The Game Changer

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"The Court claims that the Act must equate federal and state establishment of Exchanges when it defines a qualified individual as someone who (among other things) lives in the 'State that established the Exchange.' Otherwise, the Court says, there would be no qualified individuals on federal Exchanges, contradicting (for example) the provision requiring every Exchange to take the 'interests of qualified individuals' into account when selecting health plans. ... Pure applesauce."

Antonin Scalia, King v. Burwell (2015)

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I have followed politics longer — and, as nearly as I can tell, more closely — than most people. Perhaps it has been to my detriment.

A few days ago, I was thinking about the first time I dabbled in predicting the outcomes of New Hampshire's presidential primaries. It was almost 40 years ago — when I told my friend and mentor, Aunt Bess, that Jimmy Carter would win on the Democratic side and President Ford would narrowly defeat Ronald Reagan on the Republican side. I was right on both counts.

I must have been like a novice investor who hits it big the first time he buys stock in a company — and concludes that it is a breeze to make money on the stock market. I must have concluded that I had some special gift for predicting the outcomes of elections — and was, therefore, stunned when many of my predictions in future years fell flat.

People who hit game–winning home runs in their first–ever at–bats are generally due for big letdowns the next time they step to the plate, and I have had more than my share.

Oh, I have had some successes over the years, but not nearly as many as I probably expected I would have. My subsequent predictions, as I say, haven't always turned out so well, and that losing streak has mostly continued since 1976.

I guess the reason why I have continued to be intrigued by politics is that it always seems that something totally unexpected happens to change the trajectory of a campaign somehow. It may not alter the eventual outcome — although it might — but it may change how resounding that outcome is. Was it decisive? If so — or if not — it may be due to a previously unexpected event.

In hindsight such an event may come to be regarded as preordained. Part of our history having an influential role in our future.

These unforeseen events are never quite the same. I guess they are the most obvious examples of Mark Twain's observation that "History doesn't repeat itself, but it does rhyme."

The death yesterday of Supreme Court Justice Antonin Scalia has the potential to be such an event.

Supreme Court vacancies don't come around very often, and such vacancies are even more infrequent in presidential election years. Vacancies caused by death are rarer still.

And it is, I suppose, one of the quirks of American history that presidents are seldom asked to select a replacement for a justice whose views were so opposite of the chief executive's. Some are, but Obama, should he choose to go ahead with a nomination, would be an historical rarity.

It has been 28 years since a lame–duck president had to fill a Supreme Court vacancy in a year when his successor would be chosen. That was 1988 when Lewis Powell retired. Ronald Reagan, who nominated Scalia in 1986, appointed Anthony Kennedy to succeed Powell.

Powell had also been nominated during an election year; Richard Nixon picked him to replace FDR appointee Hugo Black in 1972. But Nixon wasn't a lame duck. Quite the opposite, in fact. He was seeking re–election, which he won in a massive landslide later that year.

And Black hadn't died. He had retired — although he did die eight days after his retirement.

(Nixon also nominated William Rehnquist to succeed Eisenhower appointee John Marshall Harlan that year. Harlan, too, was a retiree.)

Some presidents — Carter, for example — never get to nominate a Supreme Court justice. Most get the opportunity to nominate at least one, but their choices are rarely seen as consequential as this one could — and, probably, will — be.

This country is about as evenly divided as it has ever been in my lifetime. My guess is that it really has been that way for at least the last 25 years. Although much has been made of Democrats winning the popular vote in five of the last six presidential elections and the electoral vote in four of the last six, the margins have been much closer than they tended to be even in the second half of the 20th century.

Even when he was re–elected four years ago, Barack Obama had an historically underwhelming performance — perhaps not as bad as George W. Bush in 2004 but hardly the mandate that most re–elected presidents tend to claim. Until the dawn of the 21st century, presidents who won re–election did so by wide margins.

Obama had a lower share of the vote and a lower electoral vote total than he received in winning his first term. Obama was the first president to be re–elected with a lower share of the popular vote than he received the first time around since Andrew Jackson 180 years earlier.

Only one other president — Woodrow Wilson in 1916 — was re–elected with a smaller share of the electoral vote than he won the first time.

Justice Scalia is widely regarded to have been a stable, conservative voice on a closely divided court. Philosophically, it is safe to say that he and Obama did not agree on many things.

Obama now has the opportunity to nominate a replacement. He's been looking for a way to ensure his legacy after he leaves office, and this could be it. Kennedy has largely been identified as the swing vote on a court that is otherwise divided 4–4. If Obama nominates someone whose legal positions support Obama's agenda, that nominee would have the potential to influence court decisions for a generation.

While their potential for long–term influence on court decisions is always acknowledged, Supreme Court vacancies generally are not seen as being overall game changers, but this one could be.

Scalia often observed that he was not a politician. He was a jurist. But it is important to remember that this is a presidential election year, and everything that the lame–duck president does will be perceived politically.

If he chooses to send a liberal nominee to Capitol Hill, it could set off a national political discussion on all sorts of issues as Obama's nominee speaks to the senators who will vote on the nomination. Remember: The majority party in the Senate is Republican, and the Republican Senate is not likely to act on a Democratic lame–duck president's Supreme Court nomination prior to an election.

Obama could nominate a more moderate justice than he might prefer, simply to avoid an embarrassing setback, but that is a risky proposal. A more centrist judge might well take positions in some cases that are contrary to Obama's.

But a more extreme nominee almost certainly would have no chance of being approved by a Republican Senate.

Obama could issue a recess appointment when the Senate is not in session, in which case the Constitution calls for such an appointment to be approved by the Senate before the end of the legislative session. If it isn't approved, it becomes vacant again.

Under the present circumstances, the Senate is likely to remain in session as long as possible, but congressional terms end early in January, and Congress will not be in session until the presidential inauguration.

Obama would have roughly 2½ weeks to make a recess appointment before his successor is sworn in. A recess appointment probably would prove to be a temporary solution, but that would depend on other things that are likely to be discussed in the next 8½ months. Whether Obama announces his nominee before or after the election could become a big issue when voters go to the polls — along with the positions such a nominee is likely to take on cases involving the most pressing issues of our time.

That, I suppose, will depend on how many Americans recognize the impact that Scalia's successor can have on their lives. It will be interesting to see just how many that is — and to hear the discussion it sparks.

That could be the real game changer.

Free Stuff?

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I wasn't working full time last year — at least through the first half of the year — so I didn't enroll in the state–mandated health insurance. I couldn't afford it. (Well, I guess I could have — if I had stopped doing things like, you know, paying rent or eating.)

I am working full time now — and I didn't like being treated like a criminal because I didn't sign up for health insurance — so I signed up before the deadline this year, and now I am in compliance with the law. (Well, that is what I have been told ...)

I had my annual checkup earlier this month. It was the first time I had ever met my doctor. He was assigned to me by the state because the doctor I have been seeing for years isn't on the state–approved list. That meant I had to go through my medical history with a stranger rather than see a doctor who is already familiar with my medical history. I wasn't too thrilled about that.

Nor am I pleased with the fact that this insurance doesn't cover my monthly prescriptions. In fact, it doesn't kick in on anything at all until I pony up six grand.

I pay nearly $375 a month for this policy. I'll be damned if I can see any benefit to it.

Oh, excuse me. There is one benefit. I am entitled to one no–charge visit with my state–assigned doctor per year. I gather it's a no–frills thing. When I met my new doctor, one of the first questions he asked me was how extensive I wanted the appointment to be. I replied that it was my understanding that my policy entitled me to one visit per year.

