“Conservatives Are Right To Be Frightened”: Don’t Believe The Hype: Here’s What A Liberal Supreme Court Would Actually Do
If you look at how the Democratic and Republican candidates for president have reacted to the Supreme Court vacancy created by the death of Antonin Scalia, you might notice a greater sense of urgency from the Republicans. The Democrats are certainly talking about it, and they’ve certainly expressed their contempt at the absurd arguments Republicans are making in support of their position that the president of the United States shouldn’t be allowed to appoint Supreme Court justices if a new president will take office in a year. But they aren’t spinning out nightmare scenarios about what will happen if they lose this conflict. The Republicans, on the other hand, seem much more worried.
And they’re right to be, because at the moment, they have more to lose. But what would actually happen if the balance on the Court shifts from 5-4 in favor of conservatives (what it was before Scalia’s death) to 5-4 in favor of liberals?
To hear Republicans tell it, the results would be positively apocalyptic. Here’s how Ted Cruz described it in a CNN town hall last night:
“We are one liberal justice away from the Supreme Court striking down every restriction on abortion that’s been put in place the last 40 years. We are one liberal justice away from the Supreme Court writing the Second Amendment out of the Constitution. We are one liberal justice away from the Supreme Court ordering Ten Commandments monuments to be torn down, ordering veterans memorials to be torn down, and undermining our fundamental religious liberty.”
This is almost verbatim what Cruz has been saying since Scalia died; on Meet the Press last Sunday, he added colorfully that a liberal majority would mean “the crosses and Stars of David sandblasted off of the tombstones of our fallen veterans.”
There’s no doubt that if and when a new liberal justice takes his or her seat on the Court — either because Obama’s nominee somehow gets confirmed or because Hillary Clinton or Bernie Sanders wins the election and appoints one — it will be the most significant shift in the Court’s balance in decades. And that’s in large part because the right has gotten so much of what it wanted out of this Supreme Court. While conservatives shake their fists at the Court and call John Roberts a traitor, the truth is that with just a few exceptions, most notably the legalizing of same-sex marriage and the upholding of (most of) the Affordable Care Act, the Roberts Court has delivered the right a spectacular string of victories over the last few years. Among other things, they found an individual right to own guns for the first time in history, knocked down limits on spending by corporations (and unions) on political campaigns, whittled away at affirmative action, gutted the Voting Rights Act, made it harder for employees to sue for sex discrimination, and declared that corporations have religious rights.
Nevertheless, according to the Pew Research Center, in 2008, 80 percent of Republicans had a favorable view of the Supreme Court. By 2015 that figure had fallen to 33 percent. And 68 percent of conservative Republicans described the Court as “liberal,” which is laughable by any standard one could devise.
So what happens now? Margo Schlanger compiled this list of major rulings where Scalia was in a 5-4 majority, all of which could in theory be overturned, from Citizens United to D.C. v. Heller (which established the individual right to own guns) to Shelby County v. Holder (which invalidated key parts of the Voting Rights Act). But that doesn’t mean a liberal majority would go on a rampage, overturning all those settled cases.
“The Supreme Court is a conservative institution as a whole; justices aren’t looking to overturn the apple cart,” Jill Dash of the liberal American Constitution Society told me this morning. She argued that it’s unlikely that a liberal majority would set about to repeal those high-profile decisions, particularly within the first few years of that majority.
Samuel Bagenstos, a professor at the University of Michigan law school who served in the Justice Department under President Obama, also doubts that there would be too many major decisions overturned. “The four more liberal justices currently on the Court take precedent and stare decisis seriously, and I don’t think that will change,” he said.
But there would be change in complex areas of law where the courts are still working through how previous decisions apply to varied situations. Affirmative action is one “where the Court would be much more likely to uphold programs designed to promote diversity in schools and the workplace,” Bagenstos says. He also points to employment law as an area where a liberal majority could chart a new path, in cases concerning arbitration clauses in contracts and what constitutes systemic discrimination. Dash notes that a liberal majority would probably produce a spate of voting rights cases, as challenges to restrictions imposed by Republican state legislatures would find a friendlier hearing, even if Shelby County isn’t entirely overturned.
