Popular Feelings

No amount of architect's plans, bricks and mortar will build a house. Someone must have the wish to build it. So with the modern democratic state. Statesmanship cannot rest upon the good sense of its program. It must find popular feeling, organize it, and make that the motive power of government. … The task of reform consists not in presenting a state with progressive laws, but in getting the people to want them.

— Walter Lippmann, A Preface to Politics, 1913

In this week's Sift:

The Summer of our Discontent. Liberals have been quietly unhappy with the Obama administration for some while. Now big-megaphone folks like Jon Stewart and Rachel Maddow are starting to speak up.
Republicans Stand Up for BP. Whenever I lose faith in the Democrats, I just look at the Republicans. Things could be a lot worse.
The Umpire Strikes Out. John Roberts said Supreme Court justices should be like umpires. Retired Justice Souter explains why that is nonsense, and Senator Franken demonstrates how un-umpire-like the Roberts Court is.
Short Notes. Krugman wants a deficit. The No Fly List strands a Virginian in Cairo. The costs of unwinding Fannie and Freddie. Glenn Beck's novel. Israeli propaganda falls apart. The treason of JFK. The Right targets the Girl Scouts. And more.

The Summer of our Discontent

In spite of conservative charges that President Obama is some kind of Marxist radical, the Left has been quietly dissatisfied with him for some while: The stimulus was too small and mistargeted, too many Bush war-on-terror excesses continue, and the health-care bill began as a compromise with the insurance companies and got worse.

Still, criticism from the Left has been muted — until recently. This week two media personalities with a lot of credibility among the liberal rank-and-file — Jon Stewart and Rachel Maddow — spoke out loud and clear.

Jon Stewart used the simple technique that somehow the rest of the media never learns: He contrasted clips of what Obama said about executive power during the campaign with what he is doing now. And then he invoked pop culture images of people corrupted by success (Jennifer Lopez claiming she is still “Jenny From the Block“) and power (Eric Cartman demanding “Respect my authoritah!“). All coming down to this:

Wait a second. All that power that you didn't like when someone else had it — you decided to keep it. Oh my God … you're Frodo!

It's the perfect image: I don't think Obama is a bad guy. But like the One Ring, the kind of power Bush established and Obama wields shouldn't exist. Destroying it takes courage, and I am beginning to doubt that Obama has that courage.

Rachel Maddow was so disappointed by Obama's Oval Office address about the BP oil spill that the next night she declared herself “fake President Obama” and gave the address he should have given.

On Tuesday, minutes after Obama's speech concluded, Rachel and Ezra Klein had expressed their disappointment in the vagueness of his assurances. The speech seemed to be more about image and theatrics, mainly emphasizing that the government won't forsake the people of the Gulf and won't let BP off the hook, without saying much about what is possible or how it would be done.

Rachel's fake-Obama (stage hands carried in an Oval Office backdrop as she started speaking) was more direct. First, she admitted that no one knows how to cap the well, that BP was allowed to drill this well even though no one knew how to respond to an accident like this. And so:

Never again will any company — anyone — be allowed to drill in a location where they are incapable of dealing with the potential consequences of that drilling. … We will not play Russian Roulette with workers' lives, and we will not play Russion Roulette with irreversible environmental national disaster for the sake of some short-term income.

She pointed out that since 1960s the oil industry has come up with no new techniques for containing oil spills, and that the techniques that exist have been bungled. (This is a point Fishgrease has been making regularly on Daily Kos, and Rachel's show is the only major media outlet I have seen cover that story.) And finally, she promised to push a much-stronger version of energy bill currently stalled in the Senate, pledging to use reconciliation to push past a filibuster, and to use executive orders whenever possible to implement whatever can't be passed by reconciliation.

we will free ourselves as a nation, once and for all from the grip of this industry that has lied to us as much as it has exploited us as much as it has befouled us with its toxic effluent.

The real Obama expressed none of this fierce determination, pledging (as he did in the health care debate) to listen ideas from all parties and work with everyone.

