Friday Talking Points -- Obama Attacks! Everybody Run!

Conservatives, ever since Obama spoke on Monday, have been clutching at their metaphorical handkerchiefs and swooning in Victorian anguish over Obama's words. Which is downright hilarious.
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Let's see, where to begin?

We'll get to that provocative title in the Talking Points section, never fear. I felt the need for a sort of a rant this week, as well as a little humor to open it up with. Truth be told, I've been in a humorous mood all week, as evidenced by my column casting the Republican primary race so far as a climb up the polling mountain range. I think it's the spring weather or something. Since we're on the subject, though, Republican candidates seem like a good place to start today.

Newt Gingrich's health care think tank just filed for bankruptcy. Gingrich has reportedly now taken to charging $50 for a photo with Newtie, which seems like scraping the barrel, when it comes to strategies for boosting campaign finances. But, as we've always believed, when you scrape the bottom of many Washington barrels, there you'll find Newt, deep in the gunk at the bottom. So to speak.

Newt wants everyone to know that he's not giving up the race yet, but unfortunately for him not only his donors have deserted him like rats leaving a sinking ship, but the media has also stopped paying attention to Newt. Unless you count late-night comedians joking about the $50 photo-ops, which isn't exactly the media coverage candidates dream of (to put it mildly).

The chairman of the Republican National Committee now thinks women voters are "caterpillars"... or something... it's hard to tell what any RNC chair thinks, if truth be told. It's hard enough just to spell the guy's name right (and this is coming from a person who knows all about the trouble "ei" and "ie" cause in names, I should mention). When asked whether he agreed that the Republicans were waging a "War on Women" or whether the whole thing was made up, Reince Priebus replied: "If the Democrats said we had a war on caterpillars and every mainstream media outlet talked about the fact that Republicans have a war on caterpillars, then we'd have problems with caterpillars. It's a fiction."

Um, OK, Reince. We'll remind you of this in the fall, when all those fictional caterpillar-women burst out of their cocoons and become the beautiful butterflies of Democratic votes, just in case you've forgotten your metaphor.

One wonders what George W. Bush would think, since his favorite book to read to children was reportedly The Hungry, Hungry Caterpillar. Ahem.

Seriously, though, the Republicans do seem to be having a bit of a problem these days with the ladies. Poll after poll shows women voters abandoning the Republican Party to support Democrats. President Obama's poll numbers are up significantly because of this, as he's opened up double-digit leads among women over Romney -- in key battleground states, no less. But Republicans should indeed go right on convincing themselves that there is absolutely no correlation between the laws they're attempting to pass whose sole result is to shame and degrade women and the exodus of women voters from their party. That's right, guys, the two things have nothing to do with each other -- please (Please!) just keep telling yourselves that, for the next few months.

In non-caterpillar news, one Democratic woman was honored... if that's the right word... this week by having a heavenly phenomenon named after her. Senator Barbara Mikulski received the singular honor of having a supernova named for her. This sounds awfully impressive, until you start to think about it. What is a supernova, after all? It's a star exploding. It is a violent outburst of hot gasses which flare brightly in the night sky, expand rapidly, and then fade from view (never to be seen again), leaving behind only thin tendrils of nebulous matter.

I'm not trying to be disrespectful, here, since I'm not the one naming supernovae after politicians. Would I want a supernova named after me? Um, maybe not. A comet might be nice, or perhaps even an asteroid. But a supernova? I'd really have to think twice.

Kidding aside, nothing but respect was intended (a science archive was also named for Mikulski at the same time, which seems a slightly more permanent honor), so we think Barbara Mikulski deserves at least an Honorable Mention this week from us, as well.

But the coveted Most Impressive Democrat Of The Week award this week goes to Senator Charles Schumer, who is tossing the gauntlet down at the Republicans' feet over the so-called "Buffett Rule" in the Senate. The Buffett Rule would mandate that people making over a million bucks a year pay their fair share of income taxes. This could be a central issue in the campaign season this year, because (as Schumer points out) of the likely Republican candidate's own tax returns: "Romney, particularly in his situation where he has benefited from a lower tax rate because of his high income, I believe, will be forced to move to the middle and urge those in the House and Senate [to vote for the Buffett Rule legislation]." While Schumer is publicly optimistic about the chances for passage, the chances that Republicans will suddenly agree to this change appears to be a big fat zero, from where we sit. Republicans, as Senator Sheldon Whitehouse helpfully points out, are much more interested in defending the tax provision that means "the hedge fund billionaire should pay a lower tax rate than a Rhode Island truck driver."

