The Trojan Horse – Comments II

I have received another comment to my post: "The Trojan Horse - Comments." It came from Leonard Levenson Esq. of Manhattan, whose relatively long dissertation can be found in full here

I am reproducing his arguments in quotations with my responses below.

Levenson’s response is exactly what I have been railing against. It represents a closing of one’s eyes to facts that contradict one’s preconceived notions, which are planted by our “wonderful media and their pundits,” who have even less interest in facts or even logic.

I set forth in my earlier posts, a huge number of major accomplishments by the President and his Administration, some of which Levenson may been have been aware of, and many of which he may have forgotten or never knew. But instead of saying thank you for reminding me, I get “they are minor.”

I was an early and enthusiastic supporter of Obama but like eroding drops of water on granite, his record is eroding my enthusiasm for him. I do not doubt the sincerity of his social views but he has been ineffective in implementing the important changes that concern me.

I have been trying to understand the irrational hatred of our President by those who should be hailing his great accomplishments. I can only come up with one theory that makes any sense. I conclude that in the great enthusiasm that the candidacy of Barack Obama engendered, caused a delinking from reality. As I wrote in my sardonic post of November 2009 entitled Obama Walks on Water," the public has discovered that Obama does not “Walk on Water” and has “no magic wand.” Apparently neither the punditry, nor the “liberal public” has even now been able to come to terms with the fact that the President has no magic wand. They are angry because they feel that he has refused to wave it.

You mention many of his accomplishments but they were largely minor.

Minor? Only someone determined to belittle the President could call the enumerated accomplishments minor.

Universal Health Insurance, which Presidents of both parties have been trying to enact since Truman, and which Clinton spectacularly failed to accomplish is minor? If the Supreme Court Strikes it down, will it show that Obama isn’t strong enough?

Getting rid of "Don't Ask, Don't Tell," was a minor accomplishment? It sure was important when it was not yet accomplished!

The stimulus package, which together with the rescue of Chrysler and GM, which probably saved a million jobs, and the bank rescue package, without question, saved this country from a ’29 depression. That is minor? Yes, it should have been bigger, and it should have had fewer tax cuts and more spending in it. But does anybody really think that such a package could have attracted the votes of the two Senators from Maine, without whose votes nothing would have passed.

Schip legislation giving health coverage to millions of children is minor? Tell that to the parents of those children!

What kind of economy would we have if our unemployed did not have unemployment insurance extended again and again? How much worse would it be both for them and the economy?

The Lilly Ledbetter Fair Pay Act wasn’t important? Tell that to the millions of women who now have the ability to fight back against pay discrimination.

Or the new fuel standards, which is the first time in decades that they have been raised and which will be a major factor in reducing our dependence on foreign oil, in reducing the cost of gas for hard working Americans, and last but least, play an important part in slowing global warming.

Eliminated expensive co pays for birth control, which will for the first time make pre-natal services available for poor women. Minor? Tell that to Planned Parenthood, who hailed it as a major achievement. Tell it to the millions of women who will for the first time have access to such services.

I could go on and on. But, only someone anxious to belittle our President, and join the Tea party in doing so, could call these achievements minor.

But I really can’t blame Levenson, or others who have begun to speak like him, for the so-called liberal punditry, rules the day, though I hope they will rue it one day. But the punditry is so anxious to besmirch Obama that they even have begun to lie like Republicans, and to stay on message in the best style of Karl Rove.

You mention a 9.3% unemployment rate but neglect to mention those who have stopped looking for work and those who are limited to marginal part time work. When these are counted the unemployment rate increases to 17%.

Yes, that is true, but it is still valid for comparison purposes, for the ’29 depression with an unemployment rate of 37% or 38% also didn’t take into account these other casualties, nor did Reagan’s (who Levenson voted for) unemployment rate of 10.3% take these others into account. But whatever the figures are, unless you buy the Romney argument that Obama inherited a bad economy and made it longer and worse, these figures should be used against the Republicans, not against our President. Or does Levenson disagree? (See: Discussion of stimulus package above.)