His response? "Oh. You want the free stuff."

Now, I'm a journalist. I studied journalism in college. I have worked as a reporter, an editor, a journalism instructor. The study of language is a given in my line of work, and I know — probably better than most — how easily language can be manipulated and misused to achieve whatever the user wishes to achieve. Successful politicians know it, too. For that matter, I suppose, most people today have a smattering of a familiarity with how it works.

Anyway, as I just said, I'm shelling out nearly $375 a month for this policy, and the only thing I really get in return — unless I get hit by a bus or something like that (and then it will cost me $6,000 up front) — is one visit with my health care provider per year. What the hell is affordable about that?

It certainly is not free. It costs me nearly $4,500 a year — and it isn't nearly as thorough as the annual checkups for which I paid $300 before the state compelled me to carry this policy.

Oh, sure, I understand why the doctor calls it free stuff. As far as he is concerned, I suppose, it is free.

But not really. The doctor is paid for that annual visit by the health insurer, not the patient (and I use that term loosely). It's a very cursory, bare–bones examination. Whatever the insurer pays for it, he/she is being overcharged.

Actually, we're all being overcharged so a small group of people can have their policies at discounted rates. That's what the Supreme Court upheld this week — the state's practice of using money from the working class to subsidize health insurance policies for others.

The policy doesn't cover prescriptions, but it does cover contraceptives. I mentioned to a friend that I was having to pay for someone else's contraceptives. This friend, whom I have known since before my high school days, is as devout a supporter of Barack Obama and Obamacare as you will find, and he tried to tell me that subsidizing contraceptives was a social obligation — the same way that we all (symbolically, at least) pitch in for the upkeep of roads and schools.

I really can't follow that logic — although God knows I've tried. Actually, I suppose I can follow it — up to a point. I agree that everyone is entitled to drive on good, well–maintained roads and send their children to good schools.

But contraceptives are different. Subsidizing contraceptives suggests that sex — like good roads and good schools — is a right. I disagree. If sex was a right, people would be entitled to grab anyone off the street and have sex with that person. Never mind if the other person didn't give his/her consent.

The law doesn't permit people to have sex with anyone, consent be damned. In fact, the law has a specific word for the act of sex with others without their consent. It's called rape — or sexual assault in the namby–pamby jurisdictions that won't call things what they are.

Sex is not a right. Sex is a privilege.

Even if you're one–half of a married couple. I have known many men who believed they were entitled to sex with their wives whenever they wanted it (and some even thought they were entitled to sex with their children). It was a wife's duty, they said — and then the courts began to rule that there was such a thing as spousal rape.

Clearly, unless you're talking about masturbation, sex is not a right.

(Now that the courts are handing down rulings that re–define marriage, I expect that sometime in the not–so–distant future there will be similar rulings establishing boundaries for sexual behavior in same–sex marriages. Seems like the next logical step to me. But I digress.

(I don't really care about that, though. I don't really have an opinion on same–sex marriage. I do have an opinion about the health care law.)

But it's that "free stuff" part that really bothers me. People believe it. Clearly, at least one doctor does.

I am an adjunct journalism professor at one of the community colleges here in Dallas, and I was there during the 2012 presidential campaign. I couldn't begin to tell you how many students told me they were voting for Obama "because he's going to give me free health insurance."

From the start, it reminded me of something I have heard all my life: There is no such thing as a free lunch. As a youngster, I thought that was absurd. Of course there were free lunches.

But as I have gotten older I have realized that the statement was true. Even if something appears to be free, you'll wind up paying for it in the end.

Supreme Court: The President Is Not Above the Law

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For two weeks in the summer of 1974, the eight Supreme Court justices who were deciding on United States v. Nixon had been reviewing the details of the case and considering the lawyers' arguments.

Executive privilege was given as the defense's argument for not turning over the tapes that had been requested. But the real issue was: Is the president above the law?

The justices answered that question 40 years ago today.

And while the Supreme Court considered the matter, all kinds of things were happening in the Watergate case.

The day after the justices heard arguments, the House Judiciary Committee released its own versions of transcripts of eight conversations that had been released earlier by the White House. When the White House transcripts were compared to the Judiciary Committee's transcripts, it was clear that several long Watergate–related passages had been omitted in the White House version.

A week later, Nixon refused to comply with the House Judiciary Committee's last four subpoenas. In an interview that day, he called Watergate "the broadest but thinnest scandal in American history."

The day before that, the White House had furnished some John Ehrlichman notes to the Judiciary Committee, portions of which were blacked out. A few days later, Nixon attorney James St. Clair assured the committee that the deletions had been made by mistake, but the public relations damage had clearly been done.

The Judiciary Committee also made public five volumes of evidence that challenged the White House's argument that national security was the reason for the wiretaps. Without identifying which ones, Vice President Gerald Ford said he had listened to portions of two of the tapes and had reached the conclusion that it was "very understandable" that different interpretations could be made of words that were spoken on them.

Volume upon volume of evidence was released to the public, and both the majority and minority counsels on the Judiciary Committee urged a Senate trial on one or more of five impeachment charges: (1) obstruction of justice, (2) abuse of power, (3) contempt of Congress, (4) failure to adhere to the pledge to "take care that the laws be faithfully executed" and (5) denigration of the presidency through underpayment of income taxes and use of federal money for personal purposes.

In California, the president's press secretary said the majority counsel, John Doar, was running a "kangaroo court."

The minority counsel, Albert Jenner, was replaced a couple of days later — after saying the case for impeachment was persuasive.

A couple of days before the Supreme Court announced its ruling, St. Clair declined to say whether Nixon would comply if the Supreme Court ordered him to turn over the tapes.

The next day, House Judiciary Committee member Lawrence Hogan, a Republican from Maryland, announced he would vote for impeachment. Hogan had already decided not to seek re–election to the House and was instead seeking the governorship of his state.

Forty years ago today, Watergate special prosecutor Leon Jaworski told the Baltimore Sun that he was "appalled" by the White House's refusal to say whether it would obey a Supreme Court order to turn over the tapes.

And such an order was handed down later that day.

By an 8–0 vote, the justices ruled that Nixon had to turn over the records of 64 Watergate–related conversations. They acknowledged that there was a constitutional basis for executive privilege but said that, when such a claim is "based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of justice."

"In careful but clear language," Bob Woodward and Carl Bernstein wrote, "the Court ordered the president to turn over the tapes."

St. Clair, wrote Woodward and Bernstein, had been certain he would win the case. "He was shattered that he had lost. When he read the decision, it became clear to him that the tapes would have to go to [presiding Judge John] Sirica.

"'The president is not above the law. Nor does he contend that he is,' St. Clair had told the court. He hoped that the president understood what that meant. Nixon had never told him exactly what he would do if there were an adverse decision, but St. Clair knew that his own legal advice to the president had to be unqualified compliance.

"When St. Clair arrived at the residence, he told the president ... that he advised full compliance. The president was not convinced. He wondered if, in fact, to preserve the power of his office, he didn't have a constitutional duty to reject the court order."

Of Nixon's defenders, historian Theodore White wrote, "they were like German officers on the firing line in 1918 who knew long before the Kaiser that the time for surrender had come."

The president eventually agreed to a kind of compliance. He told St. Clair that he would need to time to review the tapes before turning them over — weeks, perhaps months. St. Clair wasn't sure he could arrange that. Jaworski was eager to get the tapes for use in the upcoming coverup trial.

