The Sotomayor nomination may be safe, but at what
cost for future Supreme Court picks

"There was something distasteful about Sotomayor?s being lectured on civil rights by the likes of Senator Jeff Sessions, of Alabama, whose own retrograde views on race back in 1986 led to his being rejected for a federal judgeship by the very committee on which he now serves."
-- Jeffrey Toobin, in his July 20 New Yorker "Comment"
on the Senate Judiciary Committee hearings

by Ken

I imagine a lot of folks on our side of the war for the soul of the federal judiciary are breathing easier after the Republicans on the Senate Judiciary Committee seem to have blown their wad in the hearings on Judge Sonia Sotomayor's nomination to the Supreme Court. They were so lame, it was hard to tell whether they were just going through the motions or are just, well, that lame.

After watching "Little Jeff" Sessions at work, though, I have to say I'm inclined more to the they're-just-that-lame theory. I think the Senate Republicans thought they were upgrading their attack-dog profile by slotting Little Jeff into the SJC ranking minority member slot vacated by the hated turncoat Arlen Specter. I don't doubt that Little Jeff has all the viciousness and hatred and ignorance necessary for a high-profile demagogue; he just doesn't appear to have any communications skills, which are traditionally highly prized in demagoguery. He seems to have more the cunning of Wile E. Coyote, watching his latest scheme for Road Runner neutralization blow up in his face. (I still say the R's should have Henry Gibson playing Little Jeff.)

In the larger scheme, though, I'm still thinking about the SJC hearings in the context of the point I tried to make this morning: that all these battles the R's are losing don't necessarily mean they're losing the war, taking the long view.

Really and truly, in the absence of something really damning, what were the chances the nomination was going to be shot down? I suppose there was always the possibility of a filibuster, but were the R's really prepared to face the electorate after doing that to a Hispanic woman of such impeccable legal credentials? Oh, they had their mini-gotchas, the "making policy" remark," and the "wise Latina" one, and then the Ricci case. But even master obfuscators would have had a tough time cashing in those meager chips.

Still, it seems to me dangerous to underestimate the amount of damage the "Just Say No"-ers inflicted, to be applied to the next Supreme Court nomination, which is once again much likelier to be one of the remaining moderates rather than one of the neanderthals being replaced, meaning that on our side we're going to be fighting just to hold our ground..

Now I hope no one was surprised by my reference to "one of the remaining moderates." Surely there isn't anyone who thinks there are any actual liberals among what is casually referred to in the Infotainment News Media as the Court's "liberal bloc"? Like who? These are fine, honest folk, who performed heroic service during the Dark Ages of the Bush regime

Is there any way we can ever repay our debt to Justice John Paul Stevens? Remember, he was within months of his 81st birthday when Chimpy the Prez took the oath of office, and any hope that he might merely have to survive another four years was dashed in the 2004 election. It's possible that the justice, apparently in good physical and mental health, would have chosen to remain on the Court anyway, but the fact is, he was pretty much deprived of the option of retirement.

(Ironically, the justice who probably helped install Chimpy as president precisely so she could retire, Sandra Day O'Connor, may have left with more regrets than she expected, as she watches the transformation wrought since her departure by the advent of the two new justices. Justice O'Connor was a bona fide conservative, but in case after case the XXXXXXs of the Roberts Court are going places she knows perfectly well they wouldn't, couldn't have gone with her still sitting.)

That said, it doesn't make Justice Stevens a "liberal." Justice William Brennan was a liberal. Justice Thurgood Marshall was a liberal. These folks, honorable justices all, are moderates.

And both the selection of Judge Sotomayor and the process by which she appears to be securing confirmation are stacking the deck even more against the appointment of a liberal judge to the Court at any time in the foreseeable future -- even if we had a president inclined to make such an appointment, which I'm sure not persuaded we do at the moment. I think "moderates" may be just fine for President Obama.

As a piece of political calculation, as I've already written, the Sotomayor selection was brilliant. It became apparent pretty quickly that it wasn' going to be necessary to read all of her huge number of judicial opinions to know that this was not a judge who had a secret "liberal streak" that had to be hidden. Now, Justice Sotomayor (to jump the gun a little) may yet surprise us; there's no such thing as dead certainty when it comes to Supreme Court justices, who -- once confirmed -- are about as beyond the reach of detractors as anybody in the workforce gets. But I think the R naysayers knew pretty quickly that they weren't dealing with a closet liberal. The judge's participation in the panel that ruled against firefighter Frank Ricci in the New Haven case may have been an undeserved gift for the R's, but surely none of them are so lame-brained as to believe they had found evidence of a disguise masking her "liberalism."

