Spitzer v. Cuccinelli on Obamacare Litigation

I just want to add one comment regarding the tax/penalty distinction and the political limitation on federal commerce power. U.S. District Judge Roger Vinson, who allowed the challenge to proceed in Florida, said the following in ruling the mandate a penalty:

“Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an “Alice-in-Wonderland” tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check.”

This goes to Cuccinelli's point about Congress and the President calling the punishment for violating the mandate a penalty, not a tax. Proponents cannot credibly argue that the only check on federal power is politics and then argue the mandate is a tax. It undercuts their whole theory, and, by doing so, they prove that, should the mandate be found constitutional, there is no limit to federal power.

Warning to Reid on Lame Duck Confirmations

Conservative leaders, including CFJ Executive Director Curt Levey, delivered a letter to Senate Majority Leader Harry Reid today, urging him “in the strongest possible terms not to use the ‘lame duck’ session to force votes on the confirmation of any nominees for federal office.”

The letter emphasizes that many of the nominees that might be confirmed during the lame duck session “are still before the Senate precisely because of concerns about their radical and controversial views.” A Senate that “has already been replaced by the American people has no business confirming such controversial nominees to federal office,” the letter adds.

Commenting on the letter, Mr. Levey noted that “On November 2, the American people rejected the liberal agenda that has been pushed by the Obama Administration and its most controversial pending nominees. If Senate Democrats try to confirm these controversial nominees during the lame duck session, they will be showing contempt for American voters.”

In the letter, Levey and the other conservative leaders call attention to the 16 “most egregious” pending judicial and executive branch nominees. The list includes two appeals court nominees (Goodwin Liu and Robert Chatigny), three district court nominees (John McConnell, Edward Chen and Louis Butler), as well as nominees to the Equal Employment Opportunity Commission (Chai Feldlbum and Jacqueline Berrien) and the National Labor Relations Board (Craig Becker). Also on the list are John Podesta, nominated to the Corporation for National & Community Service; James Cole, the Deputy Attorney General nominee; and Donald Berwick, who was recess appointed to head the Centers for Medicare & Medicaid Services.

The full text of the letter is below, including the list of signers and the list of the 16 most controversial nominees.

-----------------------------
November 15, 2010

The Honorable Harry Reid
United States Senate
Washington, DC 20510

RE: No Lame Duck Confirmations

Dear Majority Leader Reid:

Now that we are past the Congressional elections, we urge you in the strongest possible terms not to use the “lame duck” session to force votes on the confirmation of any nominees for federal office.

Any “lame-duck” confirmations would be a gross abuse of Congressional authority in a last gasp attempt to perpetuate an agenda that the American people have already rejected. This would further undermine the American people’s confidence in Congress and the democratic nature of our government.

In addition, many of the nominees that could feasibly be confirmed in this way are still before the Senate precisely because of concerns about their radical and controversial views. The Senate has already had months to question and confirm these nominees. A Senate that has not been able to decide about these nominees, and has already been replaced by the American people, has no business confirming such controversial nominees to federal office. A list of the most egregious pending nominees is attached.

Sincerely,

William Wilson
President
Americans for Limited Government

Tom McClusky
Sr. Vice President
Family Research Council Action

Curt Levey
Executive Director
The Committee for Justice

David A. Keene
Chairman
American Conservative Union

Penny Nance
CEO
Concerned Women for America

Phyllis Schlafly
President
Eagle Forum

Andrea Lafferty
Executive Director
Traditional Values Coalition

Kay R. Daly
President
Coalition for a Fair Judiciary

CC: The Honorable Mitch McConnell


Most egregious nominees:

Maria del Carmen Aponte, Ambassador to the Republic of El Salvador

Craig Becker, Board Member, National Labor Relations Board

Jacqueline Berrien, Chair, Equal Employment Opportunity Commission

Donald Berwick, Administrator, Centers for Medicare and Medicaid Services, Department of Health and Human Services

Louis B. Butler, Jr., U.S. District Judge for the District of Wisconsin

Robert N. Chatigny, U.S. Court of Appeals for the Second Circuit

Edward Milton Chen, U.S. District Court Judge for the Northern District of California

James Michael Cole, Deputy Attorney General, Department of Justice

Chai Feldlbum, Commissioner, Equal Employment Opportunity Commission

Goodwin Liu, U.S. Court of Appeals for the Ninth Circuit

John J. McConnell, Jr., U.S. District Court Judge for the District of Rhode Island

Thomas R. Nides, Deputy Secretary for Management and Resources, Department of State

John D. Podesta, Board of Directors, Corporation for National and Community Service

Jo Ann Rooney, Principal Deputy Undersecretary for Personnel and Readiness, Department of Defense

Paul Tiao, Inspector General, Department of Labor

Solomon B. Watson IV, General Counsel of the Army, Department of Defense

Nov. 11 Affirmative Action Debate in NYC

This Thursday at 6 pm, CFJ Executive Director Curt Levey and Columbia Law School Professor Ted Shaw will discuss affirmative action in the corporate world in a debate entitled “Diversity... Is Mandating the Answer?” Shaw is the past president of the NAACP’s Legal Defense and Educational Fund.

