The Commentariat -- March 27, 2012 Supreme Court Edition

Solicitor General Daniel Verrilli argues before the Supreme Court. Art by Dana Verourteren of the AP.Disaster!

** New York Times Editors: "If the Supreme Court hews to established law, the only question it must answer in this case is modest: Did Congress have a rational basis for concluding that the economic effects of a broken health care system warranted a national solution? The answer is incontrovertibly yes."

Kate Pickert of Time has a pretty good summary of Tuesday's arguments.

Adam Liptak of the New York Times: "With the fate of President Obama’s health care law hanging in the balance at the Supreme Court on Tuesday, a lawyer for the administration faced a barrage of skeptical questions from four of the court’s more conservative justices."

N. C. Aizenman & Robert Barnes of the Washington Post: "The Supreme Court on Tuesday ended two hours of arguments about the key component of the nation’s health-care overhaul, with the court’s dominant conservatives appearing deeply skeptical that the Constitution gives Congress the power to compel Americans to either purchase health insurance or pay a penalty. Justice Anthony M. Kennedy, traditionally the justice most likely to side with the court’s liberals, suggested that the 2010 Patient Protection and Affordable Care Act invoked a power 'beyond what our cases allow' the Congress to wield in regulating interstate commerce."

David Leonhardt of the New York Times: "... it should not be much of a surprise if the court splits along political lines, much as it did in the Bush v. Gore ruling in 2000."

Dahlia Lithwick: "Obama’s signature legislative achievement will probably rise or fall on the opinion of John Roberts and Anthony Kennedy." With video of Lithwick discussing the oral arguments.

Lyle Denniston of ScotusBlog: "If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive.  If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him.  But if he does not, the mandate is gone.  That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior."

Brian Beutler of TPM: "In an exchange with a plaintiffs attorney, [Chief Justice] Roberts suggested he’s skeptical that the mandate and its penalties can be treated separately and may have opened the door to finding that Congress’ power to impose the mandate springs from its broad taxing power. 'The idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense,' Roberts said, over strong objections from attorney Gregory Katsas."

Adam Serwer of Mother Jones: "Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court." ...

     ... CW: I think Verrilli is (a) sick and (b) medicated. Listen:

     ... CW Update: I listened to all of Verrilli's argument, and it appears he just got off to a bad start. I thought he mostly did a credible job, and I am reminded once again that I could not do half as well as any lawyer who goes before the Supremes. I will agree with Serwer that Verrilli never answered the question asked by Alito & others, a question for which he should have had an answer on the ready: "So what are the limits of the Commerce Clause?" And he would have done well to make the point that the Editors of the New York Times do above: the only question before the Court is whether or not Congress was right to try to fix the national healthcare crisis. Plus, I am reminded yet again what a total dick Scalia is. (Another reason I couldn't appear before the Court -- I would tell Scalia he was a total dick.) I used to think Scalia was really clever in a malicious way; then I thought he was clever and crazy; now I think he's truly thick-headed -- he could not get over the broccoli question (which I treated as a joke in my column yesterday -- because it is a joke). I don't think he was playing dumb; I think he is dumb. Also, numerous commentators wrote about how great Paul Clement was in his arguments for the states; I listened to only some of what he had to say, and he was more repetitive than Verrilli; he kept harping on New Yorkers' not buying cars which could ruin the auto industry -- an argument that is as applicable as the broccoli thesis.

Stephen Colbert has "The Word":

Right Wing World *

Best Non-Apology Apology of the Week. I apologize to anyone offended by what one prominent black conservative called my ‘very practical and potentially life-saving campaign urging black and Hispanic parents not to let their children go around wearing hoodies.' -- Geraldo Rivera

Kevin Robillard of Politico: "House Oversight and Government Reform Chairman Darrell Issa (R-Calif.) apologized Tuesday for accusing Rep. Carolyn Maloney (D-N.Y.) of lying about the lack of female witnesses at a controversial hearing on contraception last month. And while Maloney accepted his apology, both members continued to push their version of events."

