“Chuck Grassley’s Pretext”: Why The GOP Is So Obsessed With Three Little Judges
It’s beginning to feel a bit like 1937 in Washington this week as the White House and Senate Republicans hurl allegations of “court-packing” up and down Pennsylvania Avenue at one another. The what — Republican obstruction of Obama’s nominees to fill three vacant seats on the powerful D.C. Circuit Court of Appeals — has been widely and well covered elsewhere. What bears further explanation is the why. It goes without saying that the GOP has an interest in blocking Obama’s nominees in general; the fewer judges the president appoints, the less liberal the courts overall. But why do they care so much about these three particular nominees — who haven’t even been named yet — that they’re willing to risk triggering a “nuclear war” on filibuster reform while also trying to change the basic makeup of the court.
First, there’s the numbers. Right now, Republican appointees have an effective 9-5 majority on the D.C. Court. There are only 11 “active” seats, but another six judges serve as a sort of auxiliary corps in a semi-retirement status where they participate in cases as needed. With three vacancies on the active bench, these “senior” judges are needed often. Of all the judges, three were appointed by George W. Bush, two by George H.W. Bush, and four by Ronald Reagan, compared to just three by Bill Clinton, and one by Jimmy Carter. Until last week, when the Senate finally confirmed Sri Srinivasan, Obama had made zero successful appointments in over four years, despite the vacancies, thanks to GOP obstruction.
“That’s what this is about. It’s that the court is already packed in favor of Republican judges,” Judith Schaeffer, the vice president of the Constitutional Accountability Center, told Salon.
Second, the stakes couldn’t be higher. With near-exclusive purview over federal government action, the D.C. Circuit will be a critical battleground in legal challenges against everything from the Affordable Care Act to new EPA regulations to curb greenhouse gas emissions, not to mention labor policy, gun safety regulations, Wall Street reform, national security issues, campaign finance, voting rights, and much more. With Congress deadlocked, executive action has become an increasingly important tool for the Obama White House, and the D.C. Circuit is where people trying to stop those reforms will mount their fights. Already, the Republican majority on the court has rolled back a major EPA air pollution rule, curbed Obama’s recess appointment powers and hamstrung the National Labor Relations Board.
Outside of the House of Representatives, the court is one of the most important roadblocks to Obama’s agenda. Obviously, Republicans would like to keep it that way.
But now, the White House is reportedly planning to push through three nominations simultaneously in an effort to overcome GOP filibusters. Republicans have filibustered plenty of nominees, but they pounced on this plan with unusual vigor and a unified message. Sen. Chuck Grassley, the Judiciary Committee’s top Republican, called this scheme “court packing.” Senate Minority Leader Mitch McConnell said the White House is trying “to pack the D.C. Circuit with appointees.” Utah Sen. Mike Lee, a constitutional lawyer hailed by conservatives for his legal smarts, also invoked the term.
It’s a little disturbing to think that three of the Senate’s top Republicans on judicial matters have no idea what court packing is, but that’s what we’re lead to believe if we assume they’re being honest in their charges. FDR tried to “pack” the Supreme Court in 1937 by dramatically expanding its size, so he could appoint more justices who agreed with him. Court packing involves trying to change the rules of the game in your favor. Obama is following the rules set forth by the Constitution and Congress by aiming to fill three already vacant seats. To accuse Obama of court packing is plainly ridiculous.
Now, wouldn’t it be ironic if Grassley and his colleagues were in fact the ones who wanted to change the rules of the game? As it turns out, they do. Grassley wants to eliminate the three vacant seats from the court entirely, thus cementing the current Republican majority indefinitely. This is the plan that has led the White House to turn the “court packing” allegation back on Republicans, as White House senior adviser Dan Pfeiffer did in a blog post today. “[O]n the merits, Senator Grassley’s ‘court unpacking proposal’ fails to make any sense,” the Obama aide wrote.
