“Chief Justice John Roberts Just Isn’t Far Enough To The Right”: When Even Conservative Justices Aren’t Conservative Enough
Over the weekend, Sen. Ted Cruz (R-Texas) added a new line of attack to his offensive against his party’s Beltway establishment: the Republican presidential hopeful insisted that Supreme Court Chief Justice John Roberts just isn’t far enough to the right.
In fact, the GOP senator, who was an enthusiastic Roberts booster in 2005, even criticized former President George W. Bush for his reluctance to “spend some political capital” in support of a genuinely right-wing nominee.
Jeb Bush was asked in last night’s debate whether Cruz was right, and though the former governor’s answer meandered a bit, Bush suggested he’d nominate different kinds of justices than his brother: “Roberts has made some really good decisions, for sure, but he did not have a proven, extensive record that would have made the clarity the important thing, and that’s what we need to do. And I’m willing to fight for those nominees to make sure that they get passed. You can’t do it the politically expedient way anymore.”
Cruz added in response:
“I’ve known John Roberts for 20 years, he’s amazingly talented lawyer, but, yes, it was a mistake when he was appointed to the Supreme Court. […]
“It is true that after George W. Bush nominated John Roberts, I supported his confirmation. That was a mistake and I regret that. I wouldn’t have nominated John Roberts.”
Watching this unfold last night, some viewers might have been left with the impression that Chief Justice Roberts is, well, retired Justice David Souter. One President Bush nominated a jurist who seemed conservative enough, but who turned out to approach the law from a center-left perspective, and then another President Bush did the same thing.
Except, that’s not even close to being true.
When Cruz and others on the right complain bitterly about Roberts, they’re generally referring to the justice’s rulings on the Affordable Care Act. But the fact remains that both of the major “Obamacare” rulings were genuinely ridiculous cases – and it’s not Roberts’ fault that he took the law, court precedent, and common sense seriously.
Health care cases notwithstanding, though, Roberts is not a moderate by any fair measurement. We are, after all, talking about a court that handed down the Citizens United ruling. And then later gutted the Voting Rights Act. Roberts didn’t even support marriage equality.
Souter he isn’t.
If Roberts isn’t radical enough for Cruz, who exactly would the Texas Republican like to see on the court? Three times last night he mentioned Judge Edith Jones of the 5th Circuit Court of Appeals. Given Jones’ jaw-dropping record, that tells us an awful lot about Cruz.
By: Steve Benen, The Madow Blog, September 17, 2015
“There Isn’t Going To Be An Evangelical President”: Huckabee Doesn’t Seem To Understand The Place Of Evangelicals In Today’s GOP
There was no doubt that when Mike Huckabee announced his candidacy for president, God would come up. After all, Huckabee is an ordained Baptist minister who made a strong showing in his 2008 race in large part because of the support of evangelical voters. Huckabee made crystal clear that he’s running to get the support of those evangelical voters again.
Huckabee talked about how much he prayed in school as a child in Hope, Arkansas, where he “learned that this exceptional country could only be explained by the Providence of God.” He asserted that “the Supreme Court is not the Supreme Being, and they can’t overturn the laws of nature or of nature’s God,” a clear reference to same-sex marriage.
But for someone who wants to be the candidate of evangelicals, Huckabee doesn’t seem to understand the place of evangelicals in today’s GOP.
Huckabee’s most fundamental miscalculation has two parts: first, that there can be one candidate who garners the support of most religious right voters, and second, that even if he pulled that off, it would be enough to make him the party’s nominee (for the purposes of this discussion I’m going to talk about evangelicals and the religious right interchangeably, but they’re obviously not exactly the same thing).
If you’re an evangelical Republican voter looking for a presidential candidate who shares your values, you’re faced with an embarrassment of riches in this election. In addition to Huckabee, you’ve got Scott Walker (the son of a Baptist minister), Rick Santorum (whose commitment to “traditional values” will stack up against anyone’s), Rick Perry (whose best-remembered ad from four years ago began, “I’m not ashamed to admit that I’m a Christian,” tapping into the religious right’s narrative of oppression), Bobby Jindal (who holds prayer rallies), and other candidates like Ted Cruz and Ben Carson who wear their piety on their sleeves. With all that to choose from, it will simply be impossible for any one of them to become the candidate of the religious right.
