Supremely Partisan

The Supreme Court heard arguments for and against the Affordable Care Act (aka Obamacare, aka Romneycare, aka Nixoncare, aka Heritage Foundationcare) earlier this week, and by all accounts, most of the justices had made up their minds prior to entering the chamber, with the liberal block intensely questioning the law’s opponents, while the conservative block (sans Clarence Thomas of course, who hasn’t asked a question since 2006) were equally intent on grilling the solicitor general.

I’ve long felt that Thomas’ apparent disinterest in uttering a word on the bench was indicative of a uniquely jaundiced view of his role. That his knowledge and understanding of the constitution and constitutional law was so complete as to render oral arguments immaterial; that the material written and submitted by both sides prior to arguments contained everything he could possibly need to make his decision.

Of late, I’ve come to revisit this long-held belief. While Justice Thomas’ lack of auditory enthusiasm still galls, in controversial (i.e., politically partisan) cases, I believe it is in fact an unspoken acknowledgement of a reality that neither the left nor, most emphatically, the right, is keen to accept; that the constitution doesn’t offer one word of guidance on these crucial decisions of our day. That a good minority of our nation’s case law is being made up as we collectively go along, and is done so not through reason or reflection, but strictly along partisan lines. Bush v. Gore. SuperPacs. The Affordable Care Act. All 5-4 or soon-to-be 5-4 decisions.

It wasn’t always so. The constitution is an amazing document, and offered compelling answers to some of the thorniest practical, moral, and ethical questions of the day. Over the following century or two, both in its originalform and doubly so through its amendments, the document continued to address these questions; it was, to use a popular phrase from judicial activists, a “living document”.

Many of the issues the Court faces today however seem to fall outside of the boundaries laid down in the document. That shouldn’t surprise anyone; it is a document written in the 18th century that drew heavily upon the geopolitical reality of the day, upon British common law, and upon what were then cutting edge enlightenment schools of thought. Philosophy, case law, geopolitics and, most of all, society and technology have continued to grow and evolve since that time.

The net effect seems to be that the Justices, both at the Supreme Court and often at the District and Appellate levels pick and choose textual tidbits that support their predetermined positions, not unlike an undergraduate (or Congressional, or Facebook…) debate where the real if unspoken objective is to find more citations from the relevant works or figures that support your position than your opponent can find to support his or hers.

The current makeup of the Supreme Court lends credence to this admittedly troubling view. It’s well known that ours is the most educated (and elite) Court on record. I did a quick Google search on the Justice’s educations, and found the following:

Justice Alma Mater Year

Antonin Scalia Harvard 1960
Stephen Breyer Harvard 1964
John Roberts Harvard 1979
Elena Kagan Harvard 1986
Ruth Bader Ginsburg Harvard/Columbia 1959
Samuel Alito Yale 1972
Clarence Thomas Yale 1974
Sonia Sotomayor Yale 1979


Antonin Scalia and Stephen Breyer both attended Harvard, both graduated at the top of their class, and they did so a mere four years apart from one another. John Roberts and Elena Kagan graduated seven years apart, while Sonia Sotomayor graduated from Yale five years after Clarence Thomas, and seven years after Samuel Alito.

In short, these are men and women who went to the same schools and presumably took the same classes, very likely with the same teachers. And yet their views on the constitutionality of our nation’s most partisan questions quite literally couldn’t be more diametrically opposed from that of their fellow alumni. Can you imagine Breyer and Scalia finding common cause on a case that pits Democrats against Republicans? Sotomayor and Thomas?

If there was a fundamental constitutional principle behind these major cases, it’s not illogical to expect those whose formative judicial education came from the same school and some of the ame classes and teachers to share a common view. I might disagree with my fellow Kellogg lumni about many things, but if a business question was put before us that asked whether sunk costs should be considered in future investment decisions,or whether focusing a product on a specific niche was generally superior to attempting to please all consumers, we would assuredly find broad agreement. And even if we disagreed on one issue, it’s inconceivable that we’d do so on every major issue.

This raises a host of concerning and, at best, unappetizing realities, but also a question I for one find intriguing. Most people would assume that a Court filled with the brightest minds from the nation’s most prestigious law schools is an unmistakably positive development. But is it possible that the interests of the Court, and of the nation, are better served by filling it with the mix of elected and appointed officials (some of them not even lawyers) that historically have filled the Court’s seats, or would any composition be similarly tainted by the hyper partisanship that is the mark of the modern American political system?

