Tag Washington Post

Stand by for American history

Pat Ryan Leave a comment

The United States Supreme Court hears arguments this week in two cases involving same-sex marriage that could make civil rights history.  For those who can get beyond a knee-jerk reaction to the very idea of same-sex marriage, who are interested in the nuts and bolts of how the court operates, how this court operates, who want to be able to read the reports of the oral arguments or listen to the arguments themselves (yes, listen—the same day!) critically and develop their own insight into what’s happening and what the results may be, check out Emily Bazelon’s post in Slate today.

Tuesday and Wednesday, the Supreme Court will dive into back-to-back arguments about gay marriage. These cases that are probably the biggest of the term, and certainly the sexiest. First up is an hour of Hollingsworth v. Perry, the suit challenging the constitutionality of California’s voter-approved gay marriage ban. Next comes an hour and 50 minutes on United States v. Windsor, which takes on the definition of marriage in the federal Defense of Marriage Act. That definition—the union of a man and a woman—denies gay couples more than 1,000 federal benefits that come with marriage, relating to everything from inheritance taxes to health insurance for veterans, even when their marriages are legally recognized in the states they live in.

The arguments will feature top lawyers including Ted Olson (former Bush solicitor general, pro-gay marriage), Paul Clement (former Bush solicitor general, anti-gay marriage), Donald Verrilli Jr. (Obama solicitor general, pro-gay marriage, though the Obama administration is still enforcing DOMA), and Vicki Jackson (Harvard law professor who will argue that the Obama administration doesn’t belong in court). What should we watch for to gauge how these cases will come out? Here’s my checklist.

Meanwhile, in case you missed it, here are the stories about the amicus briefs from the White House and Bill Clinton,  now both in favor despite earlier efforts to the contrary, and from major businesses that have always tried assiduously to avoid taking sides on anything as controversial as same-sex marriage, but now argue that the ban hurts business.  Even prominent Republicans, including Clint Eastwood, are making a case in favor of same-sex marriage.  The times, they are a-changin’…we should find out in June, when the decisions are expected to be announced, just how much.

Ten years on, a partial tally of the Iraq War’s toll on American journalism

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There’s no time like a brisk spring Sunday to take a minute to remember the failure of our vaunted American journalism to expose the criminality of the Bush Administration, and call to mind the more than 4000 American deaths and 32,000 American wounded it caused by creating and selling the fiction that got America into war in Iraq in 2003.

Not the entirety of either, I agree.  There were some reporters and columnists who tried to make clear to us the truth on the ground in Iraq, a truth that did not include the presence of either weapons of mass destruction or Al Qaeda.  But there were others—many others—who took the easy path of accepting the government’s word for it, who even became cheerleaders for a war that didn’t need to happen.  And certainly, not every person in a position of power and responsibility in Washington, D.C., was in on the con; but enough of them, high enough up in the administration, were complicit, that it worked.   We continue to pay the price, in lost lives, lost trust, and lost treasure.

So, thanks to Jack Shafer (@jackshafer) for this tweet:

He provides a link to a piece today by Greg Mitchell about his recent column, assigned and subsequently killed by The Washington Post.  The column is highly critical of the news media for its credulous performance covering the run-up to war, and by “highly critical” I mean it simply recalls who did what, and who didn’t do what, and when.

For awhile, back in 2003, Iraq meant never having to say you’re sorry.  The spring offensive had produced a victory in less than three weeks, with a relatively low American and Iraqi civilian death toll.  Saddam fled and George W. Bush and his team drew overwhelming praise, at least here at home.

But wait.  Where were the crowds greeting us as “liberators”?  Why were the Iraqis now shooting at each other–and blowing up our soldiers?  And where were those WMDs, bio-chem labs, and nuclear materials?  Most Americans still backed the invasion, so it still too early for mea culpas–it was more “my sad” than “my bad.”
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By 2004 it was clear that Saddam’s WMDs would never be found, but with another election season at hand, sorry was still the hardest word.  But a few very limited glimmers of accountability began to appear.  So let’s begin our catalog of the art of mea culpa and Iraq here.

Take the five minutes to read the rest, and remember it the next time you pick up a paper or tune in to the broadcast echo chambers.

