R.I.P Ted Kennedy

Laughing Our Way Out of Confusion about Health Care

Donny Shaw at OpenCongress makes an excellent point about how the Daily Show with Jon Stewart often features segments with more probing discussion about issues than actual programs that purport to be news outlets.

Armed with the first 500 pages of the House health care bill (H.R. 3200) Betsy McCaughey, the first person to equate end-of-life planning with government-mandated euthanasia, went on the Daily Show with Jon Stewart last night to defend her position.

The show sort of underscores the anomaly of the health care debate in our country right now. This is comedy show where two people are having a fairly high-level discussion about actual legislative text, and the substance is compelling enough that it makes for good entertainment. There is a real desire to know what’s in the bill. Health care, obviously, is an especially important issue. But, also, I think the people that follow what happens in Congress are figuring out that there is a lot of misinformation standing in the way of having a smart debate of the bill, and they are trying to get the facts for themselves, which is fantastic.

I suppose its fantastic that the Daily Show decided to do such a segment, but its also an alarming indicator of how the disinformation out there is so pervasive that even after two months of ‘debate’ we are still remain confused about the substance of the proposal. And the fact that a comedian, even one as clever as Stewart, could provide a better 101 on the issue than many other programs should be considered an indictment of the failure of the television news media to inform and educate the public about a critical issue that could change the country for generations to come.

You can watch the segment here.

Fringe Form of Bipartisianship

Frank Rich’s column in today’s NYT echoes much of the liberal left’s criticism of Obama curious approach to bipartisanship, including reaching out to Republicans that have cozied up to the fringe right. Case in point Chuck Grassely of Iowa who is the designated point man on negotiating the health care bill for Senate Republicans, but has shamelessly propagated the death panel rumor.

Money quote:

Even now the radicals are taking a nonviolent toll on the Obama presidency. Obama complains, not without reason, that the news media, led by cable television, exaggerate the ruckus at health care events. But why does he exaggerate the legitimacy and clout of opposition members of Congress who, whether through silence or outright endorsement, are surrendering to the nuts? Even Charles Grassley, the supposedly adult Iowa Republican who is the Senate point man for his party on health care, has now capitulated to the armed fringe by publicly parroting their “pull the plug on grandma” fear-mongering.

Part of me wonders how much of this dynamic is a natural by product of a dwindling Republican party rapidly becoming a regional party with supporters who so successfully shifted the debate to the right that GOP elected officials feel as if they have no choice to not just keep up, but get out in front of the lunacy. After all, if you have a supposedly national party with no viable strategy to reach out to moderates and centrist voters and candidates, then those currently in office will constantly try to build up their street cred among the base.

Meanwhile, the political environment will continue suffer from an increase in political polarization.

Of course, Frank Rich is not alone in his frustration with the President’s approach, but there are a number of things that one has to remember about Capitol Hill. One is while Republicans during the Bush years were more than eager to move legislation with little regard to how many Democrats supported it, a handful of Democrats in the Senate today will not vote for a bill unless its a bipartisian measure.  Usually, these are redstate Democrats that are hyper sensitive about being painted as raving lefties such as Senators Ben Nelson of Nebraska, Kent Conrad of Montana, Byron Dorgan of North Dakota, and Mary Landrieu of Louisana.

Many of these Democrats joined forces with the likes of Senators Olympia Snowe and Susan Collins both from Maine, too pair down the one time $900 billion stimulus bill down to $787 billlion. In a chamber composed of 100 members you will only see these two women Republicans from Maine, who are already feeling intense pressure not to show any signs of capitulation, and maybe one more GOP Senator that will bargain with the Democrats on health care or confirming judges to the federal bench, or spending bills or a climate change and energy bill.

Dealing with Inconvenient Myths about Health Care

In his weekly address, President Barack Obama said while he is glad to see “a vigorous debate about health insurance reform” he is expressed frustration about it being “dominated by willful misrepresentations and outright distortions, spread by the very folks who would benefit the most by keeping things exactly as they are.”

He cited “some of the more outrageous myths circulating on the internet, on cable TV, and repeated at some town halls across this country” such as generous health coverage for undocumented workers, mandated payment for abortions, and the implementation of so-called death panels. None of which are actually in the bill.

