Under the Roberts Court, Precedent Be Damned, Even Without Kennedy's Successor

In conversation the other day my sister Lee and I shared a problem afflicting both of us—we haven’t been able to sleep well since Justice Anthony Kennedy announced his retirement from the Supreme Court, leaving to Donald Trump a choice that could well tilt the court to the right for a generation. 

Not that it wasn’t already a mostly conservative ensemble, though Kennedy provided that occasional libertarian vote that sided with the four progressive judges to validate gay rights, same sex marriage and the security of the Roe v. Wade abortion decision.

Kennedy was not flaming in his support of those bedrock Democratic principles. Now that he’s retiring it is open season on his legacy. Here’s just one example of a critique of his record on gay rights: https://nyti.ms/2lEgP4J. Similar dissections of his opinions on access to abortions, Citizens United, the Second Amendment, and other conservative court decisions are easy enough to find.

In the upcoming confirmation battle, Republican senators Susan Collins of Maine and Lisa Murkowski of Alaska are said to be crucial because of their past support of a woman’s right to choose. They have been quoted as saying Roe v. Wade is “settled law,” precedent that should not be voided.

Yet, no nominee will acknowledge how he or she would vote on a case to invalidate Roe v. Wade. As for it being “settled law,” we have seen already how the Roberts court has rejected precedent to chart a more regressive course. Just ask civil service union members how they feel about the protection of precedent. 

It’s important to remember that even if Roe v. Wade is overturned, abortion would be permitted in states where it is legal, such as New York. But each state could pass its own restrictions. In New York, an abortion could occur for any reason up to 24 weeks of pregnancy. Other states could have tighter deadlines, or outright ban the procedure even if a mother’s life is at risk.

Kennedy framed his more libertarian votes on the concept of personal privacy. His conservative detractors point out that the Founding Fathers and Framers of the Constitution never identified privacy as a freedom or right. A new, more conservative majority could reject Kennedy’s foundational argument, setting aside the rights and freedoms he found ensconced in the Constitution. 

The challenges might come from a direction not previously expected. Stripping civil service unions of their ability to collect dues from all workers served by their collective bargaining unit came about, for example, through a First Amendment challenge, a tactic heretofore rarely used by conservatives. 

I’m not a lawyer, so this analysis could be off-base. But I’m fairly certain it has merit. The upfront fear of a more conservative justice than Kennedy being appointed is naturally focused on the issues that have been most explosive over the last several decades, gay rights, gun rights and legalized abortion. 

There are, however, two government programs that conservatives have long sought to disembowel: Social Security and the Internal Revenue Service. (They’d also like to ax Medicare, Medicaid and Obamacare.) Again, I’m no lawyer but I am distressingly confident that conservative think tanks are poring over legal strategies to upend these programs. Don’t argue with me that the first two are near-century- and century-old programs, that the population at large would not stand for dismantling Social Security and even the IRS, if push came to shove. It’s also hard to imagine a majority of Americans favoring elimination of the healthcare programs.

But I’m not talking about the population at large. All it takes is one citizen to battle all the way to the Supreme Court where he or she could find a receptive, conservative ear, or should I say, 10 ears. 

The frustration my sister and I feel (by the way, I am not excluding my brother—just haven’t talked to him about it) is in no small measure a result of our living in California and New York, two states that lean liberal, though we are both old enough to remember legal abortion in New York passed the legislature by just one vote five decades ago. 

Rights presumed to be fundamental and guaranteed as “settled law” are susceptible. The landmark Voting Rights Act of 1965 has been gutted by the Roberts court. Restrictions on the influence of corporations on the political process have been lifted by the Robert court. 

Assume nothing is permanent. Assume no election is safe. Don’t leave it to someone else—VOTE! Not just for president, but for senate and congressional candidates, for governor and attorney general, for state senate and state representative, for mayor and city council, and especially for school board candidates.   

Casting a Political Line to 2016

Let’s cast our political line a little deeper than November of this year, all the way to the Republican nominating convention of 2016.

(For the record, I’m assuming Republicans reluctantly will embrace Mitt Romney as their standard bearer this year. The rest of the country will not see the wisdom of the choice. Barack Obama will be re-elected.)