You mention the Kagan and Sotomayor nominations, but hundreds of District Court and Appellate courts seats remain unfilled. Admittedly, the Republicans are obstructing votes on many Obama nominations but a Clinton, with a majority in the Senate would have pushed them through.

The fact is, he didn’t push them through. From American Progress: “At the beginning of 1998… Senate conservatives were systematically blocking President Bill Clinton's judicial nominees, William Rehnquist, warn(ed) ‘vacancies cannot remain at such high levels indefinitely without eroding the quality of justice.’"

You forget to mention his EPA failure to enforce regulation to prevent oil spills in the Gulf of Mexico.

It wasn’t his failure, and it wasn’t his U.S. Bureau of Ocean Energy Management (Not EPA). It was Bush’s. It takes time to change direction of an agency, particularly where the Senate refuses to approve your appointments, leaving the old people in place. In addition it is far from clear that the permit should not have been granted, given the facts that were known (or unknown) at the time the permit was issued.

You also neglect to mention his Justice Departments Civil rights failures.

It is impossible to answer all of these slanders without turning this into a book. Therefore allow me to only address just one, which I will highlight in italics.

For example, it is his Justice department under Eric Holder that has supported positions not much different from those of the Bush administration on Civil rights. He has consistently taken positions before the Supreme Court to limit the rights of individuals who were wrongfully imprisoned under Bush era terrorist statutes. He has pushed for limiting or eliminating their right to sue the US Government for the torture of imprisoned "terrorists' even after a clear showing that they were not terrorists. He has severely limited the Guantanamo prisoners effective right to counsel, the right to apply for Writs of Habeas Corpus in Federal courts, has refused (by folding to right wing pressure) to allow these prisoners to be housed in the US where they have easier access to lawyers and he has supported the continued use of Military Commissions rather than civilian courts.

In December 2010, over his objections, the Congress passed a bill forbidding the military to spend its money to transfer detainees from Guantánamo Bay, Cuba, to the United States, even for trials. It wasn’t Obama; it was a cowardly Congress. But if one wants to slander someone, one always finds a way.

With regard to the economy, he gave up, almost without a fight, any thought of raising taxes in his negotiations with Boehner.

Nothing could be more at variance with the facts. What was his leverage for getting Republicans, not Boehner, to agree to tax increases? Threatening them with defaulting? What? I said not Boehner because Boehner did in fact agree to 1 trillion in tax increases, to balance 3 trillion in cuts, and then couldn’t sell it to his caucus. But what threat was Obama supposed to use? Go to hell, don’t raise the debt ceiling? Well, that might have produced default, but not increased taxes. Did Levenson really think about it, with such glib talk?

The reality (but who cares about that) (And I am also getting tired of defending baseless complaints) is that we will give you more cuts, if you give us additional revenue. But why should Obama have been against cuts. There are many that he, Levenson, and I should have favored. So the next approach is what kind of cuts can we agree on, and one understands that without revenue enhancement it will not be 4 billion, which it really should be. I said that the deficit crisis was a hoax to try to use it to gut entitlements; but the deficit it is nevertheless real and a danger in the long run. So we negotiate for cuts that don’t go into effect during the next two years, we make half of them in the military, and we take entitlements, which really do need addressing, off the table.

What the President got was a fantastic deal, which is why all the Tea Party and all the Presidential candidates have declared against it. Nobody on the Left has given any valid reason to oppose it.

The attempt by the Left, to demagogue this issue by lying, and in the style of Karl Rove “Staying on Message” is disgusting and should be rejected by all who are true liberals. See my post entitled: "The Trojan Horse" where I expose the lies, and write:

…Campaign for America’s Future…

A new undemocratic "Super Committee" is charged with finding $1.5 trillion in savings – from cuts in Social Security, Medicare and other entitlements and/or in increased revenues. If a majority agrees, the proposals will be “fast tracked” to passage in Congress—without our elected representatives able to amend their plans.