Nixon also informed lawyer Fred Buzhardt that "there might be a problem with the June 23 tape."

U.S. v. Nixon: Is the President Above the Law?

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Forty years ago tomorrow, the Supreme Court heard arguments in United States v. Nixon, the landmark case that ultimately defined the limitations on the power of the president.

These were the issues:

1. Should the president be required to turn over the records of 64 conversations to Watergate prosecutors?

2. Did the grand jury act properly in naming Richard Nixon as an unindicted co–conspirator?

Underlying it all, though, was the real question: Is the president above the law? The prosecutors argued that the president was not above the law. Nixon's defense was, as it had been all along, that the chief executive is above the law — via the principle of executive privilege.

More than a year earlier, in fact, in February 1973, Nixon's own tapes showed that Nixon and two of his subordinates, H.R. Haldeman and John Dean, had discussed using executive privilege fraudulently — not to protect others but to protect themselves.

The executive privilege concept, while not addressed specifically in the Constitution, is based on the principle of separation of powers. A level of confidentiality is understood to be extended to a president and his aides in certain circumstances, particularly in matters involving defense and national security.

Then–Associate Justice William Rehnquist recused himself because he had served in the Nixon administration (in the Justice Department) prior to his appointment to the Supreme Court, leaving eight justices to rule on the matter.

They heard arguments from Watergate special prosecutor Leon Jaworski and Nixon's lawyer, James St. Clair, after which they reviewed the facts of the case and returned to hand down their decision two weeks later.

"Jaworski seemed nervous," Bob Woodward and Carl Bernstein wrote. "He spoke awkwardly as he slowly recited the history of the grand jury's proceedings. He noted that the grand jury had named the president an unindicted co–conspirator, and then he moved haltingly to the heart of the matter. Who is the arbiter of the Constitution?"

"'Now, the president may be right in how he reads the Constitution,' Jaworski said. 'But he may also be wrong. And if he is wrong, who is there to tell him so? And if there is no one, the president, of course, is free to pursue his course of erroneous interpretations. What then becomes of our constitutional form of government?'"

The defense argued that executive privilege was absolute, but the prosecution said it was not and that any confidentiality that was extended to the president had to yield to the needs of the legal system in a criminal case. If the president were given absolute executive privilege, Jaworski said, it would be an unchecked power that could subvert the rule of law.

St. Clair argued that, under the doctrine of the separation of powers, the case shouldn't be heard in the courts at all because it involved a dispute within the executive branch of the government. He also contended, as I have said, that the president deserved absolute executive privilege and should not be forced to turn over his tapes.

Jaworski took issue with St. Clair's assertion about the matter being an internal dispute within the executive branch. "Jaworski cited the assurances of [Al] Haig, [Robert] Bork and Attorney General William B. Saxbe ... as to his indisputable right to take the president to court on the question of executive privilege," wrote Woodward and Bernstein. "It was up to the court, he said, to decide who was right, on the merits."

The justices retired to review the facts of the case — and, 16 days later, they handed down a judgment that would influence the course of history.

The Golden Anniversary of Times v. Sullivan

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When I was studying journalism in college, my professors all spoke of the landmark Supreme Court decision in the New York Times v. Sullivan case, and they did in reverent terms. Rightfully so.

Most of us students knew nothing about it — it had all happened before our time — but, within the context of my own experiences since college, I appreciate it more with each passing year. It reaffirms my faith in the First Amendment.

They told us that perhaps no other Supreme Court decision — certainly no modern–era decision — has been more important to the constitutional guarantees of freedom of speech and the press than the one in the Times v. Sullivan case, and they were right.

(Richard Labunski, for one, asserts without hesitation in the Providence (R.I.) Journal that it is the "most important First Amendment case in the nation's history." I'm inclined to agree.)

I teach journalism in the community college system here, and Sunday's 50th anniversary of the Times v. Sullivan decision makes me wish I could teach a class in communications law. I'm not a lawyer, though, which I suppose would prevent me from teaching such a class, but I think I understand that case well enough that I could discuss it with my students. I'm sure it would be a lively conversation.

Maybe it is enough to know that it is possible for me to tell my students so many other things because of the freedoms that decision affirmed and strengthened.

It probably would be helpful to give a little background information.

Nearly four years earlier, in 1960, the New York Times ran a full–page advertisement that had the appearance of an article but was actually an attempt to raise money for Martin Luther King Jr.'s legal defense against perjury charges in Alabama. In modern lingo, I suppose you would call it an advertorial.

At issue wasn't deception but inaccuracy and defamation. The article in the advertisement described actions that had been taken against civil rights activists in Alabama. Some of the descriptions were accurate, some were not — and some involved the police in Montgomery, Ala.

The article in the advertisement incorrectly reported that Alabama's state police had arrested King seven times; in fact, he had been arrested four times. Montgomery's public safety commissioner, L.B. Sullivan, considered the advertisement defamatory (to him because he supervised the police even though he was not mentioned by name) and demanded a retraction (which was a condition, under state law, for a public official to pursue punitive damages; he could do so if no retraction was forthcoming).

The Times refused, and Sullivan filed suit against the Times and four black ministers who were mentioned in the advertisement.

At this point, there were hundreds of millions of dollars' worth of libel actions pending against news outlets covering the civil rights movement in the South, which had kind of a paralyzing effect on many members of the press. The fear of legal action prevented many news organizations from being more aggressive in their coverage of civil rights in the South.

Half a million dollars was awarded to Sullivan by a Montgomery jury, and the Times appealed the decision. The appeal made its way to the Supreme Court, which overturned the decision by a 9–0 vote and, in the process, established the standard of actual malice.

The Alabama law was ruled to be unconstitutional because it had no provisions protecting freedom of speech and freedom of the press, which are required by the First and 14th Amendments. The Court also held that, even if such provisions had been made, the evidence did not support the judgment against the Times.

The Court's ruling imposed a new burden on public officials who are plaintiffs in a libel suit — actual malice. There must be proof that the defendant knowingly published false information or acted with "reckless disregard for the truth."

As Justice Hugo Black wrote, it is hard to prove or disprove malice. Well, it might be easier to prove today, what with the digital paper trail that is left through emails, text messages and the like. I don't know. Undoubtedly, that part of the law will be shaped and refined in the years ahead.

That's how it has worked in the last 50 years. Subsequent decisions and Supreme Court appeals have addressed elements of libel law and actual malice. For example, while the original Supreme Court ruling applied only to public officials, it has been extended to include public figures as well.

And it has had implications that went beyond the working press to include commentary, criticism, even satire as well as the definitions of concepts such as privacy, indecency and obscenity.

For advocates of the First Amendment (which should mean all Americans), the real hero in the decision was Justice William Brennan, who wrote about the critical role a free press plays in keeping the public informed and encouraging open debate. Even "caustic debate" is vital in a democracy, Brennan said.

Inevitably, Brennan observed, inaccurate statements will be made, and incomplete reports will be published in a dynamic democracy. Public debate must be "uninhibited, robust and wide open," and it "may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials." Consequently, "breathing space" must be permitted.

The Supreme Court didn't have to hear the case. It always has the option of refusing to hear a case. But the Justices saw the First and 14th Amendment implications in the case, and the ruling that was issued half a century ago safeguards the "unfettered interchange of ideas" that continues to be defined.