This is a winning issue for Democrats. Huge majorities of voters think the ultra-wealthy should be paying their fair share in taxes -- majorities of Democrats, Independents and even Republican voters agree with the concept. The more Republican politicians are put on the defensive on this issue, the better it is for Democrats. They can scream "class warfare" until they are blue in the face, but the electorate (note: even the Republican electorate) agrees with the Democrats on this one.

Chuck Schumer's stated intent of using this as a legislative battering ram all year is an excellent idea, and for getting out in front of the issue and pushing hard, Schumer wins our Most Impressive Democrat Of The Week award.

[Congratulate Senator Charles Schumer on his Senate contact page, to let him know you appreciate his efforts.]

There was a lot of disappointing things going on, most of them under the radar, in recent days. One that was definitely not under the radar is the spat between Keith Olbermann and Al Gore's Current TV, but we have no way of knowing exactly who is to blame here, so we're going to take a pass on that one.

An Obama "bundler" was accused of fraud this week, which is mighty disappointing, and rises at least to the level of a (Dis-)Honorable Mention (as always, we'll rescind the award if the bundler is exonerated in court later).

Leon Panetta is apparently costing the Pentagon a pretty penny to commute home (to California) every weekend. Due to his job, he must fly on military aircraft (with secure communications links), but even discounting for that, the phrase which stuck out was "every weekend" -- which just seems rather excessive to us. So Panetta earns a (Dis-)Honorable Mention of his own this week.

Eric Holder's Justice Department was busy in an Oakland school this Monday, but it's not the one you saw on the news. Federal agents raided Oaksterdam University, where classes are taught on how to set up legal medical marijuana operations in California. The founder of the University spent a million dollars on a ballot initiative a few years ago which would have outright legalized marijuana in the state for every adult (which subsequently failed with the voters). The Obama Justice Department is continuing its policy of leaning the hardest on those who exercise their political right to speak out on the issue, and it is not only disappointing, it is downright disgusting to think that Obama's Justice Department is now harsher than any Republican administration on the subject. For conducting this raid -- while a horrific school shooting was happening elsewhere in Oakland on the same day -- really shows how screwed up our law enforcement priorities are, as a society. So, a (Dis-)Honorable Mention for Attorney General Eric Holder (and Obama, to boot, for allowing this sort of thing to keep right on happening).

Even with all of that, the worst news of the week came from the General Services Administration. They apparently had a big party in Las Vegas on the taxpayers' dime, which is downright obscene when you consider that they are the federal agency in charge of all the nuts-and-bolts and bean-counting of the drudgery of keeping the government running. They should know better, in other words, than to go on a taxpayer-funded junket and even make videos about how they'll never get caught doing so (the video in question "won top prize" in a "talent contest" at the event, which speaks volumes, right there).

Sheesh. Talk about having no shame. The head of the GSA, Martha Johnson, immediately stepped down when this whole story broke, but that is not going to stop us from handing her a Most Disappointing Democrat Of The Week on her way out the door.

We're assuming she's a Democrat (a political appointee, in other words), but if it turns out she's a non-partisan civil servant, then we'll think about changing our minds. Until then, enjoy your MDDOTW award, Martha.

[Since GSA Administrator Martha Johnson has left her public position, we have no public contact information for her, sorry.]

Volume 205 (4/6/12)

In a stunning news development this week, President Barack Obama attacked the Supreme Court. He did so singlehandedly, his Rambo-esque body draped with guns and explosives, which he deployed with abandon as he stormed the Supreme Court building. The Secret Service agents with him at the time were caught completely off-guard, and while they did take up defensive positions outside the building, they all refused to back up the president in his guns-blazing attack. "We didn't fire a single weapon" a Secret Service agent at the scene later swore, shaking his head in amazement, "all that stupendous explosive firepower was at the hands of the president himself." Obama, who reportedly laid down a barrage of grenades when he first entered the building, quickly subdued all resistance, and went hunting for the conservative wing of the Court. The subsequent unearthly and painful howls of Justices Scalia, Thomas and Alito were so loud they were actually heard outside the building. As was, at one point, the president himself, who was clearly heard yelling: "How do you like your 'enhanced interrogation' now, you sons of..."

Well, no. None of that actually happened. I made the whole thing up. The preceding paragraph was a complete fantasy. But you certainly wouldn't know it by listening to Republicans this week, would you?