And then there’s abortion, always at the top of everyone’s mind when the Supreme Court comes up. In recent years, conservative states have pushed the envelope farther and farther in restricting the availability of abortion, with onerous rules on abortion clinics and invasive mandates on the women seeking the procedure. The question is which of these measures violate the Court’s 1992 ruling in Planned Parenthood v. Casey, which stated that the government can’t impose an “undue burden” on a woman’s right to choose.
The conservative position to this point has been that virtually no burden is “undue.” If the state makes you drive hundreds of miles, wait for days, make multiple visits to a clinic, hear an oration of lies penned by some GOP state legislator about how getting an abortion might give you cancer and drive you mad, so far the Supreme Court has said it’s just what women should have to tolerate.
But that might no longer be true. “A liberal who replaced Justice Scalia would likely read the Casey ‘undue burden’ standard as imposing a much more significant limitation on the regulation of abortion than the Court has in recent years,” says Bagenstos, “so you could see a major practical shift in reproductive rights jurisprudence. I don’t think the Court would overrule any precedent, though. It would just find a wider range of burdens to be ‘undue.’”
In short, a liberal replacing Scalia would be an important change with profound consequences for all Americans’ lives. But it wouldn’t happen all at once, and it wouldn’t be so earth-shattering as to cause riots in the streets. Nobody’s going to sandblast the crosses off the gravestones at Arlington. Nevertheless, conservatives are right to be frightened. They’ve had a long run with conservative dominance of the Supreme Court, and it may be coming to an end. Now they’ll understand how liberals have felt for the last few decades.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, February 18, 2016
“Just Get Out Of My Way”: This Progressive Doesn’t Need Your Lectures
Have I mentioned lately how much I’m enjoying the lectures from self-avowed liberals who insist my respect for Hillary Clinton is proof that I am not a “real progressive”?
I haven’t had this much fun since I had my sinuses packed with 40 miles of gauze after polyp surgery.
It’s not just men — my sisters, you disappoint me — but it’s particularly entertaining when the reprimands come from young white men who were still braying for their blankies when I started getting paid to give my opinion. They popped out special, I guess.
I became a columnist in the fall of 2002. Immediately, I found myself on the receiving end of right-wing vitriol so vile it made “The Sopranos” cuddly by comparison. My first death threats came within weeks, after I wrote that the Confederate flag should be retired. After I supported stronger gun control measures, an NRA zealot posted on a gun blog what he thought was my home address and identified me as “unarmed.” I was a single mother at the time. I bought new locks and kept writing. But by all means, do tell me what I don’t understand about being a progressive.
First, though, let me tell you what you clearly don’t understand about me — I almost added, “and women like me,” but that would be presuming to speak for other women, which would make me sound just like you.
I am a 58-year-old wife, mother and grandmother, who first knew I was a feminist at 17. I was a waitress at a family restaurant and a local banker thought he could stick his hand up my skirt because my hands were full of dinner. In the time it took me to deposit that steaming pile of pasta onto his lap, I realized I was never going to be that girl.
Like so many other women, I soon learned that knowing who you are is no small victory, but making it clear to the rest of the world is one of the hardest and longest nonpaying jobs a woman will ever have. I’ll spare you my personal list of jobs with unequal pay and unwelcome advances. No good comes from leading with our injuries.
It helped — it still helps — that my working-class parents raised me to be ready for the fight. My father was a union utility worker, my mother a nurse’s aide. Both of them died in their 60s, living just long enough to see all of their children graduate from college and start their lives. I’ve said many times that my parents did the kind of work that wore their bodies out so that we would never have to. That, too, is my legacy.
But, please, tell me again how I don’t know what it means to be a progressive.
