And Now On to the Conventions and November
With Sunday's talk shows behind us, we now see the Obama administration furiously trying to fend off the public labeling of ObamaCare as a tax. Jack Lew, Obama's chief of staff, tried every conceivable way to parry against Chris Wallace on Fox News Sunday, but Wallace continued pinning him to the ropes. Lew just would not admit that ObamaCare is a tax, even though his administration's solicitor general pleaded with the Supreme Court to call it a tax, and the Court ultimately gave it that label. If the surest way to know that a politician is lying is when he moves his lips, what shall be said when he refuses to stand by his solicitor general's own argument when the Supreme Court quotes him?
The passion among conservatives is at its boiling point, and the timing is nigh perfect for the rise in temperature. Obama desperately scrambled in every direction to deny that he was imposing a tax on Americans, a tax that primarily hits the middle-class. Seventy-five percent of the cost will fall on the middle class, Americans earning below $120,000 annually. Five hundred billion dollars will be cut from seniors' Medicare. After ObamaCare had been passed, Democrats evidenced their utmost contempt for American voters when, led by Nancy Pelosi in the House and Harry Reid in the Senate, they persistently denied that ObamaCare imposes new taxes. Yet it was Pelosi who told us that, once they would pass the bill, we all finally would find out what's in it.
Yes, it took a few months to parse through 2,700 pages of legalese, but now we know what is in it: namely, a tax that will hit four million Americans. The average American voter may be more conversant with Snooki and the Bored Housewives of [Name the City] than he or she is with terms like "line-item veto" or "rendition." But when you tell Americans that Congress is about to pass yet another tax that will cost them more money on yet another line of their Form 1040, that they understand. And Congress knows what Americans will do to anyone, regardless of party, who tries forcing another tax on us. (Perhaps someday liberals will better understand the full dimensions of "tax" if a future Congress imposes a tax on abortions, a tax on abortion counselors or doctors or equipment, a tax on personal incomes exceeding one million dollars annually against actors who are paid for memorizing and reciting sentences that others write for them, or a tax on states that poison the earth by refusing to allow environmental specialists from the oil industry to remove polluting petroleum and natural gas deposits from deep below the surface.)
Madame Justice Ginsburg almost surely will retire from the Court sometime in the next eight, if not four years. Justices Scalia and Thomas seem robust, as does Justice Kennedy. It is not so clear regarding Justice Breyer. The first Obama term gave us Justices Sotomayor and Kagan. The next American presidential term almost surely will continue to impact the High Court. At the same time, below the radar, presidents appoint scores of federal judges throughout their four years. The Senate already has confirmed Obama's selection of 121 federal district judges at the trial level and 30 appeals court judges at the appellate level. At this writing, there are 13 vacancies on the federal appellate level and 35 on the district level. At least 16 more federal judicial vacancies are expected by January.
These judges bear enormous responsibility and carry enormous weight in shaping America. The vast majority of district cases never get appealed. Of those very few that do go to the appeals courts, only a minuscule number go to the Supreme Court. In the year 2009-2010, for example, the overwhelming tide of federal appellate court decisions never were appealed to the United States Supreme Court. And of the 8,159 petitions for certiorari, the High Court accepted only 87 for review. That is a typical year -- only a fraction of one percent of all appellate decisions ever go before the nine justices. The president of the United States appoints those appellate judges who make all that law. The timing could not be more important for conservatives to be energized and riled.
Democrats suddenly are complacent about the Supreme Court. Obama will not be able to energize them with a deceit that democracy is threatened by a partisan conservative court now that his health care bill has survived. By contrast, conservatives are riled and want a president who will not put another Justice Blackmun or Stevens or Souter -- nor a Harriet Miers -- on the High Court as the "conservative justice." This bursting energy on the right, alongside the complacency on the left, augurs well as November approaches. Conservatives also are reviving focus on changing the Senate by working to switch more of those 23 Democrat seats up for re-election, while working where practicable to defend the 10 Republicans seats on the re-election table. It is a chance to mete out another 2010-style shellacking of Democrats. To paraphrase Johnny Hooker in The Sting: "You're right, Henry. It was close...but it was not enough!" It will take a few more Republican seats in the Senate, and the energy is there to turn out the vote in November, even as Obama Girl equivocates on whom she favors this time, while college grads and Ph.D. candidates try to fathom how the "hopey-changey thing" ended up leaving them without job opportunities four years after Obama was elected to fix everything, calm the ocean floor, and cool the climate.
