The Inevitable March Towards Universal Gay Marriage Continues

A Measured Set of Supreme Court Decisions, Public Opinion Ahead of Law
The supreme court, in a pair of twin rulings last week, came down modestly on the side of gay rights but stopped short of overriding public opinion in two important ways of advancing a political agenda from the bench.

The first ruling, by a 5-4 majority (which seems to be the norm for the last 30 years in decisions of a controversial nature) struck down the provision of the Defense of Marriage Act that defined marriage as between a man and a woman for federal purposes.  This means that legally married gay couples in states that permit gay marriage now have access to federal deductions and benefits associated with being married, rights previous denied to them under DOMA.  The reasoning of the court was two-fold - first, a traditional conservative argument around federalism that essentially stated that definition of marriage has been historically the province of states and that on 10th amendment grounds there was no enumerated power for the federal government to overrule state judgement on that issue.  Interestingly it was 4 liberal judges joined by moderate opinion-writer Anthony Kennedy that overruled 4 conservatives on what would seem to be a judicially conservative view but for the social politics around gay rights.

The tenth amendment text in question is as follows:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The second reason given by Kennedy's opinion, and perhaps the more intriguing one, was the notion that the clause in question violated the equal protection principle articulated in the 14th amendment.  This is a fascinating argument, as the 14th amendment is clearly targeted at state laws.  Text is below:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The ruling seems contradictory.  The ruling struck down a federal law, and, believe it or not, there is nothing in the constitution that expressly forbids a federal law that does not protect citizens equally.  There are constitutional protections that prohibit voting rights discrimination on the basis of race (15th amendment) and that prohibit slavery (13th amendment) and specifically enumerated rights that cannot be denied by the federal government (articulated in the Bill of Rights, the first 10 amendments), but nothing that prohibits a federal law from unequal treatment.  What would have made far more sense than striking down the federal law under an equal protection argument would have been to strike down state laws prohibiting gay marriage as an equal protection violation imposed by the states.

The 10th amendment violation would have been sufficient to strike down the provision in question.  That Kennedy chose to reference equal protection likely foreshadows a building majority on the court around the equal protection of gay marriage equality itself.  But the court is taking a measured pace - by passing on the opportunity to make a national ruling relative to California prop 8.  The court let stand a lower court ruling striking down the prohibition on gay marriage in California by ruling that the state Republicans making the appeal did not have standing to appeal - an intellectually devoid argument since it chose to rule in the DOMA case under very similar circumstances (the Republicans defended that case as well since the Obama administration chose not to defend the law), but a clever dodge nonetheless.  This leaves the overall question of the constitutionality of gay marriage for another year and another court, but the 14th amendment argument in the DOMA ruling clearly projects a likely outcome when that day comes.  Kennedy simply decided to let the court of public opinion form a little more before the Supreme Court intervenes.

And the court of public opinion is moving.  By a massive majority, the American public now favors gay marriage.  A just-released Gallup poll shows national support at 55% for and 40% opposed, an epic turn in the past 17 years since Gallup first started polling the issue, when support was at less than half that level.  55% is far more support than any Presidential candidate has received since Ronald Reagan in 1984.  In other words, 55%-40% is a landslide.  And the opponents are dying.  The only demographic group (unless you count conservatives or Republicans as their own "demographic group") that still opposes gay marriage are those 65 and over, and only 51% of seniors now oppose it.

It is highly likely that we will see gay marriage in every state outside of the south (where majority opposition still exists) in the next 5 years.

Politicians in both parties had better get on board or history will remember them harshly.  This is not a Republican/Democratic issue, as bipartisan support for gay marriage bills in places like New York State has proved.  It is a right/wrong issue.

The one thing that surprised me about the Supreme Court ruling was that the court elected NOT to strike down the provision of DOMA that permits states to not recognize gay marriages from other states.  This creates a legal and administrative mess, is unprecedented in US marriage law (states recognize marriages of first cousins from other states, of minors from other states and so on) and is black letter unconstitutional, in my opinion.  The relevant section of article 4, section 1 of the constitution is below:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.  And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Perhaps this is more judicial restraint in letting the political process play out.  But it is wrong on the law.

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The Latest 2012 Big Map, The Supreme Era of John Roberts

2012 Presidential Update
Days Until the Election: 129
Projected Popular Vote Total: Obama +3.2% (Obama down 0.3% from last week)
Projected Electoral Vote Total: Obama 332, Romney 206 (Obama +18 from last week)

The national polling was fairly flat last week, but the geographic dynamics shifted slightly but significantly from an electoral standpoint.

Ohio, was has switched back and forth over the past month, switches back to President Obama, as he establishes a narrow lead there.  New England, meanwhile, moves a little closer, with New Hampshire now only a Lean Obama state and Massachusetts shifting down one notch (although not seriously predicted to be competitive.)

Virtually all of the polling included in this update was conducted prior to the Supreme Court's ruling on the Affordable Care Act, which the effect of (whatever that may be) should show up in earnest next week.

John Roberts, Meet Warren Burger
The Supreme Court decision to uphold almost all of the Affordable Care Act, most notably the so-called individual mandate by a 5-4 vote was a minor surprise.  Most observers, myself included, expected the most likely outcome to be a 5-4 vote to strike the mandate, with the outcome that actually happened being the second most likely scenario.

What virtually all of us anticipated was the liberal wing of the court, including Ginsburg, Sotomayor, Kagan and Breyer on one side, with the conservative wing of Thomas, Scalia, Alito and Roberts on the other side and the fifth and deciding vote being cost by moderate Reagan appointee Anthony Kennedy.

But something happened on the way to a Supreme Court ruling.  Kennedy sided with the conservatives, as was narrowly expected.  But Chief Justice John Roberts broke ranks to uphold the individual mandate.

