Clement v Verrilli

The New Neo Posted on by

So much praise has been heaped on Paul Clement, lawyer for the Obamacare opposition, that it made me wonder about him—just who he was and what he was doing before this particular case came his way.

Clement’s got a lengthy history of lawyering for causes (sometimes unpopular) mostly on the right, especially at the appelate level. And for those of you who stayed home in 2008 rather than vote for John McCain, please note that Clement might be on the Supreme Court right now rather than either Sotomayor or Kagan (pick one) if McCain had won in 2008.

Clement has been a clerk for Justice Scalia, a professor at Georgetown Law School, solicitor general under Bush II, and has “argued more cases before the Supreme Court since 2000 than any other lawyer” (count ’em, 53), including quite a few involving Bush’s war on terrorism.
Is it any wonder Clement did such a bang-up job for the plaintiffs in the HCR case?

Obamacare’s lawyer Donald Verrilli, who’s been widely excoriated for a very sub-par performance, isn’t even close to Clement in the amount of SCOTUS experience he’s had, although his record would be good compared to almost anyone else.

Pundits on the left were not at all pleased with Verrilli’s performance. Here, for example, is Adam Serwer in Mother Jones:

Justice Samuel Alito asked the same question later. “Could you just””before you move on, could you express your limiting principle as succinctly as you possibly can?” Verrilli turned to precedent again. “It’s very much like Wickard in that respect, it’s very much like Raich in that respect,” Verrilli said, pointing to two previous Supreme Court opinions liberals have held up to defend the individual mandate. Where the lawyers challenging the mandate invoked the Federalist Papers and the framers of the Constitution, Verrilli offered jargon and political talking points. If the law is upheld, it will be in spite of Verrilli’s performance, not because of it.

The months leading up to the arguments made it clear that the government would face this obvious question. The law’s defenders knew that they had to find a simple way of answering it so that its argument didn’t leave the federal government with unlimited power. That is, Obamacare defenders would have to explain to the justices why allowing the government to compel individuals to buy insurance did not mean that the government could make individuals buy anything””(say, broccoli or health club memberships, both of which Scalia mentioned). Verrilli was unable to do so concisely, leaving the Democratic appointees on the court to throw him lifelines, all of which a flailing Verrilli failed to grasp.

Note that Serwer does not mention what explanation would have sufficed—maybe because there isn’t one? And if Clement and company quoted the Federalist Papers and the Founding Fathers and the Verrilli et al didn’t, perhaps it was because there is nothing in the Federalist Papers that would have bolstered their case? Whatever the speculation has been on the reason for Verrilli’s extremely subpar performance, maybe—just maybe—a leading cause is that the case for the constitutionality of Obamacare is an especially difficult one to make.

So may people on the left are accustomed to thinking of the law and history as elastic—a penumbra can be found for anything they want to have happen, because their hearts are pure and their intentions are good—that we can hardly blame them for thinking it is Verrilli’s fault that he couldn’t pull a justification out of a Founding Father hat.

As Serwer points out, the liberal justices tried to help Verrilli out with some hints at arguments he might make, such as when Ginsburg said, “I thought what was unique about this is it’s not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don’t buy the product sooner rather than later.” But it’s not exactly the Federalist Papers, is it?

And by the way, I stick to what I said in an earlier post on the hearings: none of this means we know how the Court (that is to say, Justice Kennedy) will ultimately rule. Oral arguments are the tip of a large iceberg on which a Supreme Court decision rests. Most of the justices will find a way to get where they want to go, and it won’t depend on Verrilli’s ability to argue the case or not.

[NOTE: After I wrote this, I saw that Glenn Reynolds of Instapundit has an article in the Washington Examiner that says much what I say about Verrilli’s problems articulating the defense of Obamacare—only Reynolds says it better. Here’s an excerpt, but please read the whole thing:

There are always arguments about the precise scope of delegated powers, and such arguments have regularly come before the Supreme Court. But it is one thing to argue about the precise extent of limits to enumerated power, and it is another thing entirely to deny their existence.

The last time that happened in front of the Supreme Court was in the 1995 case of United States v. Lopez, where Bill Clinton’s Solicitor General Drew S. Days III was caught short by questions from the bench in much the same fashion that Obama’s Verrilli was caught last week. In Lopez, the government wanted to argue that possession of a firearm near a school could be regulated as interstate commerce, because guns in school might lead to violence, which would lead to worse education, which would lead to dumber graduates, which would lead to a less productive national economy, which would mean less interstate commerce.

