“The Supreme Court Fight Is About Democracy”: Conservatives Want To Bring Back Pre-New Deal Jurisprudence
There’s a reason beyond garden-variety partisanship that Senate Republicans resist even holding hearings on President Obama’s nomination of Merrick Garland to the Supreme Court. Their gambit evades a full and open debate over the conservative judicial agenda, which is to use the high court in an aggressive and political way to reverse decades of progressive legislation.
The central irony here: The very conservatives who use “judicial activism” as a battering ram against liberals are now the aggressive judicial activists. It’s precisely because Garland’s record reveals him to be a devout practitioner of judicial restraint that an intellectually frank dialogue over his nomination would be so dangerous to the right. It would expose the radicalism of their jurisprudence.
Some conservatives are quite open about this, and few have been more candid than George F. Will, my Post colleague. To begin with, he deserves credit for making clear in his most recent column that Garland really is a stout advocate of judicial “deference” and for pointing out the absurdity of the Republicans’ refusal to take up his nomination. And in the past, Will has been unusually direct in defining the stakes in our battles over the role of the courts.
In a 2014 column aptly headlined “Judicial activism isn’t a bad thing,” he wrote: “Conservatives clamoring for judicial restraint, meaning deference to legislatures, are waving a banner unfurled a century ago by progressives eager to emancipate government, freeing it to pursue whatever collective endeavors it fancies, sacrificing individual rights to a spurious majoritarian ethic.”
Will’s attack on “a spurious majoritarian ethic,” of course, is another way of criticizing the workings of democracy. Where does this lead?
It leads to the Citizens United decision (which Will supports as emphatically as I oppose it) that overthrew decades of precedent and a century of practice involving limits on the power of big money in politics; to the Supreme Court’s evisceration of the Voting Rights Act; and to the scrapping of all manner of legislation aimed at protecting workers’ rights, the environment and consumers. Historically, it’s an approach that, more often than not, leans toward employers over employees, creditors over debtors, property owners over less affluent citizens, and corporations over individuals.
We know what this approach looks like because it’s the one the court pursued for decades before the New Deal. It is this pre-New Deal jurisprudence that conservatives want to bring back. Some conservatives have talked openly about the “Constitution in Exile,” referring to the way our founding document was once read to overturn many New Deal and Progressive Era laws. Starting in the late 1930s, the court moved to a different approach that gave Congress broad latitude to legislate on matters related to social justice and economics and saw its task as intervening primarily on behalf of individual rights.
Will’s outright embrace of “judicial activism” has brought him some critics on the right. One of them is Ed Whelan, president of the Ethics and Public Policy Center and a leading defender of the Senate Republicans’ current strategy. “Most contemporary conservative proponents of judicial restraint,” Whelan has written, “are also proponents of originalism and see judicial restraint merely as supplementing originalist methodology when that methodology fails to yield a sufficiently clear answer to a constitutional question.”
Whelan added that his approach would, like Will’s, allow judges to “enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth.” But it would also “prevent judges from inventing rights and powers that are not in the Constitution.”
Here’s my translation of Whelan: He’s instructing Will to notice how originalism — the conservative theory that insists we can apply the original meaning of the Constitution’s words and the Founders’ intentions with some ease — leaves judges with plenty of power to toss out progressive laws. At the same time, it gives conservatives grounds to oppose liberals on such issues as abortion and gay marriage.
I’ll stipulate that there are some legitimate conservative arguments against liberals on their own forms of social-issue activism. But I’d insist that we will understand this court battle better if we pay attention to Will’s straightforward language: Through originalism and other doctrines, conservatives have embraced an astonishingly aggressive approach to judging. It allows them to reach outcomes through the courts that they cannot achieve through the democratic process.
At heart, this is a debate over how we define democracy. It’s also a struggle over whether government will be able to serve as a countervailing force to concentrated economic power.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, March 20, 2016
“Think Beyond The Moment”: What Sanders — And His Supporters — Must Remember Before November
Exactly one year before Election Day – on November 8, 2015 – Bernie Sanders was asked whether his agreement with Hillary Clinton on basic issues outweighed the conflicts that he proclaimed at every campaign appearance.
Speaking on television rather than on the stump, the Vermont senator conceded reluctantly that he and Clinton concur on some issues. But then he added an entirely gratuitous endorsement:
“And by the way, on her worst day, Hillary Clinton will be an infinitely better candidate and President than the Republican candidate on his bestday.”
