President Obama’s Tea Party Credentials

By Marc Seltzer; originally published at care2.com on November 14, 2010

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I wonder if the story of the midterm elections is what it seems:  Tea Party Rejection of President Obama’s policies ushers in a Republican agenda.

In that story, President Obama is either the same old Washington problem, out to use tax-payer money and gov’t power for his own out-of-touch interests or an out-of-control Democrat-Socialist on a wild spending spree.  The deficit and debt represent the proof of the irresponsibility of the incumbents, and the new Republicans are the populist heroes who will reign in spending and balance the budget.

But I keep remembering candidate Obama saying “I am not doing this so I can pass the buck on the hard decisions.”  Difficult decisions are the ones where you take things from powerful people or make them pay what they cost, rather than offer give-aways.

Leave the financial crisis aside for a moment.

The current President inherited both short-term deficit spending (war, tax cuts, excess gov’t spending, etc. — unpaid for) and long term structural debt (Medicare, Medicaid, Social Security going up unsustainably per existing law and future demographics).  There are sometimes reasons to borrow money, to spend now and pay off debts later, but the past decade was not WWII.  Congress simply spent more than it took in, and it gave gifts such as tax cuts and Medicare benefits by borrowing money.

Along comes Barack Obama, talking about “bending the cost curve.”  Significant in the health care reform was removing tax subsidies for generous employer-sponsored health plans. Most Americans get their insurance from employer-sponsored health plans, and this substantial reform, however unpopular, will reduce the costs and waste of excessive medical care.  Mr. Obama also approved taking funds out of Medicare.  That’s hurting doctors and potentially forcing more cost containment on publicly funded health care for seniors.

The President also talked about reducing earmarks (the first budget under Obama contained earmarks prepared before his inauguration).  That hurts corporate interests and the politicians so aligned.   Then, Mr. Obama sought to reduce defense spending, with his Secretary of Defense standing up to criticism by congressional and corporate defense interests.

This sure seems like the long-term path of fiscal discipline.

What I’m wondering is, could the Tea Party movement be going in the same direction as the President?  Could it be that in order to balance the budget a lot of sacrifices will have to be made?  The President started down that path. (The financial crisis brought some unexpected costs — Bush’s TARP and Obama’s Stimulus — but not a recurring give-away). Now, the Tea Party-rejuvenated Republicans are all about cutting spending.

Doesn’t that really put them in the President’s camp?  Everyone with an interest, special or otherwise, will argue for their piece of the pie.  Tea Party Republicans are proposing to reform earmarks, cut defense spending and balance the budget.  They come at the problem as if it was the government that was devouring all the money.  But if they stay in the game for long enough, they will see that it’s not that simple.

In that case, President Obama may again appear the reformer:  A leader with a clear understanding of what needs to change to create a more sustainable America, waiting for people with integrity and discipline, a willingness to sacrifice, and political courage to join the fight against a system of entrenched interests.

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Listen to Marc Seltzer’s weekly podcasts on the U.S. Supreme Court at SupremePodcast.com

Protesting Homosexuality at Funerals

By Marc Seltzer; originally published at care2.com on October 18, 2010
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Last week the U.S. Supreme Court heard oral argument in the case of a Baptist Minister who claimed that his first amendment right to free speech entitled him to protest at the funerals of U.S. military service men and women. The case follows roughly in line with those that have accorded the greatest possible freedom to Americans who make public political statements — in this case, “God Hates You,” and “Thank God for Dead Soldiers” — however offensive.

However, unlike past cases that evidence a strong bias towards free expression in the public forum — for example, Neo Nazi marchers in Chicago, demonstrating in the streets, or the pornography of Larry Flint, published in print — the anti-homosexuality protests of the Westboro Baptist congregation disrupt private sacred rituals.

Not just in the United States, but in cultures far and wide, reaching back as far as archaeological evidence exits to document, burial rites have been among the most profound of human traditions.

Would barring protests at funerals really undermine our First Amendment freedom?

Is there a slippery slope worry? Stop someone from protesting at a funeral today, and tomorrow they will be blocked from picketing in front of a factory or speaking on the steps of city hall?

I can think of nothing so precious — save maybe the moment of birth of a child — as the solemn ritual of family and friends gathering at graveside or place of worship, to eulogize, show support, to weep and to say goodbye to loved ones. To disturb people in either of these situations — and to use the Constitution to do so, is unacceptable.

