The Good, The Bad And The Blue Dogs

As Andrew Rosenthal writes in the Times:  "Whatever you think about the House Republicans, you have to admit they stay focused. Yesterday, while the rest of the country was distracted by the Supreme Court decision on the most important piece of social legislation in generations, the House Republicans were concentrating on the big picture – the personal and political destruction of President Obama."  (See more here.)  Unfortunately, the response from the Democrats was typically muddled -- some were inspired, others less so, and then there were the 17 craven Blue Dogs who  crossed over to the other side. -- Lovechilde

Jerk Democrats And Face-Palm Democrats Undermine Principled Democrats In Contempt Resolution Vote

By Meteor Blades, cross-posted from Daily Kos

There were three sets of Democrats in Thursday's contempt vote against Attorney General Eric Holder in the House of Representatives.

First—huzzah!—there were the 100+ inspired by the Congressional Black Caucus to walk out of the chambers rather than give the resolution any respect whatsoever. Minority Leader Nancy Pelosi and Whip Steny Hoyer were among those who left rather than cast their votes. It's a rare, rare day that such a move is justified. But today was one of those. Because, what the Republicans did was unprecedented, unconscionable, unpardonable and unhinged. The Democrats filing out the doors were precisely the rebuke deserved by the representatives who plunked that outrageous resolution into the hopper.

Then there were the 65 Democrats who voted against the resolution. That, of course, under normal circumstances, would have been the appropriate choice. Shoot down the resolution or, at least, stand unified against whatever nonsense or worse that the GOP had cooked up to impose on us.

But it was clear when the Oversight and Government Reform Committee approved the contempt resolution last week which direction the wind would blow. No way would this not pass. And no way would its passage get any traction when sent to the federal prosecutor. Such matters expire with the end of the Congress that okays them and this one is going to be on a slow six-month track to nowhere. Which the Republicans knew full well from the get-go.

In other words, it was all theater. Even more than usual. The walkout, though a principled move, was counter-theater. Treating the vote seriously, respectfully, by participating, even with a "nay," was useless and stupid. Especially given that the House leadership not only gave Democrats the stamp of approval for joining the walkout, they themselves boycotted the vote. Think of the imagery, the headlines, if those Democrats who stayed at their desks to push the "nay" button had added their numbers to the power of solidarity. Since their votes could not change the outcome anyway, what was their rationale for sticking it out? What statement were they making? Was it simple laziness? Did they decide to show solidarity with the two Republicans who broke from the jackal pack to oppose the resolution? Whatever the case, they went astray.

Finally, there were the 17 Democratic "aye" votes. What a fine crew that is. Our plague. Yes, yes, they are mostly in reddish districts and more liberal candidates could never get elected there, so we have to put up with them because better they than a Republican, yadda, yadda, yadda.

Even if one agrees that Blue Dogs and their ilk are the price of a Big Tent party, what good are they when they can't be counted upon to have the backs of fellow Democrats under a rancid assault whose only foundation is raw partisanship?

What good are they if they won't stand up against even the most extreme efforts of the National Rifle Association? That organization's grip on gun policy in Arizona and elsewhere lubricates the trafficking of tens of thousands of firearms into Mexico and makes the job of interdicting this lethal flow next to impossible. An organization whose string-pulling and budget-obstructing has frustrated the Bureau of Alcohol, Tobacco, Firearms and Explosives so much that it led to experiments like "Fast and Furious" in the first place.

These 17 Democrats didn't just suck up to the NRA. They didn't just turn their backs on colleagues. They provided the GOP the okay to say that even-some-Democrats agree Eric Holder is involved in a cover-up of a program that led to the death of a brave U.S. Border Patrol agent. By unspoken implication, of course, Obama is also involved. Providing Republicans with that kind of campaign ammo goes waaaay beyond any apologies that can be made for trying to make oneself a viable incumbent Democrat in a reddish district. Being that kind of turncoat screws other Democrats by helping to mobilize the nut-jobs to turn out in greater numbers at the polls.

Despicable, pathetic, myopic.

California's Cruel And Unusual Death Penalty 40 Years And $4 Billion After Furman v. Georgia

San Quentin State Prison

40 years ago today, the United States Supreme Court decided Furman v. Georgia, which struck down existing death penalty laws as unconstitutional in violation of the Eighth Amendment's cruel and unusual clause.  California's death penalty was quickly reinstated.

Attempting to comply with Furman, the new statute made the death penalty mandatory for certain first degree murders and other crimes.  But in 1976, the U.S. Supreme Court struck down death penalty laws that provided for mandatory death sentences. The California Supreme Court, relying on the high court's ruling, once again found the state's statute to be unconstitutional.

Undeterred, the California legislature passed a new death penalty law in 1977.  This was followed in 1978 by a ballot proposition, known as the Briggs Amendment, which was similar but more expansive version that sought to encompass more -- virtually all -- categories of murder (including unintentional murders committed during certain felonies).  Briggs passed and it is the law we are living with, so to speak, today.   

Forty years after Furman: $4 billion dollars, over a thousand death sentences, over 720 currently on death row, and 13 executions, none since January 2006.

Tani Cantil-Sakauye, after one year as the Chief Justice of the State of California, has concluded that the state's capital punishment system is "not effective" and requires "structural changes" that the State cannot afford.  Her predecessor, Ron George, who was Chief Justice for 15 years, came to the same conclusion, describing California's death penalty scheme as "dysfunctional."

An extensive study by Arthur Alarcon, long-time judge of the Ninth Circuit Court of Appeal, who, together with law professor Paula Mitchell, determined that California's death penalty system is currently costing the state about $184 million per year.  They concluded that "since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions."

Justice Byron White observed in Furman that:

When imposition of the penalty reaches a certain degree of infrequency, it would be very doubtful that any existing general need for retribution would be measurably satisfied.  Nor could it be said with confidence that society’s need for specific deterrence justifies death for so few when for so many in like circumstances life imprisonment or shorter prison terms are judged sufficient, or that community values are measurably reinforced by authorizing a penalty so rarely invoked.” 

The infrequency of executions and the randomness with regard to which condemned inmates actually will be executed have made a mockery of the supposedly rational justifications for the death penalty.  In addition, given the current backlog and the serious problems identified by the California Commission for the Fair Administration of Justice (CCFAJ) -- problems that would require an enormous influx of state funds to fix -- it simply is not possible that defendants who are only now being sentenced to death will have their death sentences carried out.  Because it is “so wantonly and so freakishly” used, California’s death penalty has become a wholly arbitrary punishment in the same sense as the death penalty laws that were struck down in Furman.

Justice Potter Stewart famously characterized the Texas and Georgia statutes at issue in Furman as being “cruel and unusual in the same way that being struck by lightning is cruel and unusual.”  What he meant was that of all those who committed death eligible crimes, the petitioners were “among a capriciously selected random handful upon whom the sentence of death has in fact been imposed . . . [and] the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.”