This is not the first time the president felt the need to counter some of these myths. In his August 8th weekly address, Obama said criticized the spreading of “outlandish rumors that reform will promote euthanasia, cut Medicaid, or bring about a government takeover of health care. That’s simply not true.”

At an August 11th New Hampshire town hall gathering on health care the president also said, “The rumor that’s been circulating a lot lately is this idea that somehow the House of Representatives voted for “death panels” that will basically pull the plug on grandma because we’ve decided that we don’t — it’s too expensive to let her live anymore.”

If the president of the United States has to push back on these falsehoods so many times to get his message out one wonders if he might benefit from a different approach. I realize President Obama sees himself as a reconciler of sorts and a healer, a latter day Abraham Lincoln if you will.

“There are always those who oppose it, and those who use fear to block change,” he noted in his weekly address. “But what has always distinguished America is that when all the arguments have been heard, and all the concerns have been voiced, and the time comes to do what must be done, we rise above our differences, grasp each others’ hands, and march forward as one nation and one people, some of us Democrats, some of us Republicans, all of us Americans.”

But since the opposition is not looking for harmony, isn’t interested in civility, and won’t be satisfied with merely being listened to, perhaps he needs to deal with folks in the same way Massachusetts Congressman Barney Frank confronted a LaRouche supporter named Rachel Brown at one of his own town halls this week. Brown specifically said was like Adolf Hilter’s T4 policy in Nazi Germany where people who were deemed incurably ill because of a chronic aliment or a disability or mentally disturbed or otherwise considered undesirable to national socialists was somehow the same thing as a provision in one of the health care bills, H.R. 3200, regarding end of life care, i.e. the infamous dealth panels.

This myth has been thoroughly debunked by the press and other experts.  Read the WaPo’s editorial on this issue for more detail on this distortion.

Rep. Frank’s said to Brown, who managed to compare Obama to Hitler at a recent town hall meeting, “It is a tribute to the First Amendment that this kind of vile, contemptible nonsense is so freely propagated.” He also added “Trying to have a conversation with you would be like trying to argue with a dining room table, I have no interest in doing it.”

And at one point, Rep. Frank even rhetorically asked the LaRouche supporter “what planet do you live on?” As you may or may not know, the LaRouche group is a bunch of fringe lefties with socialist leanings with a peculiar penchant for conspiratorial thinking.

Watch the video:

Now I understand President Obama is under a different kind of pressure than Representative Frank has to contend with. Obama is a first year president trying not to fail and constantly mindful of his 2012 reelection bid. Frank, on the other hand, has a very secure Congressional seat, which he has held since 1981.

Whereas the president is still wrestling with how to be a principled uniter as he desperately tries to avoid alienating potential voters lest he himself be accused of being grossly intolerant and elitist, Frank often speaks his mind with little concern about who feigns offense. I understand that.

But at some point, the president has to be a lot more forceful in his condemnation of these baseless attacks otherwise they will continue to gain traction as the negotiations over the various bill become more involved. And the more that happens the easeir it will be for Republicans and conservative Democrats in the House and the Senate to push back against the president.

Paul Krugman’s Feigned Sense of Shock and Surprise

In his most recent column, Paul Krugman argues that the White House should not be “shocked and surprise” that the liberal base would be angered and feel betrayed by any signals that it would be less than fully committed to a public plan option in health care reform legislation. Like many on the left, the Princeton professor believes that the administration’s yearning to work with an intransigent group of Republicans will only spell defeat for any expansive health care bill.

But Krugman’s disappointment with President Obama goes beyond just health care reform. Behind the thinly veiled snark and condescension you can tell he was ready to write this column for some time.

Though he apparently saw no need to neither quote nor cite any one in particular when he claimed, “A backlash in the progressive base — which pushed President Obama over the top in the Democratic primary and played a major role in his general election victory — has been building for months,” Krugman felt confident that he was speaking on behalf of millions.

Of course, there are several people Krugman could point to that have been skeptical of Obama’s approach on issues ranging from health care to executive power to stemming the foreclosure crisis. Single-payer supporting liberals, thee ACLU, and a variety of consumer groups can easily provide the kind of ammunition for sharp criticism Krugman is alluding to, but honestly its not necessary about any of those specific policies for Krugman. He has a problem with President Obama’s approach to governing period.

