Topic: John Roberts

Voter ID: When Judges Play Politics

Jonathan S. Tobin 10.03.2012 - 9:30 AM

Liberals celebrated yesterday when the same Pennsylvania Commonwealth Court judge who upheld the state’s voter ID law in August reversed himself and enjoined its enforcement on Election Day. There’s no denying that this is a defeat for the legislature that passed the bill as well as the overwhelming majority of Americans who back ID laws as a commonsense measure to deter voter fraud. But frustrating as it is, it is but a temporary setback. Both Judge Robert Simpson and the state Supreme Court have indicated that the law is constitutional. Yet Simpson, like many another judge when asked to affirm legal principles that are under attack by influential liberal forces, wavered when put to the test.

When Pennsylvanians go to the polls next month, they will be still asked to identify themselves with a photo card. But, as was the case in April when the rules were rolled out during the state’s primary, no one will be denied a ballot, even if they have no such documentation. The left-wingers who sued to strike down the law claimed voters would be unfairly disenfranchised. Simpson did not fully accept their assertions, but rather than face the storm that fully upholding the law would bring down on his head, he said there was not enough time before the election to ensure “liberal access.” While this means it will still be possible this year for political machines to turn out fictitious voters without fear of being caught — a time-honored political tradition in Philadelphia — in the future such shenanigans will be more difficult.

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Chief Justice’s Approval Rating Dives 40 Points With Republicans

Alana Goodman 07.16.2012 - 5:01 PM

Obviously Chief Justice John Roberts was going to take a hit in the polls after his ObamaCare decision — but a 40-point drop among Republicans? There’s no way he ever bounces back from this, right?

A Gallup poll released Monday found that Roberts’s favorables dropped 11 percentage points among all Americans since the last survey in September 2005. The most recent polling showed Roberts with 39 percent of national adults having a favorable opinion of him. In 2005, the same poll found that 50 percent of adults had a favorable view of the chief justice.

Among Republicans, Roberts’s drop has been more drastic. Sixty-seven percent of Republicans had a favorable view of Roberts in 2005, a figure which plummets 40 points to 27 percent in the 2012 survey. Four percent had an unfavorable view of the chief justice in 2005, jumping to 44 percent in the new poll.

Roberts’s betrayal wouldn’t have been as gut-wrenching if his decision had been based on principled arguments, even if they were wrong. The elevation of politics over principle made it much worse. He wasn’t just mistaken; he sold out his own side for political expediency. Americans have come to expect that from politicians, but not from the Supreme Court.

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The Constitution, Court, and Fourth of July

Rick Richman 07.03.2012 - 5:34 PM

It seems safe to say that no Supreme Court decision has ever been extolled more effusively by its admirers than the ObamaCare one, notwithstanding the fact that it was — in the words of the admirers — based on an unpersuasive argument whose coherence is easy to question.

Jeffrey Toobin at The New Yorker described Chief Justice Roberts upholding ObamaCare under the “tax” argument as a “singular act of courage” — although Toobin admitted, “[f]rankly, that argument is not a persuasive one.” Jeffrey Rosen at The New Republic described the chief justice’s action as an admirable legal “twistification,” comparable to those of Chief Justice John Marshall — even though it “would be easy, of course, to question the coherence of the combination of legal arguments that Roberts embraced.” Unpersuasive, incoherent, but what an act of courage!

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John Roberts, Chief Sophist

Peter Wehner 07.03.2012 - 11:15 AM

In his Washington Post column, Michael Gerson writes this:

Even in a short time, Roberts’ decision has not worn well. What initially seemed wise now smacks of mere cleverness—less a judge’s prudence than a lawyer’s trick. To find the health care law constitutional, Roberts reimagined it. It was outcome-based jurisprudence, even if the intended outcome was institutional harmony. It was an act of judicial arrogance, even in the cause of judicial deference. And it raises deeper concerns. Unmoored from a reasonable interpretation of the law, institutionalism easily becomes the creed of the philosopher-king—hovering above the balance of powers, tinkering benevolently here and there, instead of living within the constraints of the system.

Mike is right on every particular. What Chief Justice Roberts did was supremely arrogant and unwise. Whatever motivated Roberts—he would undoubtedly insist it was his high-minded concern for the legitimacy of the Court; his critics would say it was his concern for winning the favor of the New York Times—he embraced a role that simply was not his to assume.

