Wednesday, February 24, 2016

Escalation

As of yesterday we have heard the final word from Mitch McConnell and his fellow Republican senators, particularly those on the Judiciary Committee that would be responsible for vetting and forwarding any Supreme Court nominee for confirmation: President Obama can nominate a candidate to fill the court's vacancy if he wants, but the Senate will not hold hearings, will not consider any nominee, and there will be no votes. Republican committee members have pledged this position in a signed letter, at the behest of majority leader McConnell. Republican senators, indeed, will not extend the usual courtesy of even meeting individually with the president's nominee, should there be one.

McConnell acknowledged that President Obama has "every right to nominate someone," but also that the president "has the right to make a different choice. He can let the people decide and make this an actual legacy-building moment rather than just another campaign roadshow."

And there it is: If Obama moves forward to fulfill his constitutional obligation, the move should be construed as a "campaign roadshow." Somehow in McConnell's mind Obama would burnish his legacy by knuckling under to this latest and most extreme Republican obstructionism.

At the risk of seeming Trumpesquely crude, allow me to recount an anecdote from Obama's first term, when the pattern was developing that Republicans were bent on obstructing, by crippling the functioning of the Senate, everything the president attempted to accomplish. A friend told me that one thing, at least, was clear: Mitch McConnell should be strung up by his nuts.

Indeed, McConnell has been the masterful architect of Senate dysfunction lasting many years. His deliberate gumming up of the works has brought the institution almost to a halt. Recent Congresses have been the least productive in modern history. This is not your father's Republican party.

McConnell has asserted that, were the shoe on the other foot, Democrats would behave the same. Except there's no evidence for anything of the sort. There is no symmetry between the parties; no precedent for claiming Democrats are so thoroughly and systematically hostile to good governance in the manner of present day Republicans.

Where does it end? Chris Hayes has referred to the present situation as a one-way ratchet. Mitch McConnell is leading us into a new era of ever greater governmental dysfunction, the likes of which we've not seen since the Civil War. With bipartisan governance slayed and buried, it seems the only way to achieve any national progress is to control both Congress and the presidency. Gone is the possibility of big achievements like moonshots and interstate highways. Nothing substantial or politically difficult is now possible. Strong unified action on climate change? Forget it.

One sometimes hears that there are a few moderate Republican senators who have their doubts about stonewalling the nomination and confirmation process. But what does "moderate" even mean, beyond a little private and mostly subdued fretting about the current course? McConnell's obstruction has been going on for almost the entire Obama presidency, with nary a public whimper of any note from any Republican senator.

If there are actually any Republican moderates remaining in the Senate, now is the time to hear forcefully from them. If there's any integrity left, let's see it.

How about this: Is it possible that being a Republican no longer means what it used to? That it's time to say enough of destructive polarization? Do you, dear Senator, feel perpetually dirty, in need of a cleansing shower? Perhaps a party defection or two, a la Specter, could get the ball rolling for a Democratic takeover of the Senate in the coming elections. What better way to say you're sick and tired of the direction our government has been going, driven by a party you no longer recognize? How about it, Susan Collins? Or are you, in the end, just like all the rest, except with a little discrete hand wringing to assuage your conscience?

Dumb question.

 Copyright (C) 2016 James Michael Brennan, All Rights Reserved

Tuesday, February 16, 2016

Illegitimate Obama

President Obama has always carried the burden of implicit illegitimacy in the eyes of many Republicans. The conviction that he was not born in the United States, or is a closet Muslim, or has somehow risen without merit (with unwarranted academic credentials, for example) beyond his rightful place, has nagged the president since before the election in 2008. This, despite the fact that the evidence of his birth in Hawaii is unambiguous and unassailable, and always has been. We may as well add the place of Obama's birth to the right's mindless litany of denial, along with denials of matters of scientific certitude such as evolution and climate change. At least the right is consistent in its fact-denying obtusity.

I'm sorry to say that we must whack this dead horse one more time, so please bear with me. Obama's "first" birth certificate was placed in the public domain many months before the 2008 election, long before he became president. A copy was provided to the nonpartisan Annenberg Public Policy Center at the University of Pennsylvania, which placed high resolution photos of it on the web. Annenberg examined it for signs of authenticity, such as a raised seal. FactCheck.org, a project of the Annenberg Center, said that its staffers "have now seen, touched, examined and photographed the original birth certificate. We conclude that it meets all of the requirements from the State Department for proving U.S. citizenship." Okay? Oh, no.

