soon enough.
By: Michael Tomasky, The Daily Beast, October 7, 2014
“A Bomb In The Middle Of The Presidential Campaign”: How Gay Marriage Could Cause The GOP Major Headaches In 2016
After yesterday’s dramatic ruling from the Supreme Court effectively legalizing same-sex marriage in 11 more states (that now makes 30, plus DC), you would have thought conservatives would be expressing their outrage to anyone who would listen. But their reaction was remarkably muted. “None of the top House GOP leaders (Speaker John Boehner or Majority Leader Kevin McCarthy) issued statements. Ditto the RNC,” reported NBC News. “And most strikingly, we didn’t hear a peep about the Supreme Court’s (non)-decision on the 2014 campaign trail, including in the red-state battlegrounds.” The only one who issued a thundering denunciation was Ted Cruz.
Even though the GOP’s discomfort with this issue has been evident for a while, with the unofficial start of the 2016 presidential campaign just a month away (after the midterm elections are done), the issue of marriage equality is going to become positively excruciating for them. Many people saw the Court’s denial of cert in the five cases they confronted yesterday as a prelude to the case they’ll eventually take, the one that will probably strike down all the state bans on same-sex marriage and make marriage equality the law of the land. That could happen in the Court’s current term, which runs from now until next summer. But it’s even more likely that it would come in their next term, the one going between October 2015 and the summer of 2016. If that happened, it would land like a bomb in the middle of the presidential campaign.
In a certain way, the GOP’s current dilemma is reminiscent of where Democratic presidential candidates were during the 2004 race, when the marriage issue burst into national attention after the Massachusetts Supreme Court declared in November 2003 that the state had to allow gay people to marry. Most of the candidates were unsure of what their position was or should be, trapped between the primary and general electorates. Howard Dean had been considered by many a wild-eyed liberal in no small part because as governor of Vermont he had signed a civil unions bill, even though he opposed full marriage rights. Before long, most of the Democrats running settled on that as their position too — civil unions yes, marriage no (the exceptions were Dennis Kucinich, Al Sharpton, and Carol Moseley Braun, all of whom supported marriage equality). None of them seemed to want to talk about it, and they were pulled one way by the general electorate, and another by the principle involved, and a party base that was moving to the left.
There’s a different quandary for today’s Republican presidential contenders. You have a general electorate supporting change, and a Republican base committed to the rapidly eroding status quo. And consider that the first three Republican contests are in Iowa, relatively moderate New Hampshire, and extremely conservative South Carolina, which happens to be one of the states affected by yesterday’s ruling. Ed Kilgore suggests that Iowa in particular is going to pose a challenge:
But the Iowa problem is real for Republicans: it became, because of a relatively early state judicial ruling allowing same-sex marriage, Ground Zero for conservative resistance to marriage equality. As recently as two years ago, I attended an Iowa political event, along with four or five former (and possibly future) presidential candidates, that was heavily focused on removing the judges responsible. I don’t think the majordomo of that event, Bob Vander Plaats (often called a “kingmaker” thanks to his timely support for the last two Iowa Caucus winners), is about to cave anytime soon. And so long as there is an opportunist or two in the presidential field who’s frantic for right-wing support (I’m looking at you, Bobby Jindal!), the odds of this issue being “off the table” in Iowa are very low.
Ed’s last point is critical. If all the candidates had a tacit agreement not to make too much of it, the issue might not be that big a deal. But all it takes is one who won’t go along to force all the other candidates to talk about it. And we already know that Ted Cruz, who will be bidding to be the choice of social conservatives, isn’t going to let it go.
Now put that in the context of the long-running conflict within the GOP between the Tea Party base and the more practical-minded establishment. When the party bigwigs are saying, “We really need to talk about something else,” the base is going to conclude that they are once again being betrayed by a bunch of elite Washington Republicans who are perfectly happy consorting with the sodomites who inhabit their metropolis of depravity.