Does this mean that the next Court nominees will have to be as visibly moderate? Well, maybe even more so, since they aren't likely to have the secret weapons of Judge Sotomayor's gender and ethnicity.

And does this mean that those next nominees are going to have to maintain the fiction that the criterion for appeals-court judging is, plain and simple, applying the law?

Jeffrey Toobin expresses regret in his July 20 New Yorker "Comment" piece on last week's hearings:

In fact, Justices have a great deal of discretion?in which cases they take, in the results they reach, in the opinions they write. When it comes to interpreting the Constitution?in deciding, say, whether a university admissions office may consider an applicant?s race?there is, frankly, no such thing as ?law.? In such instances, Justices make choices, based largely, though not exclusively, on their political views of the issues involved. In reaching decisions this way, the Justices are not doing anything wrong; there is no other way to interpret the majestic vagueness of the Constitution. But the fact that Judge Sotomayor managed to avoid discussing any of this throughout four days of testimony is indicative of the way the confirmation process, as it is now designed, misleads the public about what it is that Justices do.

For once that blowhard Sen. John Cornyn wasn't wrong when he said that Judge Sotomayor's answers explaining her judicial philosophy made her sound exactly like Chief Justice Roberts, who of course is even less a believer than Judge Sotomayor that the job consists of just-applying-the-law.

Oh, Toobin understands why nominees of all ideological persuasions have arrived at the practical wisdom that during the confirmation process you say nothing of substance, and especially nothing that can be used as ammunition against them. Nevertheless, he makes a great point: We have now more or less officially conceded that the subject of what judges actually do is too complicated to be discussed with, or even in front of, the American people.

And once again whole areas of public and legal policy have been declared off limits, not just as subjects of discussion, but perhaps also as areas of belief that can disqualify future Supreme Court (and lower federal court) nominees. There was, most notably, the grotesque spectacle of a vile toad like Little Jeff Sessions playing the race card, just the way Rush Limbaugh or Pat Buchanan would -- well, did. Toobin writes aptly:

There was something distasteful about Sotomayor?s being lectured on civil rights by the likes of Senator Jeff Sessions, of Alabama, whose own retrograde views on race back in 1986 led to his being rejected for a federal judgeship by the very committee on which he now serves. (One of the more cringe-worthy moments of the hearing was Sessions?s expression of incredulity that Sotomayor might disagree with another judge on her court even though he was also Puerto Rican.)

To focus on just one point, in the extreme case -- by which I mean the ignorant and rawly hate-filled mouthing off we heard from Buchanan, most notably in the infamous interview with Rachel Maddow. Buchanan, as I've pointed out, has managed to turn the very idea of affirmative action into something shameful and unworthy. As I wrote, "In the lunar landscape that is Pat Buchanan's brain, 'affirmative action' is nothing more than a piece of the massive plot -- watch out, the plotters are everywhere! -- to cheat white males, the very people who made America what it is, out of their rightful share of the pie, which is all of it."

As a result, there's hardly any point documenting what I assume are typically Buchananite misrepresentations of Judge Sotomayor's own relationship to affirmative action. After all, confronted with the issue of her outstanding academic record at Princeton, poor Pat actually blithered on about everybody knowing about Ivy Leaguers all getting those high grades. At that point, I find it unfathomable that whoever at MSNBC is responsible for signing his paychecks, or a flunky thereof, didn't simply walk onto the set gun in hand and put the pile of puke out of his misery. As it is, as I say there's no point going back to the judge's testimony, because she would have had no reason to speak of affirmative action with any measure of hostility or derision.

People like Rush and Pat have done everything they could to load the term just that way in the American imagination -- hey, them my-norities is gittin' special vantages! But by being afraid to answer them, again on the assumption that the American people are too stupid to understand the real issues, we have more or less allowed them to define those issues. It is, I tell you, one creepy experience to see and hear Rush Limbaugh announce that of course Judge Sotomayor is a racist. Your impulse is to say, "And you would know, huh, Rush?" But of course he wouldn't, or at least he wouldn't say, not publicly. When he's among his own kind, he can brag about his racism, but of course it isn't real racism that Judge Sotomayor was being accused of.