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The Great Miscalculation of John Roberts

Seth Mandel 07.02.2012 - 11:16 AM

Conservatives have been rightly disappointed with the Supreme Court ruling to uphold ObamaCare, but that disappointment has been all the more bitter because the case has been full of unpleasant surprises. Conservatives believed they had two objectives to get ObamaCare overturned: convince a majority of the justices there was no “limiting principle” to the individual mandate that would excuse it from setting precedent on the Commerce Clause, and convince Anthony Kennedy (the assumed swing vote) that because there was no limiting principle, the law could not survive an accurate reading of the Commerce Clause.

They did both, and yet still lost the case, thanks to Chief Justice John Roberts’s decision to elevate politics over jurisprudence. But now it’s time for Roberts to confront disappointment himself. Roberts believed he was doing two things by upholding ObamaCare: he was settling the issue of whether the mandate is a tax (it is), thus protecting the Commerce Clause, and he was preventing the further delegitimization of the Supreme Court by the Democrats, thus improving its general reputation. He failed on both counts.

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Was Roberts’ Opinion Only an Essay?

Rick Richman 07.02.2012 - 10:50 AM

As Peter Wehner notes, now that Chief Justice Roberts has upheld the ObamaCare mandate as a “tax,” the administration no longer views it as a tax. Those finding solace in the fact that the chief justice, while adopting the administration’s extraordinarily weak “tax” argument, at least rejected its Commerce Clause contention, may be surprised to learn the part of his opinion relating to the Commerce Clause did not speak for the Supreme Court.

The official Syllabus notes that “Chief Justice Roberts delivered the opinion of the Court with respect to Part II, concluding that the Anti-Injunction Act does not bar this suit,” and “delivered the opinion of the Court with respect to Part III-C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause.” Part III-A of the Roberts opinion – concluding the ObamaCare mandate was not valid under the Commerce Clause – was not in the portion of his opinion that represents the opinion of the Court.

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Obama’s Systematic Assault on the Truth

Peter Wehner 07.02.2012 - 9:19 AM

The Democratic talking points have been issued and are being followed to the letter (see here and here). And they go like this: The Affordable Care Act (ACA) is not a tax; it’s a penalty. Those who suggests it’s a tax are wrong, in error, disingenuous, and dissemblers.

Here’s the problem, though: characterizing the Affordable Care Act as a tax isn’t simply the interpretation of Chief Justice John Roberts and a majority of the Supreme Court; it’s the interpretation of the Obama administration.

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The Chief Justice’s Irresponsible Decision

Peter Wehner 06.29.2012 - 12:40 PM

I will grant that the opinion written by Chief Justice John G. Roberts, Jr., which upheld the Affordable Care Act (ACA) as constitutional based not on the Commerce Clause but instead on Congress’ power under the Taxing Clause, was clever. Even, in some respects, ingenious.

Roberts achieved a liberal end, upholding the ACA, while also employing conservative arguments and affirming conservative premises—including imposing limits on the Commerce Clause, finding that the Necessary and Proper Clause cannot be used as a stand-alone justification for a statute that is not otherwise justified by another enumerated power, and declaring that Congress cannot use its spending power to coerce state participation in federal schemes. Something for everyone.

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When Legacy and Legitimacy Collide

Seth Mandel 06.29.2012 - 11:46 AM

In the opening chapter of his new book Twilight of the Elites, the Nation’s Chris Hayes makes an astute point about the challenge then-Senator Barack Obama set up for himself when running for president. In some ways, it is a recurring theme in presidential politics, but it was clearly more pronounced in Obama’s case. As a candidate, Obama had to defeat the epitome of his party’s establishment: the Clintons, their brand of politics, and their allies–and then run against George W. Bush’s party. To do so, Obama had to tear down the public’s already shaky faith in their elites and their elite institutions. But as a liberal who believes in a muscular federal government, Obama also needed to immediately restore the reputations of those institutions, or he couldn’t govern.

Hayes thinks that’s pretty much what the president tried to do, and ended up being an establishment elite himself. I partially disagree, and what we saw at the Supreme Court yesterday, and in the months and days leading up to it, shows why. The headlines in the mainstream media after ObamaCare survived its own death panel by the mercy of Chief Justice John Roberts were telling. Viewers learned, almost uniformly, that Roberts had saved the Court and its reputation. But that reputation was under constant assault from Obama himself–this time as president–and his allies. As if he were an insurgent candidate again, Obama put in unprecedented effort to tarnish the reputation and legitimacy of the Court, as it turned out decisions he didn’t like and even contemplated overturning his signature piece of legislation. But then a funny thing happened.

