Both Sides : Is Scalia a Pol in Robes? What If Races Reversed in Shooting?

By Mark Green

No Mad Men this week, neither the AMC nor GOP variety. Instead, Mary Matalin and civil liberties lawyer Ron Kuby clash over three headlines -- Is Obamacare on life support? Is it fair to talk race in the Treyvon tragedy? And, after Etch a Sketch and the Obama's "flexibility" toward Russia, what IS a 'gaffe'?

*On the Constitutionality of Obamacare. We listen to Justice Kennedy assume that the Affordable Health Care act changes "the relationship of the individual to government in a unique way" (Host: he who a priori assumed in Citizens United that "independent" pacs couldn't hurt democracy). Is the law constitutional?

Ron argues that sustaining the law would be in the tradition of an expansive Commerce Clause which was found to uphold civil rights acts after considering the impact of buses and lunch counters, much less one-sixth of the economy in health care. Mary objects to the comparison of a "human rights" issue with "socialized medicine": "Is there any issue that doesn't lead liberals back to lunch counters?" (Can't health care too be considered a "right, not a privilege"?)


We exchange over Scalia's "broccoli", SG Verrilli's struggle to provide a limiting principle for regulation, and the oddity that taxing to fund Obamacare would be constitutional (like Medicare and Medicaid) but not a mandate to fee-shift? Kuby cites Krugman that broccoli is a hair-splitting misleading metaphor designed to justify a political not constitutional result, though Ron also understands the slippery-slope aspects. Mary returns to wondering why then Obama didn't just simply push for single-payer? "Because he didn't have Republican votes!" in a Senate with a filibuster, comes the answer.

OK, if it's struck down, what's the alternative for the 40+ million uninsured... now that the GOP has rejected single-payer, the public option, Medicare-for-all and a Mandate? Mary says Congress should start over based on free-market principles, though the Host wonders how that's possible since, unlike nearly all other markets, here consumers pay but don't choose the service since third-parties like insurance companies do.

Will a partisan majority rule based on activism? Ron says that since 1803 the Court has been asked to judge such fundamental rights issues -- and should again.

*On Zimmerman-Trayvon. Mary notes both that all parents grieve when an innocent youth is killed and that it's "preposterous and revolting for screeming-meemies to rush to judgment... in inverse proportion to the few facts." We listen to Sean Hannity wonder "why even bother with a trial... if media people and congressmen in hoodies bring up racial implications about a guy we hear educated minority children for free."

Ron agrees that we'll know a lot more after ballistics tests, autopsies, witnesses under oath. But: there are those incriminating tapes and Zimmerman's history of 911 vigilante-like calls. "And what if the races were reversed, and the shooter was a black kid who blew away an innocent white boy with a 9 millimeter? Of course there'd be an arrest."

Mary takes umbrage that Ron is in effect arguing that cops are bigots but also acknowledges that "there is a problem of residual racism [so that] a black child in a hoodie is a threat. But that doesn't mean this was a hate crime."

What about Obama's comment that "if I had a son, he'd look like Trayvon." "I liked Obama's comment tremendously," comments Ron. "It struck the right emotional chord but didn't get into guilt or innocence", as the president's comment on the Skip Gates incident did. Mary, however, thinks this observation of the first black president "disheartening. There are tragedies every day in every community and the places that the president chooses to insert himself seem to inflame rather than sooth."

*On Gaffe-Gate! Etch-a-Kvetch. We listen to a Golden Oldies of "gaffes", from Reagan's "bombing begins in five minutes" mic check to Ford's liberation of Poland from the Soviet Union to Senator Allen's "macaca" to Kerry's "voted against it/forit." Beyond that we-know-it-when-we-see-it, what IS a political gaffe?

Ron defines it as "when a politician says something unexpected but revealing of his true character" -- and then analyzes why the Reagan one didn't stick (it was a joke obviously) but the others did because they played in a narrative of opponents, like "Ford was stupid and Allen a racist."

Mary agrees, "minus the cheap shots", repeating the Kinsley wisdom that a gaffe is "not when you tell a lie but the truth." She adds that often a small comment gets blown up into a so-called gaffe because cable news has a lot of time to fill and this is what they do.

Specifically: she thinks that it was innocent when Romney's aide said a general election will be a reset, an "Etch a Sketch", since that's what happens after a primary contest, not that Romney's a flip-flopper.

As for Obama: when he once said he'd been to all "57 states," Ron brushes it off as a brain burp since no one thinks Obama's stupid but that two others will stick: his one-time comment that poor, rural whites may "cling to their guns and religion" has dogged him since it probably is what he thinks (though probably true). Ditto his comment, heard on an open-mic last week, that he wants Medvedev to tell Putin that he'll have "more flexibility" to discuss arms issues after the election. This both plays into the perception that he's a slippery lefty who may sell out America (Romney) athough, as Obama later explained, it seems true that a president has more flexibility to negotiate treaties not during the heat of a presidential contest. Hence a gaffe -- not a lie but a politically embarassing truth.

Gaffegate looks to be a continuing segment on Both Sides Now.

Mark Green is the creator and host of Both Sides Now, which is powered by the American Federation of Teachers.

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