In the fall of 2008, FactCheck.org reported that Hawaii's Department of Health confirmed that Obama was born in Honolulu. Top officials in Hawaii's health department, including director Chiyome Fukino and the registrar of vital statistics, Alvin Onaka, stated that they personally verified the existence of the original documents. Now okay?

That should have been the end of it, but of course it wasn't, just as no amount of scientific evidence or consensus will convince climate change deniers. In 2011 the White House released the president's "long form" birth certificate. A public spectacle was made, intentionally, with advance media notice, of the president's personal attorney, Judith Corley, traveling to Hawaii to retrieve the certificate: all designed to ensure real time public awareness and scrutiny. Even Corley's correspondence with Hawaii's Director of Health was made public. Okay? Okay?

Yes, this gets wearying, but hang on. As has been stated from the beginning, the announcement of little Barack's birth was reported in Honolulu's two newspapers at the time, back in 1961. You can go back to the newspaper archives and see for yourself. By the way, newspaper birth announcements are reported by the hospital where the birth occurs, not by the family.

And hey, we even have a witness. In his comprehensive Obama biography author David Maraniss writes of contemporaneous correspondence referring to Obama's birth. In casual conversation the week of Obama's birth in 1961, obstetrician Dr. Rodney T. West remarked, during lunch with Honolulu Star-Bulletin journalist Barbara Czurles, that "Stanley had a baby! Now that's something to write home about."

"Stanley," you see, was the unusual name of Obama's mother, who was white; little Barack was black. The name and story was odd enough that Czurles mentioned it in a letter back home to her father, who worked at the state university in Buffalo, and who was also named Stanley. Thus the amusing story of Obama's birth became part of Czurles family lore decades before anybody knew the guy would someday be president. Maraniss writes that " 'Stanley had a baby' is the sort of anecdote that flits brightly around nursing stations and down hospital cafeteria waiting lines." (p 166) As sometimes happens, what would otherwise have been an unremarkable event is thereby recorded in history's testimony: "Stanley's baby" would one day become president of the United States.

The circle comes round. Not only has the "birther" nonsense delegitimized Obama in the eyes of more than a few Americans, but Donald Trump, one of the current candidates for the Republican presidential nomination, was long a prominent proponent of the preposterous "birther" conspiracy, and spent a fair amount of time and effort fanning the flames. In 2011 Trump claimed to have investigators on the ground in Hawaii looking into Obama's birth, and said at the time that "they cannot believe what they're finding." Wow, do tell. But Trump has never did tell us what amazing things his "people" found, and when now asked about Obama's birth just says he's no longer talking about it. Even despite all those "amazing" things? When in an interview during the current campaign a journalist opined that Obama was clearly born in the U.S., Trump brushed it off with: "You can believe that if you want." Shouldn't we demand more than that?

By the way, it's a delicious irony that nobody denies that Ted Cruz, another Republican and base favorite campaigning for the presidency, was born in Canada. Cruz claims that because his mother was a U.S. citizen he meets the "natural born" citizen qualification to be president, but many constitutional scholars say the matter is not so clear. In any case, we can be sure that Cruz, at least, accepts Obama's right to be president, because Obama's mother was also a U.S. citizen. She was born in Wichita, Kansas.

Conspiracy theories die slowly. As recently as September of last year, a poll found that 20% of Americans still believe Obama was born outside the U.S. 43% of Republicans believe Obama is a Muslim, something for which there is not a shred of evidence, and which is contradicted by Obama claiming to be and conducting himself as a Christian for decades. Thus has Barack Obama been systematically delegitimized in a long running Orwellian made-up reality, a narrative that more readily allows him to be marginalized politically—quite a tidy feat for conveniently dismissing an elected president.

So Obama was tagged as variously illegitimate from before the 2008 election, and fought that perception through most of his presidency. There's an intangible element to that illegitimacy that goes beyond just the birther stuff. Undoubtedly some meaningful fraction of the citizenry recoils at the notion of a black president on any terms, all the more so if they can tag him as a Kenyan Muslim impostor. Obama, whatever he is, is not one of us. And so, it is said from time to time, Obama doesn't love America. How could he?

Moreover, much of the Republican political establishment has always viewed Obama as illegitimate for the simple reason that they cannot abide a Democrat in the White House, and whenever one gets elected they operate in perpetual political extremity, with impeachments, government shutdowns, debt default threats, and various other miscellany. Particularly in this era of intense polarization, Republicans have demonstrated consistently that they cannot govern during times when they're not in complete control. They just don't know how to meaningfully share power.