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An Enormous Expansion of Federal Powers

D. G. Myers 06.29.2012 - 11:15 AM

The most important sentence in Justice Roberts’s opinion yesterday upholding the Affordable Care Act is the least arresting. The new ObamaCare tax, which Roberts created in order to uphold the Act, “makes going without insurance just another thing the government taxes, like buying gasoline or earning income.”

Despite Roberts’s blithe assurance that a tax on “going without insurance” is nothing new, the fact is that this one sentence expands the powers of the federal government beyond anything previously known. For the first time in U.S. history, the government may tax what you and I do not do. Roberts calls these failures to act “omissions.” For the life of me, I can’t think of an omission — a refusal to act — the government now taxes. Penalties may be imposed for failing to do something (library fines for not returning a book on time, speeding tickets for not observing the speed limit, restaurant fines for not adhering to the health code). But even these require affirmative acts first: I must first check out the book, drive too fast, open a restaurant and scatter food about for the roaches and the rats. But just sitting around and minding my own business? For the first time in U.S. history, I can be taxed for that.

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The Damage John Roberts Has Done

John Podhoretz 06.29.2012 - 11:10 AM

There are several fascinating and provocative pieces today—among them one by Sean Trende, one by Jay Cost, and one by COMMENTARY contributor Adam J. White—that argue John Roberts’s peculiar opinion in the Obamacare case yesterday is a Machiavellian masterstroke. It is, they say, comparable to the ju-jitsu practiced by the first chief justice, John Marshall, in ruling for Thomas Jefferson’s administration even as he single-handedly raised the Supreme Court to a co-equal check-and-balance on the executive branch, something Jefferson detested, in the 1803 Marbury v. Madison decision.

Roberts himself probably had Marshall and Marbury in mind as he crafted an opinion that seeks to limit federal power even as it allows its expansion in this single case. Which does not change the fact that Roberts’s reasoning is intellectually, ideologically, and legally perverse—willfully so, in fact. And no matter how you slice it, such perversity is not good argument, good intellection, or good leadership by the nation’s most powerful thinker.

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The Supreme Court’s Surprise

John Steele Gordon 06.28.2012 - 11:20 AM

Well, the Supreme Court, as it has so often before, surprised nearly everybody. Most people thought Justice Kennedy was the pivotal vote. He wasn’t. He thought the whole Affordable Care Act unconstitutional, as did Justices Alito, Scalia, and Thomas. The four liberal justices would have upheld the whole act. It was Chief Justice Roberts who made all the difference, and his idiosyncratic reasoning will have profound constitutional implications far beyond ObamaCare. Here are three, a distinctly mixed bag.

1) He limited federal power under the Commerce Clause. It is not constitutional to require people to buy a product. The clause is limited to regulating commerce that is, not commerce the government wants to see. That’s a big deal, because had the requirement been upheld, the power of the federal government under the Commerce Clause would have become essentially unlimited. As was pointed out in oral argument, you could be required to buy broccoli.

2) He greatly expanded the taxing power. Never before that I know of, has a federal tax been placed on inactivity. If you buy something, you pay a sales tax. If you earn income, you pay an income tax. If you do business as a corporation, you pay an excise tax. Now, if you don’t buy health insurance, you pay a tax on not doing so. What else then can be taxed? Not exercising? Not eating broccoli? Not agreeing with the president?

3) He considerably limited federal power over the states. The Tenth Amendment has been largely a dead letter for decades, declared a mere truism. (In which case, why did the Founding Fathers include it?) But Roberts ruled that while the federal government can tie strings to federal money given to the states—in this case additional Medicaid funds—it cannot coerce the states by threatening to take away other funds unless its will is complied with. This is a tactic the federal government has been using for years to, in effect, make states mere administrative districts of the federal government. For instance, it forced the states to adopt 21-to-drink laws or face the loss of federal highway funds. Roberts is arguing that the states are, indeed, sovereign within their own sphere. That is also a big deal.

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Flotsam and Jetsam

Jennifer Rubin 10.01.2010 - 7:00 AM

Wow. Chris Christie on the Democrats’ threat to shut down the government. “I said, ‘Listen, I’m going to get into a black Suburban and I’m going to drive back to the governor’s residence, go upstairs and order a pizza. I’m going to turn on a baseball game. You all can call me when you decide to reopen the government.’”

