NRO Newsletters . . . Morning Jolt . . . with Jim Geraghty
March 28, 2012
|
Here's your Wednesday Morning Jolt!
Enjoy.
Jim |
| 1. Obamacare Had a Bad Day, Court's Taking One Down, You Sing a Sad Song Just to Turn It Around
Behold the glory of low expectations. Most Obamacare opponents thought that they had a pretty strong argument before the Supreme Court and that they might nudge likely swing vote Justice Anthony Kennedy in their direction a bit at Tuesday's oral arguments.
By the end of the day, however, the perception was that at the very least, the individual mandate was starting to see the Supreme Court as, well, a death panel, I suppose you could say.
One of the first signals of Tuesday's courtroom proceedings came from Tom Goldstein at SCOTUSBlog, just before noon: Based on the questions posed to Paul Clement, the lead attorney for the state challengers to the individual mandate, it appears that the mandate is in trouble. It is not clear whether it will be struck down, but the questions that the conservative Justices posed to Clement were not nearly as pressing as the ones they asked to Solicitor General Verrilli. On top of that, Clement delivered a superb presentation in response to the more liberal Justices' questions. Perhaps the most interesting point to emerge so far is that Justice Kennedy's questions suggest that he believes that the mandate has profound implications for individual liberty: he asked multiple times whether the mandate fundamentally changes the relationship between the government and individuals, so that it must surpass a special burden. At this point, the best hope for a fifth or sixth vote may be from the Chief Justice or Justice Alito, who asked hard questions to the government, but did not appear to be dismissive of the statute's constitutionality. Then CNN legal analyst Jeffrey Toobin went on the air and dropped a rhetorical bomb: CNN's legal correspondent Jeffrey Toobin reports that the court's conservative wing appeared skeptical of the Obama administration's arguments in favor of the individual mandate provision of the Affordable Care Act.
"This was a train wreck for the Obama administration. This law looks like it's going to be struck down," Toobin said on CNN. "All of the predictions including mine that the justices would not have a problem with this law were wrong."
"The only conservative justice who looked like he might uphold the law was Chief Justice Roberts who asked hard questions of both sides, all four liberal justices tried as hard as they could to make the arguments in favor of the law, but they were -- they did not meet with their success with their colleagues," Toobin said. How much did Toobin's dramatic assessment change the conventional wisdom in Washington? Well, for starters, Senate Majority Leader Harry Reid felt the need to denounce him. Reid reacted to CNN legal analyst Jeffrey Toobin's remark that the healthcare law "looks like it's going to be struck down" because of the tenor of the morning's hearing.
"I've been in court a lot more than Jeffrey Toobin and I had arguments, federal, circuit, Supreme Court and hundreds of times before trial courts," Reid said. "And the questions you get from the judges doesn't mean that's what's going to wind up with the opinion." As we all know, a justice's questions don't necessarily indicate how he'll vote on the final decision. But there are a couple of points in Toobin's favor: For starters, Toobin appears to like Obamacare and so this is an admission against his interest. Heck, he even declared that his previous assessment had been wrong. (This is Washington. Nobody ever admits that he's wrong!)
Second, I'm not so sure that Reid really has spent more time in a courtroom than Toobin. One would think that Senate work would preclude Reid from having much time for a private law practice, so Reid's working life probably hasn't focused primarily on work as a lawyer since, oh, at least 1986. Oh, wait, Reid served two terms in the House before that. Oh, wait, he was lieutenant governor from 1971 to 1974.
Third, analyzing the Supreme Court and legal matters is Toobin's primary job, and so he's putting a lot of his reputation on the line for offering such a resounding assessment. He's been watching the Supreme Court for a lot of years, and for whatever beef we might have with Toobin's ideology or legal philosophy, it's not as if he's an amateur when it comes to analyzing how the justices think and what arguments are likely to sway them.
Fourth, you could simply not find an analyst who was in the room and thought the solicitor general did a good job. This was the aspect that was so amazing. Don Verrilli might be a really good lawyer, and in fact, he had to be to rise to the level he has in his profession. It's probably not fair, but he's just become the Scott Norwood of Supreme Court arguments.
Fifth, for a guy who was on JournoList to tell liberals something they don't want to hear, well, it must be pretty stark, I'd suspect.
Shortly after the Toobin report, you started seeing headlines such as, "People Are Saying That Obama's Healthcare Law Got Massacred at the Supreme Court Today."
You do not often see the word "massacre" in headlines about oral arguments before the Supremes.
At Hot Air, Allahpundit warns us to not count our chickens before they hatch: If Kennedy can be persuaded that health care is sui generis, maybe he'll split the baby by voting to uphold ObamaCare while emphasizing that a mandate for any other industry would be flatly unconstitutional. Not sure how that argument will work -- listen to Roberts in the second clip below wonder why a cell-phone mandate would be any different than one for health insurance -- but that's the left's best hope. Speaking of which, their explanation for today's disaster appears to be not that they have a weak case on the merits but that Donald Verrilli's performance was the legal equivalent of fumbling 10 times in the Super Bowl. In fairness to them, some of his exchanges with the Court are painful to read; the liberals on the bench had to bail him out repeatedly. But look: No case of this magnitude is being decided by oral arguments. If you think Breyer and Kagan and Sotomayor and Ginsburg were aggressive in arguing his case for him today, wait until they start going to work on Kennedy behind closed doors. Obama has four very good lawyers on his side in the Supreme Court's chambers. Verrilli's performance is unfortunate and terrible optics for O-Care's superfans, but it's not changing any votes. Here's the full transcript of today's argument and complete audio. If you have the time, dive in.