Santorum Surge II

If there is anything I've learned regarding politics, it's to expect the unexpected.  Actually that's not just politics but in life in general.  Obviously the unexpected doesn't happen all the time - then it wouldn't be unexpected.  But think about seminal events in recent history - or just your own personal history.  At the moment that said event was occurring, often we find ourselves saying, "If you would have told me 3 months ago that X - I wouldn't have believed you. "  If you would have told me that a Freshman Senator named Barack Obama (rhymes with Osama) would be our first black President elected in 2008, in 2004 - I would have laughed in your face.  But by that time the events had been set in motion.  Grant it, a lot still had to happen for the pieces to fall into place but the big ones, the structural ones, were already set (namely Clinton scaring other serious contenders away except for Edwards, Obama being extremely capable at organizing and building an organization around him, a core of Democratic support - possibly the most engaged 10-20% that would not settle, Bush winning re-election forcing him to account for his shitty tenure- had Kerry won he would have gotten blamed and would have lost bad in 2008, probably) . 

This sort of realization of how events unfold led me to predict, WRONGLY, that we would see marijuana legalization in four years (right after Obama was elected).  But you can see how it could have happened - Obama is elected and leaves states to their own devices, Schwarzenegger had publicly stated he was in favor of it as a tax generating project, a sagging economy and growing deficit, Ron Paul had bolstered the libertarian republicans about freedom in general, public opinion was moving in the right direction and as of right now support for medical marijuana is above 50%), the media was increasingly addressing the issue as a serious topic to discuss as opposed to a joke or as some way to deride "stoners"- this is important as key mover of public opinion.  Despite all this, and that for some inexplicable reason, Obama has gone back on his "leave it to the states policy"- legalization has not happened (although that was probably  50-50 bet anyway).  Hey, you win some, you lose some.  A few pockets of the country have legalized but unlike gay marriage, a wave of change has not followed it yet. 

My point is, is that despite Romney being the clear front runner early  (Hillary Clinton, Howard Dean anyone) and still by delegate count - you never saw him catch fire.  Obama actually faced this as well being the insurgent 4 years ago, but eventually Edwards attacked Hillary causing her to sling mud, making her look dirty. Obama talked about hope and change. And he snuck Iowa out of his back pocket (unbeknownst to us at the time he actually had an advantage over Clinton because of his superior ground game) lending him some immediate legitimacy.  The difference between Romney and Obama though, is that Romney is/was a known quantity.  Obama was not.  And despite being the conservative's conservative 4 years ago, nobody trusts him now.  The base is LOOKING for a reason to not vote for this guy. 

I don't know about historical precedents in this sort of situation - but the republicans have a nominating process where , depending on MI, AZ, and Super Tuesday, any one of the possible nominees, won't be able to secure the nomination (w/o super delegates).  Brokered convention?  Establishment pick that won't piss off the base? Christie, Palin, Jindal…. This much is certain, someone must be nominated.  But the establishment, despite the weak economy, already didn't think they could beat Obama (evidenced by the weak field) and now the economy may be improving.  LITERALLY anything is possible, Paul, Santorum, CHENEY, even Pawlenty (who should be kicking himself).  Whatever happens, I won't be surprised.

Romney as nominee - 50/50

The Santorum Surge

Given the tumult in the Republican primary race, it seemed remiss not to take a closer look both at the surging Rick Santorum and at the race as a whole.

First off, a mea culpa. Last summer I attended a dinner, and found myself at a table with a self-important, egotistical, and downright demeaning investment professional. Needless to say we agreed on little. At one point in the evening, this individual explained that Mitt Romney would be the Republican nominee, and would then defeat the socialist incumbent in the fall. I replied by questioning Romney's acceptability to the party base, and suggested that a movement Conservative had a better than even chance of upsetting the forthcoming coronation.

Fast forward six months, and, while I certainly wasn't willing to call the November election, I was fairly confident that Romney had the nomination in hand. All the signs were moving in his favor, and his opponents were self-destructing one by one. So, I made a mistake, and shouldn't have discarded my original opinion quite so quickly. Now, an addendum is in order. I never, be it this past June or three weeks ago, never believed that Rick Santorum had so much as in iota of a chance. Truthfully, I might not even have been aware that he was running last summer.