A Force of a Different Color

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"It is hereby declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin. This policy shall be put into effect as rapidly as possible, having due regard to the time required to effectuate any necessary changes without impairing efficiency or morale."

Executive Order 9981
Issued by President Harry Truman
July 26, 1948

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Harry Truman desegregated the U.S. armed forces on this day in 1948.

Some people cite this as an example of true presidential courage. Truman was running for re–election in a nation that was only starting to deal with its racial problems. His electoral prospects had been regarded as dim for months — ever since Gallup reported his approval rating was 36%. The New Deal wing of the Democratic Party had been trying to persuade Dwight Eisenhower to run as a Democrat, but he declined, and Truman was nominated by his party in mid–July.

Not quite two weeks later, he signed an executive order desegregating the military — and ushered in the modern civil rights movement.

The civil rights movement existed before Truman signed that executive order. While some may assign a different starting point, I have long believed that the Supreme Court's Plessy v. Ferguson decision in 1896, which upheld segregation under the "separate but equal" doctrine, is when the civil rights movement became more than a series of isolated acts. It was in the years following that decision that the NAACP was formed and the efforts for racial equality became more coordinated.

It is often implied, if not suggested outright, that segregation only existed in the South, but it was a national fact of life, and attempts to change that were largely symbolic until Truman desegregated the troops 65 years ago today.

Skeptics may observe — and with justification — that Truman's order was mostly symbolic as well, given the fact that it was not treated as seriously as it should have been for years. And, as I say, there also are those who believe it was an act of genuine presidential courage. It may have been.

But I wouldn't necessarily label it a completely altruistic act. In the context of the times, I wouldn't be so quick to dismiss political influences.

At the Democrats' convention in Philadelphia earlier that month, the progressive mayor of Minneapolis, Hubert Humphrey, gave a stirring speech that prompted the delegates to adopt a stronger stance on civil rights. Truman unhesitatingly endorsed the plank, but delegates from Mississippi and Alabama walked out in protest.

Prior to this date in 1948, there was a certain amount of concern among Democrats about the prospects for their national ticket — as well as rumors (which proved to be true) of a schism that might lead to a split in the form of a third–party challenge. In fact, from what I have read, the only Democrat who thought Truman had a chance to win was ... Truman himself.

In fact, there were two challenges to Truman in 1948 — aside from the challenge from Republican nominee Tom Dewey, who had lost to Franklin Roosevelt four years earlier. The challenge from the right came from South Carolina's Strom Thurmond. The challenge from the left came from Henry Wallace, Truman's predecessor in the vice presidency.

Recent Gallup polls still had Truman's approval lingering in the 30s. He may have felt he had little to lose — other than members of his base who might otherwise choose to stay home in November. That may have been at least part of his motivation for issuing the order.

He may also have felt that the current of history was moving in the direction of desegregation.

In many ways, it was a symbolic gesture. Although the order called for its provisions to be "put into effect as rapidly as possible," there was foot dragging in its implementation.

Because of that, many modern historians will say the modern civil rights movement began with 1954's unanimous Brown v. Board of Education Supreme Court ruling.

I suppose that is hard to dispute. Segregation had been the virtually unchallenged law of the land since Plessy v. Ferguson, but Truman's order was the first real crack in segregation, and it set things up for Brown v. Board of Education to wedge it wide open — and, in the process, set up the ripple effect that transformed America from a segregated society to an integrated one.

That is the history of the American civil rights movement. I am often inclined to think that American segregation was destined to fall — like the Berlin wall.

But transformations of this magnitude are not historically inevitable, and even when the wheels are set in motion, they can be exceedingly slow to turn.

Truman got the wheels turning on this day in 1948.

Read His Lips

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"My opponent won't rule out raising taxes. But I will. And the Congress will push me to raise taxes and I'll say no. And they'll push, and I'll say no, and they'll push again, and I'll say, to them, 'Read my lips: no new taxes.' "

Vice President George H.W. Bush

Aug. 18, 1988

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George Stephanopoulos: [Y]our critics say it is a tax increase.

Barack Obama: My critics say everything is a tax increase. My critics say that I'm taking over every sector of the economy. You know that. Look, we can have a legitimate debate about whether or not we're going to have an individual mandate or not, but ...

George Stephanopoulos: But you reject that it's a tax increase?

Barack Obama: I absolutely reject that notion.

Sept. 20, 2009

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I remember the night George H.W. Bush made his famous "Read my lips" pledge to a convention hall filled with approving Republicans.

I had just moved to north Texas, where I had begun a new job at the local newspaper, and I had enrolled — that very day, as I recall — in graduate school. Settling in to my new apartment (i.e., unpacking boxes) had to be done incrementally.

It is safe to say I had several irons in the fire.

Anyway, I was unpacking some boxes that night, but I had the TV on so I could listen to Bush's acceptance speech. And, at first, I was inclined to dismiss that line as merely another political applause line — like when his boss, Ronald Reagan, appropriated Clint Eastwood's "Make my day" movie line for his own political purposes.

Reagan had a history of wrapping himself in socially popular phrases, sometimes to his detriment. Maybe it was the actor in him. When running for re–election as president, Reagan spoke of the "message of hope," a paean to patriotism, embodied in Bruce Springsteen's hit song, "Born in the U.S.A." when, in fact, the song was filled with images of gloom and despair.

But that was Reagan, the teflon president. He was always doing stuff like that, and people always let him get away with it, too. There he goes again.

I never really understood it. But I wasn't a Reagan fan, anyway.

I guess some politicians are like Reagan. They can get away with some of the most outrageous comments — and everyone seems to agree that they are outrageous.

But others can't get away with it.

Bush, for example. Lots of people probably responded dismissively to "Read my lips" as I did.

But there were plenty of folks who made notes of it and remembered it when Bush went back on his pledge in the 1990 budget compromise agreement.

In the storm of criticism that came Bush's way in 1992, I don't recall anyone pointing out that, in 1988, Bush faced considerable opposition from conservatives who had always doubted his commitment to cutting taxes, and many of his advisers thought a strong stand like his "read my lips" statement in his acceptance speech was needed to secure their active support in the fall.

To be fair, there were no new taxes in the budget, but, in his 1988 acceptance speech, Bush also drew the line against increases in existing taxes. That was a technicality as far as many were concerned. Agreeing to a budget compromise that raised existing taxes could only be seen as a broken promise.

And Bush 41 paid the price at the ballot box in 1992, first in a tougher–than–expected battle with Pat Buchanan for the nomination, then in his ill–fated campaign in the fall against Bill Clinton.

I thought a lot about Bush's famous remark yesterday after I heard that the Supreme Court had upheld the Obamacare legislation under congressional taxation authority.

The two situations are not mirror images of each other, but I suppose we won't really know that until after the voters have rendered their verdict in November.

Obama didn't break his promise not to raise taxes on anyone who made $200,000 a year or less; the Supreme Court decision did it for him.

As people absorb the court's decision and come to understand that the fee they will have to pay for noncompliance will amount to a massive tax increase on the very people Obama said had nothing to fear when he was running in 2008, their attitudes are likely to shift.

And, after watching him for four years, I have no doubt that Obama will spin it as something that was forced on him by the Supreme Court if it looks like there is going to be a huge backlash over it this fall.

Bush tried to spin his way out of trouble, too.

We'll see if it works any better for Obama.

Winning By Losing

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Occasionally in the past, I've heard it said that, at times, it is possible to win by losing.