Last month, I started teaching journalism at Kent State University. One of the first things I did was to lug to my office the large metal sign that used to hang over the tool shed at my father’s plant. “THE BEST SAFETY DEVICE IS A CAREFUL MAN,” it reads. Nice try, management.
I’m stickin’ with the union, Woody Guthrie sang.
Every time I walk into my office, that sign is the first thing I see. Remember, it whispers.
What does any of this have to do with why I admire Hillary Clinton? Nothing. But it has everything to do with why I don’t need any lecture from somebody who thinks he or she is going to tell me who I am because I do.
One of the hallmarks of a progressive is a willingness to challenge a power structure that leaves too many people looking up and seeing the bottom of a boot. I want power for the people who don’t have it. And for the rest of my conscious days, I will do my small part to help get it. I love it when detractors describe Clinton as too angry and not “warm and fuzzy” enough. I want a leader, not a Pooh Bear.
I don’t want to diminish anyone who supports Bernie Sanders. I’m married to Sanders’ colleague, Sen. Sherrod Brown, which is how I’ve gotten to know him over the last 10 years. He’s a good man.
If you support Sanders in this Democratic presidential primary, I don’t assume that you hate women.
See how that works?
But if you tell me that, should Sanders lose, you won’t vote for Hillary Clinton, then stop calling yourself a liberal or a progressive or anything other than someone invested in just getting your way.
There is so much at stake here. The fight for women’s reproductive rights is not a sporting event. Our cities are rife with racial tensions, and too many of us white Americans fail to see this as our problem, too. The Affordable Care Act is not enough, but it is the first fragile step toward universal health care. It is already saving lives of people who had nothing — no health care, no safety net, nothing — before it passed.
Finally, the growing gulf between the obscenely privileged and everyone else is a reason to get out of bed every morning — if we care about the future of the people we are supposed to be fighting for.
If you would sacrifice those who need us most because you didn’t get your way, then please, save me your lectures and get out of my way.
By: Connie Schultz, Pulitzer Prize-Winning Columnist and Professional in Residence at Kent State University’s School of Journalism; The National Memo, February 4, 2016
“I Don’t Believe Bush Misspoke”: The Phony, Unprincipled War On Planned Parenthood
With one careless comment, Jeb Bush revealed a fundamentally indifferent attitude toward half the U.S. electorate.
“I’m not sure we need half a billion dollars for women’s health issues,” he said in a speech at the Southern Baptist Convention in Nashville, Tennessee.
It was a throwaway aside in a longer blather about defunding Planned Parenthood, and one imagines that no sooner were the words out of his mouth than his cringing consultants were drafting a clarification.
The inevitable statement soon followed, admitting he “misspoke” and adding that “there are countless community health centers, rural clinics and other women’s health organizations that need to be fully funded.”
Too late. The game was on. Hillary Clinton blasted back, “When you attack women’s health, you attack America’s health.”
I don’t believe Bush misspoke. There’s something about abortion he wishes to ignore: Abortion is a women’s health issue. You cannot separate abortion from this context.
Oppose it or not — and I do — abortion is a medical procedure that ends an unwanted or health-threatening pregnancy. If we want to encourage the trend toward decreasing numbers of abortions in this country — and no one in their right mind wants to see more of them — we need to bolster women’s reproductive health services. That means ensuring wide access to sex education and contraceptives. (It also means honestly admitting that an overwhelming majority of Americans accept that abortion should be permitted when a pregnancy is the result of incest or rape, or when the health of the mother is threatened.)
If you oppose abortion and you’re not ready to promote the most effective ways of preventing unwanted pregnancies, you’re not serious. If you call for “defunding” Planned Parenthood — as virtually the entire Republican Party does — you are attacking a leading purveyor of contraceptives and information about how to use them for women of limited economic resources. You’re also threatening to shut down 700 clinics that provide crucial preventative health measures like pap smears and refer women for mammograms.