Bingo. Bob Zelnick on a replacement for Larry Summers: “I suspect the worst. This man thinks he knows everything about everything to the point where he is immune to fundamental laws of science and economics. What he needs is a person smart enough and with the confidence to say, ‘Mr. President, you are wrong.’”

Yesiree. On Peter Rouse: “[T]here is no reason to think he’ll be any more successful as a moderating force behind President Obama than was Emanuel. Consider, Rouse convinced then-Senator Obama to vote against the confirmation of John Roberts to the Supreme Court.” Until the president changes, or we change presidents, don’t expect anything to improve.

Yup. “It’s the president who showed the GOP a way out of the wilderness. He couldn’t have provided a better message. Republicans are always at their best, always throwing up the broadest tent, when they talk sense on the economy—free markets, the need for growth, the problems of overspending. … Mr. Obama is trying to rally his base; maybe he will. Republicans are trying not to blow it; maybe they will. But should this prove a Democratic bust-up, the least the GOP can do is send the president a thank you.”

No kidding. “Efforts to salvage Middle East peace talks were at full throttle on Thursday as American officials sought to persuade Israel to renew a West Bank settlement freeze with military hardware and diplomatic guarantees while urging the Palestinians to accept a partial end to Israeli building there through a separate set of inducements. So far, no formula had been found.”

Exactly. “President Obama’s latest interview with Rolling Stone magazine is revealing precisely because it is so typical. Everyone — really just about everyone in American politics — is chided, challenged, instructed, judged or admonished in one way or another. The president’s condescension is universal.”

Makes sense. “Pretty much across the board voters’ ill will toward Obama outweighs their ill will toward the Republican Senate candidates. But there is one exception- in Delaware Chris Coons leads Christine O’Donnell 51-21 with folks who don’t like her or Obama- I guess there’s only so far some voters are willing to go. The voters who hate everything and everyone are a key part of the electorate this year- and their support of the GOP is a big part of why the party’s headed for a big victory.”

Desperation Time

Jennifer Rubin 08.22.2010 - 8:00 AM

The Democrats are now in full retreat. Less 75 days before the midterm elections, the Republicans have a historic lead in congressional generic polling. The president’s approval rating is sinking. It is now every man for himself, as the Democrats scramble to be the ones on the electoral lifeboat that will survive the electoral wave. The smarter and more vulnerable Democrats distance themselves from Obama on the Ground Zero mosque. A few savvy Senate Democrats back extension of the Bush tax cuts. And now they’re even promising to “improve” ObamaCare.

But wait. As to the latter, why not do it before the election? Hey, there is time. They claim that they’re not out of touch. They say the bill could use some work. So how about it, fellows? Oh, yes, I guess they don’t really mean it. This would be another gambit, a fraudulent inducement really, to convince voters to spare them the ax. We’ll put immigration reform at the top of the agenda. We’ll pass a budget. We’ll fix ObamaCare. Desperation rivals dishonesty as the central feature of their campaign strategy.

As the great philosopher Groucho Marx put it, you don’t like those principles? They’ve got other principles. Well, not a principle but an eye-rolling mantra of declining utility: George W. Bush.

It is worth pondering what they mean by invoking the name of the president whose approval is now higher than Obama’s in key congressional districts. The Republicans are going to start another surge and win the war in Iraq all over again? A Republican Senate will insist on judicial appointees of the caliber of John Roberts and Sam Alito? A Republican Congress will insist we not raise taxes in the midst of a recession or burden the private sector with a mind-numbingly complicated regimen of financial reforms? Many voters would say, “Sign me up!” As his brother Jeb Bush put it: “It’s a loser issue — they have a big L on their foreheads. If that’s all they’ve got, it’s a pretty good indication of the problems that the Democrats face in 2010.”

Then there is the old standby: insult the American people. We are bigots, rubes, and Constitutional illiterates, the left tells us. Finding themselves on the wrong side of an emotional issue, they have lashed out at the Ground Zero mosque opponents. It is too much even for Howard Dean: “I think some of my own folks on my end of the spectrum of the party are demonizing some fairly decent people that are opposed to this. Sixty-five percent of the people in this country are not right-wing biogts.” Aww, thanks, Howard. And it’s 68 percent, but who’s counting?

