You Say You Want A Revolution

Walter Russell Mead pens what might constitute law porn for right-wing legal geeks like myself, when reviewing Jeffrey Toobin's piece in the New Yorker about Clarence Thomas...

In fact, Toobin suggests, Clarence Thomas may be the Frodo Baggins of the right; his lonely and obscure struggle has led him to the point from which he may be able to overthrow the entire edifice of the modern progressive state.

...There are few articles of faith as firmly fixed in the liberal canon as the belief that Clarence Thomas is, to put it as bluntly as many liberals do, a dunce and a worm.  Twenty years of married life have not erased the conventional liberal view of his character etched by Anita Hill’s testimony at his confirmation hearings.  Not only does the liberal mind perceive him as a disgusting lump of ungoverned sexual impulse; he is seen as an intellectual cipher.  Thomas’ silence during oral argument before the Supreme Court is taken as obvious evidence that he has nothing to say and is perhaps a bit intimidated by the verbal fireworks exchanged by the high profile lawyers and his more, ahem, ‘qualified’ colleagues.

At most liberals have long seen Thomas as the Sancho Panza to Justice Antonin Scalia’s Don Quixote, Tonto to his Lone Ranger.  No, says Toobin: the intellectual influence runs the other way.  Thomas is the consistently clear and purposeful theorist that history will remember as an intellectual pioneer; Scalia the less clear-minded colleague who is gradually following in Thomas’ tracks.

If Toobin’s revionist take is correct, (and I defer to his knowledge of the direction of modern constitutional thought) it means that liberal America has spent a generation mocking a Black man as an ignorant fool, even as constitutional scholars stand in growing amazement at the intellectual audacity, philosophical coherence and historical reflection embedded in his judicial work.

Toobin is less interested in exploring why liberal America has been so blind for so long to the force of Clarence Thomas’ intellect than in understanding just what Thomas has achieved in his lonely trek across the wastes of Mordor.  And what he finds is that Thomas has been pioneering the techniques and the ideas that could not only lead to the court rejecting all or part of President Obama’s health legislation; the ideas and strategies Thomas has developed could conceivably topple the constitutionality of the post New Deal state.

Put rather simply, Mead's thesis (with an admirable use of Lord of the Rings analogies to make geeks feel even more welcome) is compelling because what he is positing may be the Tea Party's ultimate solution to stopping the leviathan known as Big Government, at least at the federal level.  If the Supreme Court suddenly decided the 10th Amendment has meaning, then there may well be lots of activities that the federal government is actually prohibited from undertaking... activities that it currently undertakes with little question.

Is it likely?  Probably not, except Mead notes that 10-15 years ago, an interpretation of the 2nd Amendment that enshrined an individual right to own firearms was widely viewed as controversial at best.  It's now Supreme Court doctrine and even  accepted by leading liberal scholars like Larry Tribe.  Obamacare may present the first opportunity to rollback the expansion of the Commerce Clause, but the 10th Amendment would be something more -- it would be a shot across the bow of the federal government.

And yes, that's worthy of a Lord of the Rings reference.  Even though I'm not sure that Scalia would enjoy being Gandalf.

The Health Care Follies Continue

I don't expect Congressmen to be top-flight Constitutional scholars, but Congressman Phil Hare's breezy brush-off of Constitutional concerns related to the health care reform legislation is more damaging than Hank Johnson's stupidity...

He doesn’t mean “I don’t worry about it because I’ve studied the Commerce Clause and I’m confident we’ll win in court.” When pressed, he flatly says he doesn’t know which part of the Constitution justifies the law, which is his way of saying he doesn’t care and hasn’t thought about it. In fact, the best he can do by way of legal authority is to cite life, liberty, and the pursuit of happiness — which of course comes from the Declaration of Independence. His response, when corrected? “Doesn’t matter to me. Either one.”

Imagine the outrage on the left if a GOP-controlled Congress passed, and then the President signed into law, a bill outlawing abortion. I will grant that such a bill would fly in the face of existing precedent, but there is plenty of good faith debate among top-flight Constitutional scholars as to whether different parts of Obamacare (particularly the individual mandate) are constitutional. I don't need a Congressman to weigh in with an expert opinion, but I would like to know that he's considered the issues and understands them well enough to articulate a coherent rationale for why he believes it's not an issue. I'd like to think that's part of the job. At least John Conyers made up a "Good and Welfare Clause" to justify Obamacare. On the whole, it's rather disturbing that the constitutionality of such far-reaching legislation is of little importance to those who passed it. If you want to know why the Tea Party activists are offended by our current governmental elite, there's a basic summary of it.