Grassley’s argument — or pretext, depending on where you sit on the political spectrum — is that the D.C. Circuit is underworked, because it sees fewer cases per judge than other appellate courts. Eliminating each judgeship would save $1 million per judge per year. Million with an “m” — a pretty puny amount of money when it comes to government.
Critics, meanwhile, see Grassley’s plan as little more “pure partisan hypocrisy,” as Schaeffer said, predicated on an erroneous assumption about the court’s workload. Currently, the D.C. Circuit has 120 pending cases per authorized judgeship, which Grassley says is too few. But under George W. Bush, Grassley voted to confirm two judges when the court had just 109 cases per judge.
And everyone agrees the cases the D.C. Circuit deals with are far more complicated than those seen on other circuits, so you can’t really compare the numbers. “There is cause for extreme concern that Congress is systematically denying the court the human resources it needs to carry out its weighty mandates,” wrote Pat Wald, who was the chief judge on the D.C. Court of Appeals, in the Washington Post.
You don’t have to be a federal courts scholar to see the stakes here, or the politics at play, but they’re probably hoping only scholars will pay attention.
By: Alex Seitz-Wald, Salon, May 30, 2013
“Fitful Fabrications: Watergate Amnesia, The ‘Nixonian’ Slur, And Other Big Lies
Let’s state this very simply, so everybody will understand. The notion that Barack Obama is “Nixonian” — or that his administration’s recent troubles bear any resemblance to “Watergate” — is the biggest media lie since the phony “Whitewater scandal” crested during the Clinton presidency.
Fraudulent as it is, we have listened repeatedly to versions of this bogus comparison uttered by figures as diverse as former Fox News commentator Dick Morris and Bob Woodward of the Washington Post, alongside a phalanx of Republican politicians, including Senator Lindsey Graham (R-SC) and Senate Majority Leader Mitch McConnell (R-KY) – whose latest attack ad directly links Obama with Nixon.
Only in a country afflicted with chronic historical amnesia could they issue such accusations without shame or embarrassment. Only under those circumstances could the Republicans continue their fitful fabrication of a “Democratic Watergate” without fear of being laughed off the stage. It is a project that they will never grow tired of pursuing.
Coming from figures such as former White House political boss Karl Rove and Fox News chief Roger Ailes — both of whom worked for Nixon and defended him with vigor — the hypocrisy is stunning. They can only say words like “Watergate” or “Nixonian” because most Americans have forgotten who they really are behind the respectable masks – or never knew.
The last time we heard Obama mentioned in the same breath as Watergate was in 2009, when Rep. Darrell Issa (R-CA) – the same Issa who has labored for months to pump air into the Benghazi “scandal” – decided that a job offered to a potential political candidate had erupted into a Constitutional crisis. Is it necessary to note that nothing of consequence ever emerged from Issa’s investigation back then? Yet somehow, he maintains credibility with the Washington media.
So does Graham, who slandered Susan Rice over the Benghazi talking points, which he deemed “worse than Watergate” – an assertion since proved entirely wrong, irresponsible, and vicious. Nevertheless Graham is treated as someone worthy of airtime and quotation, rather than a discredited blowhard.
But certain liberals in the media have fretted loudly over Obama’s “scandals,” too. Is it reasonable to compare the Benghazi incident, the vetting of abused tax exemptions by the IRS, or the Justice Department’s leak investigations with the Watergate crisis? Or is it all just trumped-up hysteria? To answer those questions, it helps to remember what Nixon and his gang actually did to America – and why they were driven out of Washington and, in many cases, sent to prison.
In these circumstances, a quick history lesson seems vital. For those who have forgottten or don’t know, Watergate is the name of an apartment complex near the Potomac River in northwest Washington, D.C., where then-President Nixon’s henchmen staged a “third-rate burglary” of the Democratic National Committee headquarters on a June night in 1972.