This tells us a few things.  First of all, Roberts has a deep-seated belief in the separation of powers.  There is virtually no question that John Roberts considers the ACA to be poor legislation.  Prior to his time on the bench, Roberts was a member of the steering committee of the right-wing Federalist Society, a libertarian/conservative think tank who are certainly no fans of the ACA.  Roberts worked for the Bush campaign in 2000 in the Florida Recount.  He is a political conservative - no question.
 
But Roberts clearly believes that a Supreme Court ruling striking down the health care law would be an undue exercise of judicial power - substituting the Supreme Court's judgement for the judgement of elected officials.

In fact, Roberts took great pains to make clear in his opinion that this was not a judgement in favor of the policies in the ACA, stating, "we do not consider whether the act embodies sound policies.  That judgement is entrusted to the nation's elected leaders."

In my opinion, Roberts got it exactly right on the constitutional question, ruling that the government does not have the authority to require people to purchase health insurance but does have the power to tax those who do not.  Roberts wrote:
"The federal government does not have the power to force people to buy health insurance.  The federal government does have the power to impose a tax on those without health insurance...It is reasonable to construe what Congress has done as increasing taxes on those that have a certain amount of income, but chose to go without health insurance."

There were two principal arguments for the constitutional authority of the law.  The first, and actually primary argument was under the commerce clause of the constitution, the federal government has the right to "regulate commerce among the several states".  This has been construed by the court in the past as a broad power, with the federal government having been seen to have a right to not only regulate trade that moves across state borders, but trade within the borders of states that impacts the marketplace of other states - for instance, regulate the growing of corn in Iowa even if that corn is being sold within Iowa because it impacts national prices.

What has never been tested before is the authority of the federal government to require people to DO things versus NOT DO them.  Requiring an affirmative purchase from an individual by requiring them to purchase something would be an expansion of historical power, one that the 4 liberal justices were comfortable with, but one that the other 5 more conservative justices were not.

In other words, the court ruled that it would be unconstitutional to, for instance, throw people in jail if they didn't purchase health insurance.  This seems to me to be a very prudent interpretation of the constitution as a ruling on the commerce clause that allowed the government to require people to do things would open the door to virtually unlimited power over individual actions by the federal government.

The taxation question is a different question as the governments authority on taxation is considerably more broad.  The clause in the constitution (Article I, Section VIII) states:
"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States"
Note that the original text also went on to restrict taxes to only allow that the taxes be uniform (i.e. proportional to population or trade) but that this restriction was removed with the ratification of the 16th Amendment in 1913.

There are essentially no restrictions on the right of Congress to pass any tax it sees fit, so if you construe the financial fee charged in the ACA to those without individuals as a tax, which both Roberts and I see as a reasonable interpretation.

Some will argue that the issue is the same as with the commerce clause in that this is a tax on inactivity versus a tax on activity (say an income tax or a consumption tax), or, more bluntly that you are taxing people for NOT having health insurance versus taxing someone for purchasing something or earning income.

This argument falls flat to me for two reasons:
1.  It is a distinction without a difference - Congress creates tax credits all the time to provide incentives for behavior - tax deductions for charitable contributions, tax credits for education and solar panels, tax credits for oil exploration and many, many others.  If Congress had worded the health care bill as a general tax increase with a tax credit for those who purchase health insurance, the net effect would have been the same - an increase in tax costs for those who don't purchase health insurance and a net neutral tax position for all others.
2. Even if you construe this as a new and different tax on inactivity, there is no reasonable interpretation that I can make of the constitutional authority above that prohibits taxes on inactivity.  The taxing power of Congress is fairly absolute.

Roberts, in breaking with the conservative wing on this issue, follows a long tradition of judicial independence.  Few today remember Chief Justice Warren Burger.  Burger was appointed to the court by Richard Nixon in 1969, replacing the liberal Earl Warren, who had presided over many liberal decisions with the most famous being Brown v. Board of Education (which ruled racial segregation in public schools illegal) as part of what was, at the time, perceived as a conservative effort to stack the court.  Playing far from the script, Burger, once on the court, presided over several surprisingly liberal decisions, the most notable being Roe vs. Wade in 1973, which he wrote himself.  Burger also wrote the 9-0 ruling that the Nixon White House had to turn over crucial information about the Watergate break-in and wrote the 9-0 decision in a case that required expansive busing of school children in Charlotte to better integrate public schools.  Burger, in other words, became a reliable liberal on the court.

Similarly, David Souter, a George Herbert-Walker Bush nominee, was seen as part of a new conservative majority when he was appointed to the court in 1990.  Far from following script, Souter became a reliable liberal vote on the court.

This is exactly why the judiciary is independent.  And the system works, largely, whether you agree with you agree with all the courts rulings (and few do - most liberals detest the Citizens United ruling that allows essentially unlimited corporate spending in elections and most conservatives will detest the ACA ruling.)

In my opinion, Roberts did exactly what a Supreme Court Chief Justice should do.  He exercised independent judgement on a difficult constitutional question.  And in my opinion, he also got it exactly right.

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What a Mess in the Gulf, Kagan Hearings Set for July, At Long Last Some Action on Gay Rights, Another Incremental Jobs Bills

An Inept Response All Around
We are now over 40 days into the spill on a BP rig in the gulf that is spewing thousands of barrels of oil into the ocean every day and the sad reality is that we appear no closer to solving the issue than we were on day one.

The so called "top kill", an effort to pump heavy mud and solid material into the well to stem the flow of oil has failed and the next plan is a custom fitted cap to limit (but likely not eliminate) the flow of oil while a relief well is dug, which will take at least until August to complete.