If that argument were accepted, the justices asked, what possible limit could there be to federal power under the Commerce Clause? Days couldn’t come up with one, and the government lost the case. It was not acceptable, the majority opinion said, to “pile inference upon inference” in order to extend federal power so far beyond its intended limits. “To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.”

But Days’ argument was straightforward compared with the government’s argument in the Obamacare case…]

Romney and women and polls

The New Neo Posted on by

The meme du jour is that women are flocking to Obama, based on a new USA Today/Gallup poll in the swing states showing Romney’s support among women there has dropped precipitously.

Polls at this point are almost ludicrously unimportant, except to show two things: (1) shifting trends of the moment; and (2) how the media and pollsters operate.

I can’t find any link to the actual stats for the poll; just the article on it (if you can provide a link I’d appreciate it). But reading between the lines I note a couple of things. The first is that there’s no breakdown of results swing state by swing state, so we don’t know if the changes mentioned are across the board in all the swing states or a skewed by just a couple. Nor do we know if some states were over- or uner-represented, and if so which ones.

The second is this, and it’s a whopper:

While women typically are more likely to identify themselves as Democrats than men are, that difference widens to a chasm in the USA TODAY poll. By 41%-24%, women call themselves Democrats; men by 27%-25% say they’re Republicans.

So here we have a poll in which, among women, self-professed Democrats outnumber Republicans by 17 points (we can imagine that the other 35% of the women are Independents). In that same poll, Obama is outdoing Romney by 14 points. Hmmm. Sounds like Romney is pulling in some of the Democratic women and at least half of the Independents, and Obama isn’t getting any of the Republican women.

And how does this breakdown of women by party affiliation compare to that of previous USAToday/Gallup polls on the same subject? Darned if I can find the answer, and I’ve tried (maybe you can).

Oh, and one other thing: the article does mention that the number of people questioned in the poll was 933 registered voters, and the number of swing states involved was 12. That works out to approximately 78 people sampled per state, and my guess is that about half of them would be men. So this big female shift is based on a poll that sampled an average of 39 women per state???

All the news that’s unfit to print

The New Neo Posted on by

Romney adviser Eric Fehrnstrom—who has already stated that in the general election Romney can hit a reset button—announced a few more details of the reset plan today. Fehrnstrom said:

They say that Mitt Romney is a man for all seasons. But you ain’t seen nothing yet till you’ve seen what he has in store for the fall campaign. He will be digging deep to shore up his populist roots by living with a simple working family in Flint, Michigan for two weeks, and then on to Toledo, Ohio to do the same.

Next, he is going to temporarily convert to Episcopalianism to show his open-mindedness, because we did some research and found that the greatest number of presidents have been Episcopalian. But Mitt is also open to taking turns at joining other religions for a couple of days at least—especially the Presbyterian Church, which was number two on the list in the number of presidents who’ve claimed allegiance. This in no way will affect his basic Mormon faith, of course.

Let’s not forget Rick Santorum, who’s still in the running and is also making plans. Santorum noted in a candid interview:

Passover begins on the same evening as Good Friday this year, a very unusual and highly symbolic situation. I prophecy that there will be several plagues leading up to that day, symbolizing America’s sinful ways and the release that could come with my election. Let the other candidates go!

Not to be outdone, Newt Gingrich has an announcement of his own. It lacks the sweep and scope of the declarations of the other two, but it’s still pretty dramatic:

Newt claims he’s dumping Callista and taking a new wife.

“This time,” he says, “it’s not my ever-roving eye that has prompted the end of my marriage and the beginning of a new one. It’s you, America. The people have spoken and my market research tells me they don’t like Callista. So with great reluctance I am divorcing her and marrying America’s sweetheart, Sandra Bullock. She just doesn’t know it yet.

“And by the way, it’s all Mitt Romney’s fault.”

When asked by reporters who the “she” was in that last sentence, Gingrich replied, “Both of them.”

Remaining candidate Ron Paul remains uncharacteristically quiet. Some say he’s preparing for his Thursday appearance at Berkeley, in the belly of the beast. Others claim he’s taking some time off to have a long overdue superciliumectomy.

The Obamacare case: challenging the Supreme Court’s legitimacy

The New Neo Posted on by

The latest liberal meme is that if the Court rules against Obamacare it will be such an egregious case of conservative judicial activism that the Court will become illegitimate.

My question is: to whom? The 72% of the American public who already consider the mandate unconstitutional?