“The fight over the public option involves real policy substance, but it’s also a proxy for broader questions about the president’s priorities and overall approach,” said Krugman in his column today. “It’s hard to avoid the sense that Mr. Obama has wasted months trying to appease people who can’t be appeased, and who take every concession as a sign that he can be rolled.”

As everyone observed during the campaign, Obama is much more communitarian politician who wants to persuade and cajole. He is not confrontational and populist figure. That does not sit well with Krugman who always wanted an candidate in the mold of President Franklin D. Roosevelt, that is someone who does not shy away from his own instincts for governmental intervention and eagerness to bend Congress to his will.

To be sure, Krugman does raise an interesting question about how one should deal with an implacable opposition whose sole purpose is to obstruct any plan the president endorses. It also does seem odd that the president would single out Senator Chuck Grassely of Iowa when he is one of the main culprits out there propagating this myth that a House bill floating in Congress contains a provision that will pull the plug on grandma. At the same time, however, Krugman conveniently sides steps the other question about how one should deal with conservative Democrats and implacable Republicans in a fiercely divided Congress.

Consider the following: The stimulus passed with little support from Republicans in the Senate and a not insignificant amount of Democrats voting against it in the House. The House cleared a climate change bill by a measly 7 votes even though Democrats have a 78 member majority in that chamber. Congress also neither appropriated funding for shutting down Gitmo and adamantly rejected any proposal that invovled housing detainees at any of the supermax prisons on the mainland.

Even passing legislation that would have granted bankruptcy judges the mere discretion – not mandate, but the option  – of reducing the principal and interest on certain mortgage loans that need to be restructured  proved to be a challenging feat. The measure – which could have prevented nearly one million Americans from losing their homes – got a pitiful 45 votes which is far short of the 60 need to overcome a procedural motion known as cloture and send it to the floor for a final vote.

In other words, Congress a body has been terriby unhelpful to the president at the very moment when we need them the most. But somehow its all Obama’s fault. I am not saying the administration is or should be  immune from criticism nor am I suggesting the push for health care could not have been handeled differently. After all, the president did urge all of us to hold him accountable. But that does not mean we should not lose sight of the wider political context and environoment that has contributed to frustrating the president’s agenda.

Muddying the Health Care Message

From Marc Ambinder at the Altantic:

As usual, in a pattern that the left patented during the Bush administration, the organized right lost control of its message. Lawmakers, Republicans and Democrats, were being asked to respond to non-sequiturs (would you support a health care reform plan that grows the deficit?  Health care grows the deficit right now, so it’s a nonsense question, one that is easy for politicians to answer); they found their meetings full of engorged spleens.  Unrestrained, these town hall meetings are going to turn off the type of voters Republicans most need to pressure Blue Dog Democrats — independents who don’t have red genes or blue genes.  Both Fox and MSNBC televised Sen. Arlen Specter’s raucous town hall meeting live. It was full of confrontation and protest. There were boos when Specter reaffirmed his president’s Americanness.

I have not made up my mind about whether Ambinder is truly onto something here. Sure, I agree that Republicans have lost control of their message given how few people are really discussing patient choice and controlling deficits anymore and are now on shouting about death panels and taxpayer funded abortion. Sure, I agree that the activist right has courted extremist who have turned this fight into a partisian drama with deafening decibel levels. But I am not so sure that even if the Republicans damage themselves and their brand in the process in these astroturfed inspired protests that they won’t be able to sucessfuly defeat health care reform.

These tea bagers turned birthers turned health care opponents turned Obama haters are shifting much of the skepticism of the president’s plan so far to the right, it will take probably until the end of September to get the country to focus on the problem in more sober terms. That’s assuming the White House and health care reform advocates can regain the bully pulpit within a week or so.

For months, the White House has been telling the public that “the key to our nation’s fiscal future – and there are substantial efficiency improvements that are possible to deliver better results at lower costs in the health system.” We are now in the middle of the August recess and four bills have survived committee votes with a critical bill yet to emerge from the Senate Finance Committee. Conservatives, however, have managed to distort Obama’s message on fiscal responsibility with great zeal. Its gotten to the point where we are far more likely to hear people ‘debate’ whether or not the president is a socialist than see people argue about the merits of the what he and the Congress are proposing.