I was feeling pretty glum about this state of affairs when a colleague who has actual experience with affirmative action, and by experience I mean 25 years litigating affirmative-action cases, offered the first sense I've heard in, well, a while, on the subject.

I was going to cherry-pick a few paragraphs, but in the end I think I'm going to quote the whole piece, which isn't that long, with just a bit of highlighting of points so basic that we need to find a way to make them part of the national understanding.

Pat Buchanan Continues His Racist Attacks on Sotomayor

By Guy T. Saperstein, AlterNet. Posted July 17, 2009.

Yesterday, on MSNBC, Pat Buchanan attacked Sonia Sotomayor, specifically, and affirmative action, in general. Included in his attack were such claims as "this has been a country built basically by white folks," that Sotomayor was purely an affirmative-action candidate who lacks real credentials and his suggestion that we need more white, male Supreme Court nominees -- like Robert Bork -- despite the fact that 108 of the 110 Supreme Court justices in our nation's history have been white.

What opponents of affirmative action like Buchanan fail to grasp is that this country was built on affirmative action -- for white males -- and you don't have to go back to the Founding Fathers to see this in action.

If you go back to the 1950s, which Buchanan apparently wants to do, and look at the major private universities, you would find that 20 to 30 percent of the admissions were "legacies" -- people who got there not on merit but because they were the sons of alumni and donors. George W. Bush, of course, is the poster child for this generation of affirmative action babies.

I'd like to see Buchanan, or any conservative, defend Bush's admission to Yale on the basis of merit. And I'd like to stack up Bush's credentials next to Sotomayor's and ask which one was more deserving of admission to a major university, or the bench, or the presidency, or anything.

The white-male affirmative action that bozos like Bush benefited from and want to protect was a monopoly of opportunities; monopolies work to undermine healthy competition and produce bad results.

The affirmative action that emerged from the 1960s civil rights movement was an effort not only to promote diversity of people and opportunities, but to democratize opportunities so that white-male hierarchies did not automatically get all the perks. This has been healthy for America, not only because society has become more diverse, but also because it now is less likely that the truly unqualified -- the frat boys like GWB with no academic credentials and problems with excessive alcohol consumption [but a connected family] -- are not automatically passed on to graduate schools, and then on to unsuccessful business careers, not to mention catastrophic political careers.

I prosecuted employment discrimination class actions for 25 years, in the process forcing many major corporations to hire and promote women, minorities, older people and the disabled. In every single case I had, when the case was over and the workforce was integrated, no matter how bitter the litigation had been, the companies would confide in me that their workforces after "affirmative action" were stronger, more competitive, more productive.

Affirmative action has been good for American business and good for America. Indeed, corporate America, which has seen the benefits of fair-employment practices firsthand, long ago abandoned opposition to it. Too bad racists like Buchanan have failed to pay attention to what really has happened in the American workforce, and in America, over the past 40 years.

Guy T. Saperstein is a past president of the Sierra Club Foundation; previously, he was one of the National Law Journal?s "100 Most Influential Lawyers in America."

#

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Talking heads ignore Friday's late night CBO
score on the House bill

All the Sunday shows and anti-health care reform members of Congress have jumped on Doug Elmendorf's testimony, but ignored another CBO report. I wonder why?

Digby:

Not that it matters, since the showboating Senators had to have a dramatic hearing with the CBO chief before the committees were finished and the resultant headlines have been disseminated as if they came down from Mt Sinai, but this was released last night by the From the House Energy, Ways and Means and Education and Labor committees:

For Immediate Release:

July 17, 2009

CBO Scores Confirms Deficit Neutrality of Health Reform Bill

Washington, D.C. -- The Congressional Budget Office (CBO) released estimates this evening confirming for the first time that H.R. 3200, America?s Affordable Health Choices Act, is deficit neutral over the 10-year budget window ? and even produces a $6 billion surplus. CBO estimated more than $550 billion in gross Medicare and Medicaid savings. More importantly, the bill includes a comprehensive array of delivery reforms to set the stage for lowering the future growth in health care costs.