If you think the Democrats’ strategy seems scattered and bizarre, you are not alone. The voters, already cynical and angry, are unlikely to be charmed by transparent campaign inducements or to be scared by bogeymen. Nor are they likely to reward with their votes those labeling them racists. In fact, if the voters didn’t have reason to throw the Democrats out before, all of this may convince them it’s time to give others a chance.

The desperation of the left stems not merely from the prospect of an election wipeout but also from the potential for a repudiation of the undistilled liberal rule that has riled voters. The “permanent majority”, the shift from a center-right to a center-left country — that fantasy goes poof! The real possibility that ObamaCare will never go into effect, leaving as Obama’s sole accomplishment the completion of the Iraq war successfully waged against his objections, is no doubt terrifying to the left.

But if you think the Democrats are desperate now, wait until the election returns are in. The effort to explain the results — to furiously spin the returns as really good news for Obama and to simultaneously blame the results on anti-Muslim hysteria — will make the Democrats’ current campaign tactics seem tame and sane by comparison.

Flotsam and Jetsam

Jennifer Rubin 06.29.2010 - 7:00 AM

Every Supreme Court nominee is an advocate of judicial restraint, but not all justices are. Elena Kagan: “[T]he Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one – properly deferential to the decisions of the American people and their elected representatives. … That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.” Like the choice to insist that military recruiters be given access to campuses?

Every Supreme Court confirmation hearing now seems like a charade. As Tom Goldstein noted: “There is nothing in her opening statement that would distinguish her from John Roberts or Sam Alito.” Except the fact that they really believed what they were saying.

By virtually every standard, Kagan is underqualified for the job: “Solicitor-General Elena Kagan practiced law at the Williams & Connolly firm here in the nation’s capitol for only two years, a much briefer stint than the 20.5 year average of other Supreme Court Justices who had no prior judicial tenure before joining the nation’s highest court.”

Not every case is as important as McDonald v. Chicago. Steven Calabresi: “The McDonald holding will lead to a slew of additional challenges against state and municipal laws around the country regulating or restricting the firearms rights of law-abiding citizens. Justice Alito’s opinion is also of tremendous importance because it is based on the premise that substantive due process rights must be deeply rooted in American history and tradition before the Supreme Court can protect them.”

Every new utterance by Peter Beinart is wackier than the last. “Even as Republicans claim political momentum, the country is in the midst of a major shift leftward when it comes to the role of government.” Yeah, right. Well, if every poll on the subject is wrong, I suppose this could be true.

Obama’s “reset” means giving in to every Russian demand without extracting anything in return. David Christy thinks we shouldn’t “feed the Russian bear” when it comes to entry into the WTO: “Everyone is focused on timing, but the issue is not whether or when Russia should join, but the terms. The fact of the matter is that Russia has yet to accept a set of commitments that justifies entry into the WTO. Terms that are too soft might have a negative impact on the WTO, Russia’s trading partners, and, in the long term, Russia itself.”

Every time someone calls Robert Byrd legendary, remember: “He participated in a filibuster of the 1964 Civil Rights Act and was the only member of the Senate to vote against the confirmation of both Thurgood Marshall and Clarence Thomas to the Supreme Court.”

Refuse to Vote Until Kagan Shows Her Cards

Jennifer Rubin 05.17.2010 - 8:15 AM

On Fox News Sunday, Juan Williams underscored the buyer’s remorse that some on the left are experiencing over Elena Kagan’s nomination:

I think they are worried. I think they’re — they feel, in part because she doesn’t have a record as a judge, that there’s no way to say that she’s predictable and that she will be a stalwart in terms of liberal positions and values and a counterweight to Chief Justice Roberts, Justice Scalia, Justice Thomas, which is what the left really wants. They want somebody who’s going to make the case for that liberal position.

So if you look at issues ranging from death penalty, to the Citizens United case on campaign finance, the sense is, “You know, are we sure where Elena Kagan stands?”

There are a few possibilities here. One is that Obama “knows” her better than the rest of the left and is convinced she’s a dependable vote (i.e., the left is in a tizzy for nothing). Another is that Obama doesn’t know any more than his base and assumed that her moderate demeanor — like his own — was a cover for radical views (i.e., the left is in a tizzy for good reason). A third is that Obama and the left are in some choreographed dance to make her seem moderate but have no real qualms about her (i.e., the left’s tizzy is fake). The latter is a bit hard to buy given the blogospheric semi-meltdown over her non-record.