While the Obama White House went wonky, conservatives went visceral and populist.  To their credit, the administration in recent days has tried to reframe this health care battle as you the patient and the American citizen, as opposed to a mere consumer, against the health care insurance industry. At Portsmouth, New Hampshire earlier this week, President Obama reminded his supporters about what’s really at stake:

Now, health insurance reform is one of those pillars that we need to build up that new foundation. I don’t have to explain to you that nearly 46 million Americans don’t have health insurance coverage today. In the wealthiest nation on Earth, 46 million of our fellow citizens have no coverage. They are just vulnerable. If something happens, they go bankrupt, or they don’t get the care they need.

But it’s just as important that we accomplish health insurance reform for the Americans who do have health insurance — (applause) — because right now we have a health care system that too often works better for the insurance industry than it does for the American people. And we’ve got to change that. (Applause.)

Oh yeah change. I have not hear that word in a while. We need to hear more of that. But more importantly we need to hear who the change is for and why. It does not matter that we heard it during the campaign. People need to hear it again.

On Excerpts of The Battle for America 2008

I have never been much of consumer of campaign books. I tend to think they more or less rehash everything that has already been dissected in contemporaneous reporting even if they do offer juicy tidbits about campaign infighting, portraits of a frustrated candidate, and a loads of humorous anecdotes. Couldn’t I get much of that on YouTube spoofs anytime I want? Aside from a peculiar variety of political junkies, I often wonder to myself who actually purchases such books.

But after reading the an excerpt of “The Battle for America 2008: The Story of an Extraordinary Election” by Dan Balz and Haynes Johnson in the Washington Post today, I think I’m beginning to understand the appeal of that genre of books. Of course, the 2008 presidential contest from primary to the end of the general election is an unusual serious of events featuring an unlikely stew of characters giving life to grand themes. Somehow the white guy from the South, former Senator John Edwards, became the underdog and a white woman from a northern blue state and black guy with a Muslim name became the main competitors on the Democratic side. And even in that struggle contained hues of David versus Goliath storyline that the media found easy to sell to a eager public.

Meanwhile, the Republican corp had a number of cartoon characters from the adamantly anti-immigrant then-Congressman Tom Tancredo to the jolly aw shucks evangelism of former Arkansas Mike Huckabee. A more disciplined Senator John McCain had to emerge from the ashes before taking the lead. And that only happened after his big win in New Hampshire.

The media’s appetite for sideshow personalities like Rev. Jeremiah Wright, Joe the Plumber, and Bill Ayers made the long campaign easy fodder for water cooler talk for those who wanted a little gossip go with wonky debates on the minutiae of preconditions, the importance of a employer mandates in a health care plan, and the intricacies of the delegate and Superdelegate count.

Historians will have fun with that moment in American politics for generations to decades to come – maybe even longer than that.

But everything revolved around the eventual victor Barack Obama. Compared to his competitors, his campaign was heralded a marvel of near pitch perfect management with few dips in morale matching the posture of its intrepid leader. And the public, particularly his supporters, were very impressed with his cool demeanor, keen intellect and soaring rhetoric.

Balz and Johnson, however, seized on the moments in which those notions did not hold up.

Aides worried that Obama’s low morale might infect others in the campaign and spoke to him about it. They tried to buck him up, but at points in the spring and early summer of 2007, he was deeply frustrated — with his own performance and with that of much of his campaign. On July 15, he met with his senior staff at the home of Valerie Jarrett, a close friend and confidante to both Obama and his wife, Michelle. One adviser recalled it as the moment Obama began to take a more direct role in the operations of his campaign. He was blunt in his critique, and the exchanges among some of his advisers became testy. Beyond fundraising and the operation overseeing the Internet and new media, the campaign was not performing well, Obama said. The message still wasn’t where it should be. The political operation wasn’t up to speed. The campaign lacked crispness and good execution. He believed it was becoming too insular and wanted new people added to the inner circle. He told his team members they were all doing B work. If they continued on that course, they would come in a respectable second.

“Second is not good enough,” he said.

