Obfuscation regarding Supreme Court Decisions

In my commentary, which I distributed on May 28. 2009 and posted on my blog the following day,  I said I was taking some time off from writing about current events in order to attend to personal matters. I have not succeeded in cleaning up my backlog but events in the public sphere are calling out to me, and I cannot remain silent any longer.

Some time ago I said that I wished in my writings to destroy myths. Some of these are becoming evident in the discussion leading up the vote on the confirmation of Judge Sotomayor and rather than allow them to fester and become part of the lore I feel that I should address them.

There are many, but one that particularly offends me is the notion promulgated by Justice Roberts in his confirmation hearing is that a Supreme Court Judge simply “calls balls and strikes.” This implies that the rules are crystal clear and the Judges need merely apply them. In this scenario Right Wing judges apply the law and liberal judges or “activist judges” make law to suit their predilections.

Let us test this against the real world. For example the Fifth Amendment to the Constitution provides: “The right of the people to be secure … against unreasonable searches and seizures, shall not be violated …” What is reasonable and what is not” is hardly a matter of calling balls and strikes.

Or the First amendment provides: Congress shall make no law… abridging the freedom of speech…” (Emphasis added) Shall this be taken literally? In 1919 the Supreme Court in Schenk v. U.S. made it clear that this language can not be taken literally when Justice Holmes set forth the famous example, “that this amendment could not prevent laws that “protect a man falsely shouting fire in a theater and causing a panic” which all would agree with, but used the analogy to allow a law which made it illegal “to distribute flyers opposing the draft during World War I” a holding which has since been overruled by Brandenburg v. Ohio, which held that speech can only be proscribed if it is likely to incite imminent lawless action (e.g. a riot). It also is not crystal clear what free speech is. Is it limited to speech actually spoken or does it include symbolic speech? The difficulty in finding the right line can immediately be seen and it is not like calling balls and strikes. Thus Justice Roberts, when he made this claim was either being naïve or disingenuous and I don’t think he was or is naïve.

Another recent example of the difficulty in interpreting this Constitutional provision came before the court when it held in Texas v. Johnson, 491 U.S. 397 (1989) that burning of the American flag can not be criminalized because it is symbolic speech. Justice Scalia, generally considered part of the Right wing of the court, joined the liberal four justices in this holding.

Thus the claim or myth that interpreting the Constitution is an exercise in the obvious is nothing less than part of the Right wing’s desire to obfuscate. The worldview of any given justice will influence their decision and the Right Wing of the court has no monopoly on seeing the correct meaning of provisions that are ambiguous.

But “calling balls and strikes” is not the only deliberate misrepresentation of those who follow a particular philosophy. They have also developed the theory of “originalism” to give credence to their own unique view of the meaning of all things. They claim that what they are doing is sticking to the Constitutions meaning as its meaning was intended at the time it was written. But again this is nothing more than obfuscation by the Right Wing, or conservative judges, as they like to call themselves, for they strike down laws passed by elected legislatures with more frequency than the liberal judges, (See here) which aside from marking them as activists, strikes down their claim to be originalists, for when the Constitution was written, there was no provision giving the Court the power to declare any acts unconstitutional. To quote a favorite refrain of the Right, “where is the provision for this?”

As a matter of fact during the early days of the Republic there was a general assumption that what was constitutional was in the first instance the responsibility of Congress and secondly that of the President. George Washington in fact felt that the most important, if not the only reason for vetoing a bill, was that it was unconstitutional. It was not until Marbury v. Madison decided in 1803 that the Supreme Court laid claim to this authority, saying, “If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.” Logical, but drastically new, and not an example of originalism. Thus to lay a legitimate claim to originalism the Right members of the court would have to renounce the claim to strike down acts of an elected legislature. The liberal members, not burden with the claim to originalism have a right to strike down laws, but they use it with restraint while the Right asserts that power over and over.

But the power to strike down laws are not the only things that the Right finds in the Constitution that are not explicitly there. The Constitution does not explicitly provide for the power of the government to set up the Federal Reserve, or the FDA. There is nothing in the Constitution that specifically says corporations shall have the same rights as real people including all the protections to freedom of speech and due process but the “originalists” manage to see things that aren’t in the original constitution when it is in line with their philosophy. Their claim to originalism or even to strict constructionism has no basis in their actual rulings and it is a concept that long ago would have made the Constitution obsolete.