It is not the type of speech which stands out here, it is the inappropriate context. Grief is not a public forum but a private rite. To undertake the necessary process of grieving requires not just the support of community but the immersion in the experience of loss. The funeral, however constituted by cultural tradition, leads us through both a conscious and unconscious transformation.

This sacred space must be preserved.

(For more on this story, including notes on the questions asked by new Justice Elena Kagan, check out my October 9, 2010, podcast review of the legal case Snyder v. Phelps at SupremePodcast.com)

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January 12, 2011 UPDATE:  Following the Arizona shootings of January 9, 2011, the Arizona legislature unanimously passed a law barring protests in the immediate vicinity of funerals.

No Tea Party in Canada

By Marc Seltzer; originally published at care2.com on October 13, 2010
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Democrats seem bewildered by the strength of the Tea Party movement.  Powerful incumbent Senators such as Boxer (CA) and Reid (NV), and numerous House Reps in leadership positions find themselves in difficult contests. Republicans are poised to gain significant numbers in the legislative branch in November’s mid-terms election.

Fighting back, Democrats and their supporters have gone after Tea Party-Republican candidates, focusing on their oddities, inconsistencies, and lack of coherent policies.  Rachel Maddow, among others, has exposed the remarkably poor caliber of some candidates propelled by the Tea Party to victory in the Republican primaries.

Be that as it may, the legitimate complaint of the Tea Party movement has not been effectively dealt with by Democrats.  The root groundswell of anti-government energy comes from fear and anger about deficit spending and debt.

Deficits matter.

In Canada, governments of the past decade worked hard to erase the substantial deficits of the 1990s.  When the 2008 financial crisis arrived, Canada was able to face the recession with sound economic fundamentals.   Increased public spending in 2009 and 2010 again created deficits, but helped Canada recover nearly all the jobs lost in 2008.  Embarking on a new deficit spending program did not faze the public, and Canadian leaders are now talking about returning to surplus budgets in the next 7 years.

There is no tea party movement in Canada.  National health care, yes.  Major tax protests, no.

For all the things wrong with aspects of the Tea Party movement, from blaming the Obama administration for current ills to dredging up misguided social views, the truth is that the U.S. would have braved the recession far more effectively if it had had a budget surplus.

In not addressing this aspect of the financial health of the nation directly from the start, with a coherent long-term plan, the Democrats have allowed the opposition to bundle legitimate disapproval of the government’s budget outlook with generalized anger at banks, unemployment, the Bush administration, Congress, taxes, and government spending.

It’s working for Republicans so far, and if this election looks bleak, imagine Sarah Palin filling a stadium near you in 2012.

(Marc Seltzer has been on paternity leave after the birth of his daughter in June.  Marc can also be heard reviewing U.S. Supreme Court cases at SupremePodcast.com)

Shakespeare at the Monument-National Theatre

By Marc Seltzer

William Shakespeare wrote English history into many of his plays.  His Henry V chronicles the famed 15th century battle of Agincourt, in which an outnumbered regiment of Welsh and English soldiers, led by a young, devout King Henry V, faced a substantially larger army of Frenchmen.

Shakespeare’s audience were Londoners at the turn of the 16th century.  He schooled them in history even while he took liberties with fact to create stories of dramatic irony, intriguing character and English glory.  Henry V does not display the dark ingenuity and twisted psychology of a Hamlet or Macbeth.  There are no ghosts or witches, no vaulting ambition, murderous madness or overleap of the rules of royal succession.  Instead, Henry V is a beautiful examination of monarchal leadership, as Europe emerged from feudal hierarchy.

The Persephone production at the Monument-National presents a lively and fast-moving Henry V.  The large and able cast is led by Aaron Turner as King Henry.  Turner, and other standouts Alex Goldrich, Christopher Moore, Clive Brewer, Karine Lefebvre and Dustin Ruck, each playing a number of characters, keep the lines flowing gracefully, bringing the richness and complexity of Shakespeare’s tongue to life.

King Harry, as Henry V was known, is the good king, true to his country and to God.  Yet this is far from fairy-tale.  Harry is tested by a series of obstacles from traitors among the English lords and butchery by the French, to scenes of doubt and misbehavior among his common troops.  The King is an absolute monarch.  His will must be obeyed.  But in Shakespeare’s portrayal, the king’s nobility of spirit and justness of command make right the world:  Traitors pray thanks that their plots are uncovered before harm can result; even a childhood friend of the king is not spared punishment, where just rule is broken; and loyal kinsmen prefer to face the enemy outnumbered thus to gain the greater glory if they prevail.