Application of Furman’s benchmark for determining arbitrariness demonstrates that only a “capriciously selected random handful” of death-sentenced inmates in California will actually be executed.  A new death row prisoner would have to get in line behind 720 condemned inmates.  He or she would then have to wait years for appointment of appellate counsel (currently a 5 year wait) and even longer for the appointment of state habeas counsel (8-10 years).  Even after these lawyers are appointed and appellate briefs and habeas petitions are filed, the case will not be heard and decided before the several hundreds of cases that have preceded it.  And then, after all this time and expense, the California Supreme Court, in virtually every case regardless of the merits, will uphold the death sentence.   Then the case moves on to federal court, which has its own backlog, and often requires new counsel, with proceedings currently averaging over six years in district court followed by over four years of appellate review. 

Justice White noted in Furman that where the “penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice” it is unconstitutional.  As he stated, when the death penalty “ceases realistically to further [the social ends it was deemed to serve] . . .  its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.  A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

We have far surpassed this point in California.

The SAFE California Act is on the November ballot.  If it passes it would replace California's multi‑billion dollar death penalty with life imprisonment without parole and require those convicted of murder to work and pay restitution to victim families through the victim compensation fund.  It would also set aside $100 million in budget saving for local law enforcement for the investigation of unsolved rape and murder cases.

Please join the effort to replace the death penalty by clicking here:  SAFE California.

Women's, Health Care Groups Applaud ACA Decision While Bishops Attack

By Jodi Jacobson, cross-posted from RH Reality Check

Reaction by women's groups and promoters of health reform to this morning's Supreme Court decision upholding the Affordable Care Act (ACA) was swift and laudatory, though numerous leaders also pointed the gaps that remain to be filled.

In a statement, Robert Greenstein of the Center for Budget and Policy Priorities said:

Today’s Supreme Court decision allows the nation to reap the very substantial benefits of the Affordable Care Act:  health insurance coverage for millions of uninsured Americans, important consumer protections for millions of insured Americans whose coverage has serious gaps, and the promise of progress in slowing the growth of health care costs.

Still, Greenstein noted, "for both states and the federal government, much work lies ahead to establish health insurance exchanges, set up enrollment processes that work smoothly both for the exchanges and Medicaid, and complete other critical tasks by the 2014 deadline. The timeframe is short, particularly in states that have made little progress since the law’s passage."

Women's groups were particularly relieved at the positive outcome of the SCOTUS decision, because, on the whole, the ACA has been considered a huge advancement in coverage of preventive and other forms of care often out of reach of women, who make less than men overall throughout their lives, and who, as they enter retirement, are more likely to be poor.

The decision will have a “profound and concrete impact” on millions of people’s lives, Planned Parenthood Federation of America (PPFA) said today in a statement. Calling the Affordable Care Act “the greatest advance in women’s health in a generation,” PPFA said the law will:

"provide access to birth control and cancer screenings without co-pays, guaranteed direct access to OB/GYN providers without referrals, and an end to discriminatory practices against women, such as charging women higher premiums and denying coverage for “pre-existing conditions.”

In addition, noted the National Women's Law Center (NWLC) millions of women and their families can rest assured they will no longer be denied health coverage for having survived domestic violence or rape, or having had a Caesarean section, that maternity care will be included in all health care plans, and that tens of millions of women will gain financial access to coverage, whether through Medicaid or through help with insurance premiums.

GOP: Boldly Offering Solutions To Our Nation's Symptoms

By Tina Dupuy, cross-posted from her website

Nothing says leadership more than bravely standing up against a concern that’s not actually a problem. We’ve had a one-sided battle with Sharia Law in the U.S. No one is fighting for replacing U.S. law with an Islamic moral code, but nonetheless Republicans are heroically fighting against it. Same with aborted fetuses in commercial food stuffs: Not something that’s ever happened but earlier this year Republican freshman Oklahoma state senator Ralph Shortey had the temerity to introduce a bill to outlaw it.

Republicans love what they call “simple solutions” but it’s really just the easiest possible answer to a trumped up crisis. In short: busy work. America needs to streamline for the challenges of the future so we can remain competitive (blah blah blah). Yet Republican offers are akin to organizing all the paperclips in the office by color and size.

Republicans and bureaucracy are, after all, frenemies. Sure they tell the media they despise bureaucracy but secretly love it when it makes them appear to be doing something. Even better if it keeps them from doing anything difficult.

For example: We’re in the middle of an obesity epidemic. It’s the number two leading cause of preventable death in this country. The Center for Disease Control estimates 112,000 American deaths a year due to obesity, this is down from their previous estimate of 365,000 deaths from poor nutrition and physical inactivity. The CDC reports in 2008 Americans forked over $147 billion in medical costs on obesity. We’re dying and going broke from being too fat.

But what are Republicans trying to warn us against? Terrorism. China. Russia. Obamacare. ACORN. The New Black Panthers. The Fed. All of which cumulatively killed no Americans last year.
It’s (ironically) lazy to try to and scare Americans about some elusive menace in order to avoid the reality that we’ve become the proverbial elephants in our own living rooms.

Illegal immigration? Republicans say to secure the border—build a fence—arrest anyone who even looks illegal. Mitt Romney said Arizona’s infamous SB 1070 should be a model for the nation. Which would be something if Mexicans were still coming into the U.S. They’re not. Immigration from Mexico is now net zero. That is actually a way bigger problem than undocumented workers (whom we love in boom times for a way to circumvent the minimum wage and exploit a non-litigious underclass). It’s the fact we are no longer an attractive enough country to motivate Mexicans to come here.

But as we saw last week with the Supreme Court ruling on Arizona’s law, governor Jan Brewer’s just doubled down on a non-problem, “We cannot forget that we are here today because the federal government has failed the American people regarding immigration policy, has failed to protect its citizens, has failed to preserve the rule of law and has failed to secure our borders.”

For a party that likes to peddle free market and common sense they sure get a lot of traction ginning up irrational fears.

Our energy plan is stuck firmly in the last century, but that’s not the point the presumptive Republican nominee decided to make. In March Mitt Romney told Fox News President Obama “has done everything in his power to make it harder for us to get oil and natural gas in this country, driving up the price of those commodities in the case of gasoline.” Gas prices were the thing Republicans were going to fix by paying attention to them! With little fanfare, gas prices are down now by the way. Production has increased overall under the Obama administration. Republicans managed to sound the alarm and assign blame for a symptom while steadfastly avoiding the cause entirely.

Think I’m way off here? Remember this is the party that in the wake of September 11^th—an attack by citizens of Saudi Arabia, organized in Afghanistan by a leader hanging out in Lebanon—decided to invade (wait for it) Iraq.

Because things indirectly involved with real problems hate us for our freedoms.

Sign Krugman's "Manifesto For Economic Sense"

By Isaiah J. Poole, cross-posted from Campaign for America's Future

Tom Tomorrow

Economists Paul Krugman and Richard Layard, the latter of the London School of Economics, today posted a "Manifesto for Economic Sense" that lays out a sound framework for reviving the global economy.