Don't expect a full resolution to this spill, already the largest in United States history, until at least August or September, which means that this spill may wind up being 4 to 5 times larger than the horrific Exxon Valdez spill a generation ago. To make matters worse, while the Valdez was devastating to the Alaskan coast, the economic, social and ecological impact of a spill in the gulf is far worse. The entire gulf coasts economy will be impacted in huge ways: fishing will be badly damaged for at least a decade, tourism to the beaches will be destroyed and all of the dependent things in the local economy (fish processing, hotels, restaurants, you name it) will be devastated. The ecological damage will be immense, destroying scores of natural wildlife under suffocatingly thick oil. This is, to put it simply, quite possibly the worst ecological disaster in United States history.

And still the oil flows on. And I'm left with the question why?

I take a very simple view of this. There are only two possibilities. The first possibility is that regulations were utterly inadequate to prevent such a spill or to ensure that a contingency plan was in place to quickly solve it where it to occur. The second possibility is that the regulations existed but were not followed. In reality, it is probably a mix of those two categories, but the more information that I find out, the more it supports the first theory.

I'd never even heard of the Minerals Management Service prior to this spill, but the obvious coziness and outright corruption of that organization has now become clear. How is it possible that it did not require back-ups to a valve failing on oil rig designs? Can you imagine a nuclear power plant that wasn't required to build a back-up system if one part failed? How on Earth did inspections not reveal this kind of risk? The head of the MMS has been fired and that is a good start, but it is utterly insufficient. We basically have a complete failure of a regulatory scheme and a need to start over, with new people and with new authority. I'd start by replacing Ken Salazar, a nice guy who seems to care deeply about these issues, but not the kind of tough enforcer that you need to fix the broken system. Plus, what kind of message does it send if there is no accountability at the top in an instance like this?

The President has appeared weak-kneed and late to the game here. If BP didn't have a plan to quickly solve the issue, than the government should have. If it didn't, it should've been in their with all of its best resources, from day 1, running things. Where is the Army Core of Engineers? Where is the President's Science Advisor? Heck, where is the plan? Are we just going to try stuff and hope it works?

It has been speculated on the right that this is President Obama's Katrina. I'm not quite ready to go that far yet, but let's just say that I'm not at all satisfied with his handling of this crisis. It does not inspire confidence in how he would deal with a natural disaster like a hurricane. And my view of the supposedly smart people around him is heavily wounded.

Kagan Hearings to Begin in Late July
Elena Kagan's hearings to replace John Paul Stevens on the Supreme Court will begin in late July, according to the senior Democrats in charge in the Senate Judiciary Committee. Republicans are already complaining that this gives them insufficient time to prepare, which is of course, utter nonsense, since they fully vetted Kagan less than 2 years ago as solicitor general, but as I've pointed out several times over the past few months, is a complaint consistent with a strategy of running out the clock on the current Congress in the belief (almost certainly correct) that the GOP will control more seats in the next Congress. They will complain and the hearings will go ahead anyway. Kagan will be confirmed, barring some unlikely previously unknown damning fact. Her vote totals will look a lot like the vote totals to confirm her for solicitor general (that vote was 61-31.)

Rumors have swirled around Kagan's sexual orientation, given her middle age and the fact that she has never been married. I have no direct knowledge of whether Kagan is gay or not, but can only say that if she is, I would love for her to come out of the closet and be a role model for gay Americans. I think it would be fantastic to have an openly gay Supreme Court justice. However, I don't even know if she is, in fact gay and if she is, she seems to have shown a preference for keeping those matters private, as should be her right.

Americans Worst Case of Employment Discrimination May Soon End
The House has finally voted, as part of the large Defense Authorization Bill, to end the awful, discriminatory and bigoted policy of "don't ask, don't tell" in the United States Military, following a full military review and sign-off by both Secretary of Defense Robert Gates and the President. The House Amendment passed with only 5 GOP votes and 26 Democrats voting no, despite the fact that new polling shows 80% of Americans support allowing gays to serve openly (although, out of fairness, I'm sure that the numbers if you polled the enlisted military would be far lower.)

The same day, the Senate Defense Committee agreed to a similar amendment to the Defense Authorization, with all Democrats on the committee voting for it, joined by Republican Susan Collins of Maine (thank goodness for those last two remaining Republican moderates in the US Senate.)

The road is certainly not over. The House has passed its version of the Defense Authorization Bill, but the Senate must still pass it's version, then both houses pass a reconciled conference report on the bill before in can go to the President for signature. Following that, the military review must be completed and the sign-offs from Gates and Obama take place before the policy goes into effect.

Because of the delay above, I renew my call on President Obama to show some leadership and suspend prosecution of gay members of the military until this work is completed. It is a crime that we continue to discharge brave members of the armed services for no other reason than being gay. And it is a crime that 4 out of 5 Americans, including the majority in some very red states, now recognizes as wrong. The American people are progressing their thinking a lot faster than Washington is.

Another Do-Little "Jobs" Bill
There is little question that the American Recovery and Reinvestment Act (aka the Stimulus Bill) is the President's signature piece of economic policy in his first two years. A massive $787 billion collection of expenditures and tax cuts spread over the first three years of his term, is more or less defines his economic approach in his first term. The reality is that most of the spending associated with that bill, which has, in a lot of ways, faded from public attention, is yet to take place. Here are the latest stats on the spending associated with the bill:

Spending: $236B out of $499B (47% complete)
Tax Cuts: $163B out of $288B (56% complete)
Total: $399B out of $787B (51% complete)

That's right, the stimulus bill is just barely half executed. And it was designed that way, not just as a short-term shot in the arm (which is what people typically think about when they think stimulus), but as a multi-year, multi-tiered approach to driving economic growth. Big tax incentives on the front-end for things like Cash for Clunkers or the First-Time Homebuyer Tax Credit to spur sales of cars and homes. By the way, remember how everyone on the right said Cash for Clunkers simply pulled forward sales that would have otherwise occurred later an that the auto industry would be back in the doldrums after it expired? Checked the stats lately? Auto sales are now up 25% year over year WITHOUT the credit. So, it's hard to argue the effectiveness of the short-term incentives.