Perhaps the most intriguing part of the excerpt so far, however, was then-chief campaign strategist and now White House senior adviser David Axelrod’s candid and prescient assessment of the big O’s potential weaknesses in a 2006 memo.

“It goes to your willingness and ability to put up with something you have never experienced on a sustained basis: criticism. At the risk of triggering the very reaction that concerns me, I don’t know if you are Muhammad Ali or Floyd Patterson when it comes to taking a punch. You care far too much what is written and said about you. You don’t relish combat when it becomes personal and nasty. When the largely irrelevant Alan Keyes attacked you, you flinched,” he said of Obama’s 2004 Senate opponent.

Many in the blogosphere and beyond often wondered if Obama was in fact the happy warrior beneath all that cool even if he could seduced legions of voters with great speechifying. The sheer force of the machinery of the campaign helped quell, thought not silence, many of those lingering doubts. And Obama knew it telling Balz and Haynes:

As he reviewed the campaign from his transition headquarters in mid-December, Obama offered a frank assessment of his two main competitors: Clinton and John McCain. “I was sure that my toughest race was Hillary,” he said. “Hillary was just a terrific candidate, and she really found her voice in the last part of the campaign. After Texas and Ohio she just became less cautious and was out there and was working hard and I think connecting with voters really well. She was just a terrific candidate. And [the Clinton campaign] operation was not as good as ours and not as tight as ours, but they were still plenty tough. Their rapid response, how they messaged in the media was really good. So we just always thought they were our most formidable challenge. That isn’t to say that we underestimated John McCain; it’s just that we didn’t think that their campaign operation was as good.

I cannot help but note the irony here that the campaign that was often dubbed as personality driven and almost free of doubt was in fact the very same tightly organized campaign that achieved success in no small part due to a healthy fear of losing. Its not news, but still a tidbit worth chewing. And maybe with enough of these kinds of insights it might even form a book worth reading.

The Teachable Moment that Wasn’t

With so much that has been shouted and so little that’s been said during this “teachable moment,” I am glad that the photo-op and the platitudes that accompanied the Gates-Crowley affair has  been now put to rest over a few brewskis. We have not learned anything new about racial profiling, or had an honest conversation about racial prejudice, or matured as a nation in any way since the story broke.

Instead, we were fascinated by the fact that these two strangers of different hues are in fact very distantly related, that St. Crowley tried to resuscitate to the late Boston Celtics star Reggie Lewis, that we should not call the get together a Beer Summit, that Vice President Joe Biden does not drink at all, and that the conservatives think that our part white and part black president somehow hates white people.

But most of all we learned that the best way to not talk about race is to trivialize the issue by reducing it to the isolated prejudices of others not as a living and mutating phenomenon that may influence our split second impressions of one another.

We did not learn, however, that even if we are racist ourselves its still possible that racial prejudice may still be a factor in how we treat one another. We also did not learn about what leads to racial profiling. We did not learn why many people of color and whites sees these kind of controversies so differently.

To be sure, this incident could not have come at a worse time for the president and I certainly recognize that. He really does not have time or the interest in playing racial healer, especially when he is trying to convince the American public and even members of his own party, even with commanding  majorities in both chambers, of the merits of his health care plan.

By the same token, I cannot help but lament the fact that this was the “teachable moment” that wasn’t.

Obama Tries to Quell Criticism of Gates Arrest

President Barack Obama attempted to quell criticism of his remarks concerning the arrest of Harvard law professor Henry “Skip” Louis Gates by Sgt. James Crowley of the Cambridge, Massachusetts police force during a cameo appearance at a White House press briefing on Friday. The president expressed regret that “my choice of words didn’t illuminate, but rather contributed to more media frenzy.” He also said he phoned Sgt. Crowley to apologize for conveying the false impression that he intended to malign him and his department.

At his press conference on Wednesday he said “that the Cambridge police acted stupidly in arresting somebody when there was already proof that they [sic] were in their own home.”

Seeing how his words of condemnation inadvertently led to much of the inane fodder in the blogosphere, talk radio, and cable television chatter and consequently distracting the public from his broader legislative agenda, he urged us to step “back for a moment,”  recognize that “these are two decent people, not extrapolate too much from the facts,”  but “be mindful of the fact that because of our history, because of the difficulties of the past, you know, African-Americans are sensitive to these issues.”

