August 26, 2005 PERMALINK
Feinstein's Speech
(posted Aug. 26 2 AM ET)
It has been 777 days since Karl Rove violated his obligations under Standard Form 312 without the White House taking “corrective action.”
Yesterday, LiberalOasis followed the mainstream media’s lead and flagged Sen. Dianne Feinstein’s statement that she would find it “very difficult” to vote for a Supreme Court nominee who is anti-Roe.
But that was just a snippet of a larger speech she gave on the Supreme Court, a speech that deserves more attention.
Feinstein offered a comprehensive smackdown of the Rehnquist Court’s campaign to strip Congress of the ability to pass laws that promote equality, safety and a clean environment:
Perhaps the most distinctive aspect of the Rehnquist Court has been its pattern of restricting congressional authority to pass legislation in several areas.
The Rehnquist Court has done this in part by adopting a narrow view of several provisions of the constitution: the Commerce Clause, which provides Congress authority to regulate activities that impact interstate commerce; and the Fourteenth Amendment, which provides Congressional authority to ensure that all Americans are treated equally under the law.
Historically, the Commerce Clause and sections of the Fourteenth Amendment have been used as a primary source of Congressional power to address social issues, environmental issues.
The Rehnquist Court has reshaped and restricted Congressional authority under these provisions.
If this historic shift continues, the court could significant restrict the ability of Congress to address nationwide issues with federal legislation the people’s elected representatives decide are necessary.
Feinstein then chronicled the damage that has already been wrought, laws involving disability rights, age discrimination, gun safety and domestic violence either fully or partially invalidated.
And she rightly characterized the Rehnquist Court as “activist” because of its eagerness to prevent Congress from acting on behalf of the public, and says she will press Roberts on these issues.
This is the kind of intellectual groundwork that should have been laid weeks ago, and desperately needs to be articulated in a consistent cohesive fashion, in advance of next month’s hearings.
(Translation: one speech by one senator is not nearly enough.)
And since the GOP chair of the Judiciary Cmte, Sen. Arlen Specter, has also made a similar critique of the activist Rehnquist Court in recent days, Dems have the bipartisan key to making this the big issue of the hearings.
You might think, “Roberts apparently can’t shut up about his love for ‘judicial restraint.’ Can’t he swat such concerns about activism out of the park?”
No, because in one of the few opinions he has written as a federal judge, he has tipped his hand.
The landmark Rehnquist ruling that crystallized his conservative judicial activism is Morrison v. U.S., which struck down a main portion of the Violence Against Women Act, denying victims the right to sue their attackers in federal court, leaving women no recourse if local authorities fail to take their abuse seriously.
Both Feinstein and Specter cited in their recent remarks Morrison's weakening of congressional power as a major concern.
But in the upcoming hearings, Roberts can’t simply mouth the words to Feinstein’s and Specter’s concerns, because he has tried to expand the reach of Morrison as a federal judge.
That’s what’s so troubling about his now-famous “hapless toad” dissent in which Roberts showed contempt for the Endangered Species Act.
FindLaw’s Jule Hilden explains:
Roberts isn't just innocuously counseling that the D.C. Circuit follow the binding higher-court precedents of Lopez [another Rehnquist ruling, nullifying a law banning guns near schools] and Morrison - as his opinion suggests.
He's counseling that the Court go far beyond Lopez and Morrison to forbid any Commerce Clause goal that isn't itself a commercial purpose.
So when businesses tromp on other businesses, Congress can step in and regulate the activity.
But when they tromp on toads, Congress can't - in Roberts's view.
Even though it's the businesses who are acting, in Roberts' view, the "regulated activity" - the tromping itself -- is not a form of commerce, and that's all that counts.
So unless the toads start an Internet mail-order business of "Don't Tromp on Me" T-shirts, with which the tromping would interfere, they're out of luck.
This view isn't just conservative; it's completely crazy.
[Underlines in original]
It’s possible to get folks like Feinstein and Specter, not to mention the glorified Gang of 14, riled up about the prospect of congressional power being restricted.
Because these are old-school “institutionalists” who bristle at the Senate (and themselves) losing power.
For example, Specter said that “Members of Congress are irate about the Court's denigrating and, really, disrespectful statements about Congress's competence.”
A similar dynamic was in play with the John Bolton nomination.
Senate Dems banded together in opposition, not because of Bolton’s foreign policy beliefs, but over their right to information from the State Dept.
That’s the kind of thing that gets them motivated.
Which is a double-edged sword.
Sure, they stood together. But in the end, the Bolton fight failed to arouse the public, because the public could care less about Senators’ rights. It cares about its own rights.
Of course, there’s a direct connection between the two. But Senators must make that connection plain.
They must make it about the people, not about themselves.
The danger of Roberts’ conservative judicial activism is not simply that Congress loses more power.
It’s that we the people can’t have our Congress pass laws to protect our schools from violence, clean up our air and water, help women fight back against domestic abuse, et cetera, et cetera.
Finally, a word of advice to Feinstein and others that pursue this avenue: go light on the "Commerce Clause" and "14th Amendment" talk. Not everybody is a constitutional law scholar.