Tier two was infusions of entitlements and state cash to stave off massive state budget cuts that would drive unemployment and to put cash in the hands of the unemployed and needy that would immediately be reinserted into the economy driving growth. This stage has had mixed success, with states staving off cutbacks....until now that the money is running out. Perhaps the money served it's purpose by saving those cuts until the economy was on more solid footing, but there is no doubt that there are state budget crisis everywhere right now that have to be solved.

The third stage, which we are really now entering in earnest is about infrastructure spending. Road and bridge upgrades. Green energy programs. Things which create jobs but are also investments in the future of our economy. There is road work upgrading I-295 near me (a badly needed project.) Solar panels have gone up on light poles all around me, provided by private industry, but subsidized by stimulus funds. This is all good stuff, whether or not it is enough to immediately bring down the unemployment rate. In fact, my criticism at the time is that I wished far more of the bill were devoted to infrastructure spending (only $275B out of the $787B packaged was devoted to such items, scarcely over a third.)

So with a clear approach already laid out and in progress, why is congress passing silly little $48B (and yes, $48B is tiny in the scheme of our economy) jobs bills? Because they are trying to show that they are doing "something" about the persistent near 10% unemployment rate and the 8+ million jobs lost in the recession. The truth is that the latest bill, a collection of small tax cuts which is about 50% offset by some tax hikes, does little either way to impact the economy. But it looks like action. And as mad as people still are about unemployment, they want to show some action.

The latest "jobs bill" is a small aside that will be quickly forgotten. But, keep the faith, unemployment will come down. The fundamentals are returning to the economy, with economic growth taking place and good employment growth over the past two months, for the first time since the recession started. But it is now obvious to me that it will take a painfully long time to get down to an acceptable level of unemployment (I define "acceptable" as somewhere around 7%, "good" as somewhere around 5%.) We'll see if the American people have that kind of patience. I suspect not.

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Latest 2010 Updates, The Giant Gulf Oil Spill, The GOP Clock Play

2010 -- A Big Year for the GOP
The Republican wave continues in polling for the 2010 race. Here are the latest updates for the Senate races. As always, I'll begin with race designation switches, followed by polls that reconfirm existing ratings:

Illinois -- moves from Toss-Up to Lean GOP Pick-Up as Republican Mark Kirk has been up by 4% and 8% in the latest two polls. This race pits a moderate against a liberal and the moderate appears to be winning.

Washington -- moves from Likely Democratic Hold to Lean Democratic Hold, as Patty Murray could be in real trouble this year. In the one poll available, she leads three potential GOP candidates by only 2 points and actually trails prospective Republican candidate Dino Rossi by 10 points. This race could shift further with additional polling.

Delaware -- moves from Lean GOP Pick-Up to Likely GOP Pick-Up as moderate at-large Rep. Mike Castle is up by 23 points in an April 30th Rasmussen poll. Castle is popular state-wide and appears to be headed for an easy victory.

Indiana -- moves from Lean GOP Pick-Up to Likely GOP Pick-Up as Coats leads by 16 and 21 points respectively in the latest two polls. Without Evan Bayh, Democrats appear sunk in this race.

Ohio -- some rare good news for the Dems as this race moves from Toss-Up to Lean DEM Pick-Up. Fisher appears headed to primary victory and leads by 3 points and 4 points in the latest two polls. This one has been very close for as long as we have been tracking it.

Florida -- moves from Likely GOP Hold to Lean GOP Hold, not because the Democrats have a shot at this seat, but because with Charlie Crist running as an independent, there is some chance that GOP-nominated Marco Rubio will not win. Rubio is still showing as up by 7% in a three-way race, so he is still favored to win, but it is quite plausible to see a reverse of what happened with Joe Lieberman in 2006 , when Republicans abandoned the Republican nominee to support the independent. This could happen with Democrats in Florida, as Meeks really has no shot. Crist may well still align with the GOP in the Senate even if he wins, but since he is running as an independent, that's what we'll consider him for rating purposes.

Other polls reconfirm existing ratings:
Arkansas -- Baker is up by 7 and 12 points in two new polls. Stays a Lean GOP PIck-Up.

North Dakota -- Hoeven is up by a staggering 45 points in a new poll. This may be the biggest rout for an open seat since Barack Obama won his Senate seat in 2004. Stays a Safe GOP Pick-Up.

New Hampshire -- Ayotte up 15 in the latest Rasmussen poll. Stays a Likely GOP Hold.

Arizona -- McCain up by 22 in the latest Behavioral Research Center poll. Stays a Likely GOP Hold.

North Carolina -- Burr up by 18 to 22 in two new polls. Stays a Likely GOP Hold.

Georgia -- Isakson up 16 points in a new poll. Stays a Likely GOP Hold.

All of this leaves us with:
Projected Democratic Holds (9)
Safe Holds (4)
Connecticut, Maryland, New York (Schumer), Vermont

Likely Holds (3)
Hawaii, Oregon, Wisconsin

Lean Holds (2)
California, Washington

Potential Democratic Pick-Ups (1)
Lean Pick-Up (1)
Ohio

Potential Republican Pick-Ups (9)
Toss-Up (1)
New York (Gillebrand)

Lean Pick-Ups (4)
Arkansas, Colorado, Pennsylvania, Illinois

Likely Pick-Ups (3)
Delaware, Indiana, Nevada

Safe Pick-Ups (1)
North Dakota

Projected Republican Holds (17)
Safe Holds (8)
Louisiana, Iowa, South Dakota, Alabama, Idaho, Oklahoma, South Carolina, Utah

Likely Holds (7)
New Hampshire, Kentucky, Arizona, North Carolina, Georgia, Alaska, Kansas

Lean Holds (2)
Missouri, Florida

Net Projection: GOP +7 to 8 Seats
(10 seats needed to win control)

So, the GOP continues to project big gains. In order to take the Senate, they would need to hold Ohio, win Kristen Gillebrand's Senate seat and win either California or Washington. Still tough, but certainly not impossible, given the trend.