But Watergate came to stand for a vast agglomeration of gangster conspiracies based in the Nixon White House but spanning the nation. Watergate was a series of burglaries, warrantless domestic wiretaps, illegal spying, campaign dirty tricks, election tampering, money laundering, and assorted thuggish schemes conceived by a large and lawless gang whose leaders included G. Gordon Liddy and the late E. Howard Hunt.
And Watergate grew into a cover-up of those initial felonies with still more felonies, committed by lawyers and bureaucrats who collected cash payoffs from major corporations and then handed out hush money and secret campaign slush funds.
Eventually, Watergate implicated scores of perpetrators, from the right-wing Cuban footsoldiers all the way up to the president, his closest advisors, and his crooked stooges at the highest levels of the Justice Department, the FBI, and the CIA.
Again then, in what sense is the Benghazi tragedy – thoroughly investigated by an independent board, as provided by law – akin to Watergate? How is the IRS effort to vet the tax exemptions of Tea Party groups, which were violating their status brazenly, similar to Nixon’s criminal abuse of the agency to punish his enemies with audits? What makes the Justice Department probe of national security leaks, conducted with valid subpoenas, resemble the secret Nixon White House war against “enemies” in the press, which went so far as trumped-up FCC license challenges and even threats of violence against the Washington Post?
The answers are fairly obvious: None. Not at all. Nothing whatsoever.
And so far as we know, Attorney General Eric Holder hasn’t rung up any Fox News reporter drunkenly at midnight to warn that Roger Ailes is “going to get his tit caught in a big, fat wringer.” But if and when that ever happens, the chance to roll out the Watergate clichés will arrive at last — starting with “Nixonian.”
By: Joe Conason, The National Memo, May 30, 2013
“Can Dish It Out, But Can’t Take It”: The Republican Delusion, Free Speech Includes The Right To Be Free From Criticism
The GOP is a “party of crybabies.” Or so says Jonathan Bernstein in yesterday’s Salon, reprieving one of my biggest pet peeves, which is the presumption by conservatives that freedom of speech entails freedom from criticism for one’s opinions – no matter how absurd or obscene those opinions might be.
The reason this matters is that one important measure of the health of a democracy is the quality of its public discourse and debate. Politics, after all, is the process by which unlike groups sort out their differences.
“I’m Okay, You’re Okay” sounds harmless enough. But inside the velvet glove of the right wing’s democratic-sounding assertion that we are all entitled to our own opinions and that all opinions should therefore be equally tolerated and respected is the iron fist of an authoritarian mindset that presumes when one group – typically theirs – seeks to demean or marginalize some other group there is not a damn thing the rest of us can do about it but grin and bear it.
On the contrary, the entire justification for freedom of speech in a liberal democracy, and why it is one of our cardinal political values – enshrined in the very First Amendment of our Constitution — is that free speech provides the foundation for open and robust debate, for a marketplace of ideas, for the sifting process of political give-and-take that sorts the wheat of what is true from the chaff of what is false.
Debate defines the mental habits and values — the character — at the core of what Walter Lippmann called the “traditions of civility” which separate Western democratic political institutions from all others that have existed throughout history.
Yet, we know that right wing conservatives do not believe in free and open debate or subscribe to Lippmann’s traditions of civility, or at the end of the day believe in free speech at all for any but themselves and likeminded true believers, because of their hysterical reaction to requirements like the long-dead Fairness Doctrine that do nothing more than guarantee opposing ideas equal time.
What right wing conservatives want in the end, says Bernstein, is not the freedom to speak and compete as participants in a democracy but the freedom to monopolize the means of communication, to proselytize without interruption, to propagandize without rebuttal, to transmit whatever angry, hateful, insulting and offensively anti-social messages they choose without censure.
In this way, conservatives hope the larger society will eventually conform, by a process of relentless repetition and attrition, to their reactionary notions of what a proper society ought to look like.
And so, says Bernstein, “it’s time to call out” Republicans for their belief that “democracy” means giving them “the supposed right to be free from criticism.”