Rhetoric doesn’t match the facts, and Roberts may not be a traitor to conservatism after all

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A follow-up on Thursday’s Supreme Court Obamacare ruling:

The campaign for president hasn’t taken a time out since the court issued its ruling on the health care insurance reform last week; Barack Obama and Mitt Romney are all over it, but it turns out they’re getting a good bit of it wrong—both of them.  Check out the AP fact checker on the rhetoric since last Thursday: the law does not guarantee everyone can keep the insurance they have now indefinitely, 20 million people losing their insurance is a worst-case scenario estimate, there’s no evidence the law will add trillions to the budget deficit or raise taxes on the American people by half a trillion dollars, and very few of us should be counting on rebate checks from our insurance companies.

A healthy portion of the American people had some level of surprise or disgust at the action of Chief Justice John Roberts in this case: surprise that he found the law was constitutional, disgust at his seeming abandonment of conservative principles to come up with a way to find that the law was constitutional.  Today, CBS News quotes sources inside the court who say Roberts changed his mind on this ruling and worked to find a way to save the law, which angered his conservative colleagues.  Meanwhile, two more top conservative columnists, George Will and Charles Krauthammer, have joined the ranks of those who see a silver lining in the ruling: Roberts found a way to strike a blow for limited government while at the same time protect the integrity of the court itself!

Will:

If the mandate had been upheld under the Commerce Clause, the Supreme Court would have decisively construed this clause so permissively as to give Congress an essentially unlimited police power — the power to mandate, proscribe and regulate behavior for whatever Congress deems a public benefit. Instead, the court rejected the Obama administration’s Commerce Clause doctrine. The court remains clearly committed to this previous holding: “Under our written Constitution . . . the limitation of congressional authority is not solely a matter of legislative grace.”

Krauthammer:

More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5 to 4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.

Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5 to 4 decision split along ideological lines that might be perceived as partisan and political.

Last week I said that it would have been unfortunate for the law to be rejected by a single vote, in what would have amounted to a “party line” vote.  Will and Krauthammer and others think the chief justice of the United States was thinking the same as me…although he was thinking it sooner, I’m sure, and with much greater legal clarity.  But still, he was on the right track…

Health insurance law ruling will refocus fall campaign–away from the most important issues!

Pat Ryan 1 Comment

Let the predictable caterwauling begin: today the Supreme Court upheld the constitutionality of President Obama’s signature domestic policy achievement, the Patient Protection and Affordable Care Act, with Chief Justice John Roberts leading the majority on the 5-4 decision.

The heart of the disagreement over the law is its requirement that each of us Americans purchase health insurance, and the court has now ruled that the requirement does not violate the Constitution.

During oral arguments in March, conservative justices indicated they were skeptical about the individual mandate, the provision in the 2,700-page health-care law that requires nearly all Americans to obtain health insurance by 2014 or pay a financial penalty.

Arguing the case for the Obama administration, Solicitor General Donald B. Verrilli Jr. defended the law as a constitutional exercise of congressional power under the charter’s commerce clause to regulate interstate commerce. He said lawmakers were regulating health insurance to deal with the problem of millions of people who lack coverage and therefore shift costs to the insured when they cannot pay for their medical care.

Paul D. Clement, representing Florida and 25 other states objecting to the health-care law, argued that Congress exceeded its power in passing the law, which he said compels people to buy a product.

The court rejected Obama administration’s commerce-clause argument, but ruled 5-4 that Congress nevertheless “has the power to impose” the individual mandate under its taxing authority. The provision “need not be read to do more than impose a tax,” the opinion said. “This is sufficient to sustain it.”

Neither the plaintiffs in the case nor the Obama administration had argued before the court that the individual mandate was a tax.

(In fact, that is the point made—the only point made—in the story I saw when I clicked on the lead headline on FoxNews.comthis afternoon.)

The decision means that implementation of the new law should proceed, with the aim to get health insurance coverage for tens of millions of currently uninsured Americans; these are the people who currently access the most expensive health care around through emergency rooms and charity care, medical care that those of us who pay taxes are already footing the bill for anyway.