That moment of reassuring reason is worth remembering as the debate becomes more rancorous. Clinton isn’t foreordained to win the Democratic nomination, so Sanders neither will nor should hesitate to emphasize their differences.
So far, in fact, his challenge has improved both her candidacy and the national discourse. It is healthy for Democrats to argue about the best ways to ensure more good jobs, higher wages, universal health care, affordable higher education, paid family leave, immigration reform, national security, and a clean energy future.
But the overwrought reaction of some Sanders supporters – who already insist they cannot imagine voting for Clinton because of her campaign donors, her paid speeches, her vote on Iraq, or her support for some of her husband’s policies two decades ago – evokes bad memories of another, truly disastrous presidential campaign.
It is no accident, as they say, that those who “feel the Bern” today include prominent supporters of Ralph Nader’s independent presidential campaign in 2000. Their urge to overthrow the mundane, demand the utopian, reject grubby compromise, and assert moral purity is as powerful today as four cycles ago; and perhaps even more so, especially among those who feel somehow “disappointed” by President Obama. But political decisions based solely on such emotional considerations can prove terribly costly to our country and the world – as we discovered when George W. Bush usurped Al Gore.
Nader and his supporters were not responsible alone for the appalling outcome of the 2000 election but – along with the Supreme Court majority and Gore himself — they bear a substantial share of blame. Their defamatory descriptions of the Democratic nominee were echoed across the media by reporters, columnists, and commentators who knew better — from the pages of the New York Times and the Washington Post to the cable networks.
Mocking Gore for his supposed personal flaws, such as an alleged propensity to exaggerate his achievements, was as fashionable in media and political circles then as it is to denigrate Hillary Clinton now. Clever people delighted in contrasting Nader’s — and even Bush’s! — “authenticity” with Gore’s stiff insincerity. (Indeed, many of the same pundits are still doing versions of the same stupid pundit tricks.)
Besides, according to the Naderites, there were no important differences between the Democratic nominee and his Republican opponent. Or at least none that merited as much concern as Gore’s earth-toned suits and the preppy character he did or didn’t inspire in a romance novel. A wave of such idiotic babble delivered America and the world into a catastrophic Bush presidency.
Fortunately, the parallels only go so far. Sanders chose a far more responsible route than Nader when he decided to run for the Democratic nomination rather than jump to a third-party line. He has focused on substantive issues and admirably dismissed fake scandals like Benghazi and Clinton’s emails. But by repeating his unfounded insinuation that Clinton’s paid speeches and Wall Street donors have somehow corrupted her, he is inflicting damage that will be very hard to mend.
Looking toward the likelihood that either Clinton or Sanders will face Donald Trump next fall, those corrosive tactics are shortsighted. Should Sanders win the nomination, he will want and need Clinton’s support. And should she defeat him, he will and should want her to win — if he believes what he said last November, and understands the exceptionally dangerous threat posed by a Trump presidency.
The next round of Democratic primaries could encourage still more destructive bashing, from either camp or both. The candidates and their supporters ought to think beyond the moment – and pay attention to filmmaker Michael Moore, an outspoken Sanders backer.
On the evening when his candidate won an upset victory in the Michigan primary, Moore tweeted this message: “A special congrats to Hillary for her victory in Mississippi on International Women’s Day. If you win the nomination, we will be there [with] you.”
Once a zealous backer of Nader, Moore eventually apologized for that tragic mistake. Evidently he would rather not feel that sorry again.
By: Joe Conason, Editor in Chief, Editor’s Blog, The National Memo, March 11, 2016
“The GOP Cannot Be Saved, But The Country Still Can Be”: A Rare Convergence From Two Sides Of The Political Spectrum
This morning I read two articles that probably each deserve a post of their own…they’re both that good. But I’m going to write about them together because, in an interesting way, they come from opposite ends of the political spectrum but converge on the same place.
The first one comes from someone who now calls himself a “former Republican.” Robert Kagan says that Trump is the GOP’s Frankenstein Monster. He outlines much the same process I wrote about recently in: Post-Policy Republicans Gave us Donald Trump. Kagan describes the three things Republicans did to create this monster.
1. Obstruction
Was it not the party’s wild obstructionism — the repeated threats to shut down the government over policy and legislative disagreements; the persistent call for nullification of Supreme Court decisions; the insistence that compromise was betrayal; the internal coups against party leaders who refused to join the general demolition — that taught Republican voters that government, institutions, political traditions, party leadership and even parties themselves were things to be overthrown, evaded, ignored, insulted, laughed at?