All these factors were the perfect storm that culminated in the Obama presidency. It's little remarked but true: Republicans conspired to block the new president from the moment of his inauguration, even at a particularly dangerous time for the country. From PBS's FRONTLINE:

On the night of Barack Obama’s inauguration, a group of top GOP luminaries quietly gathered in a Washington steakhouse to lick their wounds and ultimately create the outline of a plan for how to deal with the incoming administration.

"The room was filled. It was a who’s who of ranking members who had at one point been committee chairmen, or in the majority, who now wondered out loud whether they were in the permanent minority," Frank Luntz, who organized the event, told FRONTLINE.

Among them were Senate power brokers Jim DeMint, Jon Kyl and Tom Coburn, and conservative congressmen Eric Cantor, Kevin McCarthy and Paul Ryan. After three hours of strategizing, they decided they needed to fight Obama on everything. The new president had no idea what the Republicans were planning.

The era of Republican obstructionism had begun, even before the final echos of Obama's oath of office went silent. This despite the fact that the country was in the midst of a financial meltdown of frightful proportions, with a possible disintegration of the nation's economy unfolding before the country's eyes: a time when governing unity, not political war waging, should have been the prevailing concern.

But it was not to be. Exactly three Republicans out of 217 in the entire Congress voted for the President's stimulus bill at the very beginning of the new administration, at a time when the need was great and goodwill should have been abundant. This at a time when the economy was shedding more than three quarters of a million jobs per month, with devastation everywhere you looked. We should never forget the extent of the bloodletting, nor the extent of the Republican recalcitrance, even in that remarkable and frightful time.

Only three Republican votes! In the midst of a financial and economic meltdown! Lest you think the Obama stimulus was just some ill advised liberal concoction, you should know that economists have long and overwhelmingly found that it was appropriate and helpful. In November 2009 Mark Zandi, chief economist of Moody's Analytics, and past adviser to John McCain, said "the stimulus is doing what it was supposed to do—it is contributing to ending the recession." But by then, nine months into the new administration, the political sniping had long been underway. An early and frequent refrain from John Boehner was: "Mr. President, where are the jobs?"

Here's where. The nonpartisan Congressional Budget Office has consistently said that the stimulus was effective, increasing "the number of people employed by between 1.4 million and 3.3 million." Of course, the stimulus was not nearly large enough to erase the entire job deficit cause by the deep recession (fourteen months old when Obama took office) and ensuing depression, but nobody ever claimed that it would. From a political perspective it's hard to imagine the stimulus being much bigger, even if the full extent of the devastation in the economy had been known. And even so, Obama made too many important concessions to win the three meager Republican votes he ultimately got.
 
Perhaps most telling, a panel of top economists polled by the Booth School at the University of Chicago—perhaps the country's most esteemed (though MIT will object), famous, and conservative economics department—subsequently found, twice, that the Obama stimulus was a good idea.

So: The Obama stimulus was signed into to law February 17, 2009, less than one month after Obama took office, with almost zero Republican support, despite the great need and immense economic turmoil. It sure looks for all the world that Republicans really had decided, from the very beginning, to not cooperate with anything the president attempted. And within a couple of months Republicans would be beating the president about the head and shoulders with the economic disaster they had handed him.

But that was just the beginning. A year later not a single Republican in the Congress voted for the president's health care plan. Not one!

Not only did no Republican vote for Obamacare, but Republicans were and are furious that the law passed on party line votes (as if that somehow delegitimizes the law) in the House and Senate, at a time when Democrats had control of both houses. But Republicans have it backward: the real outrage was that it should have required a party line vote in the first place: that a solid wall of Republican opposition was intent on utterly blocking every Obama initiative.

Republicans had no reason to cry foul. That Obama intended to reform healthcare was no secret, and he had a strong electoral mandate to do so. Health reform was one of the top issues of the 2008 election, and Obama and Hillary Clinton debated it furiously during their protracted nomination battle. The voters knew what they were getting. Republicans claimed they were locked out of the health reform legislation proceedings, but it's more correct to say they were unwilling partners, and as we have seen that fits the pattern that was already unfolding.

Importantly, Republicans were equally represented beside Democrats in the "Gang of Six" of the Senate Finance Committee that took the lead role in drafting the most important parts of the health reform law. The group consisted of Democrats Max Baucus (chairman), Jeff Bingaman, and Kent Conrad, and Republicans Mike Enzi, Chuck Grassley, and Olymia Snowe. For his part, Grassley showed his bad faith by campaigning back home in Iowa that he was going to torpedo the law even as he was ostensibly helping to draft it. Grassley is famous for proffering the "pulling the plug on Grandma" snipe.