Republicans Stand Up For BP

Every time the Democrats make me lose heart, Republicans remind me why Democrats are necessary. Time and again these last two months, Republican leaders have demonstrated that their hearts anguish over the suffering of BP, not the people or wildlife of the Gulf states.

The poster boy, of course, is Congressman Joe Barton, who apologized to BP's president for the “shakedown” of Obama getting BP to put $20 billion in escrow to pay claims. (This is great, BTW. It should head off the legal song-and-dance Exxon did with the Valdez. And while the size of the fund is larger, the general idea is no different than what the Bush administration did in other cases.)

Republicans quickly tried to distance themselves from Barton, who will chair the House Energy Committee if the Republicans win a majority in the fall. (That's the point of this DNC ad.) But Barton was just repeating a Republican Study Committee memo, not going rogue.

And he wasn't alone. Michelle Bachman encouraged BP to say “We're not going to be chumps, and we're not going to be fleeced.” That was too much even for Bill O'Reilly, and prompted this attack ad. And Mississippi Governor Haley Barbour argued the Mad-Hatterish point that making BP pay would harm BP's ability to pay.

Louisiana Governor Bobby Jindal has filed suit to get deep-water drilling in the Gulf started again. The six-month delay Obama imposed could turn this event into a “catastrophe”.

A great graphic brings home how the official estimates of the oil spill have increased with time.

21 years after the Exxon Valdez, a report says: “only 14 percent of the oil was removed during cleanup operations” and “the remaining oil will take decades and possibly centuries to disappear entirely.”

The Umpire Strikes Out

For decades, conservatives have campaigned to change the way Americans talk about the Supreme Court, with very little push-back from the Left. And so major-media discussions almost invariably assume the conservative frame: Conservative judges strictly interpret what the Founders meant when they wrote the Constitution, while liberal judges “legislate from the bench” according to their personal sense of empathy.

In his confirmation hearings, John Roberts summed it all up in this metaphor: “Judges are like umpires. Umpires don't make the rules; they apply them.”

Two recent speeches have challenged both sides of that construction. Justice Souter's commencement address at the Harvard Law School demonstrated the naivety of the judge/umpire comparison, and Al Franken's speech to the American Constitution Society exposed the activist agenda of Roberts and the other conservative justices.

Souter did not refer to Roberts or the umpire analogy directly. Instead he talked about the “fair reading” model of constitutional interpretation: “Deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively.” This only works, Souter says, for “easy” cases — the kind that don't make it to the Supreme Court, because lower-court judges are perfectly capable of reading laws and examining facts on their own.

He gives two examples of the kinds of cases that do make it the Court: the Pentagon Papers case in 1971 and Brown v. Board of Education in 1954. In the Pentagon Papers case, two constitutional provisions clash: the First Amendment's guarantee of a free press and the Preamble's instruction that the government “provide for the common defense”. So the Court's decision to allow publication was not based on an unconditional assertion of press freedom — reading the First Amendment and ignoring the Preamble — but rather on the government's inability to support its claim that publication would harm national security. Publication of plans for the D-Day invasion, the justices said, would have been a different matter. Souter draws this lesson:

[The Constitution's] language grants and guarantees many good things, and good things that compete with each other and can never all be realized, all together, all at once.

And that's why we need judges, not umpires.

In his second example, the meaning of the facts changes with time. The Brown decision (which banned “separate but equal” school systems for blacks and whites) reversed the 1896 Plessy decision (which upheld the constitutionality of separate black and white rail cars).

To [the Plessy] generation, the formal equality of an identical railroad car meant progress. But the generation in power in 1954 looked at enforced separation without the revolting background of slavery to make it look unexceptional by contrast. As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see. That meaning is not captured by descriptions of physically identical schools or physically identical railroad cars. The meaning of facts arises elsewhere, and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own. Meaning comes from the capacity to see what is not in some simple, objective sense there on the printed page. [Emphasis added.] And when the judges in 1954 read the record of enforced segregation it carried only one possible meaning: It expressed a judgment of inherent inferiority on the part of the minority race.