After another grueling primary battle in 2016, Republicans will pick...Rick Santorum, first because their hard core members will turn even more right wing following Obama’s presidency, and second, it has been Republican practice, for better and worse, to place the mantle of leadership on the next in line. They did it with Reagan after Ford, Bush 1 after Reagan, Dole after Bush 1, McCain after Bush 2 and now Romney after McCain. Unless they break the mold, the GOP will anoint this year’s runner-up, Santorum, as the favored son four years from now.

During these next four years, rather than soften his rhetoric, Santorum will stiffen his resolve to remake America into a Christian nation in law as well as custom. He will seek to reduce personal privilege when it conflicts with his dogma, in areas such as gay rights, contraception and abortion rights. It’s been widely reported the former Pennsylvania senator said he almost puked when recently reading the text of John F. Kennedy’s famous 1960 speech outlining the separation of church and state that he, Kennedy, would follow if elected president. Though Santorum apologized for his graphic, insulting language, he did not recant his distaste for the doctrine Kennedy espoused.

It is interesting to note conservatives often cite the Founding Fathers when they look for foundational support for their beliefs. Yet when the Founders offer contrary evidence, they ignore them. So it is with Santorum’s failure to embrace Thomas Jefferson’s clear call in 1802 for a “wall of separation between church and state.” Perhaps Jefferson wasn’t of sufficient Founding Father status for Santorum to abide by his words.

Let’s be clear—no one is suggesting clergy of any faith cannot voice their opinions on issues confronting the country. Indeed, we have a long history of involved, though not always wise, clerics speaking out. In the 1930s, Father Coughlin spewed anti-Semitism from the airwaves; Reverend Falwell rallied a moral majority 40 years ago; the Berrigan Brother priests protested the Vietnam War, to name a few examples of religious leader involvement in the national dialogue.

A line must be drawn, however, when a religious leader seeks to impose his or her values on the rest of the nation. While polls show 98% of American Catholic women use some form of contraceptives, how disingenuous is it for the Catholic hierarchy, and Santorum, to want to curtail their use and to demean those who want to practice responsible family planning?

Many are quick to demonize Islamic countries for basing their laws on the Koran. How different would we be if we adhered to civil and criminal codes locked into the teachings of religious leaders instead of the rule of law we have followed since the inception of the republic?

Yes, it will be an interesting four years. Rick Santorum is only 53 years old (he’ll turn 54 May 10). He’s going to be with us a long time. He’s not going away.

A Blink Before Brinkmanship Returns

Now that House Republicans have blinked and joined their Senate counterparts in recognizing politics as the art of compromise, 160 million Americans can enjoy two more months of lower payroll taxes, while the unemployed can breathe easier for another eight weeks with jobless benefits before brinkmanship returns to the nation’s capital in the form of another exasperating debate on fiscal policy.

Try as I might to avoid political commentary, it’s virtually impossible. So here goes...

During his tenure representing the state of Wyoming in the U.S. Senate (1979-1997), Alan Simpson was not on my list of favorite senators. The tall, craggy 80-year-old conservative Republican could be quite charming, folksy and jocular, but his politics was clearly way to the right for my tastes.

Simpson, however, by his own admission on the Brian Lehrer Show on NPR Wednesday, would find it impossible to get a Republican nomination today as he’s an advocate of personal privacy, which means he supports gay rights and abortion rights. As co-chairman with Erskine Bowles of the Deficit Reduction Commission, he also acknowledged the need to raise more revenue through new or higher taxes, heresy among Tea Party members and the Republican faithful who have lined up like lemmings behind them.

Switching over to the EIB (Excellence in Broadcasting) Network to listen to some conservative talk show “wisdom,” I was disappointed Rush Limbaugh was on vacation. But his substitute, Mark Davis of WBAP in Dallas, didn’t fail to deliver more grist to the mill. He praised, for example, Republican members of the supercommittee charged with working out a deal on the budget for sticking to their guns. In other words, for not compromising. It was another unfortunate example of standing on principle at all costs, even if it meant the government might shut down, the public would be hurt and trust in elected officials to effectively govern and legislate decreased.

