Liberals Shocked To Discover Conservative Arguments
Who knows how the Supreme Court will decide the Constitutionality of Obamacare? We saw the four liberal justices trying to save the government's lawyer by making points he'd failed to. They're a lock and nobody seems to care that they're not the least bit open-minded to the possibility that Obamacare, the sweeping law that changes the relationship of the individual to the federal government, might not pass Constitutional muster. Even though it's probably true that some or all of the remaining justices agree with the majority of Americans about the law's Constitutional problems, we don't know how they'll vote.
But one thing is clear -- the oral arguments at the Supreme Court this week revealed some seriously shallow thinking on the part of the law's liberal advocates. David Bernstein at Volokh Conspiracy writes about how frequently SG Verrilli mentioned the preamble to the Constitution and the preamble's line about promoting the General Welfare and securing the Blessings of Liberty -- as if this line is a sufficient counterweight to the idea that we have a federal government with limited and enumerated powers. He says that this is something that he's heard liberals do before and that conservatives might respond “you mean you’re not an originalist or a textualist and you want us to engage in ‘living constitutionalism’ with regard to all sorts of very specific and substantive constitutional provisions, but then you want us to take the preamble seriously?” He goes on:
This strikes me as part of a pattern I detect throughout this litigation and especially in the SG’s oral argument: the government’s lawyers seem to have no idea how conservative jurists typically think about the Constitution. Instead, they make arguments that would get almost unanimous nods of approval in the Harvard (or Columbia, the SG’s alma mater) Law School faculty lounge, but are not remotely persuasive to the other side.
Verrilli, after all, had months to come up with a succinct, plausible, limiting principle in defense of the individual mandate. He should have been able to repeat this backwards, forwards, upside down and in his sleep. Yet he could barely explain himself yesterday, when given the opportunity by three different Justices. Given his reputation as one of the country’s top appellate lawyers, a tempting explanation is that he couldn’t believe that anyone except perhaps Thomas was really concerned about that issue.
First off, it says something that a man of his stature would think it self-evident that an appeal to the preamble would in any way convince a conservative that securing the blessings of liberty is about expanding the scope and size of government. Is the implicit argument there that in order to secure the blessings of liberty, we need the federal government to force people to do things they don't want to do? I would say it shows hubris but really it's just stupid.
I suppose there's the possibility that Verrilli did this simply because he couldn't come up with any decent argument. And that's understandable. Defending the Constitutionality of this bill would be difficult. But remember it was only a few days ago that the left's revered Linda Greenhouse was mocking opposition to the idea that the law is Constitutional.
Jay Cost goes into this a bit deeper over at The Weekly Standard:
The problem for the left is that they do not have a lot of interaction with conservatives, whose intellects are often disparaged, ideas are openly mocked, and intentions regularly questioned. Conservative ideas rarely make it onto the pages of most middle- and high-brow publications of news and opinion the left frequents. So, liberals regularly find themselves surprised when their ideas face pushback.
I think that is exactly what happened with Obamacare. The attitude of President Obama (a former con law lecturer at the University of Chicago, no less!), Nancy Pelosi, and Harry Reid was very much that they are doing big, important things to help the American people, why wouldn’t that be constitutional? No less an important Democratic leader as the chairman of the House Judiciary Committee cited the (nonexistent) “good and welfare clause” to justify the mandate.
Having no intellectual sympathy for the conservative criticism of this view, they rarely encountered it on the news programs they watch, the newspapers they read every day, or the journals they peruse over the weekends. Instead, they encountered a steady drumbeat of fellow liberals echoing Kagan’s attitude: it’s a boatload of money, what the heck is the problem?
Then, insofar as they encountered conservative pushback, they mostly ignored it.
He goes on to give some specific examples of arguments they ignored. John Podhoretz argues along the same lines at The New York Post:
The panicked reception in the mainstream media of the three-day Supreme Court health-care marathon is a delightful reminder of the nearly impenetrable parochialism of American liberals.
They’re so convinced of their own correctness — and so determined to believe conservatives are either a) corrupt, b) stupid or c) deluded — that they find themselves repeatedly astonished to discover conservatives are in fact capable of a) advancing and defending their own powerful arguments, b) effectively countering weak liberal arguments and c) exposing the soft underbelly of liberal self-satisfaction as they do so.
That’s what happened this week. There appears to be no question in the mind of anyone who read the transcripts or listened to the oral arguments that the conservative lawyers and justices made mincemeat out of the Obama administration’s advocates and the liberal members of the court.
This came as a startling shock to the liberals who write about the court.
He notes how all the best liberal analysts predicted the law would be upheld 8-1 or 7-2. Now they're freaking out. In panic mode. Yes, their attorney did horribly and the conservative attorneys did well. But on the other hand, there was nothing new about any of the conservative arguments. There was no reason that the legal team charged with defending the law should have been surprised by any aspect of what happened this week.
Of course, the law still might be upheld. But will the liberal elite realize how foolish they look?
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Comments:
Re: Liberals Shocked To Discover Conservative Arguments
Mollie: GREAT recap of the argument and post-game reaction. As you say, the key point right now is not that we're going to win -- who knows? -- it's that this is not g0ing to be the 8-1 smackdown of Linda Greenhouse's dreams. Verrilli's invocation of the "blessings of liberty" was odd, and Paul Clement had the pitch-perfect zinger: "I would respectfully suggest that it's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not." However, I wouldn't blame Verrilli. I agree with the WSJ's editorial today - it wasn't the fault of the advocate, he was stuck arguing a lousy case. The administration boxed him into an untenable position where he had to argue that the mandate was and was not a tax at the same time, and that there is no concrete limit on Congress's commerce power - just fuzzy notions about the "unique" nature of insurance. Indeed, if he manages to eke out a victory on those briefs, everyone will proclaim him a genius.
Nov '10
Re: Liberals Shocked To Discover Conservative Arguments
Appropos...
Aug '10
Re: Liberals Shocked To Discover Conservative Arguments
I am sick and tired of the left, in legal matters, appealing to emotion while the right sticks to logic. We should rename the Democrats the "Pathos Party" and the Republicans the "Logos Party".
Edited on March 29, 2012 at 9:39pmJun '11
Re: Liberals Shocked To Discover Conservative Arguments
It was interesting Kagan asked what the government's limits were with the commerce clause.
Could she possibly moderate a little?
Oct '10
Re: Liberals Shocked To Discover Conservative Arguments
If Obamacare gets struck down then we will have been saved by their own hubris. Our side was preparing and gunning for the opportunity to make the case and they rested on their laurels.
I was truly surprised by Ginsburg's bias as it came through in her questions (using the term loosely). She seemed to be perplexed by the notion that there are people out there who are eligible for Medicaid but have not signed up. Now, most informed people know that the eligible will be able to enroll when they arrive at the ER so it's not a problem, but not Justice Ginsburg. I wonder if the liberal Justices even understand the programs they defend and support. If they're that clueless then I have never really appreciated how severe the problem is.
Sep '10
Re: Liberals Shocked To Discover Conservative Arguments
I like to reflect on the terribly interesting post the other day on liberal ideology when stripped down is not about justice or right or wrong or rational argument but more about an excercise of the will.
The arguments as this case shows were not good because that is not what they are about.