The debate will be hosted by AXA Equitable Life Insurance Company’s Law Department and Office of Diversity and will be held at their offices at 1290 Avenue of the Americas - 15th Floor, New York, NY. If you wish to attend, RSVP to Deidra.Barnes@axa-equitable.com.

Today’s Referendum on Elitism

What do today’s nationwide Congressional elections, a judicial retention election in Iowa, and a vote on Nevada’s judicial selection method have in common? All three give voters a chance to say no to elitism.

Nevada

Nevadans are voting today on a ballot initiative, Question 1, that would replace the popular election of state judges with judicial selection by a special commission (the governor can choose only from among the commission’s recommendations). The Question 1 campaign has generated national controversy because of robocalls to Nevada voters, as well as videos, featuring former Supreme Court Justice Sandra Day O’Connor touting the initiative and warning that popular election of judges breeds corruption.

Criticism of O’Connor has focused on her possible violation of judicial ethics because she continues to sit as a judge on lower court cases. But what caught our attention about the campaign to take responsibility for judicial selection away from the citizens of Nevada and other states is its elitist flavor, epitomized by O’Connor’s statement last year that allowing voters to select judges makes the process "tawdry and embarrassing."

It may be true, as O’Connor and the Nevada legal establishment argue, that elected judges are sometimes influenced by the opinions of the citizens who vote for them and contribute to their campaigns. However, only an elitist attitude can explain why the O’Connor’s camp fears the influence of the public’s passions and contributions more than it worries about making judges unaccountable to the public and beholden to the special interests and political insiders that dominate judicial selection commissions.

Iowa

Elitism is also on the ballot today in Iowa, where voters will decide whether three of the state’s Supreme Court Justices get to keep their jobs. Judicial retention elections are usually rubber stamps, but the Iowa Justices’ jobs are in jeopardy because all three voted to strike down the state legislature’s decision to define marriage as between a man and a woman. The April 2009 ruling created a constitutional right to same-sex marriage, while specifically rejecting the relevance of Iowans’ democratic determination that a traditional definition of marriage best serves the state.

In typical elitist fashion, the Justices’ supporters have questioned the very legitimacy of citizens voting against retention because they oppose a judge’s decisions. Polls show that a sizeable majority of Iowans oppose same-sex marriage—explaining why the state’s Democrat-controlled General Assembly balked at allowing Iowans to vote on overturning the Court’s ruling—but that is only part of the picture. Iowa’s Supreme Court Justices are in electoral trouble for a larger reason: Iowa voters, like a majority of Americans nationwide, are fed up with activist judges who, by definition, substitute the values of the lawyer class and other elites for the values and judgment of voters.

How did judges so out of touch with the state’s values get on the Iowa Supreme Court? They were chosen by a 15-member judicial selection commission, consisting of seven members of the left-leaning state bar association, another seven Democrats, and a sitting judge.

Congressional elections

There is agreement across the political spectrum that 1) the 2010 Congressional elections will largely be a referendum on President Obama, and 2) Obama’s declining popularity is due, in part, to a perception that he’s aloof and out of touch. There’s not much difference between being aloof and elitist, but in any case, Obama has earned the elitist label through the comments he makes when surrounded by like-minded folks at fundraisers.

Recall the San Francisco fundraiser where Obama opined about “bitter” small-town Americans who “cling to guns or religion.” And just last month, at a Boston fundraiser, Obama explained that Americans are dubious of his agenda only because “we're hardwired not to always think clearly when we're scared.”

Similarly, Obama and the Democratic leadership in Congress blamed the deep and widespread opposition to ObamaCare on Americans being misinformed, scared, perhaps racist, and unable to comprehend the President’s health care message through the fog of a fierce debate (despite the President’s 54 speeches on the issue). Like the elites in Iowa and Nevada, Obama and his Congressional colleagues were convinced that something as important as health care reform or judicial selection can’t be left to popular opinion.

Eight months later, popular opinion hasn’t changed—the latest survey finds that 58% of likely voters favor repeal of ObamaCare with 36% against—and Democrats will pay the price for their arrogance as opponents of ObamaCare turn out to vote in large numbers. Similarly, the contempt that the Iowa Supreme Court, Sandra Day O’Connor, and the Nevada legal establishment have shown for public opinion is the reason for intense opposition to what would otherwise be an uncontroversial ballot initiative and a rubber stamp retention vote.