"I’ve been arguing for a long time that policy makers have misunderstood the nature of our economic crisis, mistaking symptoms for causes, and responding in ways that make the situation worse," Krugman wrote yesterday on his blog at The New York Times. The goal of the manifesto is, in the words of the manifesto itself, to "offer the public a more evidence-based analysis of our problems" and change the direction of the economic debate away from austerity and toward using government as a kindle for rebuilding the middle class.

"A key priority now is to reduce unemployment, before it becomes endemic, making recovery and future deficit reduction even more difficult," the manifesto says.

Many of the signatures on the manifesto are those of economists and policy experts, but you are encouraged to sign the manifesto as well to show your agreement with its basic principles.

In an op-ed in the Financial Times, Krugman and Layard explained the thinking behind the manifesto. "More than four years after the financial crisis began, the world’s major advanced economies remain deeply depressed, in a scene all too reminiscent of the 1930s," the piece begins, because their economic leaders, and conservatives in the United States, insist on replicating the failed economic strategies of the 1930s before the New Deal.

Instead, the manifesto calls for economic experts and policy makers to speak up more loudly against the arguments that "austerity will increase confidence and encourage recovery"—there is no evidence that austerity policies are having that effect anywhere in the world—and that a key causes of our weak economic recovery are structural, rather than a general lack of spending and demand.

The statement echoes the same themes of our own 2010 "Don't Kill Jobs" economic manifesto, signed by more than 300 economic experts. That statement urged the president and Congress to "redouble efforts to create jobs and send aid to the states whose budget crises threaten recovery by forcing them to lay off school teachers, public safety workers, and other essential workers. It also makes sense to invest in public service jobs—and in infrastructure projects for transportation, water, and energy conservation that will make our economy more productive for years to come."

If our political leadership had taken that message to heart in 2010, it would not have been necessary for Krugman and Layard to post their own manifesto with the same message. But Washington conservatives still refuse to admit the failures of their policies and end their wrong-headed obstruction in Congress. It's exasperating to have to repeat the message over and over, but as the Krugman-Layard manifesto concludes, "The whole world suffers when men and women are silent about what they know is wrong."

R.I.P. Samuel Lopez

On June 27, 2012, Arizona executed Samuel Lopez for the rape and murder of 59-year-old Estefana "Essie" Holmes.

Lopez's attorneys argued that his trial lawyers provided constitutionally ineffective assistance by failing to present any evidence of Lopez's  horrific childhood, which would have been critical to the jury's determination of whether he should be sentenced to life or death.  The jury never learned, for example, that Lopez's childhood was filled with poverty, neglect, abuse and periods of homelessness during which he often had to sleep in cemeteries. Lopez dropped out of school in the ninth grade and became addicted to sniffing paint.

Lopez was originally scheduled to be executed on May 16, 2012, but received a temporary stay of execution because of serious issues with regard to the fairness of the clemency process.  On May 7, 2012, defense attorney, Assistant Federal Public Defender Kelley Henry, walked out of the clemency hearing claiming the Arizona Board of Executive Clemency did not have the authority to hear the case.  Henry contended that Arizona Governor Jan Brewer violated several state statues when she appointed three new members to the five member clemency board.  Violations included that the new members had not completed training required by state statute, that their interviews violated open meeting laws by taking place behind closed doors, and that one new member is a lobbyist for a police association that advocates the death penalty. 

The Arizona Supreme Court ordered a temporary stay so that the board members could complete a mandatory four-week training course but then another stay was sought on the grounds that Governor Brewer had appointed "political cronies" to the board, making a fair hearing impossible.  That stay was rejected.  Clemency was denied on June 22nd.

This is the 23rd execution in the United States in 2012, the fourth in Arizona.

Hail To The Chief Justice?

DonkeyHotey

Let's not get carried away by the fact that Chief Justice Roberts voted with the so-called liberal-moderate block to uphold the Affordable Care Act.  Let's not forget, as Ethan Bronner of the New York Times writes, that "in the past, especially on campaign finance law but also on other socially sensitive issues like abortion and affirmative action, Chief Justice Roberts has not shied away from leading a conservative redraft of previously established law, causing some to accuse him of judicial activism."

But with the reputation, perhaps legitimacy, of the Supreme Court at stake, Roberts decided to find a way to validate the Act.

As Steven Teles predicted, Roberts did not want "a direct confrontation with the entire Democratic Party. Striking down the substance of the ACA would have created such a confrontation, and put the Supreme Court at the center of the next election. I don’t think Roberts had a stomach for that."

Teles uses a baseball metaphor to demonstrate the difference between Roberts' approach and that of his fellow conservatives on the bench:

The best way to understand the difference between Roberts and the dissenters is to think of two pitchers who are throwing to a batter who is crowding the plate. The first pitcher throws at the batter’s head, while the second brushes him back. At least in this decision, Roberts decided to be that second kind of pitcher. Roberts wanted to send a signal to the other branches that there are limits on government, and the ACA was really crowding the plate. But he didn’t want to hit the pitcher and invalidate the whole law. So declaring that the mandate violates the Congress’ power under the commerce clause but upholding it as a tax does what Roberts wanted to do: get Congress to pay closer attention to constitutional norms while not precipitating a bench clearing brawl. 

I'm not sure I buy Teles' overarching point (and that of others, such as Laurence Tribe) in the wake of this ruling that Roberts is not really a radical ideologue.  As Ed Kilgore observes, "Roberts exercised 'judicial restraint;' at the same time, however, he managed to deliver not only his 'brush-back pitch' but a nice, easy talking point about ACA relying on a 'tax.'"

And it is unrealistic to think that Roberts has magically undergone some kind of transformation.  As law professor Adam Winkler points out, the Roberts Court has hardly been known before today for its judicial restraint:

Since John Roberts became Chief Justice in 2005, the Court has issued one landmark ruling after another. The Roberts Court gave us Citizens United, which struck down longstanding limits on corporate political spending. This Court also allowed new restrictions on women's right to choose; became the first Supreme Court in American history to strike down a gun control law as a violation of the Second Amendment; effectively outlawed voluntary efforts by public schools to racially integrate; and curtailed the reach of environmental protections.

In many of these decisions, the Roberts Court overturned or ignored precedent, including Rehnquist Court decisions less than a decade old. Prior to Citizens United, the Supreme Court had explicitly held in two cases that corporate political expenditures could be limited -- the most recent of which was handed down in 2003. Six years before the Roberts Court upheld the federal ban on "partial birth" abortion, the Rehnquist Court, which wasn't known for its liberal leanings, had overturned a nearly identical law.

Significantly, although Roberts agreed with the four conservative justices that the individual mandate was not a regulation of interstate commerce, he ultimately voted to uphold the constitutionality of the mandate by characterizing it as a tax.  While his vote saved the Act, Justice Ginsburg cautioned that Roberts' view comprised a "novel constraint on Congress’ commerce power." 

In the Social Security Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors. Beyond question, Congress could have adopted a similar scheme for health care. Congress chose, instead, to preserve a central role for private insurers and state governments. According to The Chief Justice, the Commerce Clause does not permit that preservation. This rigid reading of the Clause makes scant sense and is stunningly retrogressive.