For a more extensive discussion of the of the rulings of the Supreme Court and what might have happened if Bush had been able to make one more appointment, see here and for a discussion of the debate on judicial nominations in 2005 see here.

But it isn’t only the Constitution where the “conservative” judges of the Supreme Court show their biases. It is also in interpreting the laws of Congress. Next time I will discuss the Ledbetter case which involved no constitutional issue and was concerned with interpreting an Act of Congress.

Taking Time Off

As most of you know, I have been using the Letters to the Editor pages of my local newspaper, the Fort Lee Suburbanite, to gain a larger audience then I would have if I limited myself to only those who are on my e-mail distribution list, or read and/or subscribe to my blog. 

I have now decided to take some time off from these endeavors and have written a Letter to the Editor which I reproduce below:

Much to my regret I must take leave for a while. My letters have taken an inordinate amount of time because I never write without careful and extensive research, for I want to do more than acquaint your readers with my views. I want my letters to be informative and educational because there are too many myth promulgated, too many lies told, too many distortions distributed,  and the media is amiss in not making sure that the record is corrected. Too often they become conveyers of that which they should denounce.

In taking temporary leave of your pages, I want to thank you for allowing my views and the underlying facts to see the light of day. At the same time I want to thank you for printing the views of my critics, because it is only through a lively debate that the reader can judge where the true public interest lies.

In taking this leave I want your readers to be aware that they can find more of my analysis, as well as contrary views, on my blog and they can also e-mail me.

I will respond to any communications received.

Rest assured, I will be back for I have too strong an abiding interest in public affairs to resist for long setting the record straight. 

My personal history as one who escaped Nazi oppression, found a haven in these United States, and had an opportunity to rise from poverty through a college which was tuition free (alas no college any longer offers this opportunity) makes me determined to make my voice heard so that others might not be denied the opportunities I had.

Since truth is the mightiest of the mighty, I seek to find truth in the study of history and to share my insights with 
as many as I can.

Thank you again for the opportunity you have made available to me.

Debating In My Local Newspaper

I refer to my commentary entitled: "The Bankruptcy Bill and Arlen Specter" which can be found here.

I published this commentary in my local newspaper, the Fort Lee Suburbanite, and it prompted a response from a Mr. Chiu, who has been a frequent contrarian of my opinions.

I quote his letter in full below along with my rebuttal. I think the exchange speaks for itself and accordingly I will not burden the reader with any further comments.

"I agree with Emil Scheller that it's unfair for corporations to have the right to abuse bankruptcy laws while individuals don't. Unfortunately, a few bad individual apples spoiled everything for ordinary people. Some deliberately ran up credit card debts and simply declared bankruptcy later on. It was common knowledge that one's bad credit record would be wiped clean after 7 years and credit card companies would again be mailing offers. No more.

"Of course, Scheller blames Republicans for the passage of legislation changing the bankruptcy laws. He states that 14 Senate Democrats also voted in favor of the bill, which passed 7425. I just checked on Google: 19 Democrats voted for the bill. 25 Democrats voted against the bill. There was one abstention. Whatever the case, Democrats could have filibustered to block the bill if they felt strongly enough about it. Could such inaction have had anything to do with campaign contributions sullying our political process? Ideally, Congress would pass similar legislation to crack down on corporate abuse of bankruptcy laws.

"Scheller justifies his use of the term "right-wing" by resurrecting his old straw man argument that conservatives want to undo the New Deal and Great Society. In fact, he gleefully uses his explanation as an excuse to throw out the word "reactionary" against conservatives. Now everyone knows full well that Big Government is so much a part of our lives that it would be impossible to repeal any part of the New Deal or Great Society, if even we wanted to. There's no going back. For example, we all have grandparents (and even parents) on Social Security. Or we may be beneficiaries of some social program or subsidy. In fact, when Republicans controlled Congress, they even increased the size of government. I recall one occasion in which the Bush administration wanted to slightly trim some social programs. Republican congressmen angrily refused to cut programs as they wanted to protect their poor constituents. No one has the heart to cut anything. Government just grows and grows. There are no reactionaries.