Huckabee might say, well, I was pretty much the candidate of the religious right in 2008, and I won Iowa! Indeed he did — and then he lost the nomination, as did Rick Santorum four years later following the same script. Evangelicals are particularly important in that first caucus state, but far less so in the rest of the country, which is why their chosen Iowa candidate almost never wins. They made up 57 percent of GOP Iowa caucus voters in 2012 — but only 43 percent of Romney’s voters in the general election, and only 26 percent of general election voters overall.
Furthermore, there are plenty of evangelicals who aren’t so attracted to the old-school style of a man who wrote columns as a teenager warning against the evils of dancing. Here’s how religion reporter Sarah Posner describes the feelings of many evangelicals, particularly younger ones:
These evangelicals are listening for a candidate who can signal he is “one of us” without pandering. Both evangelical and Catholic candidates who have earned the culture warrior label for their strident pronouncements—Ted Cruz, Rick Santorum, or Mike Huckabee — are seen as embarrassing embodiments of stereotypes these conservative Christians would like to shed.
When the entertainment at Huckabee’s announcement event is Tony Orlando singing “Tie a Yellow Ribbon Round the Old Oak Tree” — a song that topped the charts 42 years ago — he isn’t exactly reaching out to a new generation.
Does this mean that the evangelical vote no longer matters in the Republican primaries? Not at all. It still matters a great deal, but the fact that evangelicals won’t vote as a bloc means they matter in a different way. If any of the candidates can get at least some of their votes, then every candidate has an interest in speaking to them (or pandering to them, depending on how you want to think about it). So their concerns and their issues will be on all the candidates’ minds and on their lips.
The evangelical vote is still important, but there won’t be an evangelical champion — Mike Huckabee, or anyone else. Yes, an evangelical such as Scott Walker might be elected president. But he wouldn’t be the evangelicals’ chosen candidate. No one will.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, May 6, 2015
“The Obamacare Plaintiffs And Medicare”: Maybe They’d Love Obamacare If The Hated President’s Name Wasn’t On It
Politico‘s Jennifer Haberkorn scored a bit of a scoop by convincing the chief plantiff in the King v. Burwell litigation, David King, to let her into his Fredericksburg, VA living room, apparently because he didn’t want to leave her shivering on his front doorstep. Most of what she tells about him, though, seems to come from his recent social media expressions rather than from anything he said to her in person:
The man who could cripple Obamacare isn’t shy about telling the world that he thinks the president is an “idiot,” posting altered images of the first lady in Middle Eastern clothing and expressing his hatred for the “Democraps” who enacted the health care law.
Greg Sargent, however, finds something more interesting to examine about King and a couple of his co-plaintiffs:
[I]t’s fascinating that King is less than a year away from qualifying for Medicare. As it happens, Politico reports that two of the other four challengers are 64 and 63, also putting them very close to qualifying. Remember, this lawsuit is all about the plaintiff’s objection to being subjected to the individual mandate’s requirement that they get insurance. The plaintiffs are claiming injury because Virginia is on the federal exchange, which, they say, means they should not be getting the subsidies which are necessary under the law to require them to get insurance under the mandate. Yet three of the challengers are very close to having the mandate canceled for them by Medicare. (One, it should be noted, is 56 years old.)
It would be really interesting to know what these challengers think of Medicare, given their role in a lawsuit that could go a long way towards gutting the coverage guarantee for millions of Americans.