He also said he invited Professor Gates and Sgt. Crowley to the White House for a beer as a gesture of good will and hopes of reconciling differences and putting this controversy to rest.

His comments were meant to be conciliatory and to prevent the controversy over his initial set of remarks from competing with his message of the urgency of passing a health care reform bill through a slow moving Congress. On August 7th, the Congress breaks for a month long recess, and the White House is determined to keep the pressure on lawmakers to continue to work on the bill even during the break if need be. I could see how some of his advisers may think wading into racial politics at this juncture would not be helpful.

By the same token, the president attempt to rein back his statements were not helpful in enriching our already impoverished discussion of racial justice. Whether he knew it or not, the president’s remarks on Friday gave us the impression that the gray haired professor who walks with a cane is just a fault for his own arrest in his own home even if he produced an ID showing as the imposing and armed police officer is for cuffing him, since its all one big misunderstanding.

To imply there is some kind of moral equivalency here given the power relationship is wrong. Even if Professor Gates was belligerent is not clear that he was wanted to fight, threaten, initiate violent behavior, or was a danger to public safety or became annoyance, any one of which would have justified the arrest for disorderly conduct under Massachusetts law. In this instance, a mere heated exchange eventuated in a mug shot.

The president could have at least reaffirmed his statement on Wednesday that racial profiling remains a national problem and that something should be done about it.  For starters, we could pass the End Racial Profiling Act, which would ban the practice of racial profiling by federal law enforcement agencies and provide federal funding to state and local police departments if they adopt policies to prohibit the practice. ERPA has yet to be introduced this Congress, but criminal justice reform advocates have been clamoring for its passage for years.

Instead, we are told that tempers flared unnecessarily on both sides and that we should all calm down and have a brewski. I doubt that the next person of color who gets pulled over in the Boston area will derive much solace from that recommendation.

President Obama called this a “teachable moment” for all us but that presumes that someone has to do the teaching or at least lead the discussion. Many people, perhaps unjustifiably, expected our first black president to do just that, but it seems he really does not appetite for it and quite frankly is rather busy with salvaging two failed wars he inherited from his predecessor in addition to trying to capture terrorists, reforming our financial regulatory system, stimulate job creation, overhauling our education system and, of course, passing a health care reform bill.

Political observers have wondered whether or not President Obama’s ascendancy not only means that we live in a post-racist America, but also if we need an activist class of black leaders anymore. Some have provocatively asked if Obama signifies the “End of Black Politics?” But the President Obama needs a counterweight on these issues, someone to contrast his own views with on racial justice issues and who can forcefully communicate the concerns of black America to everyone else. The president still has to worry about managing the perception that he’s inclined to favor some groups over others.

Of course, scores of black intellectuals and civic leaders have commented on the Gates affair, but no one with the kind of stature necessary to become President Obama’s gadfly on racial issues writ large in the same way President Lydon B. Johnson had to contend with Dr. Martin Luther King and the civil rights movement in the 60’s.

Even the most gifted and talented among us need to be pushed in the right direction to realize their potential.

Check out the president’s remarks on Friday here:

Judging Words and Personal Experience

Yesterday White House Press Secretary Robert Gibbs called Judge Sonia Sotomayor’s remarks in a 2001 speech – that the right has dishonestly pounced on – a “poor choice words. ” Of course, its a predictable turn of events considering how much of the media does not do well with context and nuance. Plus, the White House probably wants her speech to be less of and less of an issue heading into the confirmation hearings. At any event, CNN.com has a great piece by Sherrilyn A. Ifill, a civil rights lawyer and law professor, explaining how the experiences of judges affect their approach to judicial decision-making.

Money quote:

Justice Thomas is the perfect example of how hard it can be for a judge to lay aside the personal experiences that shape his worldview. His views about the affirmative action cases that come before him are shaped quite clearly by what he regards as the self-sufficient dignity of his hard-working grandfather and the humiliation he says he felt when others believed his scholarly accomplishments were the result of affirmative action.

White judges are also shaped by their background and experiences. They needn’t ever speak of it, simply because their whiteness and gender insulates them from the presumption of partiality and bias that is regularly attached to women judges and judges of color when it comes to matters of race and gender.