So pejorative terms like "right-wing" have no place in polite discourse. I avoid the use of terms like "Left-wing" or "Leftist" because those can also be construed as code words for "Communist" and "Socialist". We don't always have to agree with one another, but we should try to treat each other with respect."

"Mr. Chiu plays gotcha. I complained in my letter entitled, "The Bankruptcy Bill and Arlene Specter" which appeared in the Suburbanite of May 8, about "14" Democrats who voted for a bankruptcy bill in 2005 that took bankruptcy protection from ordinary Americans. Apparently I miscounted. As Mr. Chiu gleefully points out, actually 18 Democrats and 1 Independent voted for this outrageous bill. But this simply reinforces the point I was making, that there are too many Democrats who did the bidding of the banking lobby. But at least a majority of Democrats voted against it. Not a single Republican voted against it. The party of "No" wasn't the party of "No" then. They are never on the side of ordinary Americans.

"Mr. Chiu then goes on to try to justify this outrageous bill. He says "Some deliberately ran up credit card debts and simply declared bankruptcy later on." but Mr Chiu doesn't tell us where he gets this information from, and even if some did, does that justify such a drastic remedy? The fact is that according to the Harvard Journal of Health Affairs, in 2001 'medical bankruptcies affect about 2 million Americans annually -- counting debtors and their dependents, including about 700,000 children.

'Surprisingly, most of those bankrupted by illness had health insurance. More than three-quarters were insured at the start of the bankrupting illness. However, 38 percent had lost coverage at least temporarily by the time they filed for bankruptcy.

'Most of the medical bankruptcy filers were middle class; 56 percent owned a home and the same number had attended college. In many cases, illness forced breadwinners to take time off from work -- losing income and job-based health insurance precisely when families needed it most.

'Families in bankruptcy suffered many privations -- 30 percent had a utility cut off and 61 percent went without needed medical care."

"Chiu then goes on to claim once again that Republicans don't want to do away with Social Security. Has he conveniently forgotten Republican attempts to push for individual savings accounts invested in the stock market that would be funded by diverting a large portion of the SS taxes to such accounts, which would deplete the SS fund even faster than it is already being depleted. Ronald Reagan saved SS by increasing the limit on the payroll tax, provided for the the retirement age to be increased, and taxing higher income SS recipients and plowing the proceeds back into the trust fund, but the new Republicans want no such reforms. They want SS to be bankrupt just as quickly as possible.

Has Mr. Chiu conveniently forgotten McCain's comment on Social Security during the campaign, "Americans have got to understand that we are paying present-day retirees with the taxes paid by young workers in America today. And that’s a disgrace."

"There is nothing wrong with terms like Right and Left any more than there is anything wrong with using Republican or Democratic, but there is something wrong with misrepresenting the positions of the parties or of the issues as Mr. Chiu consistently does. There is something wrong with the smears like the Swift Boaters, which Mr.Chiu defended in a previous letter, There is something wrong with the Willie Horton ads, which Mr. Chiu defended in a previous letter. There is something wrong with the phony Harry and Louise ads which doomed Health Care reform in the Clinton Administration. And as I said in my previous letter, there is something wrongwith calling progressives Communists, Fascists, Socialists, Muslim and friend of terrorists, in the case of Obama
and even lesbian, in the case of Clinton, (not that either Muslim or lesbian should be a term of opprobrium).

"But I don't hear Mr Chiu criticizing these smears. Truth hurts Mr. Chiu! Attempts to divert attention from the real issues don't work anymore. Attempts at pretending that everybody is for Social Security don't work anymore; not when the record is so clear. The party of "No" is dooming itself. It is the party that has even turned its back on the positive aspects of Ronald Reagan, who, by the way, advocated trying to do away with nuclear bombs, an objective which todays Republican nay-sayers denounce. From the web-site of the Libertarian Cato institute website, "Reagan, contrary to his image as a champion of the bomb, was a nuclear abolitionist. This is not a mere historical curiosity. Abolishing nuclear weapons was one of Reagan’s fundamental goals for his presidency."

