Healthcare Ruling and Holder Contempt Offers Contrasts in Process
By Scott Crass
You don’t find too many days like this in Washington DC.
I’m not referring to the heat. That’s common for this time of year. What I am talking about are two occurrences of historic, indelible proportions. The first was the long-awaited Supreme Court decision on the Constitutionality of the Affordable Healthcare Act — also known as Obama Care. The second was the vote by the United States House of Representatives to hold Attorney General Eric Holder in contempt of Congress for failing to turn over documents relating to the ongoing investigation of the “Fast and Furious” scandal.
The Supreme Court decision, agree or disagree with content, was a plus for process and civility. The Holder matter, conversely, was a kangaroo Capital Hill style monstrosity that makes me question whether, had this been 1974, bipartisanship that ultimately forced Richard Nixon from the White House would have prevailed.
Let’s take the Supreme Court first. Whether I agree or disagree with today’s 5-4 outcome preserving the landmark healthcare law is not important. Nor am I saying that Chief Justice John Roberts provided a correct interpretation of the law. That conclusion is best left to legal scholars, of which I am far from one. But there is the matter of process and, led by Roberts, it was conducted by diplomacy that in the end, produced a decision no one expected. This is where the parallels can be drawn from the House vote against Holder.
Many were not sure the Court could make Constitutionality and politics mutually exclusive. California Democratic Congressman Xavier Beccerra said on the eve of the opinion’s release that” We’ll find out..if the Supreme Court is listening to the American people and following the U.S. Constitution.
To be sure, I don’t know that any of the other Justices were impervious to politics or personal ideology. Save one of them writing a tell-all book some day, it may be almost impossible to ever know.
But it was the Chief Justice, a Bush appointee, an “originalist” and major thorn in the spine of liberals for “Citizens United” and other recent decisions, that drew the most attention. Though many cited the Chief Justice as actually being sympathetic to the administration’s arguments, it seemed implausible that he’d side with the liberal bloc in adhering to the Constitutionality of a liberal’s dream, and in the process hand President Obama perhaps the biggest victory in the 223 year history of the Presidency. My guess is if the President ever records a song for Roberts, it’ll be Stevie Wonders’, ‘I Just Called to Say I Love You.” That said, it’s fair to believe that winning a popularity contest with Republicans is not on his agenda.
The assumption, even before the three day oral arguments of the Affordable Healthcare Act was complete was that the mandate was kaput.
Many people believed that. I was one of them. The presentation of the case by the Solicitor General was flimsy, so much so that it was said that at times, it seemed as though the courts four more liberal justices were actually trying to make the case for him.
For me, Roberts asking whether the term “mandate” actually added up to a “command” was evidence that he’d side against the administration.
To be sure, the Court didn’t opine on the wisdom of the law. They just ruled on it’s Constitutionality. But if Roberts had another motive, he didn’t show it. In fact, it appears the nation’s top Judge did a painful amount of soul searching, not within himself, but within the fabric of the Constitution. Perhaps he felt that his role of Chief Justice demanded it. Maybe he weighed the enormity of the moment with place in history. Or, he could have hoped to emulate past landmark cases, most notably Brown vs. Board of Education, where a consensus was reached only after extensive consultation with all ideologies. And though far-fetched, maybe Roberts had the goal of reversing the perceived politicization by the public of the court, a feeling that had only intensified since Bush vs. Gore in 2000.
It’s also worth noting that, though the long trail this case has taken, from District hearings to Circuit Courts, the opinions of the Judges transcended partisanship, as several Judges appointed by Bush ruled in favor of the Obama law, while a few appointed by Clinton ruled against it. So in that sense, Roberts may’ve been following a logical progression. But it’s refreshing and frankly, unexpected.
After the vote, I wondered how soon it would take for Roberts to be compared by conservatives to David Souter and that has indeed happened. One commentator even called him,”Chief Justice Warren,’ before correcting himself.(Roberts has also been reeling from attacks by the right for siding with liberals on the Arizona immigration decision earlier in the week). He was attacked for his rationale, calling the “penalty” language in the law a “tax.” But the bottom line is, Roberts put process first, and the citizens who live and soldiers who die for the Constitution expect nothing less.
Yes, agreement of whether the Affordable Health Act is sound, or will be workable in the long run is almost of secondary importance. Indeed, it is not even in the jurisdiction of the court. The mission of the Supreme Court Justices was to issue a ruling on it’s Constitutionality, and in that sense, he rose to the moment. If Roberts wanted to play politics or exercise shrewdness, with ideology, he could easily have done so. But by working with liberals, at least in process, he clearly did not and for that, I suspect his place in history is assured to be positive regardless of any other controversial cases that will come his way. And that’s a comforting, giant leap forward for the eradication of ultra-politicization, at least at the highest judicial level.
Conversely, enter “Fast and Furious.” The way the Government and Oversight Reform Committee has conducted this issue makes the Clinton impeachment hearings look like an episode of Perry Mason, and that’s being generous. One must wonder whether the Watergate hearings, were they taking place today, would have resulted in Nixon’s resignation. It was only the cooperation of Democrats and Republicans that led to the pressure that ultimately forced Nixon to surrender the Presidency.
Yes, public opinion well before the summer of 1974 had shifted against the President so much that, his 18% approval rating made it next to impossible for him to remain. But lack of cooperation between both sides could’ve generated sympathy for Nixon. That extended the “long, national nightmare” even further. There was no 24 hours news back then and that was a factor. But the most famous crossroads to cooperation among Congressional investigations, Howard Baker’s “what did the President know and when did he know it,” seems utterly inconceivable in today’s environment. The mass resignations by Nixon loyalists, and the ultimate pressure from the Republican leadership (House Minority Leader Jay Rhodes, Senate Minority Leader Hugh Scott and Barry Goldwater) for Nixon to leave is quite a contrast with Boehner, Cantor, and Issa’s request for heads.
I am aware that we are taking about a cover-up of a break-in by a sitting President, but the simple call for holding an Attorney General in contempt over an Executive Privilege issue is indicative of the hyper-partisanship. Now some will claim that the bipartisan nature of the Holder vote, which saw 17 Democrats join every Republican inoculates it from criticism of partisanship. But a quick read of list shows that, with a couple of exceptions, many of those 17 are in serious jeopardy of losing their re-election bids.
It’s not that I feel the administration has done everything right. But many of the documents that have been requested by the Committee have been provided and it is said that the few outstanding documents wouldn’t shed any light in what happened to the border agent who lost his life in “Fast and Furious.” And Committee Chairman Darrel Issa wouldn’t allow key witnesses, reportedly favorable to Holder, to testify. And it behooves me to pint out that “Fast and Furious” was actually a policy that’s implementation began during the Bush administration.
In closing, one will not find more history being made in a single day than the events of today. It’s a reporter and scholars dream. But at the end of the day, process will be almost as scrutinized as the outcomes themselves. Precisely why, Capital Hill can take lesson’s from today’s Supreme Court.