I doubt the Supreme Court would overturn Obamacare, based on existing precedent. But I think I'd enjoy watching Democrats try and debate the finer points of constitutional law with the Supreme Court.

On Gilligan's Island, Professor Meant... Professor

It's quotes like the ones by Charles Ogletree that make me wonder about whether the value of my law school degree is declining...

Barack Obama has been called a lot of things since he hit the national stage: Celebrity, elitist and even one who “pals around with terrorists.” But as his poll numbers come back down to earth, and an emboldened conservative movement sharpens its attacks, the label that seems to be sticking to Obama as much as any lately is that of “professor.”

Speaking to Tea Party activists in Nashville last week, Sarah Palin did her part to keep the “professor” dig in circulation.

"They know we're at war, and to win that war we need a commander in chief, not a professor of law standing at the lectern,” the 2008 Republican vice presidential nominee told a frenzied crowd.

...Watching the “professor Obama” label bandied about again, one of the president’s longtime mentors says he doubts it will gain traction outside of Tea Party rallies. Taken to its logical conclusion, the message just doesn’t make sense, says Charles J. Ogletree, a Harvard professor who has known Obama since he was a law student there.

“I think anyone who examines it closely and carefully will see this type of criticism of Obama will ultimately be counterproductive,” Ogletree says. “Do you want to tell your children we don’t want smart people in government?”

Ogletree, founding and executive director of the Charles Hamilton Houston Institute for Race and Justice, says he sees the “professor” label as a thinly veiled attack on Obama’s race. Calling Obama “the professor” walks dangerously close to labeling him “uppity,” a term with racial overtones that has surfaced in the political arena before, Ogletree said. Describing his divisive confirmation hearings as a “circus,” Justice Clarence Thomas called the proceedings “a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas.…” It is perhaps ironic, then, that Ogletree, who represented Anita Hill when she made harassment allegations against Thomas in 1991, now sees a bit of the “uppity” label being placed on Obama.

“The idea is that he’s not one of us,” Ogletree says of the professor label. “He has these ideas that are left wing, that are socialist, that he’s palling around with terrorists -- those were buzzwords, but the reality was they were looking at this president as an African American who was out of place.”

A few points, if I may...

1. President Obama is/was a Con Law professor. I can't really say whether he was any good at it, but he was a professor. If it's racist to call him professor, even though that was his job, it might also be racist to refer to him as a former state legislator and Senator. To be fair, calling someone a "Senator" nowadays is pretty demeaning, since it means you belong to the same club as John Kerry.

2. When I think "professor", I think of Gilligan's Island and college, usually in that order. I don't think of people palling around with terrorists, nor do I think of professor as a buzzword for making me think of that. When people want to reference President Obama palling around with terrorists, they simply need to say the name William Ayers.

3. Actually, I want smart people in business more than government. But I want them in government as well. But smarts aren't just obtained working in academia -- real world practical experience would be helpful. One of the problems with president Obama and his coterie of advisors is that most of them have spent the vast majority of their careers working in government or the public sector. The lack of private sector experience means that they may not have the perspective to relate to problems being experienced by people in the private sector. That has little to do with book smarts. It also has nothing to do with race.

4. I have no idea how calling someone "professor" translates into calling them "uppity." I agree it can be a derogatory term, in that it translates to calling someone an "egghead." I've never seen anyone say "egghead" is a racist term, although I don't know what Professor Ogletree would say about it.

5. Full disclosure: I was once a student at HLS and interacted with Professor Ogletree. I like him a lot. I just think his ideas may be loopy. I hope saying that doesn't make me a racist.

The Health Care Follies Continue

Well, the Democrats got past the filibuster. What was the price of Ben Nelson's vote? Unlike in the past, the truth is readily available...

We’ll be blunt. The ‘health care reform’ legislation under consideration in the Senate is the most corrupt piece of legislation in our nation’s history. Yes, we understand that is a strong statement and there have been other abominations throughout our nation’s life. But never before did corrupt legislation threaten to radically and forever change the live’s of every American.

Exhibit A is the outright bribe extracted by Sen. Ben Nelson (D-Corn Huckster State) from Sen. Harry Reid. As a result of Nelson’s performance in his role of Hamlet in the health care deliberations, we will have two health care systems in this country; one for Nebraska and one for the other 49 states.

In its quixotic attempt to ensure everyone has health insurance, the Reid legislation greatly expands Medicaid eligibility. Because Medicaid is a program whose costs are split between the federal and state governments, this expansion in eligibility raise costs dramatically for states. States will be forced to either raise taxes or cut other services to accommodate the forced increase in Medicaid spending.