"We could easily carve two parties out of the Democratic Party and no-one would miss the one whose voice is Cheney and Limbaugh. Other parties in American history have vanished. Gone are the Federalist Party,
the Democratic-Republican Party and the Whig Party.

"Too many Democrats are too often on the wrong side of issues. But the party of "NO" deserves to see the setting sun. Lies can no longer save it."

Property Rights

Let me state at the outset that I believe in the rights to property, though my definition of those rights may well differ from those who can not conceive of the advent of new understandings as effecting our understanding of old concepts. The basic question is, “How absolute are property rights?" But before I get into new understandings, I believe it is always useful to understand the historical context because I am a strong believer in, to put it in Shakespeare’s words, that “what’s past is prologue” (The Tempest, Act II, Scene 1,) and that a true understanding of any concept requires an understanding of its history.

In the days of monarchy, and in feudal societies, the first priority was to keep the vast estates which were owned by the aristocracy intact, and to pass them on from generation to generation without any dilution. For that reason they adopted the concept of “primogeniture,” that decreed that when the Lord passed away the whole estate would pass to the eldest son. This meant that generation after generation all lands, and essentially that was the only type of wealth of consequence (there was gold of course but I suspect that in so far as that was part of the property it was deemed to be part of the estate.) would be kept intact and in the hands of a small aristocracy.

When the Declaration of Independence was drafted by Thomas Jefferson and adopted in that form it spoke of, “…inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” It should be noted that there is no reference to property, and this is particularly instructive, because it clearly was not an oversight, for this phrase was taken verbatim from the Virginia Declaration of Rights, which uses the language, “the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety” so the omission of any reference to property could not have been merely an oversight.

When we look at the U.S. Constitution there too is no reference to property except in Article VI, Section 3 and there the reference is to “Property belonging to the United States…” This, however, is remedied in the Fifth Amendment of the Bill of Rights which sets forth that no person, “be deprived of life, liberty, or property, without due process of law;” Unfortunately, until the Civil war this became more a source for oppression than the instrument of liberty which its language would suggest, for despite what would appear to be its clear language, it was never considered to apply to that portion of the population of African ancestry, who were deprived of their liberty, often of their life, and the portion about property was the basis for protecting slaves as property, and the legal foundation for the fugitive slave acts, which provided for heavy penalties to be imposed upon anyone who assisted slaves to escape from bondage. It was not until after the Civil War that the Constitution added this provision in Amendment XIV and made it applicable to the states, that its association with oppression was removed.

But at no time in its history were property rights considered as absolutes. The concept of Riparian Rights goes back to at least A.D. 500, with the Code of Justinian, for the Roman Empire, then England and the British Commonwealth, and ultimately United States common law, water in its natural watercourse has been legally held to be public property--held by the state in trust for all people--rather than private property.

All of which brings me to the beginning of this treatise and the basic question, “How absolute are property rights?” My answer, (and I do not believe that my Republican friends, or any of the advocates of the political Right would agree) is their rights exist only to the extent that they do not infringe on the rights of other property owners or on the rights of the public at large.

This may seem self evident, but it has been observed mostly in its breach, as numerous industries took it as their right to discharge their waste into streams adjoining their property, thereby befouling the water, which violated the rights of the property owners downstream to have the water come to their property in its natural pure uncontaminated condition, or to befoul the ground water which it shares with adjoining property owners, as well as the air, endangering the health of its citizens or even, as has now become evident endangering the very existence of human kind on earth, as the globe heats and icebergs melt.

But they claim this as their property right, and further argue that for the government of all the people to limit their rapacious infringement of the property tights of others is somehow an infringement on theirs. They claim that they have every right to put pollutants into the air so that they can make cheap power, and the fact that these pollutants infringe the property rights of all the people who own land over which the polluted air drifts with the winds, is not a right that they need take cognizance of. When it is proposed that the government on behalf of the people demand that they pay for the right to infringe on the rights of all, they scream it is unfair taxation. But it is not taxation to make them pay for the use of that which is not theirs, and the air that we all breathe is by no stretch of the imagination theirs. During all these years, they have taken without leave and without right, the water, the air, the land beneath the ground, when all they own, or can own, is the land on which they stand and nothing that infringes one inch beyond that land, whether above or below it belongs to them and may be taken for their use, or be despoiled by them, except by leave and after just compensation to those that they have harmed.