Because this hoop-te-do is likely going to be on all politicians' lips during the upcoming weekend of political chat shows, we've elected to (sigh...) pay attention to this meaningless squabble instead of doing what we would much prefer to be doing, which is attacking Paul Ryan's budget (President Obama actually did a damn fine job of ripping the Ryan budget to shreds this week, but it got lost in the fray).

Now, there are others out there making similar points. A Salon column did an admirable job this week of pointing out just how silly this entire sideshow is. The only omission in this article is the author's apparently lack of historical knowledge older than F.D.R., so we are moved to supplement it with a quote from one of our feistiest early presidents (for better or worse), Andrew Jackson. Jackson's battles with his own Supreme Court were legendary, and he took direct aim at them in one of his most famous veto messages. You want to hear what a direct attack on the Court's power sounds like? Try this on for size:

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this government. The Congress, the executive, and the court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

That is what a real power struggle between the branches sounds like, folks. I put this up front, to show the obvious comparison to the inane tempest the Republicans are ginning up over what Obama said this week.

As is common in such fracases (fracasii?), the media immediately got distracted by the shiny, shiny object of "Hey, look, there's a fight happening!" and then completely ignored what was actually said, in favor of reporting the secondhand conflict among politicos. The president's words were so edited (soundbited?) that his original meaning was utterly lost in the smoke and noise.

Here is the passage that caused all the faux outrage from Righties. President Obama was asked a single question, during a press appearance on Monday with two foreign leaders, about what he would do if the Supreme Court ruled 5-4 against the individual mandate portion of his health care reform law. Obama responded with (note: the only thing cut from this transcript are a few paragraphs of boosterism from Obama about the benefits of the law itself):

PRESIDENT OBAMA: With respect to health care, I'm actually -- continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it's constitutional. That's not just my opinion, by the way; that's the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn't even a close case.

I think it's important -- because I watched some of the commentary last week -- to remind people that this is not an abstract argument. People's lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of pre-existing conditions.

[... three paragraphs cut ...]

And I think it's important, and I think the American people understand, and the I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with pre-existing conditions can actually get health care. So there's not only a economic element to this, and a legal element to this, but there's a human element to this. And I hope that's not forgotten in this political debate.

Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this Court will recognize that and not take that step.

Q: You say it's not an abstract conversation. Do you have contingency plans?

PRESIDENT OBAMA: I'm sorry. As I said, we are confident that this will be over -- that this will be upheld. I'm confident that this will be upheld because it should be upheld. And, again, that's not just my opinion; that's the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who have examined this law, even if they're not particularly sympathetic to this particular piece of legislation or my presidency.

President Obama, quite obviously, either misspoke or overstated his own case with his use of "unprecedented." He should have left it at "extraordinary," although this likely wouldn't have quelled the storm of criticism, merely redirected it. Perhaps at the almost-gaffe when Obama started to say he was confident that the law "will be overturned" but then stopped himself in time and substituted "will be upheld," who knows?

The following day, he was asked to clarify what he meant, and he did so. Again, the only thing cut from this transcript are a few paragraphs touting the good aspects of the law (which, while true, are irrelevant to this debate).

Q: Mr. President, you said yesterday that it would be unprecedented for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the Court has done during its entire existence. If the Court were to overturn individual mandate, what would you do, or propose to do, for the 30 million people who wouldn't have health care after that ruling?

PRESIDENT OBAMA: Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce -- a law like that has not been overturned at least since Lochner. Right? So we're going back to the '30s, pre-New Deal.

And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it's precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this.

Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there. I have enormous confidence that in looking at this law, not only is it constitutional, but that the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has. As a consequence, we're not spending a whole bunch of time planning for contingencies.

What I did emphasize yesterday is there is a human element to this that everybody has to remember. This is not an abstract exercise.

[... four paragraphs cut ...]

So I don't anticipate the Court striking this down. I think they take their responsibilities very seriously. But I think what's more important is for all of us, Democrats and Republicans, to recognize that in a country like ours -- the wealthiest, most powerful country on Earth -- we shouldn't have a system in which millions of people are at risk of bankruptcy because they get sick, or end up waiting until they do get sick and then go to the emergency room, which involves all of us paying for it.

To paraphrase his response: "You're right -- I should have said 'since Lochner,' and not 'unprecedented' -- but my main point still stands."

Quite simply, there was no "attack" on the Supreme Court, or any of its justices. There was no "attempt at coercion" in any way shape or form. There might have been an attempt at "persuasion," but as far as I know that is not an illegal thing for any American to attempt when it comes to the Supreme Court -- right up to and including the president himself.

The most ironic thing about this incident is that the president was actually making the same case Republicans have been making for decades, just with his own spin on this particular case.