Unless that state is Nebraska.

Below is the text for Nelson’s bribe. Under this language the federal government will forever cover the costs of Medicaid expansion in Nebraska. Taxpayers in every other state will forever be responsible for the expanded Medicaid program in Nebraska.

I'm wondering what sort of goodies get passed out in the House. The question on Nelson's vote is whether the psuedo-bribe even helps Nelson in Nebraska...

It was the concern of Nebraska's Republican governor over expanded Medicaid costs in the proposed Senate health care overhaul bill that led to a compromise to cover his state's estimated $45 million share over a decade, U.S. Sen. Ben Nelson said Sunday.

Gov. Dave Heineman "contacted me and he said this is another unfunded federal mandate and it's going to stress the state budget, and I agreed with him," the Nebraska Democrat said. "I said to the leader and others that this is something that has to be fixed. I didn't participate in the way it was fixed."

But Heineman expressed anything but gratitude, saying he had nothing to do with the compromise and calling the overhaul bill "bad news for Nebraska and bad news for America."

"Nebraskans did not ask for a special deal, only a fair deal," Heineman said in a statement Sunday.

That criticism is only a taste of what Nelson has received since announcing Saturday that he would become the 60th vote needed to advance the landmark legislation.

Despite the perks Nelson managed to garner for Nebraska in finally agreeing to support the overhaul bill, the backlash from those who wanted Nelson to hold a hard line against the measure was immediate.

Abortion foes howled in protest. Nebraska Right to Life, which has long endorsed Nelson, issued a scathing statement that dubbed Nelson a traitor. The state's Catholic bishops followed Sunday with a statement that they were "extremely disappointed" in him.

The chairman of Nebraska's Republican Party declared Nelson's decision to be the end of his political career in Nebraska, and within hours of Nelson's announcement, the state GOP launched a Web site, , to collect funds to oust the Democrat in the 2012 election.http://www.givebentheboot.com

Nebraska's Republican Sen. Mike Johanns said he was "stunned and incredibly disappointed," and called the compromise's abortion language a "watered-down accounting gimmick that leads to Nebraska taxpayers subsidizing abortions in other states."

The compromise tries to maintain a strict separation between taxpayer funds and private premiums that would pay for abortion coverage. It would also allow states to restrict abortion coverage in new insurance marketplaces.

Nelson obtained increased federal funds to cover his state's cost of covering an expanded Medicaid population at what one Democratic official estimated at $45 million over a decade.

Big Government certainly thinks it's a bribe. The deal is so bad, Nelson may be backing away from the benefits due to the home state backlash (and because other Senators are asking for the same benefit for their state). Even if it's business as usual for Congress, that makes it worse, not better. Hell, Dana Milbank has a nice list of all the goodies Senators got in exchange for their votes -- perhaps it's not wrong because all the cool kids are doing it. And it's official -- health care reform is more important that the environment, since Harry Reid dispatched a special plane to New Jersey to get the state's Senators back to D.C. in time for the cloture vote. Carbon footprint, indeed.
As for the bill, Richard Epstein thinks it's unconstitutional; unfortunately, so was McCain-Feingold, and the Supremes ducked that decision, and they would probably steer clear of declaring health care reform DOA. But even the left is admitting the bill's filled with accounting tricks to make it look deficit-friendly; somewhere the jailed and paroled execs who ran Enron are coming to the realization that they merely should have run for office to protect themselves (plus, you have the added benefit of spending other people's money). Pete Wehner analyzes the fallout...

1. Few Democrats understand the depth and intensity of opposition that exists toward them and their agenda, especially regarding health care. Passage of this bill will only heighten the depth and intensity of the opposition. We’re seeing a political tsunami in the making, and passage of health-care legislation would only add to its size and force.

2. This health-care bill may well be historic, but not in the way the president thinks. I’m not sure we’ve ever seen anything quite like it: passage of a mammoth piece of legislation, hugely expensive and unpopular, on a strict party-line vote taken in a rush of panic because Democrats know that the more people see of ObamaCare, the less they like it.

3. The problem isn’t simply with how substantively awful the bill is but how deeply dishonest and (legally) corrupt the whole process has been. There’s already a powerful populist, anti-Washington sentiment out there, perhaps as strong as anything we’ve seen. This will add kerosene to that raging fire.

Read the whole thibng, since Wehner also covers how the bill impacts President Obama. But maybe a look at the polls on the plan, as well as the polls on Obama himself, will suffice. Megan McArdle finds the whole thing inexplicable...