What we do have is a joint interest by the right and the left in forcing Kagan to be candid — and in voting no, or delaying her nomination, if she is not. Listing the litany of hot-button issues now in the purview of the Supreme Court, Ezra Klein writes:

So where does Elena Kagan fit into all this? You’ll have to ask her. Or, more to the point, the Senate will have to ask her. And hope she’ll answer. John Roberts’s famous “umpire speech” showed the appeal of a nonphilosophical judicial philosophy, but his unexpected activist streak on the bench has shown how little we actually learned from his confirmation process. In reality, the world is made of players, not umpires, and we deserve to know whom we’re drafting.

The only way to force her to live up to her own self-proclaimed standard for candor (she previously wrote that it “is an embarrassment that Senators do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues”) is to refrain from confirming her until she puts her cards on the table. Otherwise, both the left and the right are guessing blind on a critical, lifetime appointment.

Specter’s Lesson: Sharper Than a Serpent’s Tooth Is an Ungrateful Abortion Lobby

Jonathan S. Tobin 05.13.2010 - 2:46 PM

Consistency on the issues has never been one of Arlen Specter’s character traits as a politician. Yet for all of his flips and flops on just about everything, not to mention his two changes in party affiliation, there is one issue on which the ultra-cynical senator has been fairly consistent: abortion. Indeed, if there is any one point of contention that defined him in his Senate career as a “liberal” Republican, it was his “pro-choice” beliefs. But despite three decades of such a stance and the fact that he has now joined the party that generally treats the backing for abortion as a litmus test, NARAL Pro-Choice America, the premiere pro-abortion lobby, is throwing Specter under the bus in the midst of his life-and-death struggle to hold on to his Senate seat.

NARAL endorsed Specter’s opponent Rep. Joe Sestak yesterday in a statement that dismissed the senator’s decades of work without so much as a backward glance. Indeed, far from treating the question of which pro-choice Democrat to back in the primary as a dilemma, NARAL Pro-Choice America’s president Nancy Keenan stuck the proverbial knife in the back of her group’s erstwhile loyalist by saying: “Many Pennsylvanians are under the impression that Arlen Specter might be a reliable pro-choice voice, but his record says otherwise. Pennsylvanians deserve a senator who considers being pro-choice a position of conviction, rather than a position of convenience.”

Ouch! Reading that, you have to sympathize a bit with Snarlin’ Arlen. You might well say that such a swipe at his character would be justified if you were talking about anything else, but it’s hard to argue that his stand on just about the only issue on which he has been consistent was merely a matter of convenience.

What’s NARAL’s motive? Is it belated payback for Specter’s roughing up of Anita Hill? Maybe. But according to its release, it’s the fact that Specter voted for Republican court nominees John Roberts and Samuel Alito and at one point voted, along with many Democrats, in favor of a ban on partial-birth abortion. But Specter’s record on court nominations has been anything but consistent, given his participation in the vicious attacks on Robert Bork in the 1980s, which pleased NARAL, and his vote in favor of the confirmation of Sonia Sotomayor last year.

But the real answer may be elsewhere in the statement, where Keenan claims, “Joe Sestak is the candidate who is best positioned to defeat an anti-choice opponent in the November general election.” Which is to say that she has read the polls, which show that Specter’s lead over his opponent has evaporated and that Sestak may be a tougher opponent for likely Republican nominee Pat Toomey. Now that he really needs them, Specter is finding that NARAL, like every other political entity, prefers backing likely winners to helping out old friends.

But just to show that ingratitude and extremism aren’t confined to the pro-choicers, the Philadelphia Inquirer reports that the long-shot challenge to Toomey in the Republican primary next week is also motivated by abortion. Activist Peg Luksik thinks that the former congressman isn’t sufficiently fanatic on the issue because despite his consistent pro-life record, he believes there should be exceptions to any potential ban on abortion in cases of rape or incest or to save the life of the mother. Luksik’s claim to fame is that 20 years ago, she won 46 percent of the vote in a failed attempt to deny a GOP gubernatorial nomination to Barbara Hafer, a pro-choice Republican. Since then, she twice ran as a third-party candidate for governor against Tom Ridge.

Toomey is a prohibitive favorite and doesn’t have much to worry about in the primary. But looking ahead to November, he does seem to have a firm grasp on the difference between running against Specter and running against Sestak. While claiming that either would energize the Republican base, the Inquirer quotes Toomey as summing up the contrast between the two in this way:

“If Joe Sestak wins the nomination, I do think it will be a much more substantive discussion about policy, whereas if it was Arlen Specter, it would be a series of personal, negative ads trying to smear character. That’s the way he’s always operated.”