In the House,

Our generic polling average of averages has Republicans at +1.7%. This projects a GOP Pick-up of 35 seats, just shy of the 40 needed to retake the House. This result has been pretty consistent over the past couple of months.

Look at the race by race analysis, the Cook Political Report, shows 6 likely GOP pick-ups and 28 races marked as toss-ups, with 26 of those being Democratic seats, leading to a range of GOP Pick-Up from 4 to 32 seats. As I've said before, Cook tends to be pretty conservative (numerically, not politically) with his projections, so if the race is trending GOP, he will tend to lag most observers in projecting the size of the gain.

Realclearpolitics has the GOP projected to pick up a net 17 seats, with an additional 35 races rated as toss-ups, 34 of them being Democrats. This implies a GOP pick-up of 16 to 51 seats. This is far more in line with what I would expected, given the generic polling.

The GOP will have a big year in November, I think that much is assured at this point. Will they retake either or both houses of Congress? The next 6 months will tell us.

A Big, Nasty Oil Spill
We all know by now that the massive oil spill coming from a BP offshore oil platform is now approaching the gulf coast (as if the gulf coast needed another environmental disaster). This will have a devastating effect for years to coming on the environment, the fishing industry, tourism and public health. It is a terrible shame. And, apparently, something that happened because equipment designed to prevent these kinds of spills failed.

The political ramifications of this will be significant. This gives everyone pause about the role and regulation of offshore drilling. Clearly, additional measures need to be taken to ensure that this does not happen again. I'm not ready to say offshore drilling is a bad idea, simply that we need much better regulation of safety mechanisms. Oil rigs should be treated like nuclear plants, with intensive regulation. And the companies profiting from those rigs should pay for the cost of that regulation and oversight. And BP damn sure needs to pay not only for the clean-up, but for the damage to local economies that this spill will do.

No Shot Clock in Sight
In the era prior to the shot clock in college basketball, there was a play called the four corners that was designed to run minutes off the clock with every play. If I'm a Republican, I have a very simple strategy for the rest of this congress: run out the clock. I don't yet know if the GOP will have control of the House or Senate next year, but I do know that they'll have more seats than they do now.

So what does running the clock out look like?
(1) Move financial reform, but go slow
The House and Senate could easily be tied up for a month or two debating a financial reform bill. As I've said, I firmly believe that the final bill will pass with bi-partisan support. But the GOP has the tools to take their sweet time doing it.

(2) Run clock on a Supreme Court Nominee
President Obama will likely name his pick for the court in late May. Republicans could easily kill at least a month debating even a non-controversial candidate.

(3) Get tied up in the budgeting process
The House and Senate have to pass a full series of appropriations bills this year. Take it slow

In short, I think this strategy will be employed and utterly precludes a bill on immigration or climate change this year. That means the President will have a much tougher road with a more Republican congress next year. Perhaps he will be forced to live up to his promise of bi-partisanship.

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Why Bipartisanship Will Prevail on Financial Reform, Will Supreme Court Nominee Be a Non-Event?, The Remarkable Chris Christie

Why Bipartisan Talks on Financial Reform Will Succeed
We will get a financial reform bill and it will be bipartisan in nature. No, it probably will not be a 100-0 vote in the Senate, but there is a high probability of a 75-25 vote at the end of the day. A far cry from the long, drawn out, bitterly partisan debate over health care, Senate discussions have been downright collegial. So what gives? Several things about the dynamics of the issue and the times create a perfect bipartisan storm.

(1) No one wants to be on the side of the banks
Unlike with health care reform, where Republicans could credibly claim to be defending the 80% of Americans that have good health care, there is not much of a constituency for the financial status quo. Sure, the big banks like it. But Americans are livid about bankers taking huge risks, going broke, taking tax payer money, then paying out big bonuses a year later. Supporting some kind of reform is just good politics.

(2) Failure would be ugly for both sides
Think about it...the banking meltdown is the single biggest crisis that the country has had since September 11th. To go run for re-election saying you voted to uphold the status quo is hardly a winning formula.

(3) Everybody has taken the cash
Both the GOP and the DEMs have taken big bucks from the big banks. Do they really want this to be a campaign issue for their challengers in the fall?

(4) They aren't that far apart
Neither side, apparently, favors fundamentally changing the system by breaking up banks considered "too big to fail" and neither side is unhappy with the status quo. Unlike with health care, where there was a fundamental difference in the views on the proper role of government, the GOP and the DEMs largely agree that more regulation is needed, but not radically more.

A Supreme Court Cakewalk?
All indications point towards moderation and bipartisanship in President Obama's Supreme Court pick as well. The President has been holding bipartisan meetings to go over potential candidates, clearly looking to find someone middle-of-the-road enough to get through without a tough fight.

You know, it's an odd thing. In the aftermath of health care, the GOP was making sounds like it was armageddon for any bipartisanship. Yet, the period following that bill actually appears poised to be one of the most bipartisan in years. Lindsey Graham is even working with the DEMs to craft a compromise immigration reform bill...not that I think that it will actually become a reality this year.

I Admit, I'm Impressed
This blog is devoted to national politics, so I generally try to stay away from discussing local New Jersey politics unless it is a relevant national story. The early days of the administration of Governor Chris Christie (R) certainly fit the bill of a national story, with national conservative commentators such as George Will writing extensively about his administration.

I did not vote for Governor Christie, as frequent readers will know (I supported Independent Tom Daggett in the 2009 election.) We do not see eye-to-eye at all on social issues and in spite of the failure of ex-Governor Jon Corzine, I couldn't bring myself to vote for him.