As Amy Davidson notes, “stunningly retrogressive” is not the phrase most people are using this morning to describe Roberts’s opinion; he is being celebrated as a moderate, called a disappointment to conservatives. But Ginsburg’s caution is worth watching. (See Professor Tobias Wolff's comments on the extraordinarily disruptive potential of Roberts' reasoning.)

But, as Winkler notes, "with this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court. No Supreme Court has struck down a president's signature piece of legislation in over 75 years. Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn't want to go there."

Chief Justice Roberts undoubtedly had the Court's institutional legitimacy and his own reputation in mind when he voted to uphold the Affordable Care Act.  And, more disturbingly, as Winkler predicts:

Roberts may have voted to save healthcare because he wants to preserve the Court's capital to take on other big issues heading toward the Court. Legal experts predict the Roberts Court will invalidate a key provision of one of the most important laws in American history, the Voting Rights Act, next term. And the Court is set to end affirmative action in public education. Both policies have been centerpieces of America's commitment to civil rights for over 40 years.

It is therefore ridiculous to analyze Roberts' legacy based on this one ruling.  As Winkler concludes, "The Roberts Court has only just begun."

The Affordable Care Act Survives

DonkeyHotey

Before the Obama Administration embraced individual mandates as a compromise to push through health care reform, it was a Republican idea (endorsed, of course, by then-Governor Romney).  And when Republican state Attorneys General began challenging the constitutionality of the law their actions were viewed with derision by most legal scholars.  And prior to oral argument in the Supreme Court, it was widely assumed that the law would be upheld.  Since then dire predictions about the fate of the law, of health care for Americans, and of President Obama's re-election prospects have dominated the media.

It was perilously close -- another 5-4 decision -- and it took Chief Justice Roberts to side with the majority in upholding the Affordable Care Act because the usual swing vote, Justice Kennedy, dissented.

From Scotusblog:

Salvaging the idea that Congress did have the power to try to expand health care to virtually all Americans, the Supreme Court on Monday upheld the constitutionality of the crucial – and most controversial — feature of the Affordable Care Act.   By a vote of 5-4, however, the Court did not sustain it as a command for Americans to buy insurance, but as a tax if they don’t.  That is the way Chief Justice John G. Roberts, Jr., was willing to vote for it, and his view prevailed.  The other Justices split 4-4, with four wanting to uphold it as a mandate, and four opposed to it in any form.

As Greg Sargent explains:  "The court ruled that the mandate is defensible as a 'tax.' In so doing, it supported the administration’s argument that it’s within the proper scope of federal authority to incentivize the purchase of health insurance, in order to expand coverage to millions of Americans who have been left behind by the private market."

Democrats will breath a sigh of relief while Republicans plot their next move to gut the law.  Which brings up a fascinating point about the entire debate on health care:  how our polarized politics have radically altered what used to be a bi-partisan consensus on at least the ultimate goal --  providing health care to all Americans.

Ezra Klein explains that there was not always such a stark divide between Democrats who are committed to "provide every American with health insurance" and Republicans who are committed to "prevent any American from being forced to have health insurance."

Democrats and Republicans used to argue over how best to achieve universal coverage, but both agreed on the goal. The first president to propose a serious universal health-care plan was Harry Truman, a Democrat. The second was Richard Nixon, a Republican. In the 1990s, when President Bill Clinton was arguing for a national health-care system based on an employer mandate, Republicans were arguing for one based on an individual mandate.

In the 2000s, Romney used the individual mandate to make Massachusetts the first state to actually achieve near-universal coverage. On the national level, Republicans as diverse as Newt Gingrich, Lamar Alexander and Lott joined him. Republicans sometimes like to present their support for the individual mandate as a youthful indiscretion, but as late as June 2009, Charles Grassley, the ranking Republican on the Senate Finance Committee, was telling Fox News that “there is a bipartisan consensus to have an individual mandate.” 

As Klein concludes:  "The battle over the Affordable Care Act has largely distracted voters from this tectonic shift in the Republican Party. Yet unlike in past elections, in which even the most conservative Republicans argued that we should 'ensure that all Americans would have affordable, quality, private health coverage,' voters this year will choose between one party that supports universal health care and one that doesn’t, with health insurance for as many as 50 million voters hanging in the balance."

Palate Cleanser: Bettye LaVette

Bettye LaVette covers the Black Keys' "I'm Not The One."  Here's what she had to say about this track:  "I find it interesting and thoroughly entertaining to add age and experience to young writers’ songs and inhabit them myself.  I’m not sure what he was talking about, but I’m saying don’t fuck with me."

Mitt Romney And The Odor Of Mendacity

Didn't you notice a powerful and obnoxious odor of mendacity in this room?... There ain't nothin' more powerful than the odor of mendacity... You can smell it.  -- Tennessee Williams from Cat on a Hot Tin Roof

Several months ago, Paul Krugman wrote about Mitt Romney's dishonest campaign and penchant for uttering false and fraudulent statements:  "Won’t Mr. Romney pay a price for running a campaign based entirely on falsehoods? He obviously thinks not, and I’m afraid he may be right."

Krugman went on to predict that "Romney will probably be called on some falsehoods" but "most of the news media will feel as though their reporting must be “balanced,” which means that every time they point out that a Republican lied they have to match it with a comparable accusation against a Democrat — even if what the Democrat said was actually true or, at worst, a minor misstatement."

Fast forward to last week's article in the New York Times, "Fact-Checking Obama and Romney," which stated that:

Mr. Obama and Mr. Romney are filling speeches with facts and figures designed to enhance their case and diminish the other guy’s, in the process often making assertions fundamentally at odds with one another. Along the way, both candidates are at times stretching the truth, using statistics without context, exaggerating their own records and misrepresenting their opponent’s. 

A classic example of balance and false equivalence, the article concluded that "[d]etermining who is the worse dissembler can be a subjective exercise, even in an age when news organizations, blogs and partisan groups blitz out regular fact-checks.

But while the Obama campaign's rhetoric can be at times misleading, it cannot be compared to Romney's incessant lying.  Steve Benen at Rachel Maddow's blog has been chronicling Romney's lies for months.  (See his 23rd weekly installment here.)

As Michael Cohen of the Guardian summarizes Romney's "cavalcade of untruths" and concludes:

Granted, presidential candidates are no strangers to disingenuous or overstated claims; it's pretty much endemic to the business. But Romney is doing something very different and far more pernicious. Quite simply, the United States has never been witness to a presidential candidate, in modern American history, who lies as frequently, as flagrantly and as brazenly as Mitt Romney.

And how can Romney get away with it?  Cohen explains:

Now, in general, those of us in the pundit class are really not supposed to accuse politicians of lying – they mislead, they embellish, they mischaracterize, etc. Indeed, there is natural tendency for nominally objective reporters, in particular, to stay away from loaded terms such as lying. Which is precisely why Romney's repeated lies are so effective. In fact, lying is really the only appropriate word to use here, because, well, Romney lies a lot. But that's a criticism you're only likely to hear from partisans.