The Hill: Newt Gringrich explains how a brokered convention would/will work: "We'll basically have a national, electronic convention. I can imagine a circumstance, for example, where they suspended the keynote address on the first night and actually had a presidential debate in front of the delegates of the candidates." CW: that is, the GOP will throw out all those meaningless primary votes by the know-nothing rank-and-file, I'll get up and shatter my stupid competitors in an historic debate (everything I do is historic), after which I shall be anointed the nominee and Callista will get to wear her Tiffany's tiara.

Michael Memoli of the Los Angeles Times: "Newt Gingrich's campaign says that a new policy to charge supporters $50 to take a photo with the GOP hopeful is really a way to showcase the grass-roots strength of his shoestring campaign. Reporters traveling with the former House speaker on Monday took note of the new paid photo policy, observing that he had long taken pictures with people attending his events for free." CW: Newt is just planning ahead. A tiara from Tiffany's is expensive.

I'm Rich, for Pete's Sake. Reid Epstein of Politico: "At Mitt Romney’s proposed California beach house, the cars will have their own separate elevator. There’s also a planned outdoor shower and a 3,600-square foot basement — a room with more floor space than the existing home’s entire living quarters.... A project this ambitious comes with another feature you don’t always find with the typical fixer-upper: its own lobbyist, hired by Romney to push the plan through the approval process."

* Which, admittedly, includes the majority on the Supreme Court.

The Commentariat -- March 27, 2012

My column in today's New York Times eXaminer shreds -- if I do say so myself -- David Brooks' "historical perspective" on "Obamacare." The NYTX front page is here. You can contribute here. ...

** Ryan Lizza of the New Yorker: how Barack Obama came around to supporting the individual mandate and why the C.B.O. is sometimes a banana. ...

... Dean Baker: It ain't just the tax code that accounts for growing income & wealth inequality in the U.S. A good, short read.

"Think of the Teachers and Cops!" Noam Scheiber of The New Republic on the latest anti-Volcker rule excuse, this one promulgated by Democrats who are beholden to the financial industry: really, it's wrong to regulate financial transactions because many of those trades involve financial instruments that may be owned by pension funds for public employees and other ordinary Americans. CW: Scheiber points out the obvious, "... when you take into account the risks the Volcker Rule is designed to check, it’s almost certainly a net positive for the average teacher or cop." ...

... Here's the underlying reporting by Robert Schmidt & Phil Mattingly of Bloomberg News. Title: "The Fight over the Volcker Rule Is Shifting in Wall Street's Favor." No kidding.

N. C. Aizenman of the Washington Post: "The individual insurance mandate, which requires virtually all Americans to obtain health coverage or pay a fine, was the brainchild of conservative economists and embraced by some of the nation’s most prominent Republicans for nearly two decades. Yet today many of those champions — including presidential hopefuls Mitt Romney and Newt Gingrich — are among the mandate’s most vocal critics. Meanwhile, even as Democratic stalwarts warmed to the idea in recent years, one of the last holdouts was the man whose political fate is now most closely intertwined with the mandate: President Obama." ...

... Jonathan Cohn of The New Republic: "Just by getting this case to the high court ... the far right wing has already won something. As recently as three years ago, the idea of an individual mandate ... was largely uncontroversial.... As late as the spring of 2009, prominent Republican lawmakers like Charles Grassley ... publicly embraced the idea of the mandate as part of health care reform. If he or any other leaders of the GOP thought the mandate was an unholy violation of liberty, they kept it to themselves." ...

... Washington Post Editors: "... the individual mandate is necessary and constitutional." ...

... Rebecca Buckwalter-Poza of The Atlantic provides a primer on how the Supremes have interpreted the Commerce Clause, the Constitutional basis for the government's case defending the individual mandate.