I heard that — or its equivalent — said a lot in the lead–up to today's Supreme Court ruling on the legal challenge to the so–called Obamacare legislation.

Initially, I was inclined to think it was pre–emptive spinning — to mitigate defeat, not boast of victory.

Because, you see, both sides seemed to be convinced — to some extent — that the High Court was going to rule against them. And, I suppose, in these times of incredible uncertainty, that was the prudent thing to do: Prepare for the worst.

Therefore, this was the logic — on both sides.

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If the Supreme Court rules against us, it will mobilize our people in the fall, and we will overwhelm the opposition with the backlash.

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Now, on the surface, I supposed, that is a reasonably effective case for making chicken salad out of chicken sh*t.

But it seemed to me that it perpetuated the mindset that believes in complacency politics — that success makes people complacent.

That has not been my experience.

In my experience, whether it is business or politics or whatever, success only whets one's appetite for more. I never expected the side that was perceived to be the winner today to sit back and relax.

Americans have always been competitive. Historically, success seldom makes people complacent. If anything, having acquired power, they put that power to work in an attempt to keep it.

Well, most do. Some don't, I admit. But those people don't tend to last too long.

Anyway, now that the Supreme Court has ruled the legislation to be constitutional — and in the most improbable way imaginable, by upholding the mandate as being within congressional taxation authority — I have been re–thinking my opinion on that.

And I'm beginning to think that, yes, there could be a considerable backlash on this at the polls in November.

In the first place, the introduction of that word tax is something the Democrats in Congress — and Barack Obama himself — sought to avoid when they were ramming through the health care reform act.

Legal defenders of the legislation only threw it into the mix in their Supreme Court arguments as a last–minute thing — yet that turned out to be the argument that the Supreme Court bought.

The High Court didn't go along with the commerce argument. It upheld the constitutionality of the legislation with that last–minute taxation argument — which, ironically, was never part of the original deal.

And it made things a bit sticky for the Obama campaign. Obama has repeatedly assured Americans that, during his presidency, there would be no tax increase on anyone making under $200,000/year.

Now, with the help of the Supreme Court, he has pulled off the greatest bait and switch in American taxation history.

And, if there are any folks who need a quick reminder of how the American people feel about anything that is labeled a tax, let me refer them to the election returns from 20 years ago — when President George H.W. Bush was defeated in large part for going back on his 1988 campaign pledge to resist any tax increases.

And make no mistake about it. This will amount to a massive tax increase — mostly on the middle class. Countless people will look at their annual incomes and do the math — and they will conclude that it will be cheaper for them to pay the tax than purchase the insurance.

That doesn't mean they will like it. It just means they will do it.

There's no doubt in my mind that the Supreme Court handed Obama a victory with today's ruling. It would have been indescribably embarrassing for the signature legislation under a president who was once a constitutional law professor to be declared unconstitutional.

Obama was spared that embarrassment — and, because of that, he has to be regarded as the winner of today's round. His signature legislation — virtually the only accomplishment he has to show for his 3½ years as president — survived.

Without it, he would have had no case at all for re–election.

But the Republicans have been given a huge banner to follow into battle this fall — and, with it, I think Romney may well win the war.

He Said, She Said

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Twenty years ago, the nation watched as the Senate Judiciary Committee questioned Supreme Court nominee Clarence Thomas — while outside opposition to his appointment was growing, based on his past positions on topics like affirmative action and abortion.

Many Democrats suspected that Thomas had been selected to replace retiring Justice Thurgood Marshall solely because both were black and Thomas would maintain the Supreme Court's existing racial balance. But Marshall and Thomas certainly didn't share the same views, and groups like the NAACP and NOW feared a shift in the Court's ideological balance.

Absent something truly troubling, though, most presidents' Supreme Court nominees are approved, regardless of how they may affect things ideologically, so Thomas seemed sure to receive the Senate's routine blessing — until this day in 1991.

For it was on this day 20 years ago that something troubling did emerge that threatened to derail Thomas' confirmation.

On Oct. 11, 1991, University of Oklahoma law professor Anita Hill walked into the hearing room and dropped a bombshell.

As Ruth Marcus of the Washington Post recalled recently, it was "both riveting and horrifying."

A former colleague, Hill testified that Thomas made sexual comments to her on the job and pressured her to go out with him. She wasn't sure if his conduct would meet the legal conditions for sexual harassment, but she said that, in her opinion, it was illegal.

That wasn't the issue, though, she said. She wanted to focus on the nature of Thomas' behavior and the fact that it had been inappropriate — even if it was not explicitly illegal.

And, after she related her version of events, no one really knew what to expect. But everyone had an opinion.

If you believed Thomas, it followed logically that you thought Hill was lying. If you believed Hill, the logical conclusion was that Thomas was lying.

There was simply no way to reconcile the two as some kind of bizarre misunderstanding that could be easily clarified — as in, "Well, yes, senator, as a matter of fact I did make a rather casual remark about a pubic hair on a Coca–Cola can, but what I really meant by that was ..."

I was in graduate school at the time, studying journalism and working part time as a teaching assistant, and I remember watching my students, especially the girls, as they listened to the radio broadcasts of the hearings in the editing lab, where I worked on weekday afternoons.

It had been a newsy year, what with the whirlwind Gulf War and all that, but this was a different kind of topic for the girls in my news editing lab. They couldn't necessarily relate to the experience of fighting in a war on foreign soil, even though many people their age (and, almost certainly, people with whom they had been in high school only a few years earlier) were serving their country in that part of the world, but the hearing's subject matter was something to which they could relate, something with which many of them had dealt at one time or another and in one form or another, even at that tender phase of their lives.

And they didn't like what they were hearing from someone who could serve on the Court for an indefinite period of time (in fact, Thomas is still on the Court nearly two decades after being confirmed and, at the age of 63, conceivably could be on the Court for two more).

When the full Senate voted on Thomas' nomination shortly after Hill's testimony, the girls in my lab listened intently to the radio. Nearly all seemed dismayed when the Senate approved that nomination by the closest margin in more than 100 years.

We never discussed that event in depth, but I overheard snippets of their conversations, and I have often wondered what kind of message that confirmation vote sent to the young women of America.

Shattering the Supreme Court's Glass Ceiling

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Seeing a woman on the Supreme Court raises no eyebrows today.

One–third of the justices are female, and two of them were appointed by the current president. In fact, it wouldn't be surprising if Democrats are perceived as far more likely to appoint a woman to the Supreme Court than Republicans. The three women who sit on the bench today all were nominated by Democrats.

But 30 years ago today, Republican Ronald Reagan made history by appointing Sandra Day O'Connor to replace Potter Stewart on the Supreme Court.

It was historic because O'Connor was the first woman to be designated to join what had been called "The Brethren" for a couple of centuries, and it was the fulfillment of one of Reagan's campaign promises.

Since it had been a campaign pledge, the nomination probably didn't surprise many in Reagan's inner circle. But my recollection of that day is that nearly everyone else was surprised.

"My nomination was a great surprise to the nation," O'Connor later recalled, "but an even greater surprise to me."

Her gender may have played no role, but some of Reagan's supporters in Congress insisted they could not support O'Connor, many because they were not sure she would vote to overturn Roe v. Wade if given the chance.

(Now, you may think there are litmus tests in the appointments that are made in American politics today — and there are. But much more of an effort is made today to conceal that fact.

