Jerks

It’s the Little Things

From Karl Rove’s website, this graphic comparing current job losses to gains:

Click to enlarge.

If you have any eye for scale, you’ve probably noticed a problem: the losses columns are really, really exaggerated. How exaggerated? Glad you asked. For the two rightmost columns:

And the ones on the left look worse. It’s not that I don’t expect Karl Rove to dissemble — I do. I just don’t expect the dishonesty to be quite this pervasive.

Obama & American Exceptionalism, Continued

The New Republic does a fairly good job dissecting Bill Kristol’s last screed of 2009 — but I think they missed something. A regular in Kristol’s arsenal is the assertion that President Obama somehow betrays the notion that America occupies, and ought to occupy, a special place in the world:

The American public seem to have decided–personal goodwill toward the man notwithstanding–that President Obama is not doing a particularly good job, that more big government liberalism is the last thing we need, and that, yes, American exceptionalism isn’t a bad thing or an out-of-date idea.

We’ve covered this before. Kristol’s conception of American exceptionalism — the notion, shared by many of his fellow travelers, that America can do no wrong — is a fairly narrow one, and at odds with any responsible view of world power. If we are an exceptional nation, it’s because our forefathers have made us so; exceptionalism is an occasion to which each generation must rise, not a birthright to be squandered. Because humanity is fallible, nations are fallible, and accordingly, we owe it to ourselves, and the potential we still possess, to take a hard look at our actions at home and abroad, and ensure their conformity with our ideals. For a leader to “believe in American exceptionalism,” then, he must be committed to the idea that America is unique, and can alter the world for the better through this uniqueness — not to any particular means to that end.

Obama lives up to this test on a daily basis. Imagine, if you will, a room filled with shelf upon shelf of crystal balls, each containing one sentence from the President’s public speaking career. It would be nearly impossible to throw a rock in this presidential “hall of prophecies” without hitting an elegant description of what America should (and must) be. This week was no exception. Kristol may dispute Obama’s policies, but the claim that the President does not believe in American uniqueness has no merit.

It’s long past time to put an end to the idea that the Republican Party, or the conservative movement, have a monopoly on patriotism. They don’t, and neither do we.  Thomas Paine keyed his belief in America’s promise — his early version of American exceptionalism — to the country’s relative novelty. Free of old Europe’s divisions, a new nation, physically distant from her creator, could prosper without being weighed down by old grudges. It worked; but in the intervening centuries, we’ve managed to build new grudges. It might be time to retrace the roots of American exceptionalism, to better ensure its continuity.

RedState’s Christmas Gift: Historical Revisionism

I intended to let Christmas pass without a note of partisanship, but because our honorable friends opposite have opted otherwise, I feel obligated to reply. RedState’s Erick Erickson wants to make much of the fact that, per Time, the First Family did not attend Christmas services:

• No Churchgoing Christmas for the First Family: Why should we be surprised or upset by this? The Obamas are not, to my knowledge, Christians and typically only Christians go to church on Christmas. At least he’s not trying to pretend anymore. Good for him.

But Erickson glosses over the source article’s context:

Other Presidents and their families have opted to stay in Washington for the holiday. The Clintons traditionally went to midnight mass at the Washington National Cathedral and woke up in the White House on Christmas morning before heading south for vacation. President Reagan also remained in Washington over Christmas — reportedly so members of the Secret Service could be near their families — although Reagan didn’t venture out to a local church service. (Emphasis ours)

A moment of further research reveals that Reagan’s ecclesiastical absenteeism even became a campaign issue:

President Reagan’s spokesman said today that the President seldom attended church services because he disliked inconveniencing parishioners. He also said that Mr. Reagan did not intend to make morality a campaign issue.

Larry Speakes, the deputy press secretary, faced questions about the President’s religious habits in the wake of Mr. Reagan’s overtly religious speech Tuesday to the National Association of Evangelicals and his push for approval of a constitutional amendment allowing voluntary prayer in public schools.