To claim that their property rights are infringed, when government in its rightful duty takes steps to protect the right of others in the enjoyment of theirs, is the height of ignominy.

The Bankruptcy Bill and Arlen Specter

Why are the bankruptcy laws available to the rich but not to every-man? What do Democrats gain when they embrace Arlen Specter?

Some may wonder how they are interrelated, but they are.

We have witnessed many large and small corporations become overwhelmed with debt. They file for what is known as Chapter 11 bankruptcy under which their debtors are encouraged, and many are required to forgive at least part of the debts and the corporation emerges from the process with a new beginning. We saw that happen with Continental Airlines, and we now see the process unfolding with Chrysler and quite possibly soon with GM.

It used to be available to the average Joe or Jane (maybe even to Joe the Plumber) but it was taken away in March of 2005. The matter is summarized by the BSC Alliance.com Credit and Debt solutions alliance, as follows: "After an eight year long battle funded by the banking and credit card industries, who contributed more than $40 million to federal election campaigns during this period, The United States Bankruptcy Code has finally been amended. The new bill was approved by the Senate in March 2005 and by the House on April 14, 2005. The changes to the Bankruptcy Code became official law on October 17, 2005." 

Today adequate publicity has been given to the predatory practices of the credit card industry. They drive people into bankruptcy by taking a relatively small debt, and by encouraging the debtor to pay the smallest conceivable amount each month, create a situation where the principal instead of shrinking gets bigger over time, and then by increasing the interest rate at will and adding exorbitant fees if a monthly payment is missed, they create a situation where the debtor often ends up in debt to a multiple of the debt incurred. G-d forbid the debtor should get sick resulting in his loss of job, health insurance and now mounting debts he finds the door to debt relief through the bankruptcy courts no longer available.

That 2005 bill passed the senate by a vote of 74 to 25. Not a single Republican voted against it. They are not always the party of NO. Not when it comes to protecting the interests of the banking industry. Where was Arlen Specter? He voted with his brethren. According to "On the Issues", he voted with the Republican Party 67% of 322 votes. Democrats are not so united. Fourteen, including now VP Biden and now majority leader Reid voted with the Republicans. But at least these Democrats didn't vote 67% of the time with Republicans. The pressure after eight years of lobbying was intense and Bill Clinton signed the bill.

Fast forward to 2009, we have a bankruptcy bill to protect homeowners from foreclosure when their homes are "under water" pending in the Senate. 

Once again the party of NO was solidly against this. They don't believe in giving anyone, but the rich, a break. Where was Arlen Specter? You guessed it, he was now officially a Democrat, but who did he vote with? He voted with his former brethren. We know where his heart lies. To be sure, once again 12 Democrats voted against every-man but that is the more reason why we don't need another like Specter.

What happened to Arlen Specter? In today's Republican Party 67% isn't good enough. It's like the Communist party of old. They expect 100%. Specter was about to lose the Republican Party primary in Pennsylvania to a true blue acolyte of Right wing politics from the Club for Growth. This Republican nominee would have had no chance to win and a real Democrat would have been elected; one who could have been counted on to support the Obama agenda. But instead the Trojan horse in the form of Specter has entered the gates. The Democratic party is a big tent. There is no problem with having a Democrat who only votes 67% of the time with his party. But do the Democrats need someone who votes 33% of the time with them, and 67% with Republicans? What have Democrats gained? If this were a situation of needing one vote to organize the Senate, it might have been understandable. But that is not the case, and Specter cannot be counted on to be the 60th vote to prevent a filibuster. He has already announced on "Meet the Press" last Sunday that he will oppose the Presidents Health Reform initiative.

I say Republicans don't want him and Democrats shouldn't either. It is to be hoped that Specter will be challenged in the Democratic primary and will be sent into the retirement he so richly deserves.

