Essentially Contested America

Should we consider the health care reform act, which President Obama signed into law today to be a civil rights act? There is good reason to do so. Though the Act is far from perfect, it does represent a commitment by Congress to expand access to a fundamental human right. Article 25 of the Universal Declaration of Human Rights states that “Everyone has the right to a standard of living adequate for the health and well being of himself and his family, including . . . medical care.” Martin Luther King called access to medical care a civil right. Though our Constitution does not include a right to health care (or any other substantive economic rights), it does give Congress the authority to create such rights. And, in a speech after the passage of the Act, House Speaker Nancy Pelosi invoked the Declaration of Independence’s statement that all people are guaranteed a right to “life, liberty and the pursuit of happiness.” Before the vote, Pelosi and other congressional leaders marched through protesters hurling racial epithets, an act that self-consciously harkened back to civil rights demonstrations of the past. The Act falls within the tradition of Congress enforcing the rights of social citizenship – economic rights that are essential preconditions to one’s ability to exercise other civil and political rights.

Strangely, opponents of the Act also think the Health Care Reform Act is a civil rights act, and argue that this is a reason to oppose it. In February, Rush Limbaugh called the Act a “civil rights act,” a “reparations” bill which people should oppose. Last week, Newt Gingrich compared the Act to the 1964 Civil Rights Act, arguing that Obama’s support of the Health Care Reform Act would wreck the Demcratic party like Lyndon Johnson’s support of the 1964 Act did.

How ironic! I have always thought of the passage of the 1964 Civil Rights Act as one of the great moments in American history. I also thought that as a society we had achieved a consensus that civil rights were a good thing. What could Gingrich possibly mean by his critique? Johnson was re-elected by a landslide in the fall of 1964, and he relied on that mandate to push through the Medicare Act and the 1965 Voting Rights Act the next year. When Gingrich says the 1964 Act wrecked the Democratic party, could he be referring to the fact that after passage of the Civil Rights Act, many of the pro-segregationist southern Democrats became Republican, eventually turning the South from a solid Democratic block to the solid Republican block we have today?

If so, why would Gingrich want to remind us of the southern Republican party’s roots in segregationism and racism? It’s hard not to see a connection between Limbaugh and Gingrich’s remarks and the racial slurs hurled by protestors against the African American and Latino members of Congress on Sunday. Like Congress’ tradition of expanding human rights in acts like the 1964 Civil Rights Act, the Social Security Act and the Medicare Act, there is an equally strong tradition of using race baiting as a tactic in American politics. One of the vestiges of segregation in our society is the racial disparity that still exists in our health care system. If this act helps to remedy this disparity, then it truly is a civil rights act.

President Obama will get the health care reform he wants.  If you want to know what it will look like, look at the principles he laid out at the start of the process.  We have seen this show before and I suspect I know how it will end.  The typical plot has four parts.  In Act 1, Obama sets out a principle.  In Act 2, critics attack him and his principle while supporters fret about whether he is doing the right thing.  In Act 3, when it appears as though the plan is about to fail, Obama gets to work and miraculous (or mundane) things occur.  The people rise up and demand that Obama’s principles win out or Democratic lawmakers decide that Obama’s plan is worth fighting for or Obama wades into the fight directly.  In Act 4, Obama wins and the result looks remarkably like what he proposed from the start.

We saw this in the campaign – he wanted to win some Southern states (unthinkable) and a broad mandate and did.  We saw this on the stimulus bill – he wanted $775 B and got $767 B.  We saw this on Sotomayor – she was the top candidate from the start and remained so even after we were treated to a quasi-public display of him interviewing other people.   All President Obama needs is time for Act 3 to play out as he wants, with supporters of his principles standing up and showing that they are willing to fight.  Act 3 is happening now.   When Obama put public option on the table or chopping block, that was him getting to work.  He made it clear that it is time for supporters to stand up and be counted.  I suspect that they will demand a public option and many of the other suggestions found in President Obama’s original list of principles.  President Obama will return to his list of principles and may push them directly.  At that time Republicans will begin to claim that President Obama is going to ram his health care reform down their throats.  It is also the time when President Obama will put the Republicans, and maybe some Blue Dogs, in a corner and ask them if they really want to kill health care reform when the people have demanded it.  The safe Republicans may take an ideological stand, but the Blue Dogs will be reminded that many of their constituents could use a bit of health care reform.  Either we get Act 4 and the president takes a bow or we get midterm elections dominated by health care reform.

Word has it that orchestrated groups of Americans fill Town halls not to discuss, not even passionately to discuss, the Obama health care bill, but to prevent discussing it. Is it wrong to oppose health care in a democratic society? Obviously not! Is it wrong to oppose discussing health care reform? No! But it is wrong to engage in conduct that prevents others from civilly discussing such reform.  Opposition to civil discussion in a democratic society is anti-democratic pure and simple.  Who is to blame? The culprits are those who are orchestrating the specific goal of engaging in obstructionist tactics that prevents these town hall meetings from being an exchange of views on health care and those who feed them distortions and lies about the health care bills. Who are these undemocratic folks? I don’t know for sure, but whoever stands aside and fails to condemn such barbarism are equally as undemocratic as those who engage in the orchestration in the first place.