But, I am impressed with his administration so far. Faced with over a 2 billion dollar current year deficit (9% of New Jersey's total budget) and a projected 10 billion dollar deficit next year (35% of that budget), the new Governor has taken quick, decisive and mostly correct action. He has eliminated state aid for wealthy school districts. He has cut excess services. And now he is taking on the public unions, which have incredibly generous benefit packages which cost astronomically more than their counterparts in the private sector.

Living in one of the school districts that was impacted by the state cuts, it was interesting to watch the local reaction. The school board here responded in part with budget cuts, but in large measure by proposing property tax increases. The voters responded by voting down the property tax increases in municipal elections this week and electing an anti-tax activist to the school board.

If the people behind the tea party movement want to gain real credibility, Christie is a role model. Fiscal responsibility resonates with the public, even in blue New Jersey. People are tired of government waste and high taxes. They just aren't on board with the nutsos running the tea party movement in this country. Moderate pragmatists like Chris Christie should be the role model for the new GOP. Let's hope they pay attention and remember.

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HRC for Supreme Court?, My Worst Votes

Why Hillary Would Make a Great Supreme Court Justice and Why It Won't Happen
Supreme Court openings are fun for us political watchers. There are few decisions that a President makes that have as lasting an impact on the country as his Supreme Court picks. Supreme Court appointees serve a lifetime, which can often span 30 or more years, and are basically immune from control or criticism (a Supreme Court justice has never been impeached in our long history.)

The Supreme Court rules on the expanding and contracting definitions of our bill of rights...do corporations have free speech? Can the FCC regulate curse words? Does the second amendment prohibit outlawing semi-automatic weapons? Does equal protection require legal gay marriage? Does requiring individuals to purchase health insurance constitute regulation of interstate commerce? And on, and on.

Therefore, properly, the political world zeroes in on potential appointees when an opening occurs. Who would be right to sit on the Supreme Court?

My strong opinion of the best available candidate is Secretary of State Hillary Rodham Clinton. This may come as a surprise to regular readers, who know I have been critical of Hillary in the past. But her record speaks for itself. As a Senator, she was a hard-worker, not a celebrity. She bridged tough bi-partisan bridges. She took a pragmatic approach on national security. She was intellectual force without being an overwhelming ego.

As Secretary of State, she has shown many of the same admirable qualities. She has shown no bruised ego over not being selected as VP. She has worked hard, expressed herself clearly, and built the admiration of foreign leaders. She has been a star in Obama's cabinet, but not an overshadowing or self-centered one.

In short, in spite of all the predictions from both the right and many mainstream Democrats, every public job that Mrs. Clinton has held, she has buckled down and gone to work.

She is a lawyer, she is smart as hell and she exercises good judgement. I can't think of a better set of traits for a supreme court nominee.

Alas, it is highly unlikely that it would ever happen.

In the modern era, politicians rarely get named to the Supreme Court. Judicial experience seems value over life experience, so Court of Appeals judges get picked over lawyers who have lived in the real world. The last significant political appointment to the court was Earl Warren, the former Governor of California, who ushered in an era of court activism, so conservatives are very wary of any politician. And politicians have long public records of things people can find to disagree with or criticize.

No, President Obama will probably play it safe with an Elena Kagan or someone of that ilk. Ms. Kagan would likely win confirmation with 65 or 70 votes without a real fight from the right. Hillary would be a dogfight. And I think the President is probably tired of dogfights.

But think for a second -- wouldn't it be great to have at least one pragmatist amongst that great body of judicial theorists?

My Worst Votes
It isn't too often that I regret votes that I cast in elections, but two have come to mind recently that I wish that I had back. Neither candidate won when I voted for them, but both fall into the "what was I thinking?" category.

In 2000, I was a strong advocate for John McCain for President. I donated money to his campaign. I registered as a Republican to vote for him in the primary. I cheered on his pragmatic moderate views, his ripping of the "agents of intolerance" on both sides of the aisle and his appeal to a rational, fair America. I had every intention of voting for him in the general election against Al Gore, if he had won the Republican nomination (as it stood, I wound up voting for Gore, as Bush was a completely unacceptable choice to me.)

That John McCain of 2000 is no more. He started to disappear in 2008, when John McCain started sucking up to the very agents of intolerance that he had derided 8 years prior, including the Rev. Jerry Falwell, an architect of hate if I ever met one. It continued with his choice of Sarah Palin as his Vice Presidential running mate, when everyone knew that the choice of his heart and mind was Senator Joe Lieberman, a moderate, qualified voice.

Then he essentially abandoned his support for comprehensive immigration reform, again caving to the interests of a right wing of the GOP that never supported him anyway. He threw his support behind the Bush tax cuts, cuts he had opposed on his long-held principle that the government should pay its bills before giving money away.

Since President Obama took office, he has completely abandoned his role as a deal-maker between the left and the right, a role he used to play for perfection. I don't begrudge him opposing the stimulus plan or health care reform...he has always been a fiscal conservative and the same reason he originally opposed the Bush tax cuts, that America should pay for what it spends, are fair reasons for opposing those bills. But then he voted against a deficit commission that he had originally helped design, purely out of partisan spite. He supported filibusters against judicial nominees, a practice he had long opposed. He announced that he wouldn't work with the White House on anything the rest of the year, even issues they agree on, purely because his feelings were hurt that he didn't get his way on health care.

What a waste of a man that I used to consider principled. Shame on me for voting for a guy who would sell out his principles so easily.

But my primary vote in 2000 was not my worst vote, not by a long shot. I got it even more wrong in the 2004 primary, when I switched my party registration to vote for John Edwards on the Democratic side.

Out of fairness, I had initially supported Joe Lieberman for the nod in 2004, but Lieberman was out of the race by the time that the primary got to me, leaving me a pretty clear choice between blue-blood John Kerry and populist Edwards.

Still, John Edwards, the man who I would've had become President, has turned out to be about as offensive a human-being as you'll find. It wasn't the politics with Edwards that changed, just my knowledge that he is actually a disgusting human being, worse than the most outrageous accusations from the right would make you believe.