Net Medicare and Medicaid savings of $465 billion, coupled with the $583 billion revenue package reported today by the House Committee on Ways and Means, fully finance the previously estimated $1.042 trillion cost of reform, which will provide affordable health care coverage for 97% of Americans.

"This fulfills the strong commitment of the President and House leadership to enact health reform on a deficit-neutral basis," said Chairman Henry A. Waxman, Chairman Charles B. Rangel, and Chairman George Miller. "The reforms included in this legislation will help control health care costs and expand access to quality, affordable coverage to all Americans in a fiscally-responsible manner."

The estimates also cover important reinvestments in Medicare and Medicaid, including phasing in the closing of the "donut" hole in the Medicare drug benefit. The bill?s long-term reform of Medicare?s physician fee schedule to eliminate the potential 21 percent cut in fees, and put payments on a sustainable basis for the future, will cost about $245 billion. Those costs, however, are not included in the net calculations above, as they will be absorbed under the upcoming statutory "pay go" legislation that is pending in the House.

Naturally, the inviolate Chuck Todd 30,000 feet rule of reporting is in effect and the Politico headlines reads this way: CBO deals another blow to House health plan...read on

And Jonathan Cohn makes a great point that I hope Congress reads:

One last point: Do remember that even if reform ends up without game-changing cost control, it may create political conditions that make future cost control more likely. That seems to be happening in Massachusetts, which enacted sweeping coverage expansions a few years ago. Remember, too, even if reform did nothing but guarantee everybody access to care, without bending the curve, it'd still be a pretty big accomplishment.

We're trying to have real change here and all the press and republicans are doing is whipping up the money-fear thingy. But spending billions on two disgraceful wars is just OK. Forget about the balancing act---if it costs a little more, then go for it--full throttle.

Read The Full Article:
http://crooksandliars.com/john-amato/talking-heads-ignore-fridays-late-night

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More great news for John McCain

WaPo:

Cable news programs repeatedly declare[d] the president's health care program is "teetering" or "embattled," despite a week in which Obama's proposals were endorsed by the doctor and nurses associations and committees in both legislative chambers passed major bills.

CNN and Fox were the worst offenders in this department. Fox, of course, is understandable -- they are GOP TV. But it's hard to figure out what CNN's gameplan was. Don't they understand Fox has cornered the market on conservative propaganda?

Read The Full Article:
http://feeds.dailykos.com/~r/dailykos/index/~3/b9hwz9RsZN4/-More-great-news-for-J
ohn-McCain

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McClatchy ignores progressive economists in
report on minimum-wage increase

In a July 19 article about the scheduled increase in the federal minimum wage from $6.55 to $7.25 per hour, McClatchy provided only arguments from "some economists" against raising the minimum wage now while ignoring economists who argue that this is a particularly good time for the pay increase. As NPR reported in a July 19 article, "[L]iberal economists say this summer is the perfect time for a wage hike."

McClatchy reported that "some economists worry that the wage hike is coming at the worst possible time and will only make the recession-battered job market tougher for the very workers it's intended to help." After describing the case of an Oklahoma woman who would benefit from the increase, McClatchy added, "Some economists argue, however, that with the recession forcing small businesses to lay people off, it would be smart to postpone the increase for a year."

However, McClatchy did not report that "some economists" say that the pay increase now will help the economy. By contrast, NPR reported, "Kai Filion, a policy analyst for the Economic Policy Institute, a left-leaning research group, says this wage hike will generate $5.5 billion in consumer spending over the next 12 months." From the NPR report:

Conservative economists are worried that the government-mandated raise will force small businesses to lay off workers. They note that the job market has deteriorated since Congress approved the 10.7 percent pay raise two years ago. In the summer of 2007, the U.S. unemployment rate was running at about 4.7 percent. Today, it is 9.5 percent. Mandating higher wages could force some employers to cut jobs, the argument goes.

But liberal economists say this summer is the perfect time for a wage hike: It will put more money into the pockets of people who need it most. Fatter paychecks will stimulate spending and help the economy, they say. Kai Filion, a policy analyst for the Economic Policy Institute, a left-leaning research group, says this wage hike will generate $5.5 billion in consumer spending over the next 12 months.

Still, most analysts say that in an economy as large as this one, a minimum-wage hike won't have much impact. For a sense of scale, they point to the stimulus plan Congress approved earlier this year. That $787 billion package was more than 14 times larger than any increased consumer spending generated by the wage hike.