Pollsters and pundits seems to agree that the election will be extremely close.  Whether the media will ignore the powerful and obnoxious odor of mendacity that surrounds Mitt Romney will be a key factor in the outcome.

Robert Reich On The True Meaning Of Patriotism

Excluding Outsiders Or Coming Together For The Common Good?

By Robert Reich, cross-posted from his website

Recently I publicly debated a regressive Republican who said Arizona and every other state should use whatever means necessary to keep out illegal immigrants. He also wants English to be spoken in every classroom in the nation, and the pledge of allegiance recited every morning. “We have to preserve and protect America,” he said. “That’s the meaning of patriotism.”

To my debating partner and other regressives, patriotism is about securing the nation from outsiders eager to overrun us. That’s why they also want to restore every dollar of the $500 billion in defense cuts scheduled to start in January. 

Yet many of these same regressives have no interest in preserving or protecting our system of government. To the contrary, they show every sign of wanting to be rid of it.

In fact, regressives in Congress have substituted partisanship for patriotism, placing party loyalty above loyalty to America.

The GOP’s highest-ranking member of Congress has said his “number one aim” is to unseat President Obama. For more than three years congressional Republicans have marched in lockstep, determined to do just that. They have brooked no compromise. 

They couldn’t care less if they mangle our government in pursuit of their partisan aims. Senate Republicans have used the filibuster more frequently in this Congress than in any congress in history.

House Republicans have been willing to shut down the government and even risk the full faith and credit of the United States in order to get their way.

Regressives on the Supreme Court have opened the floodgates to unlimited money from billionaires and corporations overwhelming our democracy, on the bizarre theory that money is speech under the First Amendment and corporations are people.

Regressive Republicans in Congress won’t even support legislation requiring the sources of this money-gusher be disclosed.

They’ve even signed a pledge – not of allegiance to the United States, but of allegiance to Grover Norquist, who has never been elected by anyone. Norquist’s “no-tax” pledge is interpreted only by Norquist, who says closing a tax loophole is tantamount to raising taxes and therefore violates the pledge.

True patriots don’t hate the government of the United States. They’re proud of it. Generations of Americans have risked their lives to preserve it. They may not like everything it does, and they justifiably worry when special interests gain too much power over it. But true patriots work to improve the U.S. government, not destroy it.

But regressive Republicans loathe the government – and are doing everything they can to paralyze it, starve it, and make the public so cynical about it that it’s no longer capable of doing much of anything. Tea Partiers are out to gut it entirely. Norquist says he wants to shrink it down to a size it can be “drowned in a bathtub.”

When arguing against paying their fair share of taxes, wealthy regressives claim “it’s my money.” But it’s their nation, too. And unless they pay their share America can’t meet the basic needs of our people. True patriotism means paying for America.

So when regressives talk about “preserving and protecting” the nation, be warned: They mean securing our borders, not securing our society. Within those borders, each of us is on our own. They don’t want a government that actively works for all our citizens.

Their patriotism is not about coming together for the common good. It is about excluding outsiders who they see as our common adversaries. 

Robert Reich is Chancellor's Professor of Public Policy at the University of California at Berkeley.  He writes a blog at www.robertreich.org.  His most recent book is Beyond Outrage

Bad Week For Bain-onomics

By Mike Lux, cross-posted from Crooks and Liars



When the Obama campaign started raising questions about the way Bain Capital operated when Romney was the CEO, some Democrats who are close to Wall Street immediately starting complaining. We shouldn’t be attacking “capitalism”, they said, or the financial industry. But those Democrats are looking pretty foolish after the stories that have come out over the past few days. It has never been capitalism or even the financial industry being attacked when Bain’s style of operating is the subject: it is the worst kind of vampire capitalism that the Obama campaign is going after.

The idea of questioning Bain has always been essential to this campaign, because Romney has made clear that his main qualification to be President is the work he did at Bain. As the New York Times put it in their story Saturday “Companies’ Ills Did Not Harm Romney’s Firm”:

“Mr. Romney’s experience at Bain is at the heart of his case for the presidency. He has repeatedly promoted his years working in the “real economy,” arguing that his success turning around troubled companies and helping to start new ones, producing jobs in the process, has prepared him to revive the country’s economy. He has fended off attacks about job losses at companies Bain owned, saying, “Sometimes investments don’t work and you’re not successful.” But an examination of what happened when companies Bain controlled wound up in bankruptcy highlights just how different Bain and other private equity firms are from typical denizens of the real economy, from mom-and-pop stores to bootstrapping entrepreneurial ventures.”

But now, with this major new NYT story, plus the Washington Post pioneer-in-outsourcing story, it is becoming increasingly obvious to everyone why the Obama campaign and people like me have been making a big deal about Bain for a long time. All capitalism is not the same, and Bain is right up there with companies like Goldman Sachs in the sleaziness with which they make their money. What Bain did in buying these companies was to create a structure where they made money no matter what. As the saying goes, it’s nice work if you can get it- but you can’t get it unless you are willing to be absolutely brutal in pursuing your own profits at the expense of everyone else. What Bain did wasn’t just capitalism, but the worst sort of capitalism. As the NYT and other media sources have so explicitly laid it out, at least 7 Bain-owned companies went bankrupt, but “Bain structured deals so that it was difficult for the firm and its executives to ever really lose, even if practically everyone else involved with the company that Bain owned did, including its employees, creditors and even, at times, investors in Bain’s funds.” Bain loaded these companies with debt, in part so they could pay Bain millions (sometimes tens of millions) of dollars in fees. They then wrote off the debt on their taxes. In some cases (at least 4 times according the NYT story) Bain amassed huge short term profits before the companies, weighed down with the debt Bain forced on them, sunk under the weight of that debt.

Some of the companies Bain bought did better than that. Of course, some of those that did were out-sourcing and off-shoring pioneers. And others did better in great part by laying off huge numbers of workers and/or slashing the wages and benefits of many others. This is the track record that is “at the heart of [Romney’s] case for the Presidency”?

The debate over Bain-onomics is exactly the kind of debate this country should be having. We are at a make or break moment for the American middle class. What should our path forward be? Will it be the path of Bain and the biggest banks on Wall Street, which put profits over everything else, making millions because other people went broke and lost their jobs? Or will it be a path that invests in the health of our economy and the business sector from the bottom up? This is the fundamental choice for Americans: do we help and promote the kind of businesses that make and sell products and services here in America? Do we help the economy by investing in our people, giving them good education, college loans, and decent wages so they can buy goods from the small businesses in their community? Do we help our small businesses with start-up capital and giving them a fighting chance to compete with the big dogs? Or is our government going to be 100% geared toward the big incumbents who already have big money and market share and well-connected lobbyists who can get them sweetheart deals and tax breaks?

I think the Obama team has been absolutely right to engage all-out in this debate over Bain, and to frame this race as to who will fight for the middle class in their moment of need. This new ad shows they get it.