Co-directed by Gabrielle Soskin and Christopher Moore, the production uses the large cast to great effect in scenes with choreographed movements and unified voices.  Costumes, by Sabrina Miller, conjured an army, but were at times confusing, especially where actors took on multiple roles.  Moreover, the weapons and additional vague references to modern warfare did not resonate through a unified production theme.

However, in a week in which the leaders of present day Great Britain and France announced that they would combine their nuclear testing programs in an effort to save costs and further solidify their mutual security interests, one can admire the long path of history.  As Henry V plays Montreal, les Anglais et les Français have opportunity to see a worthy production by the bard of Avon.

After seeing the stage production, you may enjoy one of the great film versions of Henry V, Kenneth Branagh’s 1989 triumph or Lawrence Olivier’s 1944 timely production.  Branagh’s staging and delivery of the St. Crispian’s speech “And gentlemen in England now a-bed, shall think themselves accursed they were not here“ would make Shakespeare stand at reveille, while Lawrence Olivier’s wooing of Princess Katherine gushes charm and respect at a profound moment of cross-channel cooperation.

At the Monument-National, 1182 St.-Laurent Blvd., Montreal Wednesday through Saturday until November 13, at 8:30 p.m., and matinée times Friday November 12th at 12:30 p.m. and Saturday November 13, at 2:00 p.m.

Redefining America: Constitution and Leadership 2010 — Oil Spill #2

Podcast June 10, 2010, “Oil Spill #2”

SupremePodcast.com — May 29, 2010

SupremePodcast.com

A weekly podcast review of U.S. Supreme Court decisions, grants of certiorari (cases accepted for review) and biographies of justices and nominees to the high Court.

May 29, 2010, Podcast

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Transcript of my May 29, 2010, SupremePodcast.com segment, Lewis v. Chicago:

Lewis v. City of Chicago, Ill.  Issued by the Supreme Court May 24, 2010

In a week when the 46 year old Civil Rights Act of 1964 was in the news –Tennessee Senate primary victor Rand Paul having questioned some of the Act’s provisions in articulating his philosophy of government overreach — the U.S. Supreme Court issued a unanimous opinion with respect to application of the Civil Rights Act to the City of Chicago and its fire department hiring practices.

The facts of the case are straightforward:  Chicago offered a test to 26,000 prospective firemen.  Those who achieved a score of 89 and above were marked “well qualified.”  Those who scored between 65 and 88 were deemed “qualified.”  Those below 65 were not qualified.  The city adopted this policy in 1995.  It further decided that only “well qualified” candidates would be hired first as needed.  It kept the files of “qualified” candidates in case all “well qualified” candidates were considered and additional positions were still available.

The city of Chicago continued to apply the same standard drawing from the original pool of “well qualified” candidates for six years, causing a number of potential “qualified” firemen not to be hired although it did select some qualified applicants in the end.

6000 African American candidates who had been rated qualified, but had not been hired, sued the city.

In the course of the litigation, the city stipulated, or accepted, the fact, that African Americans had been severely impacted in a way that was different than other racial groups by the 89-point cutoff.  This is called a severe disparate impact and is recognized by statute as a basis for challenging government hiring policies.  The Court of appeals referred to disparate-impact liability as “primarily intended to lighten plaintiff’s heavy burden of proving intentional discrimination after employers learned to cover their tracks.”

At trial the African American group of qualified candidates won their discrimination case.  The court ordered 132 of them to be hired by random selection from the class of 6000.   Back pay for what the 132 would have earned was awarded and was to be split among the other remaining candidates who were not hired.

The city appealed the trial court decision on the grounds that the applicants had not filed Equal Employment Opportunity Commission (EEOC) claims within 300 days of the test date.  The city argued that the statue required claims under Title 7 of the Civil Rights Act to be filed with the EEOC within 300 days of the violation of the law.  The city considered the discriminatory act to be when the test results were given, placing applicants into the “qualified” group, back in 1995. If the firemen failed to file a charge with the EEOC within 300 days, the city was entitled to consider the act lawful.  But the applicants argued that the policy was applied continuously over six years excluding them from advancing in the process and that the 300 day limit should be counted from each time the test results were used to determine which candidates would be called up for further consideration for open positions.