About 85 to 90 percent of Planned Parenthood’s work is providing these basic health services, often to low-income women without access to health insurance. That’s according to analysis of the organization done by PolitiFact. Abortions add up to about 3 percent of the organization’s services, and they are not funded with federal money.
A recent vote in the U.S. Senate to defund Planned Parenthood, which failed, called for redirecting the monies to other women’s health facilities that did not provide abortions. The problem is that there are far too few such clinics to meet the need. Moreover, the effort misunderstands how Planned Parenthood receives $528 million annually: mostly through Medicaid reimbursements and competitive Title X family planning grants.
The plain truth is that the Republicans who wish to destroy Planned Parenthood — and Bush is far from the most vociferous — really don’t care that the bulk of its work has nothing to do with abortion. Nor do they care about standards of accuracy in the accusations they make against the organization.
They have worked hand in glove with the Center for Medical Progress, an anti-abortion group inspired by the ethically dubious video techniques of conservative activist James O’Keefe. This group set up a phony front company and then lured Planned Parenthood officials into secretly videotaped conversations about providing fetal tissue for research. The group then released videos selectively edited to suggest that Planned Parenthood was in the illegal business of selling fetal tissue.
The bogusness of this charge is patently obvious when one views the unedited tapes, but that matters little to GOP opportunists, who promise all sorts of congressional inquisitions.
Fine. Hold hearings. See what you find. My guess is that it will be zilch (See: Benghazi).
Meanwhile, the American public needs to know that these new anti-abortion activists are picking up the cudgels of the folks that brought us the so-called Summer of Mercy protests that required federal marshals to restore order in Wichita, Kansas, in the 1990s. Tactics used to include clinic bombings and harassing any woman who set foot near a clinic, regardless of what services she might be seeking.
That phase of the movement failed, although it never went away. In 2009, Kansas abortion doctor George Tiller was shot dead at his church.
Pro-life activists have figured out that it’s better to co-opt the Republican Party than to engage in terrorism. That’s progress. Unfortunately, disingenuous attacks on women’s health care purely to court votes do no favors to either women or unborn babies.
By: Mary Sanchez, Opinion Page Columnist, The Kansas City Star; The National Memo, August 12, 2015
“What Jeb Bush’s ‘Gaffe’ On Women’s Health Really Tells Us”: Congress Picking Health Providers Women Can Use Based On Politics
It must have been at least a week since we’ve had a major campaign “gaffe” (really, who can keep track?), so into that breach Jeb Bush bravely stumbled yesterday, seeming to dismiss the notion of spending too much on women’s health care, when he said “I’m not sure we need half a billion dollars for women’s health issues.” Naturally, Hillary Clinton was all over him, guaranteeing that there would be many stories written about it.
As regular readers know, I take a broadly anti-gaffe position. The assumption of gaffe coverage, that a single extemporaneous remark reveals something fundamental and true that the candidate who uttered it was trying to hide until it slipped out, is ridiculous. If a candidate says something and then later explains that it wasn’t what he meant — as Bush has done — he ought to be forgiven, since all of us say things the wrong way all the time.
But there may still be something we can learn from any particular gaffe — in this case, about the dynamics of controversy and the way presidential candidates can get swept by their party’s currents to places they might or might not want to go.
Let’s start by putting Bush’s statement in context. In an appearance before the Southern Baptist Convention, Bush was asked whether, when it comes time to fund the government with a continuing resolution, Congress should “say, ‘Not one more red cent to Planned Parenthood’?” Here’s his response:
“We should, and the next president should defund Planned Parenthood. I have the benefit of having been governor, and we did defund Planned Parenthood when I was governor. We tried to create a culture of life across the board. The argument against this is, ‘Well, women’s health issues are going to be — you’re attacking, it’s a war on women, and you’re attacking women’s health issues.’ You could take dollar for dollar — although I’m not sure we need a half a billion dollars for women’s health issues — but if you took dollar for dollar, there are many extraordinarily fine organizations, community health organizations that exist, federally sponsored community health organizations to provide quality care for women on a wide variety of health issues. But abortion should not be funded by the government, any government in my mind.”