Such “epistemic closure” might be popular inside the “faith-based community’s” closed-information loop, he says, “but it’s a nasty idea that sorts exceptionally badly with democratic politics.”
Thus, to right wing conservatives, it was far less offensive for immigration “expert” Jason Richwine of the Heritage Foundation to call blacks and Hispanics mentally deficient than it was for Richwine’s critics to call him a “racist.”
The mainstreaming of extremism begins with the absurd — and very unconservative assumption — that in some way all ideas are created equal, or that standards do not exist for identifying and ostracizing wrong or deeply offensive ones.
Thus, we are logically led to a conviction popular with conservatives these days that “the accusation of racism is one of the worst things that anyone can call you in public life,” as Richwine himself pleads, for “once that word is out there, it’s very difficult to recover from it, even when it is completely untrue.”
Yet, someone with more imagination than Richwine might imagine even worse things to be called than “racist,” counters Bernstein. “For example, someone could be called a member of an intellectually inferior race, genetically doomed to always be looking up to those races that have superior intelligence. But pointing that out would no doubt violate Richwine’s standards of civilized political discourse.”
The same goes for Christian fundamentalists. With them, calling homosexuality a crime against nature and a sin against God barely registers on their Outrage-o-Meter. What really stings is to call these anti-gay holy-rollers “bigots.” Indeed, it’s the liberal critics of religious anti-gay critics who are the real bigots, according to these right wing fundamentalists, because it’s liberals who are persecuting the devout for offenses no more sinful than defending their Judeo-Christian traditional family values.
Similarly, notes Bernstein, the Republican response to the Democratic rhetoric of a “war on women” wasn’t so much that the substance of Democratic charges was wrong, since Republicans made no effort to offer a point-by-point substantive rebuttal. It was, rather, as one Republican Congressman put it, that the criticism of conservatives itself was “repugnant.”
No wonder the perpetually put-upon Peggy Noonan is always shaking her well-coiffed head and sighing her by now-famous sigh and asking why do President Obama and the Democrats always seem to be picking so many disagreeable fights?
Even more telling, says Bernstein, was Mitch McConnell’s “epic” op-ed in the Washington Post this week, in which McConnell claimed the First Amendment was imperiled by the Obama campaign’s “explicit attacks on groups and other private citizens” in 2012.
How so? Because the Obama campaign published opposition research on big Mitt Romney donors on its website, says Bernstein. There were no claims from Republicans that the information on the website was false. One Romney big-money donor singled out did in fact pour millions of dollars into anti-gay rights crusades. Neither were their claims that criticism of Republicans was linked in any way to their harassment at the hands of federal agencies in the same way Richard Nixon once ordered the IRS to target those on his “enemies list.”
No, for McConnell, the truly offensive thing about Democratic criticism was that it occurred at all.
For McConnell, such criticism is all part of “the left-wing playbook: Expose your opponents to public view, release the liberal thugs and hope the public pressure or unwanted attention scares them from supporting causes you oppose.”
What McConnell objects to, in short, is the possibility that billionaire businessmen who bankroll Republicans or other far right causes might face retaliation from their customers exercising their own First Amendment rights of free speech and free assembly to organize boycotts of right wing businessmen whose politics or causes they oppose.
That’s what McConnell cannot abide: The idea that the plutocrats he supports — the upper crust, the ruling class, the New American Oligarchy — might in any way be inconvenienced or held accountable through the normal channels of democratic give-and-take for their exercise of political power.
McConnell and fellow plutocrats like Mitt Romney think members of their class ought to be able to pull strings anonymously, surreptitiously, “quietly behind closed doors,” without the public being any the wiser or able to retaliate in any way.
“The First Amendment was written to protect speech that was not popular,” said McConnell, cynically twisting the meaning of one of America’s fundamental democratic rights to suit his own self-serving purpose, which is to revive a new Gilded Age Plutocracy. “The American people need to remain vigilant against any effort by the powerful to stifle speech.”
That means, as Bernstein points out, keeping speech as anonymous and immune from criticism as possible.