Unfortunately, we cannot answer Greg’s question yet, if ever. Maybe these folk share the not uncommon belief of seniors that Medicare is an “earned benefit” (at most half-true) in contrast to the “welfare” nature of Obamacare (again, at most half-true). Maybe they don’t like Medicare as it is but would like to “reform” it–though the most common Republican proposal for “reform” is to convert Medicare from being a defined government-provided benefit to a means-tested system of public subsidies for private insurance purchases like Obamacare. Maybe they’d love Obamacare if the hated president’s name wasn’t on it. It’s hard to say. But whatever their reasons, they’re willing to force millions of people who aren’t on the brink of qualifying for Medicare into a health care wilderness. No wonder they don’t want to give interviews.
By: Ed Kilgore, Contributing Writer, Political Animal, The Washington Monthly, February 6, 2015
“Silent Treatment”: The Supreme Court And Voting Rights
The Supreme Court’s weirdly busy October brings to mind an old Cadillac commercial showing a sedan gliding silently down the highway, driver calm and confident in a hermetic, leather-appointed cabin, while the announcer intones, “quietly doing things very well.” Whether the justices are doing their jobs well depends on your point of view. But there is no disputing that they have been doing their most consequential work in uncharacteristic silence in recent weeks. The justices’ moves on gay marriage, abortion and voting rights have been delivered all but wordlessly, as Dahlia Lithwick of Slate recounts. The notable exception to the rule is Ruth Bader Ginsburg, the justice who refused to hold her tongue over the weekend, when six of her colleagues permitted Texas to enforce its new photo identification law in the November elections.
The Court’s announcement came down at the ungodly hour of 5am on Saturday. It followed a federal district court decision on October 9th that the Texas law was discriminatory in both intent and effect and “constitutes a poll tax”—a ruling that was stayed by the Fifth Circuit Court on October 11th. The stay prompted an emergency appeal to the Supreme Court via Antonin Scalia, the justice assigned to the Fifth Circuit. The six justices who denied the request to lift the stay before dawn on October 18th were mum as to why; they released no reasoning for the decision, which effectively gives Texas’s questionable voter law a pass. But Justice Ginsburg and her clerks apparently ordered pizza and downed some Red Bull on Friday evening, pulling an all-nighter to compose a six-page dissent, which Justices Sonia Sotomayor and Elena Kagan joined. (Rick Hasen asks why Justice Stephen Breyer, the fourth liberal justice, did not sign on to the dissent; one strong possibility is that he was asleep.)
Octogenarian Supreme Court justices are not known for burning the midnight oil, but Justice Ginsburg had an unusually good reason to do so in Veasey v Perry. The Texas law she opposed is a transparent attempt to help Republican candidates by keeping racial minorities, who vote overwhelmingly for Democrats, home on Election Day. In the words of the trial judge, the law “creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose.” Justice Ginsburg’s wee-hours dissent drew on the district court’s ruling to issue a scathing rebuke to the Fifth Circuit and, by implication, to the six justices who refused to lift the Fifth Circuit’s stay. “In light of the ‘seismic demographic shift’ in Texas between 2000 and 2010, making Texas a ‘majority-minority state,’ ” Justice Ginsburg wrote, “the District Court observed that the Texas Legislature and Governor had an evident incentive to ‘gain partisan advantage by suppressing’ the ‘votes of African-Americans and Latinos.’ ”
Justice Ginsburg also criticised the law’s defenders who claim it is necessary to fight voter fraud: “Texas did not begin to demonstrate that the Bill’s discriminatory features were necessary to prevent fraud or to increase public confidence in the electoral process.” The upshot is disturbing: by refusing to act, the Supreme Court majority is allowing a law to take effect that “may prevent more than 600,000 registered Texas voters (about 4.5% of all registered voters) from voting in person for lack of compliant identification…A sharply disproportionate percentage of those voters are African-American or Hispanic.”
What was the majority’s reasoning for deferring to the Fifth Circuit, and by extension to Rick Perry, the governor of Texas? We don’t know; they didn’t tell us. The rationale probably has to do with Purcell v Gonzalez, a 2006 case in which the Court decided that courts should be wary of changing voting rules too close to an election. But Purcell does not lay down an ironclad rule against last-minute changes. And as Rick Hasen writes, “[i]t appears to be unprecedented to let a law that was deemed racially discriminatory go into effect simply to avoid the risk of voter confusion and election administration inefficiency.” If the six justices voting to let Texas law take effect thought that voter confusion was more worrisome than racial discrimination, they should have put that reasoning down on paper.