I still believe that Romney is the most likely nominee, however, all the same, I can't help but wonder if that belief is simply a regurgitation of popular opinion. Santorum is surging and, while such surges have come and gone in the past (see Cain, Herman, Gingrich, Newt, Ginrich, Newt Again, Perry, Rick), and while Michigan is noticeably tightening, we're but a week out from the Arizona and Michigan primaries. If Romney doesn't hold Michigan, then a compelling narrative is established for Super Tuesday a mere week later. I've seen not a word printed on the forthcoming Washington caucus, so can't judge how, or if, that might impact the race.

I'm curious as to what others think of this state of affairs. Can Santorum sustain his surge? Will the all-important South swing to him in force, and would such a swing presage a tsunami...or a contested convention?

On a related topic, I'd like to hear some thoughts on the possible underlying causes of this electoral shift, be it temporary or lasting. My gut tells me that we're looking at a combination of Santorum being the last not-Romney standing, combined with the unusual characteristics of the voting population.

As Timothy Egan of the NYT points out, the primaries (and, though he doesn't explicitly make the distinction, the caucuses especially) haven't exactly inspired the country; turnout has ranged from abysmal to, in Maine, a level so low as to be a statistical rounding error. The turnout has also accenuated the historical problem of primaries being decided by the most fervent, ideologically strident voters, given that they're the ones who get out to vote, creating a Republican electorate this season that is "old, white, (and) uniformly Christiam".

This voting bloc provides one possible explanation for the positions taken by the field; they're not appealing to the nation; they're not even appealing to their party. They're attempting to appeal to their party's crazies or, as they're known on both the left and right the "activists".

So, what's causing this? And, in a related vein, could Santorum actually stand a chance in the general? The easy answer is "no, of course not". The man is a walking stereotype of all of the smug and sanctimonious pricks who know that they are right and that you are not only wrong, but, because you disagree with them, are fundametally evil. His positions on the issues of the day (both this day and those issues issues whose last day of note was in 1912 rather than 2012) are so extreme or bizarre that I have trouble conceiving of a Republican path to anything approaching victory. And yet...party identification has taken an increasing hold over the electorate of both sides. I have to wonder how close the race could actually become.

Obama Derangement Syndrome

It seems there are two prevailing definitions of this term and both are totally opposite one another.  It both describes the lack of critical thinking surrounding Obama (think kool-aid drinkers) of his supporters (it is derived from Bush Derangement Syndrome) and the hyper paranoia of the take 'r' guns-FEMA re-education camps-fascism-not an American citizen-Bush approval opponents of Obama.  

It can't be both!

Or can it?

Just like Herpes and Hepatitis, maybe ODS should have multiple distinctions.  But how to create those distinctions.  Hep uses alpha characters, Herpes uses numeric.  Maybe ODS should use greek?  The only problem is  I don't know greek except for baklava, gyro, and idiot (idiot might be latin).  Hmmm.  Well, since Obama is *from* Chicago, one area of the country where we serve  and pronounce "gyros" as they do in Greece (NO lettuce, tzaziki sauce, tomato, onion and yee-ros), perhaps the ODS that's favorable to Obama should be called ODS-Gamma.  And the since Bush is an idiot, the ODS that's favorable to Bush / "conservatives" should be designated ODS-Iota.

Thoughts?

PPP

The Work World

I'm finally posting about my job.  Here it is.

I hate it.  

Cynical Commentary II

Heh. Funny you should mention Maher. After I posted that piece, I pulled up the previous day's Real Time episode that I'd DVR'd and finally watched it. When Maher made that joke I sat there thinking "Son of a bitch. Next time, you really have ta watch all of the commentary shows before posting on a hot topic. Moron."

Thanks for the positive comments. I have to admit though, reading through it later, I thought the whole thing could have been edited down a whole lot and structured much more tightly. I assure you, the only reason parts of it sounded even halfway decent was due to the fact that this post allowed me to integrate a couple of separate ideas that I've been kicking around for a few years. The immigrant nation vs. ethnic nation and Huntington strands of thought in particular.

Cynical Commentary about Torture Commentary

Well DH, I have to say I agree with all you wrote.  I coulc probably take exception with some of the ticking time bomb scenario stuff, I think it will just take away from my sarcasm.

Did you plagiarize much of that? It read like poetry, or at least, a professional writer. Catchy conclusion and all.

But I particularly enjoyed the rip off of Maher with the "Jack Bauer as defense of reality" comment.

Well said friend.