That idea is not only “nuts,” says Bernstein, it is also “deeply anti-democratic.” We should all be careful in democratic politics to avoid questioning other people’s motives, he says. But there is nothing wrong with taking note of whose interests are being served in politics or questioning who benefits from a particular policy.
“Indeed, there’s nothing wrong with the press using those donors as a shorthand way of informing citizens which interests are represented by the various candidates, or for those candidates to make a point of which interests finance their opponents,” he says.
Recent liberal complaints about conservative criticisms have been limited to legitimate concerns about their accuracy, as in the phony idea that 47% of the population is a parasitic class of “takers” who pay no taxes. Liberal complaints of conservative behavior have also focused on their decency, as when Sandra Fluke was slandered as a “slut” for offending right wing talk radio fat man Rush Limbaugh when she testified publicly for birth control benefits under the Affordable Care Act.
Free speech and democracy are inextricably linked, says Bernstein, and so “the Republican delusion” that free speech includes the right to be free from criticism is, therefore, “quite destructive.”
It’s destructive because right wing conservatives think they have the latitude to attack ethnic groups without the risk of being called out for their racist comments, says Bernstein, or to dominate campaigns financially without the risk anyone will notice who really runs the country.
Democracy and secrecy – or silence — don’t mix. But that is what Republicans think they are entitled to under their contorted definition of what “democracy” entails.
It’s long been said that if ever government of, by and for the people were to perish from this earth, it is likely to be done in from within – by those who had grown weary of its disciplines of liberality, disinterestedness and broad-mindedness or found that popular government did not serve their selfish, parochial interests.
That’s why this debate over free speech matters, and why it’s important we understand its meaning. With their dangerous assertion that criticism of conservative ideas imposes an intolerable contraction of their First Amendment rights, political reactionaries like Mitch McConnell have once again unfurled a rich liberal tapestry of individual freedoms, liberties and democratic rights as a cloak for autocracy and authoritarianism.
By: Ted Frier, Open Salon Blog, May 26, 2013
“Mitch McConnell Has Your Back”: Conservative Billionaires Oppressed By Liberal Thugs
Fear not, billionaire super PAC and 501(c)(4) funders. You may feel oppressed, you may fear the pitchforks and torches of the unwashed masses gathering at the gate of your manse, you may wake in the night in a cold sweat and bellow to your footman, “Dare I give Paul Ryan $10 million for his 2016 presidential race, lest some bearded plebian pen a vicious blog post aimed at my very heart?” If nothing else, Mitch McConnell has your back.
Today, McConnell takes to the pages of The Washington Post to defend the right of America’s millionaires and billionaires to pour their funds into campaigns while remaining anonymous. Those with long memories may recall that when the McCain-Feingold campaign finance law was being debated, McConnell and others said that the answer to the problem of money and politics was disclosure: Let the wealthy give as much as they want, but disclose contributions quickly, and with everything out in the open we could forestall the possibility of corruption. But with McCain-Feingold safely struck down and Citizens United inaugurating a new dawn of American liberty, disclosure is now McConnell’s enemy:
These tactics are straight out of the left-wing playbook: Expose your opponents to public view, release the liberal thugs and hope the public pressure or unwanted attention scares them from supporting causes you oppose. This is what the administration has done through federal agencies such as the FCC and the FEC, and it’s what proponents of the Disclose Act plan to do with donor and member lists.
The fearsome “liberal thugs” notwithstanding, this gets to the heart of democracy’s messiness. You can have a political system where everyone is unfailingly polite to each other, or you can have a system where people are free to express their views, but you can’t have both. By choosing to have a democracy, we make a series of bargains. We enshrine freedom of religion, even though we know that means people who believe in idiotic faiths (i.e. those different from our own) will be able to practice them, too. We create a system of due process, even though that means guilty people, even monstrous people, will be given fair trials with at least the possibility of getting off. And we defend freedom of speech, knowing that that means we’ll have to tolerate the voicing of abhorrent ideas, not to mention Two and a Half Men and the career of will.i.am.