Scorched earth opposition is just how things have been during the Obama administration, by any measure. Anything Obama is for is automatically opposed by Republicans, regardless of their previous positions. The pattern has played out repeatedly. For example, Chuck Grassley was a proponent of the individual mandate before it became part of Obamacare, at which point he discovered that he was against it on constitutional grounds—despite the fact that the mandate's constitutional legitimacy was specifically affirmed by the Supreme Court! Same for other Republicans, including some big names outside of government such as the ever-shifting Newt Gingrich. Truth be told, all of Obamacare's major provisions are Republican ideas, but Obama being for a thing is all that's needed to turn Republicans against it.

During Obama's tumultuous first term, Senate Minority Leader Mitch McConnell famously said his number one priority was to make "President Obama to be a one-term president." Granted that comment was plausibly stated in the context of electioneering, but it was consistent with Republican scorched earth obstructionism from the first moments of the Obama presidency, and also evinced a dearth of vision for anything promoting the national good that he might instead have articulated.

Indeed, McConnell, from his position in the minority, engineered a strategy of blocking or slowing Senate business, almost without exception, by relentless use of Senate rules such as the filibuster. Such systematic obstruction in the Senate is unprecedented in modern times. The only reason Democrats were able to pass big legislation in the first half of Obama's first term was because they had, until Ted Kennedy's death, a filibuster-proof majority of 60 votes in the Senate. Were it not for that, there would be nothing noteworthy to show for Obama's eight years. The McConnell-led obstruction is the principal reason that Congresses beginning in 2011 and 2013 were the least productive in modern history. (McConnell amazingly thought that Republican control of the Senate starting in 2015, when he, McConnell, became majority leader, would usher in a new era of cooperation, despite his years long filibuster blitz while in the minority.)

Contrast Republican obstruction during the Obama presidency with Democrats' cooperation during the Bush presidency. There were some major Bush initiatives where Democrats could have dug in their heels, ostensibly on principle, were they so inclined. They might even have said that Bush had no mandate, since he lost the popular vote by half a million, and was appointed by the Supreme Court.

But Democrats, by inclination, govern cooperatively. For example, Democrats voted in favor of the Bush tax cuts that largely benefited the rich, for the ill advised invasion of Iraq, and for the Medicare prescription drug program. The latter program was of course supported by Democrats, but they were unhappy that the plan was not paid for, and that the law, incredibly, prohibited the government from negotiating with pharmaceutical companies for lower drug prices. And how about Democrats, implored by the Bush administration and Bush's Treasury Secretary, Hank Paulson, crucially supporting, in the fall of 2008, the publicly-reviled Troubled Asset Relief Program (TARP) that ended up bailing out the big banks? Democrats carried the Bush administration's water on that vote, perhaps because they understand their responsibility to govern, and all the more so in difficult times.

During the Obama presidency Republicans have not merely been an unreliable governing partner; they been openly hostile to the very notion of cooperative governing. Little wonder that the president looks to promote his governing agenda through whatever legal actions taken solely by the executive are available to him, even though such "executive action," particularly by a president they deem sub-legitimate, further infuriates Republicans.

It must be said that the president's executive actions on immigration are not just consistent with actions by past presidents, but also that they were taken as a final resort after years of haranguing the Congress to act. Obama has always acknowledged that executive action was not optimal, and that by his lights the preferred route to reform was through the legislature. The Senate ultimately did vote in favor of bipartisan immigration reform, but the House under John Boehner refused to even take it (or its own alternative) up, let alone bring it to a vote. It's widely believed the Senate bill would have passed the House with little difficulty had it been brought to the floor.

Which brings us to the present, and the death of Antonin Scalia.

From the first hours of the news of Scalia's death, Republicans, from Mitch McConnell on down, have opined that the Supreme Court vacancy not be filled until Obama has left office—despite there being almost a year remaining in the Obama presidency! That black boy in the White House just don't get no respect. Never has.

Outright Republican obstruction of an Obama nominee—any nominee—seems, even at this early stage, almost a fait accompli. Senate judiciary committee chairman Chuck Grassley might not even hold hearings. Mitch McConnell need not schedule floor debate or a vote. Alternatively, a vote could be held, but with that solid wall of Republican opposition we've come to expect denying any Obama nominee a seat on the court. (Democrats would have to peel off four Republican senators to confirm, which is unlikely. Hey, Republicans could even have a couple of their senators vote for the president's nominee, just to make it look less like a party line vote. Alternatively, if the process moved forward but with a Republican filibuster, Democrats would need an impossible fourteen crossover votes.) Isn't that just remarkable to contemplate?