Apparently, empty words about religious faith are enough for Erickson. What a surprise.

Jim DeMint Fundamentally Misunderstands Constitutionalism

Yesterday, we learned that Senator DeMint would force a “vote” on the constitutionality of one of the key provisions of the health care bill, the “individual mandate,” which would require most persons to buy or otherwise belong to a qualified health insurance plan. But, the legislature has neither the power nor the duty to exercise constitutional oversight. While legislators should  endeavor to pass only constitutional laws, interpreting the Constitution is the judiciary’s job, in cooperation with the executive (the Founders intended the President to act as a last, best defense against unconstitutional laws, through the power of the veto). A legislative declaration that a law is constitutional, or otherwise, is a legal nullity, making DeMint’s call to action a case of grandstanding and misplaced pathos at its finest.

Further, the constitutionality of the individual mandate isn’t really up for serious debate. As a matter of law, Congress has the power to regulate in this area, pursuant to even a post-Rehnquist reading of the Commerce Clause, and no legitimate due process interest is implicated by forcing citizens to participate in a public welfare scheme. And as a matter of policy, no Supreme Court has gone toe-to-toe with a President over sweeping regulatory reforms since the New Deal. If I recall, that ended poorly.

It is emphatically the province and duty of the Judicial Branch Legislature to say what the law is.

– Chief Justice John Marshall, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

Apparently, this is how Jim DeMint (R-S.C.) reads the immortal words of Chief Justice Marshall.

Military Analogies and the Health Care Debate: a Pyrrhic Victory?

Attention, Bill Kristol: I don’t think that phrase means what you think it means.

When we speak of a Pyrrhic victory, we refer to one so costly as to make defeat preferable — as when Pyrrhus of Epirus’ “victory” at Heraclea proved so costly that it foreclosed a further incursion into Roman territory. A Pyrrhic victory must not just be devastating: it must make strategic victory, in the broader sense, impossible.

There’s no indication that the Democrats’ victory in the health care debate is even nearly Pyrrhic. Admittedly, we had to give up the public option — for now — and it sure took us long enough. But health care reform will bring real savings to real people, at a relatively low price, and as Kristol readily concedes, any exhaustion in the Democratic ranks is temporary. This is a qualified victory, but still a real one.

If Kristol is looking for a historical analogy to open with and then facetiously discard, he might turn to Quintus Fabius Maximus (Cunctator) instead. Like Fabius, congressional Republicans have built a strategy on the premise that delaying a difficult battle is its own reward. Of course, Fabius’ strategy was incomplete: it lacked an ultimate engine for victory, which later materialized only through the ingenuity and bravery of Scipio the Elder, who broke the stalemate and took the fight to Carthage.

Republicans have no Scipio, and more importantly, they aren’t looking for one. As even a casual observer of the health care debate must know, Republicans did not enter this fight to win it. At no point in this year’s long, strange health care debate did Republicans ever offer (and defend) a serious alternative plan. Delaying is all they know, all they cared to do, and all they did. This isn’t just a bad strategy: it’s no strategy at all.

The Strange, Ill-Informed Cowardice of Phyllis Schlafly

Apparently you all didn’t find the special congressional race in upstate New York — or its would-be recount, and the potential fallout for New York’s new voting systems — all that interesting. For shame! That stuff was cool. Anyways, in partial atonement for my sins, this commentary on Phyllis Schlafly’s latest insanity (h/t Pi).  – Ed.

Federal courts play a curious part in modern America. Post-Brown, they can be engines of great good, leading the nation to justice in spite of herself, or, with just as much nobility of purpose, they can push too hard, galvanizing a dying movement and forcing culture war combatants back to the trenches.

What’s to be done? For hard-line conservatives, the answer, as in so many other cases, is to give up. Hence the far-right fascination with “jurisdiction-stripping,” the process by which Congress restricts the federal courts’ trial or appellate jurisdiction over particular issues. Strip all federal jurisdiction over school prayer, and bam! Problem solved, so much for that pesky First Amendment!