In referring to a "true blue acolyte of Right wing politics" above I do not, as Mr. Chiu suggests in his Letter to the Editor of the Fort Lee Suburbanite, which is quoted below, mean to imply Fascist or Nazi. I simply cannot find any other suitable word for this movement. The media often calls them "conservative" but they are anything but conservative. They do not want to conserve, but to radically change things to the way the were in the days of President Harding, to undo the "New Deal" and the "Great Society" and even many reforms enacted under Republicans, Teddy Roosevelt and even Richard Nixon. That is not conservative. Some would have called them Reactionaries, but I don't know what that tells us. Right Wing is appropriate, and the bellyaching from people who have called progressives Communists, Fascists, Socialists, Muslim and friend of terrorists, in the case of Obama, and even lesbian, in the case of Clinton, (not that either Muslim or lesbian should be a term of opprobrium) have no standing to complain about a term that does no more than honestly describe their philosophy. As for the suggestion that the debate is just about which stimulus is better, that makes Republican opposition seem even worse, for that would hardly justify their unanimously trying to block a plan that they consider only not as good as theirs.

The letter from Mr. Chiu is quoted below:

"I have read many of Emil Scheller's letters. I wonder if his use of "Right Wing" isn't just for some descriptive purpose, but also code language for Nazi or Fascist. In liberal New York, this term is hardly a compliment. 

"If he took a friendlier tone, I'm sure he could convert some people to his positions. In fact, many people, especially if they don't double check his "facts" because his arguments can be persuasive. But instead he labels people who don't agree with him as "minions of the Republican party" or uses other epithets synonymous with "idiot". 

"In his letter published in the April 24, 2009 issue, he mentions his previous statement that Republicans claim the New Deal was "totally ineffective". I've never heard any Republican say that. My old high school history teacher, a Democrat, said the New Deal created jobs but did not itself end the Depression. It was WWII that did. That's the consensus of the history books. And, again, no one ever said "totally ineffective". Any stimulus would create economic activity. If Democrats spent $1 and get 50 cents of stimulus, the Republicans may want 60 or 70 cents of stimulus from that dollar. And they may claim that their plan is better. That's what the debate is about."

The 2010 election

There is every reason for Republican optimism and Democratic caution. Realistically Democrats have a two-year window to enact their programs and to modernize America. Two years to bring the economy out of its doldrums, or at least make the country feel that success in just around the corner. If they do not come into the 2010 Congressional election with the country feeling great confidence in the incumbents, they may want a change and a Republican landslide is possible.

But even if Obama is as popular as he is now, or even more so, and even if Democrats keep all the trends that have favored them in the last two years, they will be facing severe obstacles in holding their gains, not to speak of adding to them.

It must be understood that Democratic successes have depended on certain demographic groups who have turned out in large numbers for them, particularly in the last election. These groups are the young, African-Americans, Hispanics, and the poor, who have not historically voted in large numbers. It is safe to assume that in an off-year election they will be voting in lesser numbers, and Republicans and their allies are doing all they can to suppress this vote. Since these are the primary, or at least a crucial component of the Democratic coalition, their voting in lesser number represents a significant danger to Democratic successes.

In addition Democratic successes in past elections pose their own dangers, for as they won in swing states and in swing districts, it became the Democrats who became more vulnerable to losses in close elections. In addition, there is less and less low hanging fruit to be picked up, since the districts most likely to swing Democratic, are already in their column.

Finally, Democrats will be up against a historical pattern. Almost invariably the Presidents party loses seats in the election immediately following the Presidents ascension, and this appears to be true even when the President is popular, his popularity affecting only the degree of the losses. Thus following Eisenhower’s victory in 1952, and with Eisenhower having a popularity rating of 59%, Republicans lost 18 House seats in 1954. Kennedy was elected in 1960, had a popularity rating of 68% and Democrats lost two House seats in the following election. After Johnson’s victory in 1964, and with a low standing in popularity of 46%, Democrats lost a whopping 47 seats. Following Nixon’s election, Republicans, two years later, lost 12 seats. After Carter’s election, Democrats lost 15 seats, and following Reagan’s election his party lost 27 seats, though at that point Reagan’s popularity was down to 43%. Two years after the first Bush was elected, in 1990 Republicans lost 8 seats, but after Clinton’s victory in 1992, Democrats two years later, in 1994, not only lost 54 House seats, but lost control of both Houses of Congress, leaving them in the minority until 2006. George W. Bush was the first President since FDR to see his party gain seats during the first mid-term election following his own election two years earlier, but this was after 9/11 and with his popularity at 62%.