John Rawls, an influential political philosopher who died in 2002, described the Supreme Court as an “exemplar of public reason”, a tribunal that accounts for its decisions with reasoned reference to the laws and traditions of the country. “It is the only branch of government,” Mr Rawls wrote, “that is visibly on its face the creature of that reason and of that reason alone”:
To say that the court is the exemplar of public reason also means that it is the task of the justices to try to develop and express in their reasoned opinions the best interpretation of the constitution they can, using their knowledge of what the constitution and constitutional precedents require.
Echoing Kant, for whom the “publicity” of public decisions is a key component of a constitutional republic and is, indeed, the “transcendental principle of public right”, Rawls insisted that “the court’s role…is part of the publicity of reason” to which citizens should enjoy full and unfettered access. Normally the justices acquit themselves quite well in this regard: they spend months drafting and polishing lengthy opinions in argued cases, and they release their decisions to be consumed, interpreted and scrutinised by everybody. But this month, by keeping their reasoning close their robes on several big decisions, the justices are falling down on their duty to share what they are thinking.
Six justices allowing Texas to enforce a voter-identification law that a federal judge had characterised, in a 147-page decision, as a racist poll tax—and to do so with pursed lips—is not merely rude. It is a breach of the Court’s legitimacy in a constitutional democracy. When the stakes are this high, all the justices should follow Justice Ginsburg’s lead and stay up all night to explain to America just what they are up to and why.
By: Steven Mazie, Democracy in America, The Economist, October 22, 2014
“A Problem That Doesn’t Exist”: Walker Struggles To Defend Wisconsin Voting Restrictions
Wisconsin’s voter-ID law is such a fiasco, it’s hard not to wonder sometimes how anyone could defend it. In a debate on Friday night, Gov. Scott Walker (R), who fought to impose voting restrictions before his re-election bid, made his best case.
Walker said that the voter ID law, which the U.S. Supreme Court just blocked from being enforced, is worthwhile if it stops one person from fraudulently casting a ballot.
“It doesn’t matter if there’s one, 100 or 1,000,” Walker said. “Amongst us who would be that one person who would like to have our vote canceled out by a vote that was cast illegally?”
This isn’t a good argument, but it’s important to evaluate in the context of the Republican “war on voting” in general.
Walker realizes that there are no documented incidents in modern Wisconsin history of a voter committing voter fraud, at least not in a way that could be prevented by a voter-ID law. The Republican governor also realizes that independent estimates suggest more than 300,000 legal, eligible Wisconsin voters could be disenfranchised by this voter-ID law, which addresses a problem that doesn’t exist.
But note the calculus Walker makes: disenfranchising 300,000 legal voters is a price he’s willing to pay to ensure that one – not one percent, just one literal individual – fraudulent-but-hypothetical vote isn’t cast. Wisconsin’s governor is prepared to create the worst election-related chaos in the nation, on purpose, regardless of the costs or consequences, if it means one individual who might cast a fraudulent vote is prevented from doing so.
If this is the best argument Walker can come up with, voter-suppression proponents really need to come up with new talking points.
Of course, I should mention that the governor’s defense is, at least for now, a moot point. The U.S. Supreme Court blocked implementation of Wisconsin’s ridiculous law last week.
That said, Walker’s administration, and Wisconsin’s Republican state attorney general, are still looking for ways to impose this and related voting restrictions in this year’s election.
This is no small matter for the governor’s personal prospects – polls show him in a very tight race against challenger Mary Burke (D), and if Walker can disenfranchise 300,000 voters, his odds of winning improve. In other words, the Republican incumbent has a strong incentive to prevent many of his constituents from voting, and he continues to look for new ways to make that happen.
By: Steve Benen, The Maddow Blog, october 13, 2014
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