So, that’s settled.  Or not.  Arguably, the real heart of the disagreement is that this is Obama’s plan, and people who had supported similar health care insurance law revisions in the past (like the conservative Heritage Foundation and many Republicans; like the Commonwealth of Massachusetts, W. Mitt Romney, Gov.) opposed this one because it was Obama’s plan.  People like Mitch McConnell, and others who have proudly and publicly asserted that they will do whatever is required to make Barack Obama a one-term president (for whatever reason).

The dissent in the case will only fuel their fire: it argues that the Obamacare mandate that individuals purchase a product—health insurance—and its threatened denial of some Medicaid funding to states for non-compliance both unconstitutionally exceed government authority, and that since those provisions are crucial to making the system work, the entire statute should be tossed out…hmm, not much room for compromise here, I guess.

It’s unfortunate that the divide on the court was (except for Roberts) by perceived political ideology—for many people that’s going to reinforce the idea that the justices make their decisions based on politics rather than the law, and that will reinforce the left/right division in politics.  But it could have been worse: as David Franklin from DePaul University’s College of Law argues in Slate, Roberts found a way to uphold ACA in order to save the integrity of the Supreme Court.

A 5-4 decision to strike down Obamacare along party lines, whatever its reasoning, would have been received by the general public as yet more proof that the court is merely an extension of the nation’s polarized politics. Add the fact that the legal challenges to the individual mandate were at best novel and at worst frivolous, and suddenly a one-vote takedown of the ACA looks like it might undermine the court’s very legitimacy.

And, of course, health care is now likely to become the distraction center for a presidential campaign that I’d hoped would hold its focus on employment and the federal budget.

(We don’t need to spend time discussing how, in their rush to be first with the news, CNN and Fox both got the story completely wrong, do we?  Fish in a barrel…)

Here’s a smattering of the early reports on the court ruling, for your edification and delight:

Bravo, Mr. President

Pat Ryan 3 Comments

Let’s see now: I asked President Obama to take a stand…it was all the way back to, well, yesterday (see just below) that I asked if “anybody is ready to really show some leadership” on the issue of same-sex marriage by just having “the courage to publicly do the right thing.”  Today, the president publicly affirmed that he believes same-sex couples should be permitted to get married.  Thank you, sir.

To deny some Americans the right to marry under civil law due to their gender is discriminatory.  The fact that a majority of the states have constitutional or statutory prohibitions of same-sex marriage doesn’t change that fact, but even those barriers are likely to fade away as more people come around to the understanding that the prohibition is wrong.  Fact is, most Americans are live-and-let-live sorts who wish the anti-gay extremists would just shut the hell up and stop always trying to make everybody else live according to the rules of their religion.  Just yesterday the latest Gallup poll showed that half of all Americans believe same-sex marriages should be legal, and the numbers in favor have steadily grown over the years.

Was Obama’s announcement today politically brave?  Maybe.  Taking this stand isn’t going to change the minds of the religious extremists who make up so much of the conservative fringe that’s taking (taken?) control of the Republican Party: they hate him and are never going to vote for him no matter what he says, on this subject or any other.  From a political standpoint, those people are a lost cause.  This may hurt him among some less strident traditionalists who can’t go along with his stand on this issue, and now are lost from the group of independent voters who were still undecided; those numbers are pretty hard to calculate, though.

On the other hand, it has to help him among the gay rights supporters who voted for him four years ago and are disappointed that he hasn’t been stronger on the issue, despite his administration getting rid of don’t ask don’t tell and stopping any government support of the Defense of Marriage Act.  And it should help him among some independents who feel that taking a stand on a controversial issue deserves to be rewarded; the numbers there, too, are tough to add up.  Maybe his campaign numbers-crunchers have already done that, and maybe they think that this will be a net gain for Obama in November; we’ll see.

(One lesson here: despite the characterizations his enemies use, Barack Obama really is a very moderate and middle of the road politician. If he was the big liberal the conservatives claim he is he’d have started pushing gay marriage years ago.)

In either case, Obama has shown us that he can be a leader: he’s taken a stand that he knows is not universally popular and run the risk of political harm…time will show whether or not he can persuade America to the rightness of his position on this issue.  Now, he did take his sweet time about doing it—he was very cautious, and put his toe in the water with all that “evolving” crap to see what would happen.  He could have kept his mouth shut and waited for the issue to settle down and disappear again in a week or two, as it surely would have done.  But he didn’t.  Good for him.  Good for us.