While a move like that would be troubling indeed, jurisdiction stripping has its uses. It’s a hell of a way to control docket congestion: with one stroke, Congress could (but won’t) eliminate wasteful and insulting litigation. And it’s not without history: during Reconstruction, Congress revoked military detainees’ rights to petition the Supreme Court directly for habeas corpus (ordinary habeas remained undisturbed). See Ex Parte McCardle, 74 U.S. 506 (1869). More recently, the Military Commissions Act of 2006 stripped federal courts of the ability to hear habeas petitions brought by Guantanamo detainees (§ 7) — before this provision, specifically, was ruled unconstitutional. Boumediene v. Bush, 558 U.S. ___ (2008).

Schlafly’s article — advocating for a re-stripping of federal jurisdiction over detainee trials — is thus a fascinating look at what happens when one ignores recent Supreme Court decisions, and glosses over earlier history. Boumediene, decided just over a year ago, explicitly forbids her proposed solution, and McCardle, upon which better-educated advocates of her position usually rely, doesn’t help, if you look just below the surface. The McCardle Court did little more than eliminate a novel vehicle for habeas corpus — it never terminated habeas altogether.

Besides, fear — be it of the deranged ramblings of a madman, or of a potential acquittal that’ll never happen — is a poor reason to do anything, and a particularly abysmal reason to surrender our values, and begin putting conditions on our faith in democracy.

Hoffman’s NY-23 Spin: Bad on Facts, Worse on Presentation

Though the election is over, and the news on the absentee ballot count is going from bad to worse for Hoffman, his spin machine is apparently just starting. From Hoffman’s campaign site:

As evidence surfaces, we find out that reported results from election night were far from accurate. ACORN and the unions did their best to try and sway the results to Obamacare supporter Bill Owens.

I was forced to concede after receiving two pieces of grim news – - down 5,335 votes with 93 percent of the vote counted on election night – and barely won my stronghold in Oswego County. On Election Night, the information we received was far different from what we received this week! [. . .]

Let’s force them keep this recanvassing active! Let’s give this election a chance to end differently!
Oswego County elections officials blame the mistakes on “chaos“ in their call-in center that included a phone system foul-up, and on inspectors who read numbers incorrectly when phoning in results. This sounds like a tactic right from the ACORN playbook.

The second paragraph conceals a very important distortion: as we have explained, Oswego’s election night report that Hoffman won the county narrowly, with 93% of the vote reporting, was quite accurate. What Hoffman should have known, but didn’t bother to investigate, was that the remaining 7% of the vote was likely to bolster his numbers substantially. The fault in Oswego is not with the elections commissioners, but with Hoffman’s failure to follow through on his own election. Jefferson County is another story: there the problem was real, the fault was with the commissioners, and the delayed returns may have prejudiced Hoffman’s decision to concede. But, “no harm, no foul”: Jefferson’s numbers were corrected the very next day, and though the corrections flipped the county to Hoffman, they didn’t change the district-wide outcome. The notion that this is somehow a new story as of last week is absurd.

So much for the factual allegations. What’s really concerning is Hoffman’s presentation: the page on which this impassioned plea resides is entitled, “Stop another stolen election!” Ahem: “another”? What, pray tell, was the first stolen election? Is Hoffman saying the “Obama Regime” somehow stole the 2008 race? [Update: yes.]

And then there’s the postscript:

P.S. I ran a different kind of campaign, one where Conservatives, Republicans, Libertarians, Tea Party and 9/12 activists rallied around. ACORN, the unions and Democratic Party were scared, and that’s why they tampered with the ballots of voters in NY-23.

First commenter to spot all the grammar errors gets a prize. Hoffman may have gained votes since November 3rd, but he’s steadily losing his already-tenuous grasp on reality.