At this point, the thing is more than a little inexplicable. Democrats are on a political suicide mission; I'm not a particularly accurate prognosticator, but I think this makes it very likely that in 2010 they will lost several seats in the Senate--enough to make it damn hard to pass any more of their signature legislation--and will lose the house outright. In the case of the House, you can attribute it to the fact that the leadership has safe seats. But three out of four of the Democrats on the podium today are in serious danger of losing their seats.

No bill this large has ever before passed on a straight party-line vote, or even anything close to a straight party-line vote. No bill this unpopular has ever before passed on a straight party-line vote. We're in a new political world. I'm not sure I understand it.

The irony of this is that this bill is great for me personally. I'm probably uninsurable, and I'm in a profession where most people now end up working for themselves at some point in their career. So mandatory community rating is great news for me and mine. But I think that it's going to be a fiscal disaster for my country, because the spending cuts won't be--can't be--done the way they're implemented in the bill. We've just increased substantially the supply of unrepealable, unsustainable entitlements. We've also, in my opinion, put ourselves on a road that leads eventually to less healthcare innovation, less healthcare improvement, and more dead people in the long run. Obviously, progressives feel differently, and it will never be possible to prove the counterfactual.

What's great is that the CBO is already pointing out additional problems with the bill, which won't make it more popular. Indeed, the Dems have already lost a House seat, as Parker Griffith of Alabama just switched parties.

Bill Kristol thinks the bill could still fail, thanks in part to the Dems' attempt to protect the Independant Medicare Advisory Board from future Congressional interference. Back to McArdle, who explains why process should be more important to the Dems' grand scheme...

My procedural complaints are somewhat more obscure. The biggest one is that I am beginning to believe that in order to get this bill passed, the Democrats basically gutted the CBOl. Not because they were working with the CBO to get estimates--that's the CBO's job, to provide Congress with a cost. But rather, because this bill was something novel in the history of legislation. Previous Congresses wrote bills, and then trimmed them to get a better CBO score: witness the Bush tax cut sunsets. But the Congressional Democrats started out with a CBO score they wanted, and worked backward to the bill. They've been pretty explicit about the fact that no one wants this actual bill; rather, the plan is to pass basically anything, and then go and totally rewrite it when the budget spotlight is off. I'm not aware of any other piece of legislation that was passed this way.

Essentially, the Democrats have finished the process of gaming the CBO scores. They're now meaningless. You don't pass a piece of legislation that bears any resemblance to what you intend to end up with; you pass a piece of legislation that gets a good CBO score, and then go and alter it piece by piece.

This is obviously troubling because major bills will no longer have any meaningful deficit control--minor bills will presumably be done the old fashioned way, where congressmen have an actual passing interest in cost-benefit analysis.

But it's also troubling because Democrats aren't going to go back and modify the bill into something good, the way that many of them are currently imagining. The bill will be modified, piece by piece, according to the same crappy process that produced the current monstrosity: horse trading, log rolling, and all. (Yes, even if you use the magic of budget reconciliation, which still offers lavish opportunities for pork and stupidity). Some of the things you think you are going to get, you won't; they may very well be the crucial parts that make everything else work as you actually plan. At every step, the bill is probably more likely to get worse than to get better. At any rate, passing a bill based on either a meaningless CBO score, or the notion that it can be rewritten to spec at some later date, is not a process for generating good legislation.

Meanwhile, the Democrats are apparently attempting to prevent future Congresses from altering bits of the legislation that they do like...

All politicians attempt to make their pet projects as difficult to repeal as possible, but as far as I know, this is an unprecedented and troubling power grab. If this sort of tactic became common in legislation--and actually worked--the country really would become, as the liberals have been complaining, "ungovernable".

Before my readers start accusing me of hypocrisy--I just complained that the process of changing the bill will be messy and likely to make it worse, and now I'm complaining that Reid is trying to prevent the bill from being changed--let me explain. These are two different problems. Legislation does sometimes need to be changed. Making it impossible to do so is not a good idea. But passing crappy legislation that has to be changed in order to function as you desire it is not a good idea.

The Democrats response' thus far has been to label the opposition as fringe elements... or as Democratic Sen. Sheldon Whitehouse charged, we're all members of right-wing militias and Aryan support groups. Senator, I'm not sure where I fit -- I don't own a gun, but I'm pretty sure I wouldn't be the ideal member for an Aryan support froup.

At the end, I think we're headed toward the Democrats passing a gawdawful bill, poisoning the well for the prospect of bi-partisan progress on other bills, leading to their eventual loss of the majority in the House, and a House and Senate effort to try to overturn the same legislation (which will be when Dems recover their respect for the filibuster). It will be bad for the Dems current office holders and for the country. Unfortunately, it will probably be even worse for the country.