Tea Leaves

CW: I just listened to all of the oral arguments on the ACA from yesterday -- which were actually about the AIA (the Anti-Injunction Act of 1867), and I have to say I was a bit at sea. However, Amy Howe of Scotus.blog provides an excellent explanation "in plain English" of what the lawyers were talking about & what the justices were asking. ...

... Also, super-helpful is the analysis by Lyle Denniston of Scotus.blog. ...

... Dahlia Lithwick provides a lively account of the relatively boring proceedings. ...

... Jonathan Cohn of The New Republic: "... as George Washington University Professor Orin Kerr noticed, Chief Justice John Roberts did start one intriguing exchange towards the end. While questioning Gregory Katsas, the lawyer representing the states challenging the mandate, Roberts wondered whether the mandate really qualified as a mandate given the relatively weak penalties. (Remember, the maximum penalty for violating the insurance requirement and failing to pay the fee is a forfeiture of future tax refunds; there is no criminal sanction.) As Kerr notes at the Volokh Conspiracy blog, the whole premise of the lawsuits is that the mandate is a command (in this case, a command to buy insurance). But the Court could rule that the mandate is just a financial incentive for obtaining insurance, presumably rendering it constitutional." ...

... Consensus Opinion. Adam Serwer of Mother Jones: "The fate of the Affordable Care Act will likely be decided before the 2012 election, as the first day of much-anticipated oral arguments at the Supreme Court concerning Obamacare showed the justices wary of the case for delaying a ruling."

Andrew Rosenthal of the New York Times: "On Friday, Charlie Savage reported in the Times that Attorney General Eric Holder Jr. had signed new guidelines for the National Counterterrorism Center that will allow it to collect more information about Americans, regardless of whether they have any connection at all to terrorism, and to keep it much longer.... In many cases, President Obama has merely kept in place President Bush’s more troubling national security policies. But in this instance he’s actually gone farther, in exactly the wrong direction."

President Obama spoke at Hankuk University in Seoul, South Korea, yesterday:

Frances Robles of the Miami Herald: "As thousands of people gathered [in Sanford, Florida] to demand an arrest in the Trayvon Martin case, a more complicated portrait began to emerge of a teenager whose problems at school ranged from getting spotted defacing lockers to getting caught with a marijuana baggie and women’s jewelry." See also story links in yesterday's News Ledes. ...

... Judd Legum of Think Progress: "Over the last 48 hours, there has been a sustained effort to smear Trayvon Martin, the 17-year old African-American who was shot dead by George Zimmerman a month ago." ...

... Emily Bazelon of Slate finds the newly-leaked police account less than credible. ...

... CW: here's something I don't get. Why is Zimmerman a right-wing cause celebre? I just don't see the fatal shooting of an unarmed kid as a political issue, and I definitely don't see any political point to taking sides and spreading lies about Martin or Zimmerman. I link to stories that report differing views because it seems to be the facts surrounding the shooting are the most important matter. Yet somehow there's a loud cacophony on the right bashing everyone from President Obama to Martin. The only explanation I can come up with is -- the right-wing blogosphere is essentially racist. Could it be?

Up with Chris Hayes on Atheism in America. More here:

Right Wing World

Katrina vanden Heuvel in the Washington Post: "It’s hard to point to a single priority of the Republican Party these days that isn’t steeped in moral failing while being dressed up in moral righteousness."

Thomas Edsall in the New York Times: "Assuming Romney is the 2012 nominee, renegade primary voters are doing their level best to submarine general election appeals to independents. There are signs that base Republican voters won’t turn out for Romney.... These lukewarm Republican primary voters are, in effect, threatening to abandon the nominee after forcing him to pass ruthless ideological litmus tests."

Kevin Baker in the New York Times: "The Republican effort to rally every conceivable outside entity to the party’s cause was wildly successful. Again and again over the years, conservative policy institutes have armed the party’s candidates with intellectual arguments, while the conservative media barrage has blasted a way through to high office for even the most lackluster Republican nominees. Yet increasingly this meant that the Republican Party was outsourcing both body and soul. Both what the party believed in and its ability to do the heavy lifting necessary to win elections was handed over to outside interests — outside interests that did not necessarily share the party’s goals or have any stake in ameliorating its tactics."