[...]

Even some conservative economists concede that studies show that modest wage hikes generally have statistically insignificant impacts on employment nationwide. But they add that for the least-skilled workers, such as teenagers, it will matter. Economist David Neumark of the University of California, Irvine, estimates that this year's wage increase will eliminate about 300,000 jobs for people between the ages of 16 and 24.

Moreover, McClatchy quoted an analyst from the Employment Policies Institute (EPI) without noting the group's industry and lobbyist ties. The article quoted EPI's Kristen Lopez Eastlick, who "said the increase should be postponed because the higher wage will cause employers to reduce hours for workers and cancel plans for new hires." But McClatchy did not identify EPI as an industry-funded, Republican-linked organization.

A July 8, 1995, National Journal report identified EPI as "[a]nother new think tank with even closer ties to industry," which was "started in 1992 by a group of restaurant companies that wanted an alternative source of research on labor issues." Los Angeles Times business columnist Harvey Bernstein referred to EPI in a September 15, 1992, column as the "recently created business-funded Employment Policies Institute" and as the "conservative EPI, financed mostly by low-wage companies such as hotels and restaurants."

The address listed on the group's website is the same as the address for Berman and Co. According to the Institute's IRS Form 990, EPI paid Berman and Co. $725,136 in management company fees in 2007. Richard Berman, a federally registered lobbyist who wholly owns Berman and Co., is EPI's executive director. In October 2008, The Washington Post described EPI as "a front group created" by Berman, who "became famous in Washington fighting increases in the minimum wage for his restaurant industry clients."

From the July 19 McClatchy article:

Two previous wage hikes, one in 2007, the other in 2008, pushed the federal wage to $5.85 and then to the current $6.55 an hour. The third, which goes into effect Friday, will push it to $7.25 an hour.

That's not a life-changing raise -- an extra $28 a week for a fulltime worker earning the federal minimum -- though low-wage earners like Kendell Patterson in Oklahoma City, Okla., say it'll help.

But some economists worry that the wage hike is coming at the worst possible time and will only make the recession-battered job market tougher for the very workers it's intended to help.

The increase will have minimal impact in most states. Eighteen states and the District of Colombia already have minimum wages that are higher or equal to $7.25 an hour. In nine more, the minimum wage is higher than $6.55 an hour and so workers in those states will see their wages rise by only a fraction of the 70-cents-an-hour increase, from four cents an hour in Florida to 40 cents an hour in Nevada.

That leaves 23 states where minimum wage workers covered by the federal Fair Labor Standards Act will enjoy the full 70-cents-an-hour increase.

[...]

Patterson said the minimum wage increase won't help her very much, but even a little help is appreciated because times are so hard.

"I feel like people are trying to work and make ends meet and they just can't do it," she said. "They have to pawn something or ask family members for help or try to get a loan. Pretty soon people are going to start stealing from each other and killing each other because of the economy."

Some economists argue, however, that with the recession forcing small businesses to lay people off, it would be smart to postpone the increase for a year.

"There's always a negative impact to a wage hike," said Kristen Lopez Eastlick, senior economic analyst at the Employment Policies Institute. Eastlick said the increase should be postponed because the higher wage will cause employers to reduce hours for workers and cancel plans for new hires.

In addition, employers will look for better-skilled employees, which will make it harder for low-skilled employees to find work. The hardest hit will be minorities, teens and young adults, she said.

"None of those things help that vulnerable workforce who are already finding it tough to compete," Eastlick said.

A 2008 survey by the National Restaurant Association seems to support her contention. It found that after the minimum wage increased in 2007, 58 percent of restaurant operators raised menu prices, 41 percent cut employee hours, 26 percent put off hiring new workers and 24 percent reduced the number of employees.

The impact isn't quite so clear in the retail industry, which also provides a lot of minimum wage jobs. Rob Green, vice president for government and political affairs at the National Retail Federation, said it will be tough to quantify the impact of the minimum wage increase because the recession has so altered the economic landscape.

Others say it would be unfair to low-wage workers to put off the increase over an an economy that was wrecked by the risky behavior of the finance, banking and real estate sectors -- some of which have already received hundreds of billions of dollars in government bailouts.