Two culprits can be identified: Newt Gingrich and Charles Grassley. While acknowledging that none of the five congressional bills contains an end of life “death panel” requirement, former speaker Newt Gingrich warned that “[c]ommunal standards historically is [sic] a very dangerous concept.” Presumably, he means that though the death panel language is not in the bill, its application through communal standards could in the future construct such a provision.  After all, “You are asking us to trust turning power over to the government, when there are clearly people in American who believe in establishing euthanasia, including selective standards.” Well, I suppose so, but something similar is true of every single provision in every law ever passed in the United States. Those same people can introduce euthanasia into our present Medicare system.  To reject legislation because it must be applied through communal standards is simply to reject democracy outright.  If the community makes such an egregious mistake, then we’ll all band together legislatively to fix it by explicitly rejecting such applications. If we cannot do so because the majority embraces such communal standards, then we’re stuck just as we are in every case where the majority has abuse a piece of legislation. Fear of abuse cannot be reason for endorsing what otherwise is a perfectly respectable piece of legislation without abandoning democracy entirely.  And even in this case, our job as democrats, small “d,” is through politics to become a new majority and eliminate the heinous provision. Gingrich should know better.  Either he does, but is duplicitous, or he doesn’t and needs to rethink his quite unsupportable position. Chuck Grassley’s misconduct is much simpler. He simply lied about whether such a provision is in the bill, and should apologize to his constituents for doing so. Indeed, The Senate should censure Senator Grassley and my favorite president should retract the favorable remarks he made earlier this week about this duplicitous “deather.”

Bullies galore! The recent attacks on speakers in Democratic town hall meetings who are guilty of nothing more than trying to explain the various health care proposals to the American people is nothing less than a frontal attack on deliberative democracy, the life-blood of the American republic.  Everyone should have a chance to speak at these events, even those who choose to speak vigorously and with passion, but not all at once, and not with the purpose of cancelling out debate if that’s what their purpose is. Yet, teams of bullies have descended on these meetings in various parts of the nation apparently orchestrated by Republican deep-pockets to shut down debate. The only ones who benefit from these disruptions are the insurance companies and their corporate backers. But the cost of transmogrifying democratic discourse into targets for attack dogs cannot be underestimated regarding the stability of deliberative democracy. It’s not just defeating health care that’s the problem, although that’s certainly a significant problem; more important, is the harm such intimidation does to public discourse. Democrats must learn how to respond–through advertisements among other appropriate ways–so that the anti-democratic dimension of this warfare is revealed.  In America, to reverse Von Clausewitz’s sentiment that war is politics by other means, in contemporary America, politics seems to be warfare by other means.  This trend needs to be reversed; public discourse must be a no bully zone.

Last night on the Chris Mathews’ Hardball  a discussion arose with Senator Orrin hatch about the possibility that President Obama’s health care program will reject the Hyde Amendment which prohibits spending federal funds on abortions. It’s okay to spend federal funds on childbirth, but not abortion.  Where’s the equal protection here? Two pregnant woman exercise their reproductive rights, one by choosing to terminate the pregnancy, the other by not. How can any reasonably conception of equality sanction such treatment? Lindsay Graham chimed in during the hearing by bristling at the notion that his tax dollars should be used to fund abortion.  But why should my tax dollars be used to fund childbirth? Perhaps I’m worried about overpopulation or simply have libertarian tendencies against governmental support for such private conduct?  In general the government can favor one policy over the other, but does equality sanction permitting such partiality when reproductive rights are concerned?  The Court has said yes.  But this is not a question of case law.  Rather, it’s a question of Republican consistency. Can two pregnant women in relevantly similar circumstances be treated in such a dissimilar manner? How the Republicans’ conception of equal protection can sanction such distinction? Or better yet how can the rule of law permit such a political choice?

The Republicans on the Senate Judiciary Committee are trumpeting the rule of law, equal protection under the law, and treating litigants in a similar manner. Yet, regarding the grotesque Hyde Amendment suddenly disparate treatment is permissible. The Republicans need to explain why the causes they favor need not be subject to the rule of law, but Democratic causes, well that’s another matter.

Hopefully, the Republicans member of the Senate Judiciary Committee will think twice before inconsistently throwing around “equal protection” and “rule of law” when these terms apply to Judge Sonia Sotomayor’s judicial decisions.

Senator Minority lead Jeff Sessions made the astounding remark on Face the Nation Sunday that when a judge shows empathy toward one litigator, it means he or she will show bias toward the other litigant. What can this possibly mean? Showing or experiencing empathy means taking the appropriate action to experience or appreciate the circumstances, needs, and feelings of another person, especially when the other person is a member of group with which one is not terribly familiar. If I own a service station and have a conflict (or just want to understand) someone who breeds horses, empathy is the attempt to put myself in the breeder’s circumstances by asking