(The early 1980s was a period when people were defiant about it, almost proud of it. By and large, the attitude could be summarized this way — Yeah, we're applying litmus tests. Wanna make something of it?)

Some openly suggested O'Connor would support the Roe v. Wade ruling — and if you know anything about politics in America in the 1980s, it should be that the Republican Party had embraced conservative Christians, and a person's position on abortion was the litmus test for being a true Republican. (Those who were found to be lacking were treated as derisively as today's so–called RINOs.)

Yet, when the Senate voted on O'Connor's nomination in September, she was confirmed by a 99–0 vote.

(Around the time of her confirmation, O'Connor was quoted by the Washington Post as saying something that would, no doubt, be welcomed by a certain segment of the modern population: "I do not believe it is the function of the judiciary to step in and change the law because the times have changed. I do well understand the difference between legislating and judging. As a judge, it is not my function to develop public policy."

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It is, as I say, nothing special to see a woman nominated for the Supreme Court now. Three other women have been nominated since that day 30 yeas ago. All three were confirmed, and all three sit on the bench today.

And, in the peculiar logic of American politics, when those seats are open again, due to retirement or death, I suspect they will be regarded as belonging to women, in much the same way that open seats have been considered liberal or conservative, depending upon who last held them, and only a like–minded jurist would be an acceptable replacement.

It is the same sort of thinking, for that matter, that made Thurgood Marshall's seat the black seat on the court when he retired — but race trumped ideology when his replacement had to be selected.

(It was always odd, I thought, that George H.W. Bush chose to replace Marshall with Clarence Thomas, who shared the same skin color but little else with the man he succeeded.)

For the most part, I guess, O'Connor lived up to the hopes of conservatives. When the Supreme Court was called upon to break the electoral deadlock in Florida in 2000, for example, she voted with the Republican appointees, allowing George W. Bush to prevail over Vice President Al Gore.

But, overall, her voting record seemed to move more to the center as her Supreme Court career continued. I often wondered if Reagan ever imagined in 1981 the votes she might cast or the decisions she might influence in the quarter of a century that she sat on the bench.

The night before he announced her nomination, Reagan wrote in his diary that he thought she would make "a good justice."

She's only been retired for five years.

It will take awhile for history to render its verdict.

Head for the Mountains

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Back before George W. Bush's father was Ronald Reagan's running mate, "Head for the mountains" was the commercial pitch for Busch beer.

It may well have been the perfect advice for those who opposed Bush's ascension to the presidency in 2000.

If you were around in those days, I guess I don't have to remind you of the national ordeal that Americans went through in the five weeks between Election Day and this day, when the Supreme Court, after narrowly voting to halt the recount in Florida, effectively awarded the state — and, with it, the election — to Bush.

Recrimination was in the air long before the Democrats took a severe beating on Election Day last month, but it only makes sense, really, to put blame where it rightfully belongs — on the doorsteps of the five U.S. Supreme Court justices who halted the Florida recount with Bush narrowly leading Al Gore.

I suppose things started innocently enough. Bush's initial lead over Gore in Florida was less than 2,000 votes. Percentage–wise, the margin was narrow enough to qualify for a state–mandated machine recount.

That recount only took a few days. When it was done, though, Bush's lead had dwindled to a few hundred votes, and Gore requested a manual recount in four counties that typically voted for Democrats.

The recounts began, but they were being held in heavily populated counties, and officials feared the recounts could not be completed in time to meet the state's seven–day deadline for certifying election results. The Florida Circuit Court decided that the certified results had to be submitted by the deadline, but amended returns could be submitted later.

As it turned out, one of the counties completed its manual recount before the deadline. The recounts continued for the other three.

Well, one thing led to another. There was a lot of wrangling on both sides, a lot of hyperbole on both sides. There were legal challenges and counter–challenges.

The concept of "every vote counts" seemed to have been lost in the pursuit of victory at any price.

And, through it all, there was the concern that the next president needed time to make his transition. January 20, after all, was less than six weeks away.

In his memoir "My Life," the outgoing president, Bill Clinton, wrote, "If Gore had been ahead in the vote count and Bush behind, there's not a doubt in my mind that the same Supreme Court would have voted 9–0 to [re]count the vote and I would have supported the decision. ... Bush v. Gore will go down in history as one of the worst decisions the Supreme Court ever made, along with the Dred Scott case."

It was a terrible decision. Eventually, it may be seen to have caused as much — or nearly as much — damage to the nation as the Dred Scott case to which Clinton referred.

A Matter of Faith

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"I don't see how we can have a separation of church and state in this government if you have to pass a religious test to get in this government. ... [I]f you demand expressions of religious faith from politicians, you are just begging to be lied to. They won't all lie to you, but a lot of them will. And it will be the easiest lie they ever had to tell ..."

Arnold Vinick
The West Wing

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A couple of days ago, I examined the likelihood that Barack Obama will have the opportunity, either this year or next, to nominate the replacement for Supreme Court Justice John Paul Stevens.

I discussed a number of the issues involved. But there was one angle I didn't explore. Today, Nina Totenberg of NPR did bring it up, and I am glad. Not because it matters to me but because it could influence the debate over Obama's nominee.

The angle Totenberg brought up? "[W]hen Justice Stevens retires, it is entirely possible that there will be no Protestant justices on the Court, for the first time ever."

That might not be an issue. When Stevens retires and Obama announces his choice for a successor, that successor could turn out to be a Baptist or a Methodist or a Presbyterian — or a member of another Protestant denomination.

But what if he nominates a Catholic? Or a Jew? Totenberg points out that three of the people who are frequently mentioned as the leading contenders are Catholic or Jewish.

And can you imagine the reaction if Obama nominates a Muslim?

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"In fact, six of the nine justices on the current court are Roman Catholic. That's half of the 12 Catholics who have ever served on the court. Only seven Jews have ever served, and two of them are there now. Depending on the Stevens replacement, there may be no Protestants left on the court at all in a majority Protestant nation where, for decades and generations, all the justices were Protestant."

Nina Totenberg
NPR

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Given the fact that, as Totenberg observes, "almost nobody has noticed" the impact that Stevens' departure could have on the religious balance on the court, it might not be important to many Americans.

On the other hand, when you consider the issue of child sexual abuse that has plagued the Catholic church, adding a seventh Catholic to the Supreme Court might do more than raise a few eyebrows.

And if another Jew was nominated to the highest court serving a self–identified Christian nation (where less than 2% of the population is Jewish), there might be some backlash in the Christian community.

Personally, I don't think a jurist's religion should be of any more consequence than his/her political party affiliation. It smacks of a litmus test, like inquiring about a potential nominee's views on abortion.

But that's probably a perfect world we're talking about — and God knows this world is far from perfect.

The fact that a nominee has a religious faith — whatever it may be — seems to me to be a good thing. It shows that he/she has given a lot of consideration to issues that affect the human condition, that go well beyond his/her personal circumstances. Even if a nominee is an agnostic or an atheist, that, too, suggests the nominee has thought about things that are bigger than himself/herself and has come to a conclusion with which he/she is comfortable.

Such a demonstration of mental acuity does have meaning for me because it shows that the nominee (or, if confirmed, the justice) is capable of evaluating an issue from many sides and arriving at a fair and reasonable conclusion. That is relevant to all sorts of matters that could come before the Supreme Court — not just cases involving religious freedom.

In my own case, I am a journalist. I believe that freedom of speech and freedom of the press matter, and protecting those freedoms is paramount to me. I believe that all of our freedoms are important, but everything else depends on those freedoms.