And that's why we need people, not machines or Vulcans, examining the facts.

Where Souter's speech is theoretical and academic, Franken's is partisan and radical. The Roberts Court, Franken claims, is not just calling balls and strikes.

The Roberts Court has, consistently and intentionally, protected and promoted the interests of the powerful over those of individual Americans.

A key technique of conservative legal rhetoric has been to marginalize the victims of its rulings.

So unless you want to get a late-term abortion, burn a flag in the town square, or get federal funding for your pornographic artwork, you really don’t need to worry about what the Supreme Court is up to. … By defining the terms of constitutional debate such that it doesn’t involve the lives of ordinary people, conservatives have disconnected Americans from their legal system. And that leaves room for lots of shenanigans.

While the public's attention is focused on cases about government power, corporate-power cases fly under the radar.

If you have a credit card, if you watch TV, if you file insurance claims, if you work – in other words, if you participate in American daily life at all – then you interact with corporations that are more powerful than you are. The degree to which those corporations’ rights are protected over yours, well, that’s extremely relevant to your life. And in case after case after case, the Roberts Court has put not just a thumb, but a fist, on the scale in favor of those corporations.

… What conservative legal activists are really interested in is this question: What individual rights are so basic and so important that they should be protected above a corporation’s right to profit? And their preferred answer is: None of them. Zero.

Franken listed a number of recent corporate-power cases and their results.

In Stoneridge, [the Roberts Court] stripped shareholders of their ability to get their money back from the firms that helped defraud them. In Conkright, it gave employers more leeway to deny workers their pension benefits. In Leegin, it made it harder for small business owners to stop price fixing under the Sherman Act. Now, the burden is on them—small business owners—to show that price fixing will hurt competition. In Iqbal, it made it harder for everybody to get their day in court. In Exxon, it capped punitive damages resulting from the Exxon Valdez oil spill because, get this, having to own up to your mistakes creates “unpredictability” for corporations. Which, by the way, means that BP’s liability may be capped because the Court doesn’t want to cause an unpredictable impact on its future profitability. In Rapanos, it cut huge swaths of wetlands out of the Clean Water Act. Wetlands that had been covered for 30 years.

[I added the links. I encourage you to use them.] In this context, Franken finds the Citizens United decision (where “the Court answered questions it wasn’t asked, reaching beyond the scope of what they accepted for appeal to overturn federal laws the conservative wing didn’t like.”) especially ominous. If the Supreme Court has an anti-people, pro-corporate agenda, then it is all the more important for voters to elect law-makers who will fix the injustices the Court creates. (Franken cites two such examples: the Lilly Ledbetter Fair Pay Act and the bill that allowed Jamie Leigh Jones to sue KBR, whose employees gang-raped her in Iraq and then held her under guard in a shipping crate.)

Citizens United (where “the Roberts Court overstepped its procedural bounds so that it could graciously provide corporations with First Amendment rights”) allows corporations to spend unlimited amounts of money on electioneering. How many law-makers will be willing to undo corporate injustices if it means facing attack ads with an unlimited budget?

The Roberts' corporate-power agenda is sheltered by its innocent-sounding “umpire” metaphor and the conservative narrative that makes it sound like common sense. Franken closed by encouraging the Constitution Society to push a counter-narrative.

In our narrative, the legal system doesn’t exist to help the powerful grow more powerful – it exists to guarantee that every American is entitled to justice.

In our narrative, we defend our individual rights and liberties against corporate encroachment just as fiercely as we defend them against government overreach.

In our narrative, judicial restraint actually means something – for starters, how about ruling only on the case you’re presented?

In our narrative, even if those big bronze doors have to remain closed for security reasons, the door to our legal system should be open to everyone, because what happens in our legal system matters to everyone.