Which, to a certain degree, is true. Many of those elite Washington Republicans may still write columns in support of “traditional marriage,” but they also regularly interact with gay people. They’ll come around before long, which will only make the base angrier.
The 2016 Republican primary was already shaping up to be a hugely entertaining bloodbath. This only makes it more exciting.
By: Paul Waldman, Contributing Editor, The American Prospect, October 7, 2014
“Joni Ernst Loves The Constitution, But..”: Republican Senate Candidate Advocates Revolt Against U.S. Government
The Iowa Senate race is one of the closest in the nation, and what it seems to have come down to is the following two questions: Number 1, did Bruce Braley act like a jerk when he and his neighbor had a dispute over the fact that the neighbor’s chickens were crapping on Braley’s lawn? And number 2, is Joni Ernst a radical extremist?
You can argue that only one of these questions has anything to do with what Iowa’s next senator will be doing in office, and you’d be right. But the latest bit of information on Ernst is, if you actually understand the issue, quite a doozy:
State Sen. Joni Ernst, the Republican nominee for U.S. Senate in Iowa, once said she would support legislation that would allow “local law enforcement to arrest federal officials attempting to implement” Obamacare.
Ernst voiced her support for that, as well as supporting legislation that would “nullify” Obamacare in a Iowa State Legislative Candidates survey for Ron Paul’s libertarian-aligned Campaign for Liberty in 2012. It can be viewed here.
The question was: “Will you support legislation to nullify ObamaCare and authorize state and local law enforcement to arrest federal officials attempting to implement the unconstitutional health care scheme known as ObamaCare?” Ernst answered that question as “yes.”
The “My opponent agreed to something crazy in a questionnaire” is its own genre of outrage, and seldom an enlightening one. It’s possible that a staffer filled this out, and it didn’t reflect Ernst’s actual views. If that’s the case, she should have the opportunity to clarify what she really thinks, and if this questionnaire doesn’t reflect her beliefs, then she needn’t necessarily be blamed for it.
But if this does reflect her views, then she’s not just a radical on the substance of issues (which she certainly is), but she’s a procedural radical as well. You can put words like “liberty” in the name of your organization all you want, but what Ernst was agreeing to here isn’t liberty, it’s insurrection against the Constitution of the United States.
States do not have the right to nullify federal laws they don’t like. The Supremacy Clause of the Constitution makes that absolutely clear. And the idea that local cops should be arresting federal officials who implement duly passed federal laws isn’t just some colorful conservatism, it’s positively insane. If you believe that, you forfeit your right to say you love the Constitution, and you worship the Framers, and all the other things people like Ernst so often claim.
Like I said, maybe these aren’t Ernst’s actual views, and if they aren’t, then that’s fine. But she damn sure ought to say whether they are.
By: Paul Waldman, Contributing Editor, The American Prospect, October 3, 2014
“Not A Pretty Picture”: The Trouble With Republican Reinvention
The political landscape is replete with hope that the GOP will find a way to reinvent itself as a more inclusive and more reality-based organization in the future. The Washington Post carried another such piece today. All it’s a question of, say the optimists, is a few tweaks, some rebranding and a minor dose of reconciliation.
We haven’t seen the beginnings of that at a national level because, well, national Republicans still feel pretty good about themselves. They’ve got control of the House, they may well gain control of the Senate, and they look with relish at President Obama’s approval ratings.
But shouldn’t we be starting to see signs of the reinvention where the GOP is facing its toughest challenges? We should. But it’s not pretty:
The gathering opened on a sour note Friday, when the evening’s keynote speaker, state controller candidate Ashley Swearengin, told reporters she was still mulling whether to vote for Kashkari or Brown. “I’m looking at the two candidates like other Californians are,” she said. And Pete Peterson, the Republican running for secretary of state, said in an interview that he was not endorsing Kashkari — or anyone else on the statewide ballot — and did not plan to vote a straight party ticket.