Only a judge who is conscious and fully engaged with the reality of how her experiences may bear on her approach to the facts of a case, or sense of social justice, or vision of constitutional interpretation, should be entrusted to sit on the most influential and powerful court in our nation.

Too often we have allowed ourselves to be placated and charmed by fantasies about umpire judges calling “balls and strikes,” without ever asking which league the game is being played in or whether the umpire was standing in the best position to see the play. We forget that when deciding whether a batter checked his swing, the homeplate umpire will routinely ask for the alternative perspective from the first or third base umpire before calling a “swing and a miss” a strike.

In Search of an Empathetic Nominee

So it seems as if President Obama will not name a replacement for Justice David Souter this week says the WaPo. But the announcement of a nominee with “real world experience ” does seem to be eminent.  In addition to Second Circuit Appeals Court Judge Sonia Sotomayor, the other front-runners named in this morning’s Washington Post article include:

Judge Diane P. Wood of the U.S. Court of Appeals for the 7th Circuit; Elena Kagan, Obama’s solicitor general and the former dean of Harvard Law School; and Michigan Gov. Jennifer M. Granholm (D), a Harvard Law graduate whose background running a large state dealing with severe hardship may qualify as the experience Obama is seeking.

None of these names are new. But most of the reports I have seen usually included the Canadian born Granholm in the extended list of potential nominees, not on the short list.

It also seems as if the attacks on Sotomayor are starting to worry some in the White House.  According to the WaPo, one official involved in the White House  seems to be concerned that the native Bronxite is being portrayed as someone who “doesn’t play well with others.”

Sigh.

There needs to be an organized effort to aggressively push back against the noise machine, though some of that has already begun.

Meanwhile, in her piece today Ruth Marcus of the WaPo attempts to put some meant on the bones regarding Obama’s seemingly vague empathy standard. To Marcus, Obama invoked the empathy standard not to be  the new age sensitive guy, but to broaden the discussion on the role of judges beyond the trite umpire analogy that Chief Justice Roberts easily popularized during his confirmation process in 2005.

If that were all judges did Marcus contends, then “we could program powerful computers to fulfill the judicial function.” Marcus also noted that empathy and the lackthereof has already revealed itself in some of the courts more recent rulings.

When Bowers was overruled in 2003, the majority opinion by Justice Anthony Kennedy was infused with a greater understanding that anti-sodomy laws “seek to control a personal relationship.” You got the sense that Kennedy actually knew people in such relationships.

And empathy runs both ways. In 2007, when the court rejected Lilly Ledbetter’s pay discrimination lawsuit because she had waited too long to complain about her lower salary, the five-justice majority seemed moved by concern for employers unable to defend themselves against allegations of discrimination that allegedly occurred years earlier.

That’s real talk.

Some time ago, Jefferey Toobin of the New Yorker recalled his favorite Souter opinion where he dissented in a case that involved a man named Kieth Bowles, who was sentenced to 15 years to life for murder in Ohio. Bowles wanted to file an appeal in federal court, but the judge mistakenly provided the wrong date for the filing deadline.

In a callous  5 to 4 ruling with Justice Clarence Thomas writing for the majority, the court said,  “Tough luck, pal. The law’s the law. Bowles missed the deadline, which he might consider as he potentially spends the rest of his life in prison.”

For his part, Justice Souter called attention to the lack of compassion shown by his fellow justices in his dissent. “It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch.”

I wonder if that is empathy or just plain common sense at work.

Update: Media Matters has put together a solid document countering conservative talking points on all things judicial nominations, including Sotomayor.

Obama Holds Impromptu Press Conference on Souter

Clearly, Obama really enjoys being president.

As you can see he did not stray far from the empathy standard that he articulated as a presidential candidate.

The White House posted his remarks:

THE PRESIDENT: I just got off the telephone with Justice Souter. And so I would like to say a few words about his decision to retire from the Supreme Court.

Throughout his two decades on the Supreme Court, Justice Souter has shown what it means to be a fair-minded and independent judge. He came to the bench with no particular ideology. He never sought to promote a political agenda. And he consistently defied labels and rejected absolutes, focusing instead on just one task — reaching a just result in the case that was before him.

He approached judging as he approaches life, with a feverish work ethic and a good sense of humor, with integrity, equanimity and compassion — the hallmark of not just being a good judge, but of being a good person.