Republicans Redefine Class, Again

Finally confronted with the text of the House healthcare bill, Michelle Bachmann’s angry horde of “tea party” “activists” chose to tear up the bill, rather than read it.

Granted, tearing up legislation you’ve never read, but assume you won’t like, is a step up from mailing fake dog poop. So there’s that.

RedState Has a “Great Books” Program

The headliner? Jonah Goldberg’s work of revisionist polemic, “Liberal Fasicsm.” Don’t miss this excerpt from their discurso:

This is not to make an Obama=Hitler comparison. It is just to note that like most good demagogues, Hitler and Obama both know the public is more interested in the silver tongue and the Greco-Roman columns as a backdrop than they are in the substantive policy positions.

Apparently, RedState lacks the courage to even believe what they believe. It’s the hate that dare not speak its name.

Removal of Jurisdiction: the Solution to the “Birthers”

It’s almost a truism that the resources of the federal judiciary are precious, and not to be squandered needlessy. In habeas review of state convictions, for example, we bend over backwards to keep potentially duplicative litigation out of the federal courts, in deference to cost, and notions of federalism. But what of those latest paradigms of judicial uselessness, the “birthers”? Despite nearly a dozen suits filed, no such suit questioning President Obama’s eligibility to serve has gone anywhere, but the birthers keep coming back, and the federal bench is rightly losing patience. Can we do anything to kick them out of court, all of them, once and for all?

Yes  — we can. Although traditional notions of issue & claim preclusion (barring relitigation between equivalent parties) won’t stop new birther “attorneys” from taking up arms after their comrades fall, we could solve the issue by getting Congress to withdraw from the jurisdiction of the lower federal courts all claims arising out of the “natural born citizen” clause. U.S. Const., Art. II, § 1, cl. 5.

Recall that although the Constitution requires the creation of a Supreme Court, it does not require the creation of federal courts, at all. U.S. Const., Art. III, § 1:

The judicial power of the United States shall be vested in one Suprme Court, and in such inferior courts as the Congress may from time to time ordain and establish.

This was the Madisonian Compromise — a way to assuage antifederalists by postponing until a later date the question of the nature of the federal judiciary. As such, there’s an argument that the greater power (Congress need not have created, and may therefore eliminate, the lower courts) includes the lesser power (the power to limit the lower courts’ jurisdiction). See Martin v. Hunter’s Lessee, 14 U.S. 304 (1816). Therefore, subject to external limits, Congress could bar the lower federal courts from hearing claims questioning the president’s citizenship, a conclusion confirmed with additional supporting reasoning in Sheldon v. Sill, 49 U.S. 441 (1850).

We generally see arguments in favor of “jurisdiction stripping,” as the practice is known, from the right, when hard-line conservatives argue for Congress to bar the federal courts from hearing any lawsuit that would establish a right to an abortion, to gay marriage, or to be free from religious indoctrination in the public square. This type of legislation ought to be troubling. If judicial review is to have any meaning, courts must be able to determine the meaning or extent of fundamental freedoms. However, no such values are implicated when Congress simply puts an end to a particular breed of vexatious, duplicative, and expensive litigation. That’s just Congress looking out for a coordinate branch.

Stripping the lower federal courts of jurisdiction wouldn’t be a complete solution. State courts would remain open to birther insanity — in most cases, state courts either can or must hear federal claims, Taffin v. Levitt, 493 U.S. 455 (1990); Testa v. Katt, 33o U.S. 386 (1947) — and the Supreme Court could still take appellate review of any suits that eventually wound their way through the state system. While Congress can also, in theory, eliminate Supreme Court appellate jurisdiction — see U.S. Const., Art. III., § 2, cl. 2 — the doctrine here is more muddled, and rightly so. But cutting out the lower courts is a step in the right direction, and a powerful signal that, especially when government resources are sparse, the law is not a game.

Besides, based on Judge Land’s experience with Orly Taitz, the federal bench would probably welcome the loss of authority, such as it is.