The extraordinary display of disunity led Ron Nehring, a former state Republican chairman and underdog candidate for lieutenant governor, to vent his fury in a profanity-tinged email to party brass just before midnight Friday, after news organizations began reporting the dust-up.
Kashkari is an economic royalist who hasn’t strayed far off the GOP ranch when it comes to supply-side economics, tax cuts for the rich, and the rest of the Republican financial tapestry. But he does preach a more inclusive social message. And for that if nothing else, rank-and-file conservatives are avoiding him like the plague.
A moderate social message is essential for Republican rebirth in California. A more moderate economic one is, too, but Republicans won’t even be able to get a foot in the door without a change on issues like gay marriage and immigration. It would seem that rebranding should be easy on the west coast.
But they can’t even manage it there. How will they ever manage it in Iowa?
By: David Atkins, Washington Monthly Political Animal, September 21, 2014
“An Onion Of Crazy”: Republicans Have A Joni Ernst Problem
Throughout the 2014 campaign season, the Iowa Senate seat held by retiring Democrat Tom Harkin has emerged as a surprisingly strong pickup opportunity for the Republican Party. President Barack Obama is wildly unpopular in Iowa, and Democratic nominee Bruce Braley has struggled to gain traction throughout the race (over the past five months, he’s seen a 10-point lead evaporate). But Republicans have a problem: their own nominee, state senator Joni Ernst.
Ernst has been an unconventional candidate from the beginning, but recently her curiosities have developed from quirky to extreme. In May, Ernst claimed that Iraq did, in fact, have weapons of mass destruction when the U.S. invaded. In June, video emerged of her vowing to stop Agenda 21, a non-binding UN resolution that she erroneously sees as a nefarious plot to outlaw property ownership. In July, she struggled to explain her flip-flop on whether President Obama “has become a dictator” who needs to be removed from office. Later that month, it was reported that Ernst believes that states can nullify federal laws they dislike.
Now another of her far-right positions is drawing widespread attention. In a Monday interview with the Globe Gazette, Ernst called for completely eliminating the federal minimum wage.
“The minimum wage is a safety net. For the federal government to set the minimum wage for all 50 states is ridiculous,” she said.
“The standard of living in Iowa is different than it is in New York or California or Texas,” she added. “One size does not fit all.”
Ernst’s comments represent a fundamental misunderstanding of how the minimum wage works. It is not “one size.” Although the federal government guarantees that the minimum wage cannot dip below $7.25 per hour, states can set their own rates (and they do — for example, New York’s is $8, and California’s is $9).
This is not the first time that Ernst has spoken out against the minimum wage; sensing opportunity, the Democratic Senatorial Campaign Committee has compiled an extensive list of her statements that government should have no role in the issue.
But Iowa voters seem unlikely to give her credit for consistency. In terms of both policy and politics, Ernst’s position is far out of line with her own state.
Iowa, which currently has a $7.25-per-hour minimum wage, would benefit greatly from the bill proposed by Senator Harkin and Rep. George Miller (D-CA) to gradually raise the federal minimum to $10.10. According to an Economic Policy Institute analysis, a $10.10 minimum wage would increase wages for 306,000 workers in Iowa — more than one-fifth of the workforce — and generate $272,483,000 of economic activity. Eliminating it altogether? Not so much.
Polls have consistenly shown that Iowans side with Braley, who favors an increase to $10.10, over Ernst in this case. So it’s no surprise that Braley has been using the issue to go after the Republican nominee.
The minimum wage attacks are just one part of Democrats’ broader campaign to paint Ernst as too far on the fringe for Iowa (or “an onion of crazy,” as Democratic National Committee chairwoman Debbie Wasserman Schultz recently put it). They have also targeted her as out of touch on Medicare and Social Security.
If Democrats can’t make Iowans fall in love with Bruce Braley by November, it appears that they will try to do the next best thing: Make them view Ernst as extreme to the point of unelectability. And nobody is helping them make that case more than Ernst herself.
By: Henry Decker, The National Memo, August 26, 2014
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