Short Notes

Paul Krugman wrote this back before the Inauguration:

I see the following scenario: a weak stimulus plan, perhaps even weaker than what we’re talking about now, is crafted to win those extra GOP votes. The plan limits the rise in unemployment, but things are still pretty bad, with the rate peaking at something like 9 percent and coming down only slowly. And then Mitch McConnell says “See, government spending doesn’t work.”

Like everybody else then, he under-estimated the unemployment rate. But the rest of this exactly what's happening.

So what's Paul saying now? He's getting increasingly frustrated at the consensus among the talking heads (not the public, incidentally, though you'd never know that from the media coverage) that we have to cut spending immediately. Government spending is supposed to be counter-cyclic: When everybody else cuts back, the government should spend, and vice versa. The long-term deficit is a problem, but the short-term deficit is necessary.

I always sensed there was something undemocratic and anti-due-process about the No Fly List. But I didn't realize it was quite this bad: A U.S. citizen who gets put on the List while he's overseas can't fly home, even under guard. So Yahya Wehelie, who was born and raised in Virginia and has not been formally accused of any crime, is stuck in Cairo until … until when exactly?

After he was arrested for marijuana possession in the US in 2008, Wehelie's Somali-immigrant parents sent him to Yemen to learn some good Islamic values, pick up a little Arabic, and maybe find a wife they could approve of. Now they just wish he could come home. “I’m not even a religious person,” Wehelie says, “I hate Al Qaeda.”

From yesterday's NYT: Fannie Mae and Freddie Mac wound up holding a lot of the mortgages nobody can pay, and the federal government wound up with Fannie and Freddie. So the taxpayers now own 160,000 houses — that's the current inventory, not the total number foreclosed — and the cost of unwinding the whole mess is estimated at $389 billion.

Fannie and Freddie are part of the conservative government-caused-the-problem argument. A good debunking of that is here, or in the book The Big Short that I reviewed two weeks ago. And I'm not sure how you blame Fannie and Freddie for stuff like this, reported by a Wells Fargo employee in Memphis:

“Your manager would say, ‘Let me see your cold-call list. I want you to concentrate on these ZIP codes,’ and you knew those were African-American neighborhoods,” she recalled. “We were told, ‘Oh, they aren’t so savvy.’ ”

She described tricks of the trade, several of dubious legality. She said supervisors had told employees to white out incomes on loan applications and substitute higher numbers. Agents went “fishing” for customers, mailing live checks to leads. When a homeowner deposited the check, it became a high-interest loan, with a rate of 20 to 29 percent. Then bank agents tried to talk the customer into refinancing, using the house as collateral.

Drat on Chris Kelly for spoiling Glenn Beck's new novel. Apparently, Glenn took somebody else's bad novel and did a liberal/conservative flip on it. The original author gets a thank-you.

Carefully cropped and mis-captioned photos, spliced-together audio tapes … Adam Greenhouse and Nora Barrows-Friedman report on “Israel's campaign to spin the attack, distort the facts and quell an outraged public” after the Gaza flotilla raid. Meanwhile, the global attention is causing Israel to loosen the most obviously non-military restrictions on Gaza imports.

The US discussion of Gaza and the Middle East in general includes very few Palestinian voices. Here's a Chicago Public Radio interview with Columbia professor Rashid Khalidi.

My article last week on the demise of the Big 12 Conference was premature. The next day Texas worked out a deal that made it more profitable to stay than to move to the Pac 10, so the ten-team Big 12 will go forward. If smaller Big-12 schools like Kansas and Iowa State ever wondered who was in charge, they know now.

An anonymous tea-party consultant tells his story in Playboy. And an Indiana Democrat concludes this from watching a local Tea Party meeting:

I came away with the conviction that this group was ignorant, annoying, and clueless, but not, ultimately, a threat to democracy, mainstream politics, or the Geek Squad.

Digby recalls the “Wanted for Treason” poster of JFK that was passed out in Dallas just before the assassination. Just change the photos, and it would look completely up-to-date.

You know who's in the Right's crosshairs now? The Girl Scouts.

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