Supreme Court Politics

DonkeyHotey

It was a big -- and telling -- day at the high court even without the highly anticipated Affordable Care Act decision, which is now expected to be issued on Thursday.  As I wrote earlier, Justice Scalia's raving dissent about state sovereignty in the Arizona immigration case starkly illustrates that he is more of a political operative than an impartial judge.

And, not surprisingly, Scalia's obeisance to states' rights was nowhere in evidence in another case decided today, a case in which a 5-4  majority struck down Montana’s 100-year-old anti-corruption law banning corporate spending on elections without ever hearing arguments in the case.  As Nicole Flatow at American Constitution Society summarized:  "Although Montana’s law was intended to combat corruption in election spending, the five-justice majority held in a paragraph-long decision that this case was controlled by Citizens United, which found that independent expenditures by corporations 'do not give rise to corruption.'” 

Flatow points out that, "A supermajority of Montanans thought otherwise when they passed the Corrupt Practices Act in 1912," and as Justice Stephen Breyer wrote in his dissent, “Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.”
 
Breyer's dissent, joined by Justices Ginsburg, Kagan and Sotomayor, pointedly concluded as follows:

Were the matter up to me, I would vote to grant the petition for certiorari in order to reconsider Citizens United or, at least, its application in this case. But given the Court’s per curiam disposition, I do not see a significant possibility of reconsideration. Consequently, I vote instead to deny the petition. 

And there you have it.  As Amy Davidson notes, "Breyer is saying that he does not trust the majority enough to even listen, and would rather that it not hear the case at all; since he was joined by Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, that means the four of them didn’t believe that a single of the other five Justices had been at all chastened by the consequences of Citizens United."

And so, E.J. Dionne pleads:

Will everyone please finally admit conservatives actually don’t care a whit about states’ rights unless invoking states’ rights happens to be helpful to the conservative agenda? Conservatives on the court have become complete and utter hypocrites on the matter of what states can and can’t do.

This has stuck in my craw for a long time. Recall that the Supreme Court had absolutely no qualms about telling the state of Florida in 2000 that there was no way it could recount its votes in a fashion that would be satisfactory, and never mind that the Florida Supreme Court had ruled in favor of recounts. Those recounts might have gotten in the way of George W. Bush’s elevation to the presidency. Face it: If states’ rights are inconvenient to the outcome conservatives want, conservative justices will find a way to supersede them.

James Fallows recently wrote with regard to the Affordable Care Act case that "confidence in the very idea that the Roberts majority will approach this as a "normal" legal matter, rather than as one more Bush v. Gore front in the political wars, grows ever harder to maintain."

Which leads Ed Kilgore to draws what to me is the most critical lesson, whatever happens with the health care decision:

But it’s becoming more obvious each day that the judicial counter-revolutionaries of the Supreme Court don’t need the crisis atmosphere that they used to justify Bush v. Gore to continue its legacy. Indeed, it seems to have become the only precedent the majority reliably respects. Maybe they will surprise us all on Thursday and step back from the brink. But without question, if another seat on the Court falls their way, the constitutional substructure of every 20th century social accomplishment from the New Deal to the Civil Rights Act to the Clean Air Act to the right to an abortion is in immediate danger. And anyone who remembers that strange night in 2000 when the Court’s Republican appointees decided to seize the opportunity to choose a president should not be surprised.

Supreme Court Bans Mandatory Life-Without-Parole For Children Convicted Of Homicide

Bryan Stevenson

In Miller v. Alabama and Jackson v. Hobbs, the Supreme Court holds that mandatory life-without-parole sentences for all children 17 or younger convicted of homicide are unconstitutional.  (I wrote about these cases earlier here.)  Both cases were argued by the brilliant and heroic Bryan Stevenson.

Here is a summary of this great outcome from Equal Justice Institute of which Bryan is the founder and executive director:

The Court today struck down statutes in 29 states that provide for mandatory life-without-parole sentences for children, reasoning that mandatory imposition of life-without-parole sentences on children “contravenes Graham’s (and also Roper’s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.”

"This is an important win for children. The Court took a significant step forward by recognizing the fundamental unfairness of mandatory death-in-prison sentences that don't allow sentencers to consider the unique status of children and their potential for change," said Bryan Stevenson, Executive Director of the Equal Justice Initiative, who represents Jackson and Miller. "The Court has recognized that children need additional attention and protection in the criminal justice system.”

Today’s decision requires the lower courts to conduct new sentencing hearings where judges will have to consider children’s individual characters and life circumstances, including age, as well as the circumstances of the crime.

While the Court did not categorically ban juvenile life without parole in all circumstances, Justice Kagan wrote for the majority that, “given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”

Stevenson cautioned, however, that sentencing courts’ discretion must be exercised in an informed and thoughtful way that acknowledges that children are biologically different than adults and less responsible for their wrongdoing, and that the courts should provide the individuals affected by the ruling a meaningful opportunity to show they have rehabilitated themselves and are appropriate candidates for release.
Stevenson added that historically, race and poverty have been powerful forces in influencing which children receive life-without-parole sentences.

Today's decision follows the Court's earlier rulings in Roper v. Simmons (2005) and Graham v. Florida (2010), which acknowledge the diminished culpability of children.

Groups as diverse as the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Psychiatric Association, the Council of Juvenile Correctional Administrators, the American Bar Association, mental health professionals, former juvenile court judges, criminologists, victims, and national advocacy organizations filed amicus briefs in the cases to urge the Court to give children an opportunity to have their sentences reviewed later in life.

The Supreme Court Strikes Down Much Of Arizona's Anti-Immigration Law While Scalia Rants

The Supreme Court issued its much-anticipated ruling on Arizona's harsh anti-immigration law, upholding the most controversial part of the law -- but striking the rest.

As the New York Times reports:

The court unanimously sustained the law’s centerpiece, the one critics have called its “show me your papers” provision. It requires state law enforcement officials to determine the immigration status of anyone they stop or arrest if there is reason to suspect that the individual might be an illegal immigrant.

The justices parted ways on three other provisions. Justice Anthony M. Kennedy, writing for five members of the court, said the federal government’s broad powers in setting immigration policy meant that other parts of the state law could not be enforced. 

The provisions that were struck included Section 3 criminalizing the failure of persons to carry immigration documents; Section 6, barring undocumented immigrants from seeking work; and Section 6, allowing warrantless arrests when an officer has probable cause to believe a person who has committed a crime is undocumented.

One of the more fascinating -- and disturbing -- aspects of the decision was Justice Scalia's raving dissent from the portion of the majority opinion that blocked implementation of the Arizona law.

As Ben Jacobs writes, "the conservative icon rails against the court’s decision over 22 pages and makes strained claims for Arizona’s continued ability as sovereign state to regulate immigration while citing dubious authorities like the notorious Kentucky and Virginia Resolutions (documents written anonymously by Madison and Jefferson that have repeatedly been rejected by the court over the past 200 years when cited by segregationists and secessionists)."