Samuel Jacobs of Reuters: "Republican Rick Santorum began his presidential campaign by roaming Iowa in a pickup truck, boosted by peppy television ads that showed him walking through a garden with his wife and holding his youngest daughter. Now, with his frustration apparently building over what he sees as slanted news coverage that favors Republican front-runner Mitt Romney, Santorum and his campaign are showing a dark side."

Alec MacGillis of The New Republic on "Obama's Secret Plan to Give Alaska to Russia." Apparently they're going nuts in Right Wing World because President Obama told President Medvedev that he (Obama) would have more flexibility after the election. CW: This could be because he will have more flexibility after the election, but as MacGillis points out, it well might be because he plans, you know, to give Putin there flying over our airspace the ground underneath it. ...

... Steve Benen: "Mitt Romney is feigning outrage, and Senate Minority Whip Jon Kyl (R-Ariz.), who's often confused about U.S. policy in Russia but likes to pretend otherwise, is looking for the fainting couch, but Obama's comments aren't exactly scandalous."

... Daniel Drezner of Foreign Policy is not too impressed with the right's histrionics because, well, they're wrong. ...

... Update. Jennifer Epstein of Politico: "President Barack Obama made light Tuesday of his frank comments to Russian President Dmitry Medvedev. Before sitting down at a plenary session for a Nuclear Security Summit in Seoul, Obama greeted Medvedev. 'Wait, wait, wait, wait,' he said, the AP reported. Grinning, he put his hand over the microphone."

News Ledes

President Obama spoke at the Nuclear Security Summit:

New York Times: "Stung by a cheating scandal involving dozens of Long Island high school students, the SAT and ACT college entrance exams will now require students to provide a photograph when they sign up for the exams, and officials will check those images against the identification the students present when they take the test."

Washington Post: "The Supreme Court on Tuesday considers the main constitutional question in its review of the nation’s health-care overhaul, whether Congress has the power to require almost all Americans to secure health insurance or pay a penalty." ...

     ... Update: The New York Times The Lede is now liveblogging the hearing. ...

     ... Update 2: The audio of this morning's session is here. The transcript is here (pdf).

Al Jazeera: "The Syrian government has agreed to accept the six-point plan by joint UN-Arab League envoy Kofi Annan on ending the violence in Syria, the former UN chief's spokesman has said. 'The Syrian government has written to the joint special envoy Kofi Annan, accepting his six-point plan, endorsed by the United Nations Security Council, spokesman, Ahmad Fawzi said ... Tuesday."

Do-Nothing Congress. Washington Post: "House Republicans dropped plans Monday to vote on a three-month extension of federal highway funding, citing insufficient support for the measure. All federally-funded roadwork is slated to grind to a halt on March 31. If Congress fails to act before then, the federal government can not collect $93 million per day in gas taxes, millions of construction jobs could be put at risk and eligible commuters would have to wait longer for a planned boost in employer-paid public transportation subsidies."

New York Times: "The landmark trial of a senior official of the Philadelphia Archdiocese who is accused of shielding priests who sexually abused children and reassigning them to unwary parishes began on Monday with prosecutors charging that the official 'paid lip service to child protection and protected the church at all costs.' The defendant, Msgr. William J. Lynn, 61, is the first Roman Catholic supervisor in the country to be tried on felony charges of endangering children and conspiracy — not on allegations that he molested children himself, but that he protected suspect priests and reassigned them to jobs where they continued to rape, grope or otherwise abuse boys and girls." Philadelphia Inquirer story here.

Al Jazeera: "Eleven suicide vests have been found at the defence ministry compound in Afghanistan, which also houses the residence and office of the Afghan president. Al Jazeera's James Bays, reporting from the Afghan capital, Kabul, said on Tuesday ... 'Al Jazeera has been told by a high-level intelligence service source that the 11 suicide vests, packed with explosives and used by suicide bombers, have been found inside the ministry of defence headquarters -- one of the most secure, heavily guarded buildings in the Afghan capital.'"