But these are boldfaced lies. As CNN Money reports in a piece titled “Debt Ceiling: What the deal will do":

The cuts will be “evenly divided between defense and non-defense spending.

Exempt from this round of cuts, however, will be programs that aid low-income Americans… These include Social Security, Medicaid, veterans' benefits and pensions, food stamps and Supplemental Security Income.

While Medicare would not be exempt, the framework would restrict cuts to no more than 2% of the program's cost. And the cuts that occur would not affect Medicare benefits nor would they increase seniors' costs, …

Half the cuts have to come from defense. What is wrong with that?

Or Progressive Change Campaign Committee:

Congress voted for a deal that will cut trillions from important programs like Head Start, asks nothing of the rich, and makes likely future cuts to Social Security, Medicare, and Medicaid.

But what about facts? Writes the Wall Street Journal:

The deal included enough money for Head Start, the preschool program for low-income children, to keep enrollment from dropping, and for Pell Grants to maintain the current $5,500 annual maximum award to low-income college students. Republicans had wanted to cut Head Start and proposed freezing the Pell program, which would have cut the maximum grant size.

Why do I have to repeat myself? Is it because that which doesn’t fit the narrative is to be ignored and the lies just repeated?

What is the Left up to? What is their agenda? And I call them the Left advisedly, because they do not deserve the appellation of “liberal” which term I claim for the President and myself.

But since this post is getting entirely too long, I ask both my readers and Leonard Levenson for their patience. I will revert to this in my next posting, where I will address the remaining arguments, and discuss other lies and slanders that have crept into the scribblings of the punditocracy.

Philosophical And Life Experiences In The Shaping Of Supreme Court Views

In my last commentqry entitled, “Judges Do More Than ‘Call Balls And Strikes’”  which I posted on my blog July 13, I pointed out the complexity of dealing with vague language in the Constitution and also pointed out that the concept of originalism is nothing but obfuscation, and that in reality no judge follows such a doctrine nor could they do so, without bringing our whole system of government to its knees.

I do not, however want to give the impression that it follows that any of the judges, be they Right or Left, and there is no longer a true center, simply make up the law to suit their own predilections. Thus in my essay, entitled, “The Supreme Court - Consequences As New Appointees Shift Its Balance” which I wrote in October of 2005 and which can be found in full here, I quoted a number of Justices on the subject of deciding cases in ways which as a matter of policy they disapproved of, e.g. Justice Stevens, in referring to some conclusions he had reached, explained that he believed that as a matter of policy that the outcomes were: "unwise…. (but) I was convinced that the law compelled a result that I would have opposed if I were a legislator…”

But that does not mean that judges are not influenced in reaching their conclusion by their political philosophy and their background.

The Ledbetter case, which involved interpretation of a law passed by Congress rather than the Constitution is a case in point. The law provided that women may not be paid less than men for equal work.

After working for Goodyear for almost 20 years Lilly Ledbetter was by far the lowest-paid employee in her position. She proved that this disparity was due to sex discrimination, and a federal district court in Alabama found Goodyear liable. On appeal, Goodyear countered it hadn't discriminated against Ledbetter—recently. (Emphasis added) Title VII, of the federal law requires suit to be filed within 180 days "after the alleged unlawful employment practice occurred." In essence, Goodyear argued that the discriminatory decision it made about Ledbetter's pay were made long ago and that since pay raises were a percentage of previous pay, the pay discrepancy kept getting larger and larger. But they argued that except for the first deliberate discriminatory act, the later smaller raises were not the result of any gender discrimination, but simply the result of the much earlier act. Ledbetter's low salary might have merely reflected her earlier, discriminatorily low pay, rather than more recent pay increases.

The Supreme Court in a 5 to 4 decision held that the suit was not filed within the required 180 days and dismissed the suit. The decision turned on the interpretation of the meaning of “unlawful employment practice.” The minority of four held that the intent is not controlling-it is the effect of the decision that controls, and since later smaller pay increases had the effect of sex discrimination, the suit was filed in time. Jeffrey Toobin in his book on the Supreme Court, “The Nine” points out at page. 330 that “for years, the court said that if a women sued within 180 days of her last offending paycheck,” she is entitled to recover for the entire period. But now with a change in the courts personnel the view was different. Alito had replaced O’Connor. Fortunately, since this involved an act of Congress, that body was able to amend the law to make its meaning so clear that even the Supreme Court could no longer misunderstand its intent.