So, all of this is to say, we all get it wrong sometimes. But learning why and how you missed it can help you evaluate future election choices in a reasoned way. I'll keep this all in mind in 2010 and 2012.

Do you have a vote you would really like back? Write me and let me know.

On the President's Poll Numbers, The Catholic Church, The RNC Chairman and The Supreme Court

Presidential Approval -- DId Health Care Matter?
The statistical evidence to date would indicate that in the short-term at least, the passage and signing of health care legislation did not have a significant impact on the President's numbers either way. Democrats were hoping for a poll bounce, the GOP was hoping that their cries for "repeal and replace" would unify Independents wary of big government against the President. Neither appears to have happened.

The President's short-term polling appears to be more or less a flat line, as illustrated below in our aggregation of all non-partisan polling for the past few weeks.



The President's monthly numbers continue to show the same trend of him being just above the zero line, that is having just slightly more voters in the country that approve of his performance than disapprove. The trend, which has to be worrisome for the administration and the DEMs in general, of him losing ground slowly but surely every month, also appears to be continuing as he finished the month of March off 0.4% versus February and appears on pace to lose another 0.4% in March. These are not huge swings, but it is a statistical fact that if you never have a positive month, you are going to be in big trouble long-term.



The one thing the DEMs can take heart in is that the pace of the President's decline has been arrested somewhat. Looking back on his Presidency to date in terms of 3-month periods, his 3-month loss in approve minus disapprove spread for the first 5 quarters of his administration is as follows:
January 2009 - March 2009: -17.5%
April 2009 - June 2009: -10.9%
July 2009 - Sept 2009: -8.3%
Oct 2009 - Dec 2009: -7.3%
Jan 2009 - Mar 2009: -2.4%

All negative, but getting progressively less negative.

So can the President finally post a positive month? We'll see.

Catholic Disgrace
I have generally refrained from commenting on scandals within the Catholic Church, but as someone who was raised in the Church, I feel compelled to speak out about recent events involving the sex abuse scandal that has implicated Pope Benedict in his complicity.

Full disclosure first: I am a lapsed Catholic. I was brought up in a religious Catholic family, was an altar boy for several years and was active in church youth groups and activities up until about the age of 15 or 16, when I started to stray from the Church. My departure had a lot to do with my political and moral views becoming more progressive. The Catholic Church's views on homosexuality disturbed me greatly as did its rigid position on contraception. The Catholic Church and I have now long parted ways, but there were things that I always continued to respect about the Church.

One thing that always impressed me about the Church in the past was its willingness to hold consistent moral stands, regardless of the politics. The Church would infuriate the left with its views on abortion and gays. But the Church was not a vehicle of the right either. It supported universal health care. It opposed the Iraq war. In short, it had a very cohesive philosophy that was derived from traditional moral pillars and the value of human life above all else.

But that respect has been full-scale flung out the window. The sex scandal in the Catholic Church would be an utterly immoral disgrace for any institution, but even more pronounced for an institution which purports to be a beacon of unwavering moral certitude in changing times. The sexual abuse of young boys in one of the most disgusting crimes that I can imagine. That the church, throughout the globe, was aware of systematic abuse by Priests and not only did nothing to actively weed and prosecute those responsible, but, in fact, actively participated in a cover-up and maintained these heartless thugs in their positions of authority, undermines any claim to virtue that the Church has. You cannot condemn with certainty acts of consensual homosexuality while your leaders are practicing non-consensual homosexuality on the most vulnerable without consequence.

In short, I'm disgusted. The Catholic Church is bitterly in need of reform. But reform appears it will be slow. Pope Benedict should resign, as would be demanded of the leader of any other institution in a similar circumstance. But I did very much that he will. Which means the Church will be led by the same flawed principles, possibly for decades.

What a shame. The world still needs moral guidance. And the billion plus faithful in the Church deserve better than a gang of pedophiles, rapists and their enablers running the show.

Michael Steele, Embattled and Fighting for His Life
I was encouraged when Michael Steele was elected RNC chairman early last year. Steele has a record of being a moderate-conservative, represents a new generation and was an active symbol of the GOP's recognition of its need to be more diverse and to have new voices speak for it.

Steele further encouraged me in his early days when he took on Rush Limbaugh and the other voices that John McCain (before he disavowed everything he used to believe in) once called "agents of intolerance". Alas, Steele quickly apologized to Limbaugh and started giving interviews that were all about Michael Steele and had very little to do with helping the GOP succeed.

The revelation that the RNC paid for a trip to a lesbian bondage strip club that total almost $2,000 is certainly embarrassing to a party that tends to oppose both lesbians and strip clubs. In and of itself, it would not be a career ender for Steele, particularly being that it appeared he was not present and may have had no prior knowledge of the expenditure. But combined with Steele's seeming self-obsession that has put him at increasing odds with the GOP establishment, this may well signal the end of his reign at the RNC.

Let's hope that the GOP finds some other new voices in their ranks that can speak to new ideas. And make sure that they are the right voices that can speak to an inclusive, unifying message. In short, they need a lot more Lindsey Graham and a lot less Bob McDonnell.

The GOP will undoubtedly do well in the mid-terms in November. But the long-term health of the GOP and the two-party system in America depends on the GOP's ability to evolve as a credible governing alternative and not just a party of opposition to President Obama.

Supreme Cout Fight, Take 2
Justice John Paul Stevens, 89, has announced his intention to retire at the end of the current term has created the opportunity for President Obama to fill a second seat in his still-young Presidency. But, as with the appointment of Sonia Sotomayor last year, this pick is unlikely to significantly change the make-up of the court, as Stevens was the most-liberal member of the current court.