The 7th circuit reversed the trial court, finding the applicants’ claims were time barred.

The applicants petitioned the Supreme Court for review and in a decision written by justice Antonin Scalia the court unanimously reversed the 7th circuit.

The Court decided that in applying the same standard year after year to candidates who had originally “qualified” the city continued the violation such that the claims were filed in time.

The application of the policy had served to deny the firefighters’ opportunity.  The city could not hide behind the claim that their initial decision was all that counted for the purposes of starting the clock on timeliness.

The case was thus not in the Supreme Court on the merits of the discrimination claim and makes no substantive changes in the law on discrimination.  Those issues were decided in the trial court in favor of the fireman.  And the district or trial court decision, being a lower court, has little strength as precedent.  In fact, the Supreme Court sent the case back to the 7th circuit court of appeals on remand to make certain other determinations before final result would be known.

The case may be more significant for its dicta, which is the language and positions of the court not so central to its decision to become precedent but meaningful in expressing the court’s reasoning.  Justice Antonin Scalia used the case to forcefully articulate principles of judicial restraint.

“It is not for us to rewrite the statute so that it covers only what we think is necessary to achieve what we think Congress really intended.

Our charge is to give effect to the law Congress enacted.  Congress allowed claims to be brought against an employer who uses a practice that causes disparate impact, whatever the employer’s motives and whether or not he has employed the same practice in the past.  If that effect was unintended, it is a problem for Congress, not one that the federal courts can fix.”

While not surprising, the unanimity behind such a clear statement of judicial restraint illustrates the ascendance of such principles.

Arctic Oil Drilling Suspended

By Marc Seltzer; originally published May 27, 2010, at care2.com

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President Obama has stopped the permitting process for drilling in the Arctic.  In the wake of the BP Gulf oil spill disaster, the administration’s moratorium will be in place until the cause of the Gulf spill has been determined and new environmental rules are imposed.  (New York Times coverage of President’s announcement)

While a practical response to current oil spill, this may also aid the administration in pressing forward to develop a more sustainable energy policy.  President Obama campaigned for an end to excessive dependence on foreign oil.  This put him in favor of more offshore oil drilling, development of a new generation of nuclear power plants, as well as government support for new green technologies such as wind, solar and improved mileage standards for vehicles.  However, the President has not had universal support for green technology initiatives on the one hand, and has not gone far enough to address environmental concerns related to increased oil drilling, nuclear and climate change, on the other.

The U.S. populace is a reckless consumer of energy with little regard for the geopolitical or environmental consequences.  In contrast, Europe charges high gasoline taxes to discourage fossil fuel consumption.  Current legislation on climate change is a huge first step, but our nation needs bold leadership to move forward in energy policy, threading the needle of politically sound choices, management of limited resources and promotion of economic growth.

The President should seize the initiative during the moratorium period.  Of course, current dependence on oil, including foreign oil, cannot be changed overnight.  But developing policies that point in the right direction, towards sustainable energy with environmental safeguards should be the top priority goal of the administration.  We need fifty-year and 100-year plans.  The fact that technologies will change over time beyond our current understanding, does not alleviate our need to chart a responsible course now.

President Obama and the Democratic Congress face political challenge because of the economic downturn.  But that is looking backward.  Going forward, the Democrats should propose and campaign for transforming American energy policy.  Such a policy would clearly distinguish Democratic and Republican candidates in November.  It would offer international leadership above and beyond the tone of collaboration ushered in by Mr. Obama, and would begin the necessary public dialogue about a system for the use of resources and an accounting for damage to the environment that is appropriate for sustained progress and development.

The old model of environmental advocates lobbying for regulation of business served to pressure businesses to eliminate the worst of their pollution while businesses protected their profit potential.  However, what is needed now, is long-term, visionary policy that promotes green technologies, but also engages the public in the transformation from destructive consumption and development to sustainable management of the earth’s precious resources.

“You never want a serious crisis to go to waste,” Rahm Emanuel, Obama’s chief of staff, said just after the election.  A year later we have some significant progress in financial reform.

The Gulf oil rig tragedy has temporarily refocused attention on the dangers and mismanagement of energy policy.   Now is the time to act boldly!