Now I don’t suggest that the Right wing justices did not intend to follow the law, but their philosophy, their backgrounds, were not sympathetic to the objective of the law passed by Congress, and so they interpreted it narrowly. The four liberal justices, and the departed O’Connor, showed their sympathy by interpreting it broadly. They all felt that they had the correct interpretation, but they could not and cannot escape their biases, or their background. In the end it is what instructs them.

The same is true in interpreting the Constitution. In interpreting Roe v. Wade the court had set a standard (actually O’Connor had) that a law restricting abortions must not place an undue burden on women. Pennsylvania had passed a law putting various restrictions on the right of a woman to an abortion including one that she must notify her husband before having one. Alito, then on the Court of Appeals, dissented from the majority on the court finding this to be a reasonable burden. When the case reached the Supreme Court in Planned Parenthood v. Casey, O’Connor was livid over Alito’s view. Not only was such a requirement an undue burden under Roe, but it violated the Equal Protection Clause of the Constitution. The fact that she was a woman clearly was not an insignificant factor in her strong reaction. She declared, “Women do not lose their Constitutional protected liberty when they marry.”

If we look at the decisions it becomes obvious that judges who hold a high regard for the protection from unreasonable searches and seizures will find more situations as unreasonable than those who don’t; those who put a high value on free speech will interpret that broadly, while those who hold the right to use ones wealth to influence elections will have a view that reflects this world view. 

It is for that reason that the court functions best when it has on it justices with different backgrounds and philosophies. A woman often will see things differently from a man. Someone who has had to struggle may see things differently from one who was born with a silver spoon in their mouth.
  
For that reason Shell Haas and Gary Schwartz had it wrong when they wrote in the Suburbanite a few weeks ago that ethnicity (and presumable gender) has no place in choosing a justice for the court. Did they or their predecessors in this type of thinking express a concern when during the first 178 years of the court every justice was a white man. We did not have a justice of another color until 1967 and did not have a woman until 1981. No one wants to bar white men from serving on the court, but it is strange that people object at the idea that at this late date we might want to see some with other backgrounds and experiences, such as Justice Marshal, or Justice O’Connor who upon graduating from law school was offered a job as a secretary in a law firm. Even now, until Justice Souter resigned, we had seven white men out of nine on the court. Do Haas and Schwarz think that these seven white men had some special qualification that those of another ethnicity, gender, or race do not possess?

I reproduce the letters from Haas and Schwartz below:

"To the Editor:
In the editorial “ Supreme Court nomination is a win for all” there was no mention of judicial qualifications. With decisions overturned, Ms. Sotomayor’s really does not exemplify the cream of the crop of potential candidates. She is not the first Hispanic to be named for the court. The Honorable Justice Cardozo has that distinction. It is wonderful to pursue the American dream, but as Martin Luther King Jr. put it, it is by the content of their character, not by the color of their skin. He should have added “not by their ethnicity either.” No one is excluded by society in America today, except those individuals and groups that desire not to be included. We must think of ourselves as Americans, not hyphenated Americans. America has always had ethnic diversity, but that diversity merged with the willingness to subvert that pride to a greater pride- that of being an American.
Shel Haas

"To the Editor:
A Supreme Court nomination is win for all. I wonder, forgive me but somehow I believe it’s wrong to pick a judge because of ethnic background. I mean Justice (whatever that is) should be blind. Race and religion that should be irrelevant for a judge. No, I think judges should be judged on their judgement, nothing else. And of course, it’s important for people to believe Judges are fair and race card muddies up that perception.
Gary Schwartz"

Next time I will discuss the much-maligned Ricci (aka the firemen’s) case.