I am incredibly grateful for his dedicated service. I told him as much when we spoke. I spoke on behalf of the American people thanking him for his service. And I wish him safe travels on his journey home to his beloved New Hampshire and on the road ahead.

Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.

As I make this decision, I intend to consult with members of both parties across the political spectrum. And it is my hope that we can swear in our new Supreme Court Justice in time for him or her to be seated by the first Monday in October when the Court’s new term begins.

(H/T: TPMDC)

Justice Souter Poised to Retire

From the NYT:

The departure will open the first seat for a Democratic president to fill in 15 years and could prove a test of Mr. Obama’s plans for reshaping the nation’s judiciary. Confirmation battles for the Supreme Court in recent years have proved to be intensely partisan and divisive moments in Washington, but Mr. Obama has more leeway than his predecessors because his party holds such a strong majority in the Senate.

This battle is going to be intense. President Obama is having difficulty just trying to get cabinet level and mid level nominees to the Justice Department confirmed. Trying to get a Supreme Court nominee confirmed by the U.S. Senate is usually a very tough endeavor, especially since Republicans seemed determined to stymie efforts to overhaul health care, climate change legislation, education and immigration reform, just to name a few.

That’s why Arlen Specter’s defection from the Republican party is so timely and so important. Thought nominees are confirmed by a simple majority in the final vote, to cut off debate in the Senate chamber on a bill or nominee you need 60 votes. That 60 vote threshold is called a cloture vote. If you cannot overcome cloture that nominee or bill has in effect been filibustered. Provided that Al Franken will be allowed to assume his Senate seat soon, and the Democratic caucus vote together, Specter gives the Dems a 60 vote filibuster proof majority.

In theory a party line vote should make Obama’s job easier, though who fills the vacancy on the court will almost take up so much of the media oxygen during the next few months that it will compete with the president’s efforts to promote other aspects of his agenda.

And with dwindling political power on Capitol Hill, conservatives, especially the ideologically pure, will make President Obama’s nominee a full throated primal cry to action.

Man, I hope we are ready.

Shepard Smith Condemns Torture

Just fascinating. Sometimes Shepard Smith just surprises me.

And this:

Member States Reach Agreement on Anti-Racism Document

The anti-racism Durban Review Conference on 21 April adopted its final outcome document. It has its flaws particularly some questionable free speech paragraphs and its vulnerable to the charge that it did not need to include language regarding foreign occupation, though there is no mention of Israel by name. There are also a lot of NGO groups that are understandably frustrated at how language about the transatlantic slave trade was watered down in the final out come document.

But considering what the previous drafts looked like this final outcome document is a dramatic improvement. What’s more, the NYT has correctly framed this as a victory for the UN process and a loss for Ahmedinejad and those who wanted to use the Israeli-Palestinian question to either overshadow all other global racial discrimination issues or not participate in the conference at all.

The adoption of the resolution by the committee that coordinates the conference ended months of negotiation that removed contentious clauses referring to Israel and Palestine and trying to make defamation of religion an offense against human rights.

The conference will formally adopt the document here on Friday, but it is no longer open to debate or amendment, diplomats said.

Announcing the adoption of the resolution to warm applause from delegates, the conference president, Amos Wako, who is from Kenya said: “What we have decided shows the outcome when you remain engaged in the process. It shows that boycotts do not assist.”

“This is very good news indeed,” said Navi Pillay, the United Nations human rights commissioner, who hosted the conference. “It’s the culmination of months of deliberation.”

[snip]

Announcing the adoption of the resolution to warm applause from delegates, the conference president, Amos Wako, who is from Kenya said: “What we have decided shows the outcome when you remain engaged in the process. It shows that boycotts do not assist.”

I fully expect a lot of critics to focus on the language regarding foreign occupation and free expression. But in the meantime I think the administration has got to be reconsidering participating in the follow process, given how this turned out.

Plus, the outcome document is very progressive on a whole range of issues from calling for a aggressively punishing hate crimes to urging governments to embrace equal opportunity programs from establishing national human rights bodies to affirming the right to organize to calling for the humane treatment of migrant workers in addition to calling for the ratification of other U.N. social justice treaties.