Orin Kerr notes the $1 million phrase in Kennedy's comments yesterday: "Heavy burden of justification." He didn't suggest that mandates are always and everywhere unconstitutional, only that in order to justify using one the feds need to point to some very special and compelling circumstance. The whole question now is whether the allegedly "unique" health-care market is special and compelling enough to get Kennedy to vote with the Left. |
2. Obama: Pay No Attention to My Comments to Medvedev, ComradeHere comes the excuse for the "flexibility" comment: "The only way I get this stuff done is If I'm consulting with the Pentagon, with Congress, if I've got bipartisan support and frankly, the current environment is not conducive to those kinds of thoughtful consultations," Obama told reporters following a meeting with the presidents of Russia and Kazakhstan. "I think the stories you guys have been writing over the last 24 hours is pretty good evidence of that."
After meeting with Russian President Dmitry Medvedev on Monday, Obama was caught asking the departing Russian leader to convey a message to incoming Russian President Vladimir Putin: "On all these issues, particularly on missile defense, this, this can be solved but it's important for him to give me space," he said.
On Tuesday, Obama said his comments, though not intended for public consumption, were "not a matter of hiding the ball -- I'm on record" about wanting to reduce nuclear weapons stockpiles. Though he spoke bluntly to Medvedev, Obama insisted that the thrust of his remarks was in line with what he said in his Monday speech at Hankuk University of Foreign Studies and in other public statements. Hugh Hewitt thinks we've had a revealing moment -- and one unthinkable with other presidents: Only the slobbering Obamians within the MSM don't seem to understand an enormous moment when it happens, so busy are they with their Etch-a-Sketch comments by a staffer and their zombie narrative about the GOP convention being brokered or some other nonsense.
How to explain to them? Analogies might work if any of them have basic history down.
Imagine Ike telling Molotov in '55 that he was facing his last election next year and that he needed some space, and the Soviet foreign secretary assuring him he'd transmit the information to Uncle Joe.
Or JFK saying the same thing to Gromyko, he agreed to pass it on to Khrushchev.
Or Nixon saying to Zhou forty years ago during his trip to China "This is my last election. After my election I have more flexibility." And Zhou replying, "I will transmit this to Chairman Mao."
Russia is our adversary, and on nearly every issue they are working to destroy our position in our world and subjugate former allies. They are arming Iran, have invaded Georgia, and are blackmailing Europe. What doesn't the president understand about Russia? Apparently everything. "I guess if we want to know what Obama's plans are for America, we should ask Putin," quips Elisha. |
3. Maddening Men The Jolt is running long, so this pop-culture topic will get a shorter assessment than it deserves.
I find myself quite divided on the Mad Men phenomenon. On paper, this is a show I should like. It's out of the ordinary, with a keen eye for detail about history and some extremely talented actors and actresses. Yet I find it only intermittently engrossing. It feels as if nothing ever happens in the episodes I watch (I've caught a few each season).
Let me put it this way: I heard that some fans threw parties for this Sunday's premiere, dressing in early-1960s fashions and drinking heavily. The party sounds a lot more fun than actually watching a show. Maybe they've created a show where you want to be the characters so badly that it distracts you from how little you enjoy actually watching them.
Is it that Twitter has eroded my attention span to the point where I can't appreciate deliberate, leisurely pacing? Or is this show all surface, mood, atmosphere, and no story?
The Washington Post's television columnist appears to be tiring of the hype: While the public regarded "Mad Men" as but one of many entertainment choices Sunday night -- "Desperate Housewives," for instance, attracted 8.7 million viewers, and "The Good Wife" drew 9.3 million -- the media's hyperventilation over "Mad Men's" return goes down as one of the most convincing demonstrations of mass hysteria since "The War of the Worlds," the 1930s Orson Welles radio broadcast that sent much of the nation into a panic.
In the days leading up to, and in the immediate aftermath of, the series's return, The Washington Post contributed:
● A report on: What if "Mad Men" took place in 2012?
● A photo gallery on: Who are today's "Mad Men"?
● A preparatory guide to the "Mad Men" season debut
● A review of the "Mad Men" season debut
● A recap of the "Mad Men" season debut
And on, and on -- 22 separate pieces and counting at press time, including this ratings column.
But The Post did not stand alone in this orgy of excess. One Reporter Who Covers Television (who apparently has a sense of shame), the L.A. Times' Joe Flint, tweeted Monday when the numbers came in: "'Mad Men' draws 3.5million viewers. I didn't know NYT's staff was that big." |
4. Addendum
Jake Tapper: "I will transmit this information to Vladimir. And by 'information,' I mean bourbon, and by Vladimir, I mean 'my gullet.'" |
| | | | Save 75% . . . Subscribe to National Review magazine today and get 75% off the regular subscription rate. Click here for details. Check out all of NRO's free newsletters: Morning Jolt, The Goldberg File, NRO Digest, and NROriginals. Click here for details. 
|
| - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Join the Morning Jolt Mailing List - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - | | | | |
Comments
Post a Comment