Here's an excerpt:

But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Govern­ment that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?

A good way of answering that question is to ask:  Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding [that the national government has supreme jurisdiction over immigration policy]?

Huh?  As Jed Lewison at Daily Kos puts it:  "So according to Scalia's logic, SB1070 is constitutional because Arizona wouldn't have entered into the Union if it weren't. Brilliant!"

Remarkably, Scalia criticized the Administration's immigration policy and specifically went after Obama's recently-announced executive order to stop the deportation of  children whose parents illegally entered the country -- which post-dated and had nothing to do with this case: 

It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30.
[For certain illegal immigrants] immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.” The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conduct­ing as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.

As UCLA law professor Adam Winkler, Scalia has "finally jumped the shark":

He claims to respect the founding fathers, but his dissent channels the opponents of the Constitution. Back then, opponents argued that the Constitution denied states their sovereignty by giving too much power to the federal government, as with immigration. Now Scalia echoes their complaints that states are being denied their sovereignty. States are not sovereign when it comes to powers vested in Congress, such as the authority over immigration and naturalization.

 Ben Jacobs rightly concludes that "The health care decision is only days away and it is explicit that at least one justice is making his decisions on political grounds."

Mitt Meme

I first encountered Robbie Conal's work when I was living in D.C. in the 1980s, working on Iran-Contra related litigation, and Conal's posters would magically appear throughout the City.  He had -- and continues to have -- the remarkable ability to capture in a drawing with a few choice words the corruption, dishonesty and hypocrisy of our political, religious and financial leaders.

He just made this Mitt Meme, which he promises will soon be a poster.  Click on the link and make your own caption.  I added the caption above, which provokes the eternal question:  Mitt or Groucho?

Mets All Time

In honor of the Mets' 50th Anniversary (which I wrote about here), SNY, the Mets' TV network, aired a two-hour special on the Mets' All-Time team this week, naming the greatest Met at each position:




Catcher
Mike Piazza (C)
Infielders
Keith Hernandez (1B)
Edgardo Alfonzo (2B)
Jose Reyes (SS)
David Wright (3B)
Outfielders:
Darryl Strawberry (RF)
Cleon Jones (LF)
Carlos Beltran (CF)
Starters:
Tom Seaver (RHP)
Jerry Koosman (LHP)
Relievers:
Roger McDowell (RHP)
Tug McGraw (LHP)
Manager
Dave Johnson

I can't quibble with any of the selections (with the glaring exception of manager -- it is incomprehensible that Davey Johnson got the nod over Gil Hodges).  Admittedly, this is not exactly Ruth-Gehrig-DiMaggio, but everyone on this list has a special place in the heart of Met fans (even Beltran).

Relax 'Mitt,' Just Be Yourself

By Tina Dupuy, cross-posted from her website

Mitt Romney’s off-the-cuff comments are starting to seem like Barack Obama’s bowling: Not good. Kind of spectacularly bad. Kitsch on a kind day.

Romney keeps on rolling gutter balls in front of the cameras: “The trees are the right height.” “I like being able to fire people.” “I’m not concerned about the very poor.” “I’m Mitt Romney—and yes Wolf, that’s also my first name.”

Normally the adage “a gaffe is when a politician accidentally tells the truth” applies. On the Jay Leno show, Obama famously compared his bowling skills to those in the Special Olympics. Many, including myself, were offended by the remark (mainly because the Special Olympics athletes are far better bowlers than Mr. Obama). The President apologized profusely for the statement.

But Romney’s greatest gaffes are less accidental nuggets of candor (like, “I have some great friends who are NASCAR team owners.”) and more what you’d call disquieting sound bites of misfired pandering. Moments that can be summed up by the phrase “cheesy grits.”

Yes, he told a crowd in Mississippi during the primary, he had “cheesy grits” (as opposed to cheese grits) for breakfast and he was learning how to say, “ya’ll.” He would have been better off saying sweet tea (a diabetic coma-inducing regional syrup served over ice) is best with Splenda and he was learning how to talk … real … slow.

(Rick Santorum won Mississippi, by the way.)

Yes, when Romney attempts to show how in touch he is with Americans…he ends up displaying exactly how in touch he is with Americans. Meaning: Not at all.

Palate Cleanser: The Kills

An acoustic version of Baby Says by The Kills.

Corporate Takeover At The Supreme Court

I've written previously about the unprecedented pro-corporate bias of the current conservative majority of the Supreme Court, and the insidious role played by the U.S. Chamber of Commerce in getting the Court to hear business cases and to rule in favor of business interests.  (See, e.g., here, here and here.

The Constitutional Accountability Center points out that "without much fanfare, the U.S. Chamber of Commerce is edging towards what could be its first 'perfect' Term before the Supreme Court since at least 1994."  It has "declared victory in all seven of its cases that have reached a clear outcome," which "brings the Chamber’s overall win/loss rate before the Roberts Court up to 68% (60 of 88 cases)."

As CAC's "prior studies establish, this is significantly higher than the Chamber’s success before the Rehnquist Court of 56% (45 of 80 cases), and dramatically higher than its success rate before the Burger Court, when the Chamber only won 43% (15 of 35) of its cases."

R.I.P. Gary Simmons

Roman Colosseum lit to protest an execution

On June 20, 2012, Mississippi executed Gary Simmons for the murder of Jeffrey Wolfe in 1996. 

Simmons and an accomplice, Timothy Milano, were both convicted of killing Wolfe after an argument over the collection of a drug debt.  Authorities concluded that it was Milano who shot and killed Wolfe but it was Simmons, a butcher, who subsequently dismembered the body and raped Wolfe's girlfriend. Simmons was sentenced to death for the murder and two life terms on charges of kidnapping and raping the woman. Milano was sentenced to life for capital murder and 30 years for kidnapping.

Appeals to allow Simmons' current counsel to pursue claims based on ineffective assistance of prior counsel and mental illness were rejected.  A petition to the United States Supreme Court stated that "post-conviction counsel did not arrange for Mr. Simmons to undergo any mental health evaluations and it appears that counsel completely overlooked raising any claims regarding Mr. Simmons' addiction, posttraumatic stress disorder and brain dysfunction even though a cursory investigation would have raised a number of red flags."

This was the 22nd execution in the United States this year and the sixth in Mississippi (the third this month).

Darryl Issa's Contemptible Actions

DonkeyHotey

Darryl Issa, a California Congressman, made his fortune manufacturing car alarms and used his wealth to fund the recall of California Governor Gray Davis, who was succeeded by Arnold Schwarzenegger.  (Issa reportedly intended to place himself on the ballot before Schwarzenegger jumped in.)

As chair of the House Oversight and Government Reform Committee, Darryl Issa has called President Obama "one of the most corrupt presidents in modern times."  He declared he would hold "hundreds of hearings" to uncover wrongdoing in the Obama Administration.  But, as Alex Seitz--Wald details, Issa "often ended up shooting blanks."