Washington Post: "House Democrats have released an election year budget proposal they say would begin to curb deficits without making major changes to growing entitlement programs like Medicare and Medicaid by pairing spending cuts with higher taxes on the wealthy."

Al Jazeera: "Al Jazeera has said it will not air a video that it received showing three shooting attacks in Toulouse and Montauban in southern France this month. The network on Tuesday said the video did not add any information that was not already in public domain. It also did not meet the television station's code of ethics for broadcast." New York Times story here.

New York Times: "Dominique Strauss-Kahn, the former managing director of the International Monetary Fund, was released on bail on Monday after he was charged with involvement in a prostitution ring in Lille. The filing of the preliminary charges allows for further investigation."

NBC News: "The wife of a U.S. soldier accused of murdering 17 Afghan civilians believes her husband could not have carried out the crime. “I don't think anything will really change my mind in believing that he did not do this,’’ Kari Bales told Today’s Matt Lauer in an exclusive interview that aired Monday." Includes video.

The Commentariat -- March 26, 2012

Lincoln Caplan & Philip Boffey, in a New York Times op-ed, outline what arguments the Supreme Court will be hearing on the Affordable Care Act today, tomorrow and Wednesday. ...

... Ezra Klein has a long piece with everything you need to know about the oral arguments, plus background. ...

... Adam Liptak of the New York Times: "The Supreme Court on Monday starts three days of hearings on the constitutionality of the 2010 health care overhaul law, an epic clash that could recast the very structure of American government. But it begins with a 90-minute argument on what a lawyer in the case has called 'the most boring jurisdictional stuff one can imagine.'" ...

... Supreme Court: "The audio recordings and transcripts of the March 26-28 morning sessions should be available no later than 2 p.m. The recording and transcript of the March 28 afternoon session should be available no later than 4 p.m. Anyone interested in the proceedings will be able to access the recordings and transcripts directly through links on the homepage of the Court's Website. The homepage currently provides links to the orders, briefs, and other information about the cases. The Court's Website address is www.supremecourt.gov." ...

... ** UPDATE: Here's the audio of today's arguments. Here's a pdf of the official transcript.

Paul Krugman fingers the right-wing funded ALEC -- the American Legislative Exchange Council -- as the author of the Florida (and other states) Stand Your Ground law. "... we seem to be turning into a country where crony capitalism doesn’t just waste taxpayer money but warps criminal justice, in which growing incarceration reflects not the need to protect law-abiding citizens but the profits corporations can reap from a larger prison population." Read the whole column. ...

... Brian Stelter of the New York Times: "... it took several weeks before the rest of the country found out" about the Trayvon Martin case. Stelter traces the evolution of the story & makes the case that newsrooms should diversify. ...

... Charles Blow interviews Trayvon Martin's mother, Sybrina Fulton. And adds, "To believe Zimmerman’s scenario, you have to believe that Trayvon, an unarmed boy, a boy so thin that people called him Slimm, a boy whose mother said that he had not had a fight since he was a preschooler, chose that night and that man to attack. You have to believe that Trayvon chose to attack a man who outweighed him by 100 pounds and who, according to the Sanford police, was wearing his gun in a holster. You have to believe that Trayvon chose to attack even though he was less than a hundred yards from the safety of the home where he was staying."

"To the Oklahoma Lawmakers" by Lauren Zuniga:

     ... Thanks to Haley S. for the link. Zuniga's poem -- and her performance of it -- provide a wonderful example of an artist taking on politicians to great effect.

Ben Protess & Azam Ahmed of the New York Times: Whether or not Jon Corzine actually knew he was covering a $175 million check with customer money -- something he testified before Congress that he did not know -- turns out to be a little complicated. CW: I would think that when you're playing with a couple hundred millions dollars, you'd sort of try to make sure you knew whose money it was. Evidently not. See also March 24 Commentariat.