Lay off the jargon and cut to the chase, how Roberts' judicial activism will hurt individuals.
August 25, 2005 PERMALINK
The Roberts Battle Begins (Finally)
(posted Aug. 25 2:15 AM ET)
It has been 776 days since Karl Rove violated his obligations under Standard Form 312 without the White House taking “corrective action.”
Yesterday, one of the main liberal civil rights groups, People For The American Way, finally gave a formal thumbs down on John Roberts for the Supreme Court.
PFAW waited over a month to make its decision, ostensibly to review opinions and memos as well as to avoid accusations of knee-jerk opposition.
But of course, the Right attacked PFAW for being knee-jerk anyway. And precious time defining the real Roberts was lost, as the GOP was able to freely frame Roberts with little resistance.
Case in point: Knight-Ridder’s report on the PFAW announcement says the following as a matter of fact, not as a GOP contention:
Perhaps most defining, [Roberts’] record supports his reputation as a skilled lawyer who weighs facts against the law and a conservative who favors a restrained judiciary that defers to the elected branches of government in setting policy.
Knight-Ridder does not mention that PFAW takes direct aim at the notion that Roberts believes in true judicial restraint:
As a judge Roberts has signaled that he subscribes to the ideas of the new “federalism” that would limit the federal government’s power under the Constitution’s Commerce Clause to act on behalf of the common good...
... Roberts issued a troubling dissent from a decision upholding the constitutionality of the Endangered Species Act.
Roberts’s dissent suggested that Congress lacked the power under the Commerce Clause to protect endangered species in this case.
The consequences of such a radical view, if held by a Supreme Court majority, would extend far beyond the Endangered Species Act to many areas of Congressional authority, including such longstanding programs as Medicare and Social Security.
That’s more than just Knight-Ridder being sloppy. That’s the result of a well-orchestrated spin job, made easier by a lack of counterspin.
Because these positive impressions of Roberts have taken some root, PFAW and the rest of us have a particularly uphill battle, between now and the hearings, to take the sheen off of Roberts and change the perception that confirmation is assured.
The open question: are PFAW and the other top liberal groups investing the resources to do that?
How large is the ad campaign? How aggressive is the media outreach? What signals are these groups sending so Senators will be emboldened during next month’s hearings?
While the jury is out on those questions, there are some positive signs that Dem Senators may not roll over.
Sens. Chuck Schumer and Russ Feingold are pressing Roberts on his failure to recuse himself in a case involving the Bush Administration after he was interviewed for the Supreme Court position.
Dems in general are still demanding access to documents that the Bushies are suspiciously sitting on. (Including a file that could link Roberts to Iran-Contra.)
And most importantly, from a political standpoint, is Sen. Dianne Feinstein’s comment that “It would be very difficult for me to vote to confirm someone to the Supreme Court whom I know would overturn Roe v. Wade and return our country to the days of the 1950s.”
Feinstein is notoriously accommodationist when it comes to judges, so for her to raise the possibility of voting No sends a good message to the rest of the Dem caucus.
(Sen. Feinstein, have you met Sen. Wyden?)
But as Senate leaders have already indicated to the W. Post, they won’t fight hard unless the grassroots gives them some wind at their back.
Lame? Yes, but that’s the deal. If you want to stop Roberts, get to work.
Step 1, sign the PFAW petition and forward it to your friends.
Step 2, submit your question for Roberts on the Senate Dem website.
August 24, 2005 PERMALINK
Bush Finds a Foil
(posted Aug. 24 2:15 AM ET)
It has been 775 days since Karl Rove violated his obligations under Standard Form 312 without the White House taking “corrective action.”
It’s pretty impressive that Cindy Sheeham’s Crawford protest is still rattling Dubya when neither one of them is even in Crawford.
As Dubya jetted off to Idaho for a couple of days (perhaps concluding that with Camp Casey, Crawford no longer felt much like a vacation), he chose to directly mix it up with Cindy for the first time.
He disputed her standing, saying she doesn’t speak for most military families (Cindy notes that she never claimed to).
He accused her of wanting to weaken America, saying:
She expressed her opinion. I disagree with it. I think immediate withdrawal from Iraq would be a mistake.
I think those who advocate immediate withdrawal from not only Iraq but the Middle East would be -- are advocating a policy that would weaken the United States.
(Cindy responds, “This is the biggest smokescreen from him yet. I didn't ask him to withdraw the troops, I asked him what Noble Cause did Casey die for. I am still waiting for one member of the press corps to ask him that.”)
Also, spokesperson Trent Duffy, speaking on behalf of Bush, said on Monday that those planning protesting the war in Utah did not want to stop terrorism: “[Bush] can understand that people don't share his view that we must win the war on terror, and we cannot retreat and cut and run from terrorists, but he just has a different view.”
This is a political dynamic the Bushies are comfortable with: playing off a foil.
They are used to an enemy, be it chosen by them (“Axis of Evil”) or thrust upon them (John Kerry, Ms. Sheehan). They have a game plan for it.