I shouldn’t have to point this out, but I guess I do: abortion is not funded by the government, by law. Saying “abortion should not be funded by the government” as an argument for forbidding women to get health services from Planned Parenthood is like saying that because some supermarkets sell beer, food stamps shouldn’t be able to to be used at supermarkets, even though food stamps can’t be used to buy beer. I promise you that Jeb Bush knows this perfectly well.
I went over this yesterday, but briefly: Most of the federal money Planned Parenthood gets is in the form of Medicaid reimbursements for health services, things like gynecological exams, cancer screening, the provision of contraception, and so on. So “defunding” the organization means telling women that they can’t go to Planned Parenthood clinics, but have to go somewhere else. Whether Congress ought to be picking and choosing the health care providers women can use based on politics is at the heart of this issue.
Now on the dollar amounts involved: For the record, between Medicare, Medicaid, the VA, and other programs, the federal government spends well over a trillion dollars a year on health care, so it’s a little puzzling that Bush would find half a billion dollars for women’s health, or a fraction of a fraction of a percent of that total, to be some kind of extravagant amount. But maybe he was just thinking it’s a lot for one health care provider. Maybe he thinks Planned Parenthood is a smaller operation than it actually is. Maybe he has bought the Republican propaganda that Planned Parenthood is an abortion operation that does a few other things on the side, when the truth is that abortion services make up only three percent of their activities.
Whatever the case, this much is clear: Bush is now aboard the “defund Planned Parenthood” train in a serious way. This isn’t a new position for him, but he probably wasn’t planning on making a big deal out of it before some anti-choice activists released secretly recorded videos of Planned Parenthood officials discussing the transfer of fetal tissue for research. Once that ball got rolling, talk among conservatives quickly turned to whether Republicans would actually shut down the government to defund the group. That’s forcing the presidential candidates to take a loud, emphatic position to show primary voters that they’re good conservatives. Bushs comments also seemed to endorse shutting down the government over this issue, but that’s not quite clear, so we’ll have to wait for him to get asked that question more specifically — which he probably will before long.
To be clear, I’m not saying Bush was forced by events to take a position he didn’t want to. He has a long and strong record of opposition to women’s reproductive rights in general and to Planned Parenthood in particular. But it does show that the campaign agenda isn’t in the candidates’ hands, and I’m sure there’s someone working for him who suspects that this could be a problem if he becomes the Republican nominee. After all, in 2012 President Obama hammered Mitt Romney (see this ad, for instance) for taking exactly this position on defunding Planned Parenthood, and ended up beating Romney among women by 11 points.
Bush’s position now is both similar and different from the one Romney found himself in four years ago. Romney had been a moderate Republican governor, then had to convince primary voters he was a hard-right conservative, then struggled to convince general election voters he wasn’t a hard-right conservative. Bush, on the other hand, was a genuinely hard-right governor who now has to convince primary voters of that truth, and many of those voters don’t yet believe it. But in the general election, he’ll face the same problem Romney did. And if Hillary Clinton is the Democratic nominee, you can bet there will be more ads like the one I linked to, where women look into the camera with a mixture of sadness and anger and describe how Jeb Bush just doesn’t get them and isn’t on their side.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line, The Washington Post, August 5, 2015
“Republicans Desire To Claim A Scalp”: Why A Congressman Would Say, ‘This Interview Didn’t Happen’
By now, the basic outline of this week’s Planned Parenthood controversy is probably familiar to most news consumers. A right-wing group released a sting video – as right-wing groups are wont to do – featuring a Planned Parenthood official talking candidly about fetal tissue, which prompted a conservative uproar.