Let's review the statement after the "unprecedented" gaffe, shall we?

And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example.

Obama is restating the conservative case against judicial activism here. He quite plainly says so, as a preamble. Allow me to paraphrase Obama's words, in case anyone missed their meaning: "Conservative commentators have for years been screaming that the biggest problem on the bench was judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law. Well, in this particular case, I agree with that conservative argument."

Conservatives, ever since Obama spoke on Monday, have been clutching at their metaphorical handkerchiefs and swooning in Victorian anguish over Obama's words. Which is downright hilarious. Seriously, I expect some Hollywood maven to soon announce: "... and the Oscar for 'performance requiring smelling salts afterwards' goes to..."

This has happened over and over again, both to this president and (to a lesser extent) to President Bill Clinton, back in the day. A Democratic president adopts a Republican position or talking point, and the entire lockstep Right-wing-o-sphere immediately decries such a position as worse than Communism or devil-worship. Anyone doubting this need look no further back than the debate over the payroll tax holiday last December (and this February). Obama pushes a tax cut, and then Republicans in Congress vow to fight that tax cut as if their life depended on it -- even though they've never met any other single tax cut they didn't love in their entire lives... right up until a Democrat suggested one.

The proof of this is quite easy to find, although I haven't bothered to find it myself, since it is likely already out there now on many a Lefty blog. It's quite easy to prove that Obama is exactly right in what he said on judicial activism. The same exact terminology -- right down to the "unelected judges" complaint -- has been used over and over and over again in the past 30 years by conservative Republicans. In fact, it likely was used back in the 1950s and 1960s, as the courts waded into the Civil Rights fray. Do a web search on the phrase "Impeach Earl Warren" to see how vicious the anti-judicial language was, a half-century ago. Or, more recently, do a web search on the name of any Republican now complaining about Obama's remarks, together with the phrase "judicial activism" and you'll likely be rewarded with a plethora of quotes that match up to Obama's paraphrasing, almost word-for-word.

So, yes. Obama misspoke a single word. Even in his fuller definition, it is not "unprecedented" for the Supreme Court to strike down any law. Since Marbury v. Madison that is what they do (side note: it is absolutely hilarious to see conservatives sanctimoniously citing Marbury v. Madison these days, from the Wall Street Journal on down, as this is usually the Democratic counterargument to the "activist judges" conservative noise). But since the days of Lochner (Jamie Raskin helpfully explains what this means over at the Huffington Post), the Supreme Court hasn't done so in such a major way, which is the better-defined argument Obama made the next day.

But President Obama didn't do anything previous presidents have done, either. His remarks were in no way "unprecedented." Franklin Delano Roosevelt and Andrew Jackson are merely the most egregious examples (but by far the only ones) of presidential anti-Supreme Court statements which prove this.

Nor were Obama's remarks either an attack or coercion, in any way shape or form. To call his words anything of this magnitude shows at least some degree of "Obama Derangement Syndrome," because the suggestion is absolutely laughable on its face. Republicans used to be more politically-savvy and less about being fervently against whatever Democrats are for. Republicans used to absolutely crow whenever a Democratic leader started using their terminology, about how "finally, he has come over to our way of thinking." Such days are gone, it seems, even though that would have been a much more intelligent position to take: "We're glad President Obama finally realizes the dangers of judicial activism, but because he's new to this sort of thing, we hasten to point out how wrong he is in applying such terminology to the Supreme Court quite obviously upholding the Constitution in this particular case." See? It isn't that hard to do.

The biggest irony here isn't even the Republicans' faulty memories (of their own position and rhetoric), or of the fact that the media has also forgotten pretty much the preceding three decades (if not five or six), distracted by the shiny, shiny object of politicians disagreeing. The biggest irony, to me at least, is that "judicial activism" is in the eye of the beholder. I wrote a lengthy column (what else?) on the definitions of "constitutional" and "judicial activism" yesterday, and I ended it with:

Here's my definition for judicial activism: "A judge or court decided something I didn't like, and don't agree with." Judicial restraint is defined as: "A judge or court decided something that I approve of and agree with." Nothing more, nothing less.

This holds true no matter what political party the person or persons using the terms belongs to -- because even uttering the term is, and always must remain, completely and utterly subjective.

Everyone's got an opinion on what is and what is not constitutional. Everybody thinks judges should rule the way that they think. That is indeed everyone's right (including even the president), but the only thing which determines constitutionality is which way a majority of the Supreme Court rules. We'd all do well to remember this in the next few months.

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