"It's totally obscene that workers are being asked to bail out and subsidize the bonuses of, essentially, the people that got us in the mess," said Holly Sklar, senior policy advisor for the Let Justice Roll campaign, a coalition of more than 100 organizations dedicated to raising the minimum wage.

"The idea of asking these hard-working people that are constantly juggling bills to bail out the banks and corporations that trashed the economy is disgusting."

Patterson agreed. "If you don't raise it now, things are just going to get worse," she said.

Sklar added that the federal minimum wage was enacted in the heart of the Great Depression, so increasing it in a recession isn't unprecedented.

"The minimum wage was seen as an essential part of an economic recovery because they knew they had to stimulate national consumer buying power," she said. "And that's the same problem we have now."

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Speech to the NAACP Anniversary Celebration

This President communicates.Here's a portion of his speech last week before the 100th Anniversary[...]

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NASAs finest hour

July 20, 1969.  Neil Armstrong and Buzz Aldrin landed on the moon.This video is the short[...]

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NASAs Finest Hour

July 20, 1969.  Neil Armstrong and Buzz Aldrin landed on the moon.This video is the short[...]

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http://www.whereistheoutrage.net/wordpress/2009/07/20/nasas-finest-hour/

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Card Urges Health Care Delay: Push For Reform Is
‘Contrived Haste’

On MSNBC’s Morning Joe today, former Bush chief of staff Andrew Card pushed the conservative line that health care reform needs to be slowed down, calling it “contrived haste.” “If everything is a haste, haste, haste, there are going to be tremendous unintended consequences,” said Card.

Claiming that the Obama administration and congressional Democrats are not seeking a “bipartisan” approach, Card accused the reformers of trying to “bully it through the process” by saying “trust us.” “Don’t trust them,” said Card. “Don’t trust them it’s too big a deal.” When host Mika Brzezinski raised OMB Director Peter Orszag’s argument that Republicans are trying to “drag out” the process in order to “kill” reform, Card claimed that’s not the GOP strategy:

BRZEZINSKI: I hear ya, but at the same time, Peter Orzsag, over the weekend, says that Republicans are just trying to kill this deal. They’re trying to drag out the legislative process and they just, basically, want to kill health care reform because they don’t have any better alternatives. Is that fair?

CARD: Don’t paint all Republicans with that brush. There are Republicans that have put forward very responsible programs to help keep costs down. Yes, meet obligations to expand coverage, but not bust the bank. And they want to help to make sure our economy can be vibrant. And that’s critical today. Let’s do it smart, not fast.

Watch it:

video details and more

It’s hard to “trust” Card’s claim that Republicans want to be constructive towards health care reform. For instance, Sen. Chuck Grassley (R-IA), one of the few GOP senators engaged in negotiations, is “under immense pressure from Republican colleagues not to deal at all” with Democrats.

Indeed, the conservative effort to “kill” reform was clarified today by Weekly Standard editor Bill Kristol, an architect of obstructing reform in the ’90s, who wrote that Republicans should “go for the kill?:

With Obamacare on the ropes, there will be a temptation for opponents to let up on their criticism, and to try to appear constructive, or at least responsible. There will be a tendency to want to let the Democrats’ plans sink of their own weight, to emphasize that the critics have been pushing sound reform ideas all along and suggest it’s not too late for a bipartisan compromise over the next couple of weeks or months.

My advice, for what it’s worth: Resist the temptation. This is no time to pull punches. Go for the kill.

Kristol asserts that ?we have plenty of time to work next year on sensible and targeted health reform in a bipartisan way,? but Dave Weigel notes the disingenuousness of the claim, since “Republicans had, of course, plenty of time for bipartisan health reform from 2001 to 2009, but they punted, because they don?t believe that the country needs fundamental reform that covers everyone.”

Read The Full Article:
http://thinkprogress.org/2009/07/20/card-health-haste/

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While Jim DeMint Vows to Break Obama on Health
Care, South Carolinians are Going Broke Under Our System

This is why the whole idea of "bipartisan" health care reform was always a stupid fantasy.[...]

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http://firedoglake.com/2009/07/20/while-jim-demint-vows-to-break-obama-on-health-
care-south-carolinians-are-going-broke-under-our-system/

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Pushing Toward Closure (and Cloture) on Health
Care

It was good to see President Obama shifting toward a more directly confrontational tone with the[...]

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