His investigations into WikiLeaks, Fannie and Freddie, the FDA, and countless others have failed to expose any massive wrongdoing by the administration and after a year and half, he has little to show for them. . . .

Other investigations bordered on fringe absurdism, like when he asked the Department of Justice to investigate ACORN more than a year after it went extinct. There was also the hearing he held probing the Affordable Care Act’s contraception mandate, which famously included a panel featuring zero women.

But yesterday, as Seitz-Wald reports, Issa "finally got his big trophy and moment in the cable news sun today when his committee voted to hold Attorney General Eric Holder in contempt of Congress, following nearly seven hours of testimony on the ATF’s botched “Fast and Furious” gun scandal."

Meteor Blades at Daily Kos has the background:

The issue that spurred the committee's vote is Holder's unwillingness to release documents and internal communications at the Department of Justice regarding the operation known as "Fast and Furious." That operation, run by the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed guns bought in the United States to cross into Mexico. The idea was to nail straw purchasers of weapons in United States and also high-level members of Mexican drug gangs that obtained the weapons.

According to the 2011 report Fueling Cartel Violence prepared for Oversight Committee Chairman Darrell Issa (R-Calif.) and Senate Judiciary Committee Ranking Member Charles Grassley (R-Iowa), hundreds of firearms made their way into the arsenals of three of the largest drug cartels: Sinaloa, El Teo and La Familia.

Mexican authorities have claimed that as many as 150 people have been killed by these firearms in an ongoing war that has taken the lives of more than 50,000 people since 2006. Some 2,000-plus firearms are said to have made their way into Mexico as a result of "Fast and Furious." A U.S. Border Patrol agent, Brian Terry, was also killed with one of the weapons, an AK47-style firearm. Among the weapons allowed to leave the states were .50 caliber sniper rifles that may have made the difference in battles between cartel members and Mexican police.

As Jeremy Leaming at American Constitution Society explains:

U.S. Rep. Elijah E. Cummings (D-Md.) told The Times the administration was forced into invoking privilege because of the Issa-led committee’s “unreasonable insistence on pressing forward with contempt despite the attorney general’s good faith offer.”

The Department of Justice has provided Issa’s committee nearly 8,000 documents for the congressional investigation into the tactics used in the federal government’s efforts to stop violence related to drug smuggling along the southern border.

But Issa and other Republican members on the committee have feigned disbelief, arguing that much more is needed to complete their work.

I'm not particularly comfortable defending this -- or any -- Administration's invocation of executive privilege but Issa's relentless pursuit of the president, culminating in this investigation of a trumped-up scandal is nothing more than cynical political theater.

As Kevin Drum notes, this is a "fairly ridiculous invented controversy that Republicans care about only because (a) it involves guns, and (b) it involves the Obama administration."  Indeed, Issa "more or less admitted the fever swamp origins of tea party outrage over Fast & Furious when he told Sean Hannity that Obama was using the program to 'somehow take away or limit people's Second Amendment rights.''  This mad notion was seconded by Newt Gingrich on on CNBC last night.  According to Steve Benen, Gingrich "argued, with a straight face, that the so-called "Fast and Furious" controversy was part of an elaborate ploy to enact gun control."

Crazy, right?  "And yet," as Benen sums it up, "this nuttiness has been fully embraced by many House Republicans, many Senate Republicans, Fox News, Newt Gingrich, the NRA, and some deeply strange folks on far-right blogs and talk radio. To put it mildly, it's disconcerting."

 With the contempt citation going to the full House next week, you can take action by calling (202-224-3121) or emailing your representatives and urging them to oppose this politically motivated witch hunt.

Obama Administration's Drone Death Figures Don't Add Up

By Justin Elliot, cross-posted from ProPublica

Last month, a “senior administration official” said the number of civilians killed in drone strikes in Pakistan under President Obama is in the “single digits.” But last year “U.S. officials” said drones in Pakistan killed about 30 civilians in just a yearlong stretch under Obama.

Both claims can’t be true.

A centerpiece of President Obama’s national security strategy, drones strikes in Pakistan are credited by the administration with crippling Al Qaeda but criticized by human rights groups and others for being conducted in secret and killing civilians. The underlying facts are often in dispute and claims about how many people died and who they were vary widely.

So we decided to narrow it down to just one issue: have the administration’s own claims been consistent?

We collected claims by the administration about deaths from drone strikes in Pakistan and compared each one not to local reports but rather to other administration claims. The numbers sometimes do not add up. (Check out our interactive graphic to explore the claims.)

Even setting aside the discrepancy between official and outside estimates of civilian deaths, our analysis shows that the administration’s own figures quoted over the years raise questions about their credibility.

There have been 307 American drone strikes in Pakistan since 2004, according to a New America Foundation count. Just 44 occurred during the Bush administration. President Obama has greatly expanded the use of drones to attack suspected members of Al Qaeda, the Pakistani Taliban, and other groups in Pakistan’s remote northwest region.

Obama officials generally do not comment by name on the drone strikes in Pakistan, but they frequently talk about it to reporters (including us) on condition of anonymity. Often those anonymously sourced comments have come in response to outside tallies of civilian deaths from drone attacks, which are generally much higher than the administration’s own figures.

Justice Scalia: The Opportunistic Originalist

By Jeremy Leaming, cross-posted from American Constitution Society

DonkeyHotey

We likely shouldn’t be surprised by Justice Antonin Scalia’s “flip-flop,” as TPM puts it, on precedent supporting modern understanding of the Constitution’s commerce clause.

TPM’s Sahil Kapur reports that in his forthcoming book, Scalia says the Supreme Court’s 1942 opinion in Wickard v. Filburn wrongly construed the scope of the commerce clause. As Kapur and many others have noted, including the Obama administration, Scalia cited Wickard in a 2005 opinion concluding that a law barring personal cultivation of marijuana for medical use was not beyond the scope of the commerce clause.

In that case, Gonzales v. Raich, Scalia lodged a concurring opinion, citing precedent in holding, “where Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make that regulation effective.’”

In an e-mail to TPM, constitutional law expert Adam Winkler wrote, “This is typical Scalia.”

Winkler, a law professor at UCLA, continued:

He respects precedents when they fit his conservative ideology and disregards them when they don’t. He claims that history should guide judges. But nothing about the history of the commerce clause has changed. What’s changed is the political implications of the commerce clause. When it’s being invoked for law and order conservatives, he favors Wickard. When invoked by liberals to support healthcare reform, he thinks Wickard is bad law.
Once again, we see that Scalia’s orginalism is a charade.

There is also the spectacle of oral argument, where Scalia not only revealed a wobbly understanding of the health care insurance system but affinity for the simplistic, but radically libertarian arguments lobbed against the Affordable Care Act’s minimum coverage provision. The minimum coverage provision is integral to the health care reform law, requiring those who can afford to do so to obtain a minimum amount of the health care coverage starting in 2014.

The provision was quickly attacked by the Right as a dire threat to liberty. If the government were able to require many indiviuals to purchase health care insurance, then surely it could also force individuals to buy broccoli and gym memberships, the law’s opponents argued.