Apr 02 2012

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Dems Go “Scorched Earth” on SCOTUS & Obamacare

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He Got it Right in the Concession

Twelve years ago, at the close of one of the most contentious political contests in the last half century, a Democratic leader ended the fight with these words:

Neither [of us] anticipated this long and difficult road. Certainly neither of us wanted it to happen. Yet it came, and now it has ended, resolved, as it must be resolved, through the honored institutions of our democracy.”

That was Vice President Al Gore, conceding the 2000 election to Governor George W. Bush on December 13. 2000, after a series of Supreme Court rulings confirmed Bush as the winner in Florida, and thus the winner the election, and President-elect.

Gore went on to say, “…while I strongly disagree with the court’s decision, I accept it.”

It was easily one of Gore’s finest speeches, and it deserves a place among the defining public addresses in American history, as it blended strong affirmation of our system, principles and values, with a theme of authentic national reconciliation, under the most difficult and sensitive circumstances.

“Not under man, but under God & Law,” Gore quoted, as he asked the nation to move beyond disappointment for the sake of country.

Well, so much for that.

Writing in the Washington Post on Sunday, Democratic political consultant Mark Penn laid out a remarkable – and frightening – course of action for Democrats in the event that the Supreme Court overturns the Affordable Care Act, better known as Obamacare.

One of the two alternatives Penn laid out?

“Launch the political equivalent of a drone strike on the Supreme Court and use the ruling to energize his [President Obama’s] base.”

Penn goes on to say, “Already, the talking points for a war on the high court are being put in place by organizations such as the Center for American Progress. The story line is simple and potentially effective: From Bush v. Gore in 2000 to the Citizens United decision in 2010, to the possible Obamacare ruling, the Supreme Court puts politics above the people in the name of the Constitution.”

Reciting progressive gospel that the enumerated powers of the Constitution are anachronistic, Penn states, “The Obama campaign could paint the court as out of step with the modern world…Obama, like President Franklin Roosevelt in 1936, could bring enormous pressure to bear on the court and use a decision again the health-care law as a rallying cry for change.”

Penn then goes on to helpfully suggest  that SCOTUS terms be limited to ten years and staggered across presidencies – a updated version of Roosevelt’s failed and toxic court packing scheme.

What exactly is going on here?

From the reassuring decorum of the Gore concession, Democrats are today positioning themselves to tar and feather the Supreme Court in an elaborate extortion scheme that would make the Party bosses in Chicago smile with pride.

Suddenly, if Democrats don’t get their way from the Court on Obamacare, the Court itself will be the target of a divisive, partisan smear.

This is hair-raising.

Consider a bit of context.

In the two most significant national security cases decided by SCOTUS in the last decade – Rasul v. Bush and Hamden v. Rumsfeld – the Supreme’s ruled against against Bush administration terror detention policies and military tribunals.

Though the decisions has wide ranging impacts on the War on Terror, and were thoroughly contested by Administration officials, the Bush folks never targeted the Supremes as a result of the verdicts.

They voiced their objections and then went about enforcing the Supreme Court decisions.

As the Chief Executive of the United States, that is what the President – every president –  is supposed to do.

But now it seems that undermining the authority Court, and in the process our system of separation of powers, has become a operational political strategy for Obamacare supporters, regardless of the consequences.

President Obama himself seemed supportive of this kind of strategy when he used a ceremonial speech before a joint session of Congress to call out SCOTUS on the Citizens United decision; an undeniable breach of protocol, carried out in excessively bad taste.

Worse, Obama sycophants in the media are already in action.

EJ Dionne has been on a tear, setting up a narrative to caricature the Supreme’s as some sort of uber-conservative Star Chamber pursuing legal malfeasance through a transparently political agenda in the name of the Constitution, should the Court rule against Obamacare.

The argument and the toxic rhetoric do a disservice to the Court and to the country, and are beneath the dignity of a major US political party, with a proud heritage.

If you don’t like the Court’s decision, vote for a president who will appoint Justices to your view. That is how it has been done from the beginning.

Indeed, it is worth noting that the next president may have up to three vacancies to fill, and this time, not just aged liberal Justices whose replacement has not effected the Court’s balance in the past decade.

Which begs the question of how each side sees this debate fundamentally.

While the Democrats are busy preparing for “jihad” against the Court to destroy its standing, it is an interesting corollary for Republicans and conservatives, that should the Court rule against Obamacare, how very near a thing it really was.

Given the manifold implications of Obamacare as “gateway” legislation that will permanently alter the relationship between individuals and government; that will potentially serve as a defining precedent, rendering the Commerce Clause and the Necessary and Proper Clause, as well as 10th amendment and even the original construction of federalism unrecognizable, the SCOTUS decision comes down to a single Justice, Anthony Kennedy.

Kennedy, who has been the “swing-vote” on the Court for years, literally holds the precedents of our governing traditions in his hands, as he weighs his final position on Obamacare.

Far from Dionne’s fanciful construction of a fortified SCOTUS redoubt brimming with conservative extremism, it is, in fact, by the barest of threads that our current system of enumerated powers are being kept intact.

With so much at stake, it is instructive that win or lose, conservatives plan no mass protest or frontal assault on the legitimacy of the Supremes because of Obamacare.

The GOP is committed to a legislative solution, regardless of what the Court does.

If the Court strikes Obamacare down, it only makes the GOP task that much easier. If it is upheld, the next Congress, and potentially the next president, will go about repeal and replace.

This is a reflection of popular sovereignty, and is a far better substitute to the extortion planned by Democrats, which might serve short term political goals, but will do long term damage to the country.

It is something that Al Gore understood a decade ago.

Shame on Democrats for their craven and feckless plan.




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