When they don’t have someone to demonize – setting a low bar to compare themselves to – they flounder. They lose focus and get soft.
(Case in point: Dubya’s 6/6/01 NY Times interview, where he shrugged off bad poll numbers by glibly saying “every day is a great day when you're the president,” while popping grapes in his mouth.)
Without Kerry to attack these last several months, they’ve floundered again, and you can see it in the polls.
Now they have a foil again.
Granted, they probably would rather it not be a middle-class mom whose son just died, but they’ll take what they can get these days.
This is not to say that Cindy and her supporters are playing into Bush’s hands.
In fact, Bush’s predictability has become useful to their cause.
For one thing, more and more people have caught on to the right-wing smear playbook, rendering it less effective (much like a baseball pitcher who fails to change his pitches).
For another, Bush has shown an inability to adjust his talking points to the current situation.
As Cindy noted, Bush isn’t answering the question that her entire protest is based on, a question on the minds of many Americans.
And of course, as the situation on the ground in Iraq fails to improve -- despite the overly-hyped falling of Saddam’s statute, the capture of Saddam, the purple finger moment, etc. – patience for a ill-defined mission is wearing thin.
Stale talking points just won’t do in that kind of situation.
People have heard them already and still want more answers.
Cindy Sheehan is merely crystallizing that desire.
There is another way for Bush to defuse the Cindy problem: have a successful Iraq policy.
But since Bush can’t seem to defeat the insurgency, beating up a grieving mom is his next best option.
And that’s not a very good option.
August 22, 2005 PERMALINK
The Sunday Talkshow Breakdown
A weekly feature of LiberalOasis
(posted Aug. 22 1:15 AM ET)
It has been 773 days since Karl Rove violated his obligations under Standard Form 312 without the White House taking “corrective action.”
GOP Sen. Chuck Hagel caught the most attention yesterday, comparing Iraq to Vietnam, saying “our involvement there has destabilized the Middle East” and also that, “the longer we stay, the more problems we’re going to have.”
Though possible ‘08er Hagel has long been an Iraq War skeptic (despite having voted for it), such strong rhetoric from a Republican won him an AP headline and 36-point type treatment at The Huffington Post.
But arguably the more important development yesterday was Dem Sen. Russ Feingold, another possible ‘08er, getting top-billing at NBC’s Meet The Press (video at Crooks and Liars) following his proposal for a complete withdrawal target date of 12/31/06.
For one thing, Hagel – a Vietnam vet with an Establishment-friendly Colin Powell-esque foreign policy view – is a Sunday show regular.
Whereas Feingold is considered to be the most liberal Senator, and in turn, is rarely approached by national media to contribute to the discourse.
He muscled his way on the Sunday shows by showing leadership -- bucking conventional wisdom about what’s best for Iraq, and putting forth a bold and comprehensive argument for an alternative policy.
Secondly, Hagel’s words may get him press, but it is extremely doubtful that they will get him the GOP presidential nomination.
Whereas Feingold’s presidential future looks relatively brighter.
Republicans may be getting a
little skittish about the war, but they will never embrace a guy like Hagel who compares Iraq to Vietnam, not to mention a guy that says “The United States is no longer the dominant power on earth...That's good news, I think.”
On the other hand, while Feingold may be a darkhorse candidate, he also has the potential to catch fire with Dem primary voters who may not stand for a candidate that only proposes minor tweaks in Bush’s Iraq game plan.
Howard Dean first sparked grassroots interest in early 2003 when he bluntly said, “What I want to know is why in the world the Democratic party leadership is supporting the president's unilateral attack on Iraq.”
Feingold similarly called out accommodationist Dems yesterday while explaining the rationale for his position:
...the Democrats are making the same mistake they made in 2002, to let the administration intimidate them into not opposing this war, when so many of us knew it wasn't a good idea.
And same thing with this taboo on talking about a timeline. It doesn't make sense.
If the terrorists and the insurgents really thought that, why wouldn't they just stop blowing us up right now? Why wouldn't they just let us leave and then take over?
More importantly, let me tell you the conversation I had in the Green Zone from one of the top generals in Iraq when I was there...
...I said, "Off the record, your own view, would it help if we had a timeline to let the world know that we're not staying here forever?"
And this is what he said, verbatim. He said, "Nothing would take the wind out of the sails of the insurgents more than having a timeline in place."
So this is a false argument...that doesn't really address the reality that we are actually causing more insurgents, more terrorism and more problems from all around the world coming into Iraq because we don't have a vision for success and completion of the mission.
Of course, the styles of Feingold and Dean could not be more different.
Some may say Feingold’s Midwestern calm will make it harder for him to be painted as an extremist who lacks the needed temperament, as Dean was.
While others may say his mellow manner lacks the needed charisma to fire up the electorate, as Dean did.
Dean went pretty far for a darkhorse, by staking out turf as a straight-talker who puts principle ahead of crass (and often misguided) political calculations.
Feingold is getting a head start on that same path.
If no other Dems do the same, if the rest of the field tries to out-Republican each other, Feingold may be able to claim a lot of turf for himself.