No, of course not. Those who’ll call the Court illegitimate are the liberal pundits and their followers who originally laughed at the entire idea of Obamacare’s unconstitutionality and cannot believe that any thinking person would disagree with them. And the fact that a Supreme Court decision overruling Obamacare might be very close—like so many controversial decisions in the current Court that is split 4-4-1 ideologically (that “1” being Justice Kennedy, ever the pickle in the middle)—would be further evidence to liberals of this terrible Court illegitimacy.

Unless and until, of course, Obama’s re-election and appointment of a liberal justice makes decisions go reliably 5-4 for the liberal side. Or unless the current decision goes 5-4 for upholding Obamacare. Then the Court will be very very legitimate again.

[NOTE: The entire campaign about this legitimacy business has another goal: to intimidate members of the Court into voting the liberals’ way. After all, who wants to be a bastard?]

Romney squared

The New Neo Posted on by

In 2008 I wrote a post entitled “Wanting a cool and sexy Prez,” in which I evaluated Obama and previous presidents on the dimension of cool:

Maybe it’s come down to this: choosing a President is now mostly about style rather than substance.

And it now occurs to me that one of the reasons for the widespread antipathy to Romney (even from some of his supporters) is that he’s not cool. Actually, in the obsolete vernacular of my youth, he’s square (or “a square”).

And that’s “square” not as in the Cub Scout Promise* (“be square,” which used to make me giggle as a child), but square as in this clip, where Romney would fit in well in the Pat Boone role, taking lessons in hipness from Maynard G. Krebbs and Kookie:

*I just learned that in the 70s, as part of a general re-organization and supposed modernization of scouting:

The Cub Scout Promise was changed from “to be square” to “to help other people”, as the term square went from meaning honest to rigidly conventional.

It figures.

Legal elites and the Obamacare case

The New Neo Posted on by

Jonathan Adler asks the question: why did legal elites underestimate the case against the mandate?

You might want to give quick and flippant answers—such as, for instance, “because they’re stupid and biased”—but that really doesn’t tell us much. Legal elites may be biased (as is just about everyone), but they’re most definitely not stupid, at least not in the academic sense.

The answers Adler gives are much more interesting. His first point is that legal academics are often too far removed from the realities of actual practice; the ivory tower effect and all that. His second is that legal academics tend to on the left, which creates an unavoidable echo chamber effect that limits them. Related to this is the following, which I think is a brilliant insight:

As I’ve heard Paul Clement (among others) explain, you can’t effectively advocate your own position until you truly understand the other side. This can be difficult to do, particularly when we have strong feelings about a subject.

This not only applies to law but is equally true for almost everything, including how we conduct ourselves in our personal affairs.

Since my “change” experience, I’ve been more and more convinced that many liberals do not try to understand conservatives, or to pay attention to the actual substance and weight of their arguments. Rather, they tend to dismiss them out of hand as biased and/or self-centered and/or cruel, without understanding the reasoning behind them. And although conservatives like to think they’re above doing the same in return, I think many conservatives fail to understand where liberals are coming from. I like to think (rightly or wrongly) that I understand both a bit better than most, because I’ve looked at liberals and conservatives from both sides now.

The differences between the philosophical underpinnings of conservatism and liberalism are things I’ve explored before, many times, as have so many others. But right now it will suffice to say that those differences have to do with big questions like the nature (bad? good? neutral?) and perfectibility of humankind, how best to achieve goals (through government or individual action), and the importance of liberty and what is the price we are willing to pay for it.

Obama flexibility assurance: Krauthammer asks why

The New Neo Posted on by

Charles Krauthammer wants to know what was behind Obama’s assurance to Medvedev on his increased post-2012-election “flexibility”:

After all, what is Obama doing negotiating on missile defense in the first place? We have no obligation to do so. The Anti-Ballistic Missile Treaty, a relic of the Cold War, died in 2002.

We have an unmatched technological lead in this area. It’s a priceless strategic advantage that for three decades Russia has been trying to get us to yield. Why give any of it away?

To placate Putin, Obama had already in 2009 abruptly canceled the missile-defense system the Poles and Czechs had agreed to host in defiance of Russian threats. Why give away more?

It’s unfathomable. In trying to clean up the gaffe, Obama emphasized his intent to “reduce nuclear stockpiles” and “reduce reliance on nuclear weapons.” In which case, he should want to augment missile defenses, not weaken, dismantle or bargain them away. The fewer nukes you have for deterrence, the more you need nuclear defenses. If your professed goal is nuclear disarmament, as is Obama’s, eliminating defenses is completely illogical.