Aziza Ahmed of the Guardian warns that Nicholas Kristof's well-meaning anti-sex-trafficking crusade may have unintended negative consequences.

Right Wing World

Elizabeth Kolbert of the New Yorker: "Like almost anything that the Republican candidates can manage to agree on, the Obama Administration gas-price-hike conspiracy theory is nearly a hundred-per-cent hokum."

John Cassidy of the New Yorker: "The Romney campaign consists of a weak candidate and a back-room staff that would have difficulty contesting a city-council election."

Romney Violates the Hatch Act. New York Times Editors: "Since 1940, it has been illegal for federal government contractors to contribute to federal political campaigns or parties. But in the new unregulated, unlimited jungle of campaign finance, Mitt Romney’s super PAC is allowing some contractors to violate that historic ban, taking yet another dangerous step toward a culture where government business is done on a pay-to-play basis." CW: if you can believe it, Romney is more corrupt that Karl Rove & Newt Gingrich! Here's the Los Angeles Times story on which the editorial is based.

ABC News: "Rick Santorum reportedly grew heated and accused a New York Times reporter of distorting a statement he made in an earlier speech, even yelling 'It's bulls-t' to him. Jeff Zeleny of the New York Times tweeted, 'I ask Santorum if Romney is 'worst Republican' to run. He says: 'Quit Distorting my words It's bulls-t.' He says he was talking health care'"

News Ledes

Orlando Sentinel: "With a single punch, Trayvon Martin decked the Neighborhood Watch volunteer who eventually shot and killed the unarmed 17-year-old, then Trayvon climbed on top of George Zimmerman and slammed his head into the sidewalk, leaving him bloody and battered, law-enforcement authorities told the Orlando Sentinel. That is the account Zimmerman gave police, and much of it has been corroborated by witnesses, authorities say. There have been no reports that a witness saw the initial punch Zimmerman told police about." ABC News story here.

Washington Post: "The Supreme Court began its constitutional review of the health-care overhaul law Monday with a fundamental question: Is the court barred from making such a decision at this time?" ...

... The New York Times' "The Lede" is providing live updates of the proceedings. ...

... New York Times Update: "The Supreme Court on Monday began three days of epic arguments over the 2010 health care overhaul law with a sort of appetizer — a 90-minute debate over whether the Court yet has the authority to hear the case."

New York Times: "President Obama took North Korea’s untested new leader, Kim Jong-un, to task on Monday, demanding that China curb his recent behavior and declaring that South Korea’s success will inevitably triumph over the failure and isolation of the North."

New York Times: "Ben S. Bernanke said Monday that recent declines in unemployment were likely to continue only if the economy grew more quickly."

Washington Post: "In their joint statement to reporters here, President Obama and Russian President Dmitri Medvedev spoke carefully about continuing discussions on the sensitive issues of European missile defense. But in an unscripted moment picked up by camera crews, the American president was more blunt: Let me get reelected first, he said, then I'll have a better chance of making something happen."

New York Times: "Turkey and the United States plan to provide 'nonlethal' assistance, like communications equipment and medical supplies, directly to opposition groups inside Syria, and will urge other allies to do so as well, the White House deputy national security adviser said on Sunday, after President Obama met with the prime minister of Turkey at a nuclear security conference in Seoul, South Korea."

ABC News: "President Obama paused during his speech to local college students in South Korea Monday to directly address the North Korean leaders across the DMZ, urging new dictator Kim Jong-un and his regime to pursue a different path."

New York Times: "One of the 17 murder counts that the United States military filed against Staff Sgt. Robert Bales is for the death of the unborn baby of one of his victims, a senior Afghan police official said on Monday." ...

     ... Story has been updated. Here's the new lede: "The mystery over the identity of the 17th Afghan victim in the murder case against Staff. Sgt. Robert Bales grew murkier on Monday, after an Afghan police official initially asserted that a pregnant woman’s fetus was also among the dead, only to retract the statement a few hours later."