Soon after, we came to realize that the right-wing group edited the video in a misleading way– as right-wing groups are wont to do – and the “controversy” didn’t amount to much of anything. It’s not clear why the Washington Post put the story literally on the front page, since there are no credible allegations of wrongdoing. Mother Jones’ Kevin Drum called it a “nothingburger,” adding, “In the end, this is just another sad attempt at a sting video that goes nowhere once you get beyond the deceptive editing.”
Planned Parenthood president Cecile Richards officially responded to the story yesterday, explaining that the organization did nothing wrong, though she acknowledged that the Planned Parenthood official featured in the sting video spoke with a “tone” that was “unacceptable.”
In theory, that should effectively end the controversy, such as it was, and since my wife works for Planned Parenthood – her work is completely unrelated to fetal tissue and she played no role in this report – I was prepared to look past it altogether. But a Roll Call article yesterday pushed the story in an unexpected direction: some congressional Republicans have known about the video for weeks.
Rep. Tim Murphy, a member of the House Pro-Life Caucus and chairman of the Energy and Commerce subcommittee looking into the video, said at a Wednesday news conference he’d seen the clip weeks before.
Asked afterward why he and others waited until this week to take action, Murphy struggled for an answer before abruptly ending the interview with CQ Roll Call, saying he should not be quoted and remarking, “This interview didn’t happen.”
Well, actually, it did happen, and members of Congress can’t talk to reporters, then retroactively pretend they didn’t.
In this case, Roll Call asked why the story, if it’s as scandalous as Republicans are now claiming, didn’t break immediately. If GOP lawmakers consider the revelations an outrage, why did some members say nothing for nearly a month?
Rep. Tim Murphy (R-Pa.), before pretending the interview “didn’t happen,” said, “Um, I don’t know why. All I know is I saw it and he said he was going to post it eventually, so that’s all I know.”
Rep. Trent Franks (R-Ariz.), one of Congress’ most strident opponents of reproductive rights, also said he first saw the video about a month ago, but also said nothing. “The hope was to have as much information as possible so that the authorities could be notified effectively before the media,” Franks argued yesterday.
It’s a curious argument. Republicans have spent the week characterizing this as a potentially criminal scandal, but when some far-right lawmakers saw the video weeks ago, they didn’t feel the need to do much of anything – they didn’t run to the GOP leadership to demand action; they didn’t call allies in conservative media; they didn’t hold a press conference to express outrage. If they genuinely saw the video as proof of illegal Planned Parenthood activities, notifying the “authorities” could have happened immediately.
But it didn’t. So what is this really all about? Consider this Politico report published overnight:
Republicans on Capitol Hill are betting the secretly filmed Planned Parenthood video — depicting an executive allegedly discussing the sale of fetal organs from terminated pregnancies — will give them cover to more aggressively push abortion issues without the political ramifications that have haunted the party in the past. […]
[Iowa Republican Steve King] was one of the first lawmakers to urge the defunding of low-income housing group ACORN, which went belly up following similar undercover videos suggesting criminal activity.
To this day, he keeps a tiny acorn in his pocket to remember his crusade. Now, he’s got his eyes on another organization. “This represents ACORN’s scalp,” King said off the House floor Thursday, pulling the acorn out of his pocket. “Ask me after the appropriations cycle and see if I have a talisman in my pocket for Planned Parenthood’s.”
Ah, there it is. Republicans don’t have proof of Planned Parenthood wrongdoing, but rather, have a desire to claim a “scalp.” When the GOP went after women’s healthcare in 2012, it backfired on the party, so Republicans hope a misleading video will offer new opportunities to try the same move again.
That’s the point of the GOP calls for investigations, hearings, and probes. That’s why Republicans are trying to use this story to raise money and advance their personal ambitions.
Those who were inclined to take the story seriously should probably adjust their perspective accordingly.
Postscript: The video released by the Center for Medical Progress doesn’t show Planned Parenthood doing anything illegal, but whether the video itself was recorded illegally is a separate matter.
By: Steve Benen, The Maddow Blog, July 17, 2015
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