Justice Louis Brandeis, the first Jew appointed to the high court, penned perhaps the greatest defense of freedom of speech in the high court's history in his concurrence in the Whitney v. California (1927) case (in which the concept of a "clear and present danger" played a prominent role):

"Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self–reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."

I am a Protestant, but I would support whole–heartedly the nomination of anyone — Catholic, Jew, Protestant, whatever — with that kind of agile mind.

It doesn't seem to me that it could be said of a nominee who has simply shown no interest in religion (or, at least, not enough to form an opinion) that he/she has an agile mind — beyond cynically calculating how an expression of religious faith (sincere or not) could help his/her career goals.

And, as Arnold Vinick implied on The West Wing, some potential nominees will say whatever they think their listeners want to hear if they believe it will make it easier to get what they want.

A nominee's religion could be very important to some Americans, though, and for good reason. Supreme Court justices are not subject to the whims of voters so Stevens' successor could very well be on the court for two or three decades.

If a Protestant is not nominated, some Protestants in America might wonder if their interests will be represented in the high court's rulings.

Timing, as they say, is everything, and a lot may depend on whether Stevens decides to leave this year or next year.

Few Republicans in Congress have shown any interest in cooperating with Obama, and it is reasonable to expect that any new Republicans who are elected this fall will be unlikely to extend an olive branch to the administration.

If Stevens retires this year, Obama knows he will have 59 Democrats in the Senate who are likely to support his choice. But, rather than risk a messy confirmation proceeding that could further endanger Senate Democrats (nearly half the Democratic seats on the Senate Judiciary Committee will be on the ballot this year, and two are already believed to be at risk of a Republican takeover), he might choose a safe nominee (which might include picking a Protestant).

If Stevens waits until next year, it's anyone's guess at this point whether Democrats will still be in the majority in the Senate. But Obama will know that the next election will be more than a year away. If he prefers a nominee who breaks boundaries, 2011 may be a better time to do so — although not if his party loses its majority.

Given all the political considerations Obama will have to juggle, one would be justified in wondering whatever happened to the (alleged) separation of church and state.

Or, to quote an exchange from The West Wing, when Vinick asked President Jed Bartlet that question, Bartlet replied, "It's hanging in there, but I'm afraid the Constitution doesn't say anything about the separation of church and politics."

Choosing a Justice

Supreme Court Justice John Paul Stevens is a bit of a throwback.

The 89–year–old jurist, who has been on the Supreme Court for 35 years, says he will retire either this year or next year. Whichever one he chooses, though, he insists he will leave during Barack Obama's term in office to give him the opportunity to maintain the court's ideological balance.

Isn't that a quaint notion?

Stevens was nominated by a Republican president, Gerald Ford, who may have expected a centrist (or even a conservative), but he has turned out to be a leader of the liberals on the high court.

I guess it's possible Ford — who was more of a moderate than most office–holding Republicans are today — knew he was nominating a liberal back in 1975 (although I have heard Stevens describe himself, in spite of his opinions, as a conservative centrist). The backlash of Watergate had given Democrats huge majorities in Congress following the 1974 midterms, and Ford may have felt it was important to appease Democratic lawmakers.

All I really know about Stevens' nomination is what I have read in the Bob Woodward–Scott Armstrong book on the Supreme Court, "The Brethren," which suggested that Ford's main concern was not ideology.

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"Ford finally concluded the best choice would be a sitting judge, someone virtually unknown who had worked with distinction for years on the federal bench. ...

"A former law partner considered Stevens a lawyer's lawyer, and on the appeals court Stevens had been thought of as a judge's judge. He was noted both for thoroughness and for his sophisticated arguments.

"On the basis of a few moments of small talk, Ford had preferred Stevens. Stevens also seemed to have no partisan politics, no strict ideology. His anonymity would ensure a quick confirmation."

The Brethren (1979)

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I have to assume that, as brilliant as Stevens is reported to be — he had the highest grade–point average in the history of Northwestern University Law School — he is hopelessly mired in the past.

Why do I say that? Because, based on his statements, Stevens believes that a presidential nominee for the Supreme Court is habitually rubber stamped by the Senate. I guess that is understandable, given the fact that he sailed through, winning Senate confirmation by a 98–0 vote — although he ought to know better. During his tenure, not all Supreme Court nominees have sailed through the way he did. Ronald Reagan nominated Robert Bork, who was rejected by the Senate, and two other nominees — Douglas Ginsburg (in 1987) and Harriet Miers (2005) — were withdrawn when it became clear that they lacked enough support to be confirmed.

In fact, even before Stevens was appointed, both Richard Nixon and Lyndon Johnson ran into problems with their Supreme Court nominees.

Prior to that, though, no Supreme Court nominee had been rejected or forced to withdraw in Stevens' adult life so it isn't hard to see how he may have formed the impression that a president's choice for the Supreme Court usually gets the green light.

But things weren't as polarized when Stevens was a young adult as they are today.

Many political observers who have been studying the political terrain are predicting that the folks in Congress who belong to Obama's party are facing an uphill climb this year. Some — but not all — are forecasting that one chamber or both will shift from a Democratic majority to a Republican majority — and it hasn't been necessary to be a political science major to see that Republicans have grown less inclined to support Obama's proposals as time has passed.

One can only imagine how obstinate they will become if they take control of the Senate.

Of course, things can change between now and November. Unemployment may drop dramatically (although the administration is warning jobless Americans not to expect anything like that because last week's jobs report, which indicated the most significant gains in jobs in three years were posted in March, is likely to lure many discouraged job seekers back into the job market), and other things that could give Democrats a boost could happen.

And a Supreme Court nomination does not have to be confirmed by the House, only by the Senate, so, for the purpose of replacing Stevens (or any other justice who retires or dies), retaining control of the Senate is what matters. But, if those predictions prove to be accurate, Democrats may lose control of the Senate — or retain it by the slimmest of margins — when the voters go to the polls in November.

If that happens, Obama may not feel that he has the luxury of nominating a liberal if he must fill a vacancy next year. He may opt for a centrist, believing that person would have a better chance of avoiding a contentious battle and being confirmed.

Now, personally, I wouldn't have a problem with a centrist. I've never felt that ideological inflexibility had a place on the Supreme Court, whether it was a rigidity of the right or the left. But selecting Stevens' successor — or anyone else's — might be a much different exercise for Obama if he must wait until 2011.

There is a lot of uncertainty. The ominous predictions for Democrats may not come to pass. Or they might.

Anyway, my suggestion to Justice Stevens would be this: If he really wants Obama to choose his successor, he should announce his retirement soon — perhaps in a couple of weeks, when he turns 90 — while the Democrats hold the majority in the Senate.

While Democrats hold 59 seats in the Senate, Obama would be more likely to choose someone who would be to Stevens' liking.

If Stevens really wants to influence the selection, it's too dicey to wait until next year.

By then, the influence may belong to someone else.

Barack and the Supremes

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As Andrew Malcolm writes in the Los Angeles Times, it is not unusual for presidents and the Supreme Court to butt heads.

I guess that is to be expected when the tenure of a Supreme Court justice easily can be two, three or four times as long as the president who appointed him/her. I'm sure no one has to remind Obama that Republicans held the White House for 28 of the 40 years prior to his inauguration — or that six of the eight current justices who were not appointed by Obama were appointed by Republican presidents.