2. Bigotry
No, the majority of Republicans are not bigots. But they have certainly been enablers. Who began the attack on immigrants — legal and illegal — long before Trump arrived on the scene and made it his premier issue? Who was it who frightened Mitt Romney into selling his soul in 2012, talking of “self-deportation” to get himself right with the party’s anti-immigrant forces?
3. Obama hatred
Then there was the Obama hatred, a racially tinged derangement syndrome that made any charge plausible and any opposition justified…
Thus Obama is not only wrong but also anti-American, un-American, non-American, and his policies — though barely distinguishable from those of previous liberal Democrats such as Michael Dukakis or Mario Cuomo — are somehow representative of something subversive.
Kagan’s conclusion to the prospect of Trump being the GOP nominee is something I’ve heard from a few other Republicans.
So what to do now? The Republicans’ creation will soon be let loose on the land, leaving to others the job the party failed to carry out. For this former Republican, and perhaps for others, the only choice will be to vote for Hillary Clinton. The party cannot be saved, but the country still can be.
The other article I’d like to highlight comes from the other end of the political spectrum, so it might not be as surprising or monumental. But as President Obama’s former speechwriter (including during the 2008 primary), Jon Farveau admits that he was not always a fan of Hillary Clinton. He writes about how his view changed while he worked with her in the White House.
The most famous woman in the world would walk through the White House with no entourage, casually chatting up junior staffers along the way. She was by far the most prepared, impressive person at every Cabinet meeting. She worked harder and logged more miles than anyone in the administration, including the president. And she’d spend large amounts of time and energy on things that offered no discernible benefit to her political future—saving elephants from ivory poachers, listening to the plight of female coffee farmers in Timor-Leste, defending LGBT rights in places like Uganda.
He then walks us through the different side of this candidate that was brought to us by Ruby Cramer in her article titled: Hillary Clinton wants to talk with you about love and kindness. Favreau’s conclusion is that it is even more important to elect Hillary Clinton this year than it was to elect Barack Obama in 2008. That is a huge statement coming from someone like him. Here’s the kicker:
Every election is a competition between two stories about America. And Trump already knows his by heart: he is a celebrity strongman who will single-handedly save the country from an establishment that is too weak, stupid, corrupt, and politically correct to let us blame the real source of our problems—Muslims and Mexicans and Black Lives Matter protestors; the media, business, and political elites from both parties.
Trump’s eventual opponent will need to tell a story about America that offers a powerful rebuke to the demagogue’s dark vision for the future. I like Bernie Sanders. I like a lot of what he has to say, I love his idealism, and I believe deeply in his emphasis on grassroots change. My problem is not that his message is unrealistic—it’s that a campaign which is largely about Main St. vs. Wall St. economics is too narrow and divisive for the story we need to tell right now.
In her campaign against Sanders, Hillary has begun to tell that broader, more inclusive story about the future.
What we see is Kagan looking for a way to “save American” from the Frankenstein monster created by the GOP and Favreau suggesting that, in order to combat the monstrous story of America being sold by Trump in this election, we need an alternative to that “demagogue’s dark vision for the future.” Both of them see the answer to that in Hillary Clinton. It’s a rare convergence of two sides that is worth paying attention to.
By: Nancy LeTourneau, Political Animal Blog, The Washington Monthly, February 26, 2016
“Making Up Traditions That Don’t Actually Exist”: GOP Tries To Make Up Supreme Court ‘Tradition’ That Doesn’t Exist
Marco Rubio, like most Senate Republicans, intends to maintain a blockade against any Supreme Court nominee put forward by President Obama, regardless of the person’s qualifications. He even has a talking point he’s eager to share.
Yesterday, CNN’s Jake Tapper noted, for example, that Justice Anthony Kennedy was confirmed in President Reagan’s final year in office, but Rubio replied that doesn’t count because the nomination was made a couple of months prior. The senator added:
“This is a tradition that both parties have lived by for over 80 years where in the last year, if there was a vacancy in the last year of a lame duck president, you don’t move forward.”
Rubio isn’t the only one using the word “tradition” this way. Sen. Lisa Murkowski (R-Alaska) said on social media yesterday that President Obama should “follow a tradition embraced by both parties and allow his successor to select the next Supreme Court justice.”