Americans Not Thrilled with Kagan

Jennifer Rubin 05.12.2010 - 12:25 PM

Gallup reports that Elena Kagan is rated a good or excellent choice by 40 percent of Americans, lower than John Roberts, Sam Alito, Sonia Sotomayor, and even Harriet Miers. In large part this is because 24 percent of Americans have no opinion of her at all, which seems appropriate for a stealth nominee who has not served on the bench or written anything that would give us a strong indication of what sort of justice she’d be.

Maybe she’ll wow the Senate and the public, give us plenty of indication as to her constitutional philosophy, and show mastery of the many areas of the law that will soon command her attention. But I sort of doubt it. Kagan got this far by not tipping her hand; she’s not about to now.

Views on the Supreme Court

Jennifer Rubin 04.21.2010 - 9:07 AM

The American people are not a model of consistency when it comes to their take on the Supreme Court. The latest Quinnipiac polls tells us:

“A total of 53 percent of American voters are “very confident” or “somewhat confident” President Obama will make the right decision in nominating a U.S. Supreme Court justice, while 46 percent are “not too confident” or “not confident at all” …

Voters trust the President rather than Senate Republicans 46 – 43 percent to make the right choice for the Supreme Court, but say 48 – 41 percent that Senators who do not agree with the nominee on key issues should filibuster the choice.

American voters approve 49 – 21 percent of the job John Roberts is doing as Chief Justice of the Supreme Court and approve 52 – 32 percent of Obama’s nomination of Justice Sonia Sotomayor to the Court.

The court is too liberal, 29 percent say, while 19 percent say it is too conservative and 40 percent say it is about right. Saying “about right” are 36 percent of self-described liberals, 44 percent of moderates, 38 percent of conservatives and 30 percent of those who consider themselves part of the Tea Party. Voters say 78 – 16 percent that Supreme Court justices allow political views to enter into their decisions.

Huh? They trust the president, but a filibuster is fine to block Obama’s choice. They trust the president but think the current Court (the majority of whose members Obama would never nominate) is just fine. They approve of Roberts, the conservative, textualist scholar, but are delighted with the newest justice, who is neither of those things. Well, suffice it to say there’s something in there for everyone, and the public has become exceptionally cynical about the politicization of the Court.

RE: Lawyers Should Cheer

Jennifer Rubin 03.10.2010 - 2:59 PM

Jan Crawford (h/t Glenn Reynolds), among the best of the mainstream media Supreme Court reporters, socks it to the White House for its juvenile insistence on getting the last word on its running spat with the Court. After Chief Justice John Roberts made the fine suggestion that the Court should abstain from the State of the Union, Robert Gibbs seemed to make Roberts’ point for him by replaying the president’s slap at the Court. (“What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections – drowning out the voices of average Americans.”) Crawford thinks this is ridiculous:

But after Chief Justice John Roberts made some entirely reasonable remarks yesterday — and White House Press Secretary Robert Gibbs just had to respond — it’s now getting ridiculous. Whether the White House has a short-term or long-term strategy or no strategy at all, it’s flat-out absurd and ill-advised for the administration to think it should always have the last word. It’s like my 6-year-old: “I don’t LIKE your idea. I like MY idea.”

She continues:

This administration is going to have to be dealing with this Supreme Court for at least three more years, if not more. Its lawyers are going to have to appear before these justices to defend presidential initiatives or federal laws in case after case, big and small.

I’m not suggesting they won’t get a fair shake simply because the White House is trying to stick it to the conservative justices. George Bush repeatedly got slapped down by this Court, even though he never lashed out at the justices.

But at some point — and I’d say that point is now — the Obama Administration is working against its interests.

They’d do well to remember that on a lot of the issues they care about, the Supreme Court gets to decide. No matter how much they stomp their feet and shout, “I don’t LIKE your idea; I like MY idea,” the Supreme Court is going to get the last word.

This is par for the course at this White House. It’s the perpetual rat-tat-tat, the quintessential campaign quick-response mode. There is no respect for the Chief Justice or the Court as an institution, nor for the point the Chief Justice was making: that it’s unseemly for the Court to appear and to get dragged into partisan brawls. In their partisan vitriol, the Obami, of course, proved the Chief Justice’s case. But then, self-awareness was never the White House’s strong suit.

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