But the dressing down that Barack Obama gave the justices during his State of the Union speech in January was virtually unprecedented. It isn't that it was mean–spirited, salacious or particularly nasty. But the setting, as Chief Justice John Roberts said, was "questionable."

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"The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according to the requirements of protocol — has to sit there expressionless, I think is very troubling."

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Well, it took a month and a half, but Roberts finally responded, yesterday at the University of Alabama. He called the scene "very troubling," and he bemoaned the "political pep rally" the address has become.

I feel like I'm having a Claude Rains moment — Political? The State of the Union speech is political? I'm shocked!

Sure, there are certain traditional formalities that must be observed when a president addresses Congress. For example, the president cannot enter the House chamber until he is invited to do so. They've been doing that for a long, long time, and, even when a majority of its members hasn't belonged to the president's party, the House has never turned away a president yet.

As far as I know.

But the State of the Union speech has been political as long as I can remember. It is not a recent development. In 1986, for example, Ronald Reagan intended to use the space shuttle and its teacher in space for his personal propaganda purposes while delivering his State of the Union speech — until the shuttle exploded shortly after liftoff, forcing him to postpone his address for a week.

And, for nearly 45 years, someone (often — but not always — a member of Congress) belonging to the opposing party has been granted "equal time" for a rebuttal address immediately after the president's speech. There have even been times when both parties have put together elaborate television programs to air along with their rebuttals. During Clinton's presidency, the Republicans became the first to hold their rebuttal in front of an audience (partisan, of course).

Heck, these things couldn't be more political if you advertised them with the president's party preceding the phrase "state of the union" and you served fried fish or chicken dinners to the attendees.

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No one could possibly know this better than Obama. He delivered the Democrats' response in January 2008 — long before he secured his nomination for president and nearly a year before taking the oath of office.

And Obama wasn't shy about expressing his own political views on that occasion — although, in hindsight, his response is amusing when one thinks about how often his words contradict his later actions as president.

Anyway, after a presidential campaign that went on for nearly two years, followed by more than a year in the presidency, Obama must be pretty thick–skinned by now. But what about his press secretary?

Although the Washington Post asserts that the White House "fired back," it was actually Obama's spokesman, Robert Gibbs, who said that the Supreme Court decision in Citizens United v. Federal Elections Commission, which was handed down the week before Obama's address, opened "the floodgates for corporations and special interests to pour money into elections — drowning out the voices of average Americans."

And, as you will see if you watch the attached video clip, echoed his boss' choice of words.

Well, that tends to be the nature of the role of the press secretary, I suppose. Whether most people recognize it or not, there are times when a press secretary expresses his/her own beliefs and not the president's — especially at times when a president has deliberately sought to keep the press secretary out of the loop.

But this doesn't seem like one of those times. And it cannot be stressed too much that press secretaries have to be careful. They can't be casual about the words they use. Too many people presume that anything a press secretary says is straight from a president's mouth, word for word.

In this case, though, it's hard not to make a convincing case that Gibbs was repeating precisely what the president said. Nothing new was included in Gibbs' response. So what was the purpose? If you have nothing to add to your argument, why repeat the argument that provoked the justices to begin with? Won't that just keep the fires burning?

More than 400 years ago, Shakespeare wrote that discretion is the better part of valor.

So I have to wonder how prolonging these testy public exchanges will serve Obama's stated objective of improving the atmosphere in Washington.

Supreme Court Spin

A little while ago, I went to the CNN.com website to see if there was any breaking news. And I found an interesting report about the approaching confirmation hearings for Supreme Court justice nominee Sonia Sotomayor.

Well, actually, the story isn't about the hearings, which will begin on Monday. It isn't, for example, about the members of the Senate Judiciary Committee or the current feelings of the members of the Senate.

It's about a poll in which 1,026 people were asked if they felt Sotomayor should be confirmed.

Now, this poll was conducted by CNN/Opinion Research Corp. I've heard things that cast some doubt on the reliability of the results of the organization's surveys. So I suggest that you take the findings with a grain or two of salt.

According to the poll, 47% of respondents favored her confirmation, 40% opposed it and 13% were not sure. The survey's sampling error is plus or minus three points.

Therefore, the poll is suggesting that, as of June 26–28 (which is when the survey was conducted), the best–case scenario for Sotomayor's opponents was that she was narrowly favored in what might be nearly a statistical tie. The best–case scenario for her supporters was that she could be comfortably ahead — but those who are undecided still hold the key.

The link on CNN's home page said, "Poll: Sotomayor confirmation favored," which may be accurate, but it still sounds slanted to me. After you click on the link, you get a much more realistic headline — "Poll: Nearly half support Sotomayor's confirmation" — with the story.

I think we'll get a good idea of Sotomayor's likelihood of being confirmed once the hearings begin.

But the point that the story sought to make is what I find really intriguing.

The story (which was written by CNN's Deputy Political Director Paul Steinhauser) quotes CNN Polling Director Keating Holland as saying the opposition to the nominee's confirmation is the highest from the party that is out of power in two decades. And that suggests the confirmation hearings "could turn into a partisan battle."

Two–thirds of Republicans oppose Sotomayor. In contrast, 53% of Democrats opposed Harriet Miers. And only 32% of Republicans opposed Ruth Bader Ginsburg.

The article doesn't indicate which nomination in the last 20 years was the most contentious prior to this one. But my guess would be that it was either George H.W. Bush's nomination of Clarence Thomas in 1991 or Ronald Reagan's nomination of Robert Bork in 1987. Thomas was narrowly confirmed and still sits on the Supreme Court. Bork was defeated in the Senate.

I'm inclined to think it was the Bork nomination. His role in the "Saturday Night Massacre" during the Nixon presidency was still remembered and resented, and Democrats had just regained control of the Senate when Reagan nominated Bork. Thomas' hearings were contentious from the start because of his conservative views, but the opposition did not turn vehement until Anita Hill's explosive testimony. Democrats controlled the Senate during Thomas' hearings as well.

Whether it was Bork or Thomas doesn't really matter. What seems apparent to me is that the Sotomayor confirmation hearings have the potential to drain the administration of any momentum it may have — and that can have a severe impact on its ability to push through legislation dealing with health care or the environment or anything else.

Supreme Court Overrules Sotomayor

The Supreme Court handed down its decision today in the reverse discrimination case from New Haven, Ct.

Supreme Court nominee Sonia Sotomayor sided with New Haven in the case when it came before her appellate court last year. But the Supreme Court favored the white firefighters who appealed the ruling over the role race should play in job advancement, claiming reverse discrimination.

The vote was 5–4.

There really isn't anything about this that surprises me.

The vote reflects the current makeup of the court — five mostly conservative justices, four mostly liberal justices.

The justice who is retiring — David Souter — dissented. Since Souter has a mostly progressive record with the Supreme Court, it can be assumed that Sotomayor will vote as he probably would have in future cases. At least, in this case, he supported her position.

Each side will spin this case in a way that favors its position. But, when all is said and done, nothing happened that is likely to derail Sotomayor's nomination. Those who were inclined to accuse Sotomayor of judicial activism before are still inclined to do so, but that alone doesn't seem likely to change the outcome.

And nothing has happened that would deter Sotomayor's supporters.

Marc Ambinder writes, in The Atlantic, that the nominee's critics are seizing on the ruling in their quest to deny her a spot on the bench. But those who hope to see Sotomayor's nomination defeated will need something more significant than this in their arsenal.