But maybe this is why; it’s an article on the subject of the nuclear weapons race with the USSR that Obama wrote while a senior at Columbia. Now, I realize that most people’s points of view change between college and many decades later. But still, it’s logical to assume, from the evidence of this paper, that nuclear disarmament was a topic he cared unusually deeply about in early adulthood, since it’s virtually the only sustained piece of his academic writing that’s come down to us.

Here’s the text of Obama’s article. And here’s what the NY Times had to say about it in 2009 [emphasis mine]:

What clearly excited [the younger Obama] was the Comprehensive Test Ban Treaty, which would end the testing and development of new weapons, and thus, in the minds of arms controllers, end the nuclear arms race. The Reagan administration vehemently opposed the treaty. Paraphrasing Mr. Bigelow’s views, Mr. Obama said the United States should initiate the ban “as a powerful first step towards a nuclear free world.” That phrase would reemerge decades later…

Barack Obama’s journalistic voice was edgy with disdain for what he called “the relentless, often silent spread of militarism in the country” amid “the growing threat of war.” The two groups, he wrote, “visualizing the possibilities of destruction and grasping the tendencies of distorted national priorities, are throwing their weight into shifting America off the dead-end track.”

In closing, he decried the “the twisted logic of which we are a part today” and praised student efforts to realize “the possibility of a decent world.”

Even back then, Obama believed (for whatever reason; you can fill in the blanks with any number of theories from benign to malignant) that it was up to the US to go first in disarming, and this was true even before the fall of the Soviet Union.

But back to the present—and the future, on which Krauthammer speculates:

Can you imagine the kind of pressure a reelected Obama will put on Israel, the kind of anxiety he will induce from Georgia to the Persian Gulf, the nervousness among our most loyal East European friends who, having been left out on a limb by Obama once before, are now wondering what new flexibility Obama will show Putin ”” the man who famously proclaimed that the “greatest geopolitical catastrophe” of the 20th century was Russia’s loss of its Soviet empire?

They don’t know. We don’t know. We didn’t even know this was coming ”” until the mike was left open. Only Putin was to know. “I will transmit this information to Vladimir,” Medvedev assured Obama.

Added Medvedev: “I stand with you.” A nice endorsement from Putin’s puppet, enough to chill friends and allies, democrats and dissidents, all over the world.

James Bond theme songs

The New Neo Posted on by

Here’s a PJ article on the 5 worst and 5 best James Bond theme songs.

My question is: why, why, why is there no “Dr. No” there among the best? Is it because there was no conventional “song” (with words, that is) that came out of it? Because IMHO the music in “Dr. No”—the very first Bond movie, the one that established the Bond theme song that intermittently shot through the other Bond movies—was primo in every way.

Have a listen:

I saw the movie “Dr. No” before it came out in movie theaters, and before I knew a thing about it. I was pretty young, taken on a cruise (the only one I’ve ever been on, before or since) at Christmastime with my family on the old, late and great Mauretania. As part of that ship’s festivities (very muted compared to today’s bacchanals), there were showings of about-to-be-released movies that had not yet opened in theaters. Thus, “Dr. No.”

I remember sitting down in the ship’s little theater with my older brother, and as the opening credits and the music came on, we were blown away. It was so cool! So cosmopolitan. Sean Connery—so smooth. And Ursula Andress—well, she was like another sort of being entirely, both Aphrodite and Amazon at the same time. Wow.

Why Romney is …

The New Neo Posted on by

…uniquely positioned of all the GOP candidates to make the argument against Obamacare, according to Paul Goldman and Mark J. Rozell.

Readers of this blog know I’m a Romney supporter, but I don’t think the article is especially good. It depends to whom the argument about Obamacare is being made.

I think it’s definitely true that Romney is the GOP candidate best positioned to appeal to Independents in general, and not just on the issue of Obamacare. But it’s my impression that Romney’s biggest and most numerous naysayers on the issue of Obamacare are on the conservative side (liberals won’t be voting for him anyway); a lot of conservatives just don’t trust his sincerity or his dedication when he says he wants Obamacare to go (more on that subject in another post, although not today). Of course, if he’s the nominee, how many conservatives will choose to stay home because of that, or write in a third-party candidate? When push comes to shove, will it really be a significant number?

Then again, the whole thing may be moot, if SCOTUS really does strike down the entire HCR bill. But I think that’s a longshot, despite what some prognosticators say.