Why wait to fill the vacancy? McConnell said that voters (through the upcoming election) should have a say in determining the new justice, but that's a decidedly extra-constitutional argument, not least because we already have a president who's charged with the constitutional duty to appoint. To the extent that voters have a "say," they already voiced it when they reelected Obama by a large margin in 2012. That was the relevant choice of who would appoint justices for the next four years. Ted Cruz said that if Democrats want to fill this vacancy, they need to win the upcoming presidential election. Um, no. They won the last one, and that's the election that's currently in effect. Republicans aren't required to like it, but they do have a constitutional obligation to act.

Grassley said that Supreme Court vacancies have not been filled in election years going back 80 years, but in point of fact Justice Anthony Kennedy, currently on the bench, took his seat in an election year, 1988—confirmed overwhemingly by a Democratically controlled Senate. (Also see the postscript below.) So maybe Grassley means nominations have never happened in election years. If true that is surely a historical accident. It certainly seems unacceptable that presidents be disqualified from performing their constitutional obligations for one fourth of their time in office. It's quite enough that nothing much typically happens in the lame duck period after an election, but we're a long ways from that.

So maybe Republicans actually mean just this election year, what with the end of the illegitimate president at least in sight, and the means to hang on until that end apparently available to anybody ruthless enough to exploit them. Republicans might argue that the country is just too deeply divided for things to proceed under normal order, but, as we have seen, those divisions are largely a thing of their own making, and they're only making them worse by impeding the constitutional process.

This is silly. Not just silly, but outrageous. Political scientists Norm Ornstein and Thomas Mann told us four years ago that our political dysfunction is "even worse than it looks," and in this era of obstruction the typically nonpartisan Ornstein and Mann laid the blame squarely at the feet of Republicans. As I have frequently said, Republicans can no longer govern. They continue to prove me correct. Obama has not just a prerogative but a constitutional duty to fill the Supreme Court vacancy. A substantial amount of time remains in his presidency. There is no good reason outside of partisan politics to impede the normal functioning of this process, and partisan politics in not an acceptable reason. The Republican Senate refusing to cooperate would be a fitting but deplorable capstone to eight long years of single-minded obstruction, during which they've demonstrated time and again that this president isn't worth the time of day.


Postscript: In all of U.S. history it has never taken more than 125 days to confirm, reject, or withdraw a Supreme Court nominee. In modern times 2 or 3 months is the norm, sometimes less. As of now there are 339 days remaining in Obama's presidency, but of course he hasn't yet made a nomination. He will soon.

Senator Rob Portman says it is "common practice" to not nominate or confirm justices during the final year of a president's term, but that is just not so. Since 1900 there have been several nominations and confirmations of justices during presidential election years, and in no case has the president ever failed to nominate a replacement when there's a vacancy, nor has the Senate ever failed to consider a presidential nomination. We've seen that Anthony Kennedy, currently sitting, was confirmed in an election year but nominated in the previous year. In 1938 Stanley F. Reed was nominated and confirmed in an election year. Chuck Grassley says it hasn't happened in the last 80 years, and conveniently begins his interval after Reed. But who cares? Presidents always nominate to fill vacancies, without exception. If the nominations don't occur in election years, it's not because of policy, propriety, or custom; it's because there have been no vacancies in those years.

Remarkably, President Eisenhower made three recess appointments to the Supreme Court, one in an election year! One wonders how long Republicans will persist in feigning a gloss of "normalcy" to justify their reprehensible obstruction.

Update Feb 17: Comments by former Senator and Majority Leader George Mitchell [my transcription]:
Well, there's no historical basis for the actions being taken by the Republicans, there's no constitutional basis, there's no legal basis, and there's surely no moral basis, and really the only basis is politics.

And I think it's a very unfortunate intensification of the increased partisanship that has already brought the Senate and the House into such disrepute and disdain in the country. A lot of the anger that's out there on both sides is overtly, openly, directed toward the Congress, and this just makes it more difficult. I think it's very, very unfortunate.

It's kind of an insult to the intelligence of the people to say the American people should decide.They decided; they elected Barack Obama twice, the second time by 5 million votes. And the Constitution prescribes a 4-year term. It isn't a 3-year term, or a 3 1/2 year term or a 2 1/2 year term. And I think given the importance of the Supreme Court in our society, given the delicate balance that exists, everyone should have as their objective filling this seat with the best, most qualified person as soon as possible.


Copyright (C) 2016 James Michael Brennan, All Rights Reserved