If the President picks a moderate-liberal, he is likely to win easy confirmation without much of a filibuster threat. After all, the Democrats still control 59 seats in the Senate and there are several GOP members who still hold the commendable position that Supreme Court picks should not be filibustered expect in extreme cases (don't expect sell-out John McCain to be among them anymore, but you'll likely see Voinovich, Snowe, Collins and Graham take that stand.)

If the President picks a farther left liberal, he could see a bigger fight. But it seems unlikely to me that that is a fight he will want to pick right now.

In my view, Michigan Governor Jennifer Granholm would be the ideal pick: a smart, moderate-liberal pragmatist who is retiring from office. I believe she would be the first Canadian-born pick if she were selected. The other finalists from last time such as Diane Wood and Elena Kagan will also surely be on the short-list.

This also fairly well puts a nail in the coffin of doing any other truly ground-breaking legislation this year. A supreme court nominee, a nuclear arms reduction treaty and a set of appropriations bills in 5 months in an election year is probably all the Senate can manage.

Next up: my regular 2010 update

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Sotomayor In, Martinez Out, Health Care Turns Ugly, First 200 Days?, Economic Upturn?

Sotomayor Confirmed
In a vote that held absolutely no drama, the Senate this week voted to confirm Sonia Sotomayor to the Supreme Court by a vote of 68-31. With this vote, she becomes the first ever Latina Supreme Court Justice (and arguably the most powerful Latina in U.S. history) and only the third-ever woman Supreme Court Justice (following Sandra Day O'Connor who was appointed by Reagan and Ruth Bader Ginsberg who was appointed by Clinton.) Her "yea" total of 68 falls short of the 70-75 votes that I had been predicting she would receive and points to a troubling trend in court appointments. Confirmation votes are becoming increasingly partisan, as illustrated by Sotomayor, whose harshest critics would concede is highly qualified to be on the court and whose lower court decisions have been well within the mainstream. When Antonin Scalia, by far the most conservative justice of this generation, was appointed by Reagan, he was confirmed without dissent. Likewise for Ginsberg during the Clinton administration. Sure, Bork was shot down, but he was well outside of the mainstream. Sure, Thomas was only voted in 52-48, but he was very marginally qualified and came with some heavy sexual harrassment baggage. It is really only in the past 10 years that political philosophy alone became a reason to vote against a nominee.

Frankly, it's the fault of the Democrats. Samuel Alito was clearly a strongly qualified nominee whose views, while conservative, were certainly not outside of the mainstream. His confirmation was all but assured. Yet Democrats, including then-Senator Obama, led a stream of "nay" votes to symbolically protest his conservative philosophy. What comes around goes around, as they say.

Not that I forgive members of the GOP, who were somehow outraged by the votes against Alito but had no problem returning the favor to Sotomayor. Shame on you, Sen's Hatch (R-UT), McCain (R-AZ) and Sessions (R-AL). You sold out your principles for cheap political points. At least some members of the GOP showed philosophical consistency on this issue, notably Sen's Lindsay Graham (R-SC), Lamar Alexander (R-TN), Dick Lugar (R-IN) and departing GOP Sen's Martinez, Gregg (at least we think he is departing) and Bond (moderates Snowe and Collins also voted for confirmation, but I suspect they more or less supported Sotomayor's judicial philosophy to begin with.)

Is this all an acadmeic discussion given that Sotomayor got confirmed? With the same party in control of the Presidency and the Senate, it is for now. But it certainly isn't hard to imagine a situation down the road where those powers are split and it creates an unbreakable gridlock where the Senate refuses to confirm qualified candidates becacuse they don't like their judicial philosophies. That is not a healthy state of affairs.

Martinez to Resign
Sen. Mel Martinez (R-FL), who had already announced that he would not seek re-election, has now announced that he will resign his seat early. Some will probably look for a secret plot around this, but I actually think that this is a straight-forward case of a guy tired with his job. His resignation has no real impact on the political situation there -- Gov. Charlie Crist (R) will appoint a "field-filler", a man or woman who will vote Republican but has no designs on running for re-election, maintaining the existing balance of power in the Senate. Crist will still be the overwhelming front-runner to win the seat in 2010. This really has marginal geo-political effect. Good for Sen. Martinez for leaving a job he doesn't like and spending time with his family.

Healthcare Turns Ugly
Town hall meetings crashed by conservative protestors shouting down congressmen, outbursts of violence, nazi imagery? This is all WAY over the top for a debate on the health care system. If conservatives are outraged at greater government involvement in the economy and health care, I'm not sure the best way to convince others is to display violence and hate. GOP leaders need to get out in front of this and condemn the violence. Regrettably, few have and some are attempting to legitimize these strong-arm tactics. My hope is that the public will be smarter and see these people for who they really are -- thoughtless thugs.

We absolutely need to have a debate in this country on the degree of government involvement in health care. This kind of desparate behavior does nothing to advance that debate.

Are we going to have grades every 100 days?
Okay, 100 days has always been a benchmark for a new President. But a set of 200 day report cards? With hostages coming home from North Korea, two wars still going on in Iraq and Afghanistan, a significant and energetic debate over health care and the enviroment going on, do we seriously have time to assign letter grades on every issue, arbitrarily averaged based on whoever happened to be watching CNN and had access to text-messaging during a given 7 minutes? Does this add anything to the discussion?

I refuse to participate. I'll give out grades after President Obama has finished his first year. Giving him a grade on health care or the environment while the crux of his policies are still being debated in congress is just silly.

Okay, I know what you are going to say...I publish a polling update every week or two. I'd love to tell you how that is different, but I have no good explanation.

Signs of Real Recovery?
GDP decline slowed to -1.0% in the second quarter of 2009, unemployment dropped ever-so-slightly in July from 9.5% to 9.4% and Wall Street is surging. I've been saying for a long time that the recession would end this summer, but it's still nice to see some signs it is coming true.
Now is the time that the stimulus bill really needs to get going -- the system is stabilized but unemployment is still high -- getting people back to work needs to be priority #1.

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