Davis also debunked the argument that conservatives are racist. His proof—they went “ga-ga” over Herman Cain and their favorite Supreme Court justice would be Clarence Thomas. At the same time he decried Attorney General Eric Holder for playing the race card to explain why he and Barack Obama are viciously attacked. It’s just policy differences that bring on the attacks, he said.

My need for some Rush was somewhat sated by a commercial featuring his mellifluous voice. He was pitching membership in the Heritage Foundation, a think tank dedicated, he said, to personal liberties. I wonder, though. What’s more personal than choosing your sexual orientation, or choosing whether to carry a pregnancy to full term? Not sure, but I would guess Alan Simpson would have a hard time being a member of this right-wing organization.

Simpson also had some interesting thoughts on Newt Gingrich and why so many Republican leaders have trouble supporting his candidacy for president. Seems that when Newt was Speaker of the House he agreed during a private meeting with President George Bush the First to a plan to buttress the economy that included a tax hike. Bush reluctantly agreed despite his “Read my lips, no new taxes” pledge. But when it came time to vote, Gingrich publicly repudiated the agreement. He is untrustworthy, not a man of his word, said Simpson. Not surprising, therefore, that Bush 1 yesterday endorsed Mitt Romney.

Of course, Republicans aren’t the only ones dishing out disappointment this holiday season. Obama has indicated he would sign a bill permitting indefinite detention for not only foreign nationals but also for American citizens thought to be supporters of terrorism. Incarceration without trial could last as long as hostilities remain active. Since there’s no foreseeable end to terrorism, even after Osama bin Laden was killed, anyone detained could languish in prison forever. Obama has been as bad for civil liberties as Bush 2.

Modern Orthodoxy

After the 2012 election, orthodoxy, actually the lack of orthodoxy, will prevent Democrats from either enacting or stopping Republicans from trying to repeal progressive legislation.

As the last two years have shown, who is president can have little effect on passage or repeal of laws (with the notable exception of presidential signing statements or executive orders that often circumvent the legislative process).

A successful legislative agenda is determined by a handful of elected officials, usually senators who can freeze government action through whim or conviction. While for centuries much of the world, civilized and not, went to war over real or imagined slights to kings, tribal chiefs or their emissaries, American democracy shielded us from these petty but mortal combustions. We are now engaged, however, in the political equivalent of a bloody battle for control of the state wherein one side gives no quarter and the other must fend off defections to a united front.

With the near total disappearance of a moderate wing of the Republican party, we have on one side of the battlefield an army of representatives rigid in their orthodoxy to an ideology demanding lower taxes, less government, fewer safety net provisions, and more freedom to act as one pleases unless those actions conflict with religious, mostly fundamentalist Christian, beliefs. In other words, no abortions, no same sex marriages, no gay rights, more Creationism classes.

Democrats, on the other hand, are splintered. Some resist abortion rights. Some favor gun rights. Some battle immigration reform. Some question universal health care. Unlike the GOP, Democratic leaders command little party discipline.

Which brings me back to my starting point. Republicans practice orthodox politics. You’re either a hard line conservative (becoming harder every day) or you’d better find a new line of work. They have shown a willingness to shut down the government, or at least limit its effectiveness by holding up key confirmations or stripping necessary funding from departments in disfavor. It takes just one senator, often done anonymously, to derail legislation or scuttle a presidential appointment.

And when legislation does get discussed in the Senate, it takes a super-majority of 60 to end debate, not a simple majority.

All this means that barring an unexpected Democratic tsunami victory in 2012, the Dems will be hard-pressed to advance their agenda in 2013 and beyond. Even when they had a super-majority in 2009-2010 the lack of orthodoxy revealed how disjointed Democrats are, how even one of their own could challenge party leadership and the president.

If Republicans gain control of the Senate, but not a super-majority, they won’t be as powerless because there always seem to be a few Democrats willing to cozy up to the GOP in the hope of notching a conservative record that could be defended back home come the next election.

Politics used to be known as the art of compromise. Now it is strict orthodoxy to dogma, no matter how damaging it might be to the welfare of the nation.