This is graphically summarized in a graph courtesy of the National Committee for an Effective Congress:



Thus if history is a guide, and it might not be, Obama only has two years to enact his long range programs, before loss of Congress, or at least reduced majorities make overcoming determined filibusters, all but impossible.

There is therefore great urgency in enacting the Presidents program, and even now with not quite enough votes to overcome a filibuster against a united and determined Republican minority, the obstacles are obvious, if not entirely insurmountable.

There are striking and worrisome parallels between 1994 and 2010. In 1994 Democrats controlled the Presidency and both Houses of Congress. Presidential coattails enabled Democrats to win seats in historically Republican districts. Similarly, Democrats have far fewer election targets in 2010 than Republicans, much as they did in 1994. An analysis shows that there are as many as 60 potentially vulnerable Democrats in the House in 2010. With the present lineup being 255 Democrats and 178 Republicans, a 60 vote swing would give Republicans 238 seats and Democrats 195 ceding control to Republicans. Of course vulnerable doesn’t mean a lost seat and if we assume a loss of half of the vulnerable seats, Dems would have 225 seats and Republicans 208, keeping a reduced but still workable majority for the Democrats.

REASON FOR DEMOCRATIC OPTIMISM

The 1994 parallel is far from full proof, as not every electoral indicator favors the Republicans. First, in 1994, 22 of the seats gained by Republicans stemmed from Democratic retirements in competitive districts. So far in this cycle, only one Democrat from a competitive district, New Hampshire's Congressman Paul Hodes has indicated that he will vacate his seat in 2010. Hodes is seeking the Senate seat in New Hampshire. However, it is too early in the cycle to draw any conclusions about future retirements. Conversely, speculation suggests that several Republican incumbents, frustrated by minority status, could retire between now and Election Day.

Second, Barack Obama is off to a far more auspicious beginning than Bill Clinton was in 1993. That assumption must be tempered by the unclear economic climate. A slip in Obama's approval rating due to the continued problems in the economy could raise the likelihood of the Democrats losing a significant number of seats. As I have pointed out, the incumbent President's approval rating going into a midterm election can have a huge effect on his party's fortunes. If President Obama can maintain an approval rating above 60 percent, he can help mitigate some of the potential losses and maybe turn them into gains.

Third, regional dynamics that are no longer in place today helped produce the Republican take over in 1994. For example, about half the districts lost by Democrats in 1994 were located in the South, in Border States, or in the rural West. Republican success in these regions continued through the 2004 election, but those trends have waned and partially reversed since 2006. Presently there are far fewer Democratic targets in those regions for the Republicans to unseat.

Conversely, from a regional standpoint, the Republicans have sustained a meltdown in the East, with no immediate end in sight. With the loss of Chris Shays seat in Connecticut in 2008, the Republicans have zero seats in all of New England. They have also sustained further losses in the West, which is sure to gain seats after the next census. Evidence of a potential Republican comeback will be scrutinized in 2009 gubernatorial contests both New Jersey and Virginia. Previously, these off year elections have been useful indicators for the mood of the electorate heading into the midterm campaign. In 2005 Democrats won the gubernatorial races in both of these states, which served as a precursor to the huge gains seen by Democrats in 2006. No Republican has won a gubernatorial election in either state in the 21st century.

In the Senate, and this could change quickly, it looks promising, and since this is where filibusters must be overcome, doing well is particularly important. Based on available polls a reasonable outlook would give Democrats a net gain of three seats, more than enough to prevent filibusters. This assumes pickups of five seats and two losses, with the pickups projected in the following four states: Florida, Missouri New Hampshire and Pennsylvania and one from the following two states: North Carolina or Ohio. Pennsylvania may have been considered doubtful, but with Sen. Specter defection to the Democratic Party, it is safe to assume he will win re-election as a Democrat. Here it is interesting to note that North Carolina is listed in the doubtful column despite the fact that according to Newsweek’s April 27, 2009 issue, incumbent Republican Senator Jim Bunning has an approval rating of 28%.

Losses are expected in Delaware and in one of the following two states: Colorado or Connecticut.

It appears that the outlook for Democrats is cloudy, with the sun peeking from behind the clouds.