I’m not unsympathetic to the idea that traditions matter in the political process. In fact, I made just such a case earlier this week, exploring the consequences of congressional Republicans abandoning traditional norms that have helped make governing possible for generations.
But now seems like a good time to add some clarity to the matter. Honoring traditions is one thing; making up traditions that don’t actually exist is something else.
Look at that Rubio quote again: “This is a tradition that both parties have lived by for over 80 years where in the last year, if there was a vacancy in the last year of a lame duck president, you don’t move forward.”
Now, I have no idea if Rubio is confused, uninformed, or trying to deceive the public. I do know, however, that his talking point doesn’t make any sense.
There is no such “tradition.” In order for something to become “traditional,” it has to happen routinely over the course of many years, and in this case, the number of instances in which both parties have agreed to leave a seat on the Supreme Court vacant for a year, waiting for an upcoming presidential election to come and go, is zero.
Or put another way, if Rubio and Murkowski want to compile a list of all the examples that help establish this tradition – instances in which Supreme Court vacancies went unfilled because it was a presidential election year – I’d find that incredibly useful.
But I have a hunch such a list won’t appear anytime soon. That’s because plenty of presidents have nominated justices in election years – and those nominees have generally been confirmed.
One might even say the American tradition holds that presidents do their jobs when there’s a vacancy (choosing a nominee), which leads senators do their jobs (consider that nominee for the bench).
It’s one thing to make up “rules” that don’t exist. But to characterize an event that hasn’t occurred as a bipartisan “tradition” is to take partisan propaganda to unhealthy levels.
By: Steve Benen, The Maddow Blog, February 18, 2016
“A Moral And Political Coward”: Speaker Ryan Can’t Reauthorize Voting Rights Act
Midway through his second term, President George W. Bush proudly signed the The Fannie Lou Hamer, Rosa Parks, And Coretta Scott King Voting Rights Act Reauthorization And Amendments Act Of 2006 which was sponsored by Republican congressman Jim Sensenbrenner of Wisconsin. It had been passed in the Senate with an unanimous 98-0 vote and in the House with a strong bipartisan 390-33 majority.
The Act needs to be updated because it was gutted by the Supreme Court in 2013. But they won’t. And they won’t because the Republican Party has become so racially hostile to blacks that they can’t overcome the resistance of their worst bigots. Speaker Paul Ryan met with the Congressional Black Caucus today and flat out said that he can’t get the Act fixed up and reauthorized.
Speaker Paul Ryan (R-Wis.) told black lawmakers Wednesday that he supports new voting rights protections they’ve championed, but said he won’t bypass a committee chairman to move legislation, according to a Democrat who attended the gathering.
“He said it right in front of everybody — he said he supports the [Jim] Sensenbrenner bill,” Rep. Emanuel Cleaver (D-Mo.), former chairman of the Congressional Black Caucus (CBC), said after Ryan met with the group on Capitol Hill.
“So somebody was saying, ‘Well, why don’t you go tell your committee chair to do it?’ ” Cleaver added. “And he said, … ‘Look, I can’t do that.’ “
Sensenbrenner (R-Wis.), a former chairman of the Judiciary panel, has sponsored bipartisan legislation to update the Voting Rights Act (VRA) in response to a 2013 Supreme Court decision that gutted a central provision of the 1965 law.
But Sensenbrenner’s proposal does not have the backing of the current Judiciary chairman, Rep. Bob Goodlatte (R-Va.), who maintains the Supreme Court left ample protections in the VRA, thereby making congressional action unnecessary.
I feel like Speaker Ryan could get this done if he wanted to, but I’m not sure what would happen if he rammed it through. I suspect that it would cause a major revolt, and perhaps even another coup like the one John Boehner just experienced.
I consider this important enough that Ryan should insist on principle and resign if his own caucus can’t live with it. It’s really a moral issue for me more than a political question. Ten years ago, it wasn’t even a partisan subject, but ten years ago we didn’t have a black president and a raging Tea Party revolt against the Republican Establishment.
Basically, I think Paul Ryan is a coward. He’s a political coward, but more importantly, he’s a moral coward.
P.S. Rep. Bob Goodlatte has also used his position as Judiciary Chairman to prevent any legislative reaction to the Sandy Hook Elementary School massacre, kill comprehensive immigration reform and call for the deportation of DREAMers.
By: Martin Longman, Political Animal Blog, The Washington Monthly, February 3, 2016
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 