And if our election rules will allow the Sheldon Adelsons of the world to put millions behind their favorite candidate—something which, by the way, residents of most of the world’s democracies find beyond absurd—it isn’t too much to ask that if you choose to use your enormous wealth to attempt to shift the outcome of elections, if nothing else the public should know who you are. That way we’ll know whom our elected officials are indebted to. And yes, there is a price to pay for that participation: people might say you’re wrong, or even call you a jerk. Money is speech, you say? Well freedom of speech means the right to say whatever you want, not the right to be immune from criticism. It’s amazing how often conservatives can’t see the difference.
By: Paul Waldman, Contributing Editor, The American Prospect, May 23, 2013
“Can The President Create A ‘Culture’?”: What Matters Isn’t About Culture, It’s People And Politics
As you may have noticed, the biggest problem with the IRS scandal (from the perspective of Republicans) is that it remains stubbornly removed from the President himself. It’s all well and good to get a couple of scalps from mid-level managers, but for it to be a real presidential scandal you need to implicate the guy in the Oval Office in the wrongdoing. Confronted with Obama’s non-involvement, conservatives have turned to vague and airy accusations about the “culture” Obama has created. Mitch McConnell, for instance, is warning darkly that Obama may be not too far removed from Tony Soprano: “I think what we know for sure is that there is a culture of intimidation across this administration—the president demonizing his enemies, attempting to shut people up. There is certainly a culture of intimidation.”
The idea that Barack Obama—whom Republicans regularly accuse of being a foreign-born anti-American socialist communist marxist who is slowly carrying out a plan to destroy America—is the one “demonizing” his opponents is pretty laughable. But the nice thing about the “culture” argument is that to make it, you don’t have to point to any particular thing any particular person has done. It’s just a culture, out there in the ether.
Conservatives are also alleging that the IRS employees who gave extra scrutiny to 501(c)(4) applications of Tea Party groups were in fact acting on Obama’s instructions. It was just that the instructions came in the form of him going out on the campaign trail and lamenting the Citizens United decision and the way it opened the door for all kinds of “dark money” to be injected into campaigns. Once again, it’s a way of ascribing guilt without having any evidence of guilt, but the problem is, it fails from both ends. Lots of people, even many Republicans, joined Obama in lamenting the rise of the new super PACs and 501(c)(4)s. It was an issue when Republicans were using them against each other in the 2012 presidential primaries. And if the IRS employees were trying to help Obama, they were going about it all wrong. As Ed Kilgore says, “The ultimate howler here is that we are supposed to believe that IRS bureaucrats, in obedience to the “dog whistle” of the president’s demonization of conservative groups’ involvement in the 2012 presidential campaign, chose to ignore the groups that were involved in the campaign in a significant way, and instead go after small fry Tea Party organizations.”
But can a president create a “culture” within the government that has consequences for the behavior of bureaucrats down the line, even to the point of sanctioning wrongdoing? The easy answer is, well, sure. Every boss creates an atmosphere that can affect the behavior of the people who work for her. But when you get beyond the people who work in the president’s immediate orbit, what matters isn’t culture, it’s people and policies. For instance, the Bush administration didn’t torture prisoners because Dick Cheney went on Meet the Press and said that to fight terrorism we’d have to go to “the dark side, if you will,” and then folks just got the message and started waterboarding prisoners. It happened because the administration made torture its official policy, and had in place the personnel who were eager to do it.
The United States government is a gigantic entity; even excluding uniformed military, there are 2.7 million federal employees spread around the country. No one, not even the president, can with a few words on the campaign trail create a “culture” that allows misbehavior to happen. I realize that many conservatives believe that Obama and anyone who would ever consider working for him are so corrupt that their immorality must naturally spread through the government like the hantavirus. But that’s not how it works.
By: Paul Waldman, Contributing Editor, The American Prospect, May 22, 2013
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