Less than two months from convention season, American politics now is roiled with a returning cause célèbre -- ObamaCare -- amplifying so many other issues including economics, the ballooned deficit, the shattering debt, yet another round of rising unemployment, debacles like Solyndra that reflect Obama administration cronyism as hundreds of millions are poured down the tubes for administration friends and Obama contributors, the war against energy-production reflected in the refusal to permit constructing the Keystone pipeline, Holder and the Black Panther voter intimidation, Holder and the federal litigation war against Arizona, Holder and Fast and Furious, power-crazy regulators at EPA aiming to "crucify" corporations in their way, national security leaks, and so much more. In this energized environment, with the Tea Party revived to finish the war against ObamaCare, if just a few Senate seats are turned around, ObamaCare faces its ultimate demise.
In the days before ObamaCare's passage, the Senate initially had been putting final touches on its plan, which enjoyed a 60-seat filibuster-proof Democrat Senate majority. Then Scott Brown won that "Kennedy seat" in Massachusetts, and the Republicans now had the 41 votes needed to filibuster the Senate. Suddenly, the only way the Democrats could get ObamaCare through the Senate was by taking the even more extreme Pelosi Bill that had passed the House, and then conducting a "budget reconciliation" gambit. Only 51 Senate votes, the bare majority, are needed for "fiscal reconciliation" bills. Now that ObamaCare officially is labeled a "tax," the individual mandate inherently -- by definition -- is "reconcilable."
It can be killed with 51 Senate votes, killed dead in its tracks for a generation to come as Republicans start taking back the country. Once that happens, Democrats will not touch health care for the next 20 years, just as HillaryCare led to the Gingrich Sweep of 1994 and drove Dems away from "reforming" healthcare for nearly the next 20 years. Post-Clinton, Democrats continued harboring the nagging thought for two decades that "if we only had passed the darned bill under Clinton, Americans would have come to love socialized medicine and also would have respected us for passing it." They were driven this time by the belief that (i) Americans will love socialism once they are fed it and (ii) Americans will respect them for passing a controversial bill. Instead, Americans still despise the bill, still want it depleted and deleted, and respect Democrats less for having passed it. After their massive rejection at the polls in November 2010, Blue Dog Democrats seem to have been spayed and now are so endangered that one expects PETA to adopt them. Remember Bart Stupak? No.
There is a scene in The Unforgiven where Clint Eastwood shoots a bad guy from what seems like miles away. The camera shows the bad guy slapping at his side for a moment, as though he were stung by a mosquito or a bee. He continues with his business. Meanwhile, the guy standing near Eastwood ("the Kid") says, "You missed him. ... He ain't killed." And Eastwood responds: "Got him through the gut, I think. ... Yeah, we killed him, I guess." Sure enough, a few moments later, the bad guy doubles over and rapidly collapses to die. That is what has happened to ObamaCare. It will take four months instead of four minutes, but "they got [it] through the gut, I think. Yeah, [they] killed it, I guess." It now is a politically loathsome and volatile "tax." Moreover, it now can be killed in "reconciliation" with 51 Senate votes, no longer needing 60. Third, by virtue of a strong 7-2 vote in the Supreme Court that bars the federal government from coercing states to expand their Medicaid systems, now the states can refuse to accept the federal invitation to participate in wildly expanding Medicaid rolls, a refusal that further will cripple the entire framework of the bill.
The battle lines ahead are clearly drawn. We know who the Republican presidential candidate is and no longer are immersed in internecine GOP warfare. We know that, despite the mess of health care he made in Massachusetts, or perhaps because he is keenly aware of it, Romney is going to focus on killing ObamaCare as Job One. There is a huge difference between giving voters in Massachusetts a new tax they want on a state level and imposing a broad federal mandate that would run health care for the fifty states out of Washington, D.C. Romney will oppose that, and he will fight it. Equally importantly, wherever possible, we must elect Republican U.S. senators like the new breed we elected in 2010: Marco Rubio instead of Charlie Crist, Mike Lee instead of Robert Bennett, Rand Paul instead of Trey Grayson, Pat Toomey instead of Arlen Specter, and Ron Johnson instead of Dave Westlake. These kinds of fresh new Republican U.S. senators in the Jim DeMint mold will hold Romney and the Republican establishment to the spotlight and to the fire.
Dov Fischer, adjunct professor of law at Loyola Law School, is a columnist for several online magazines and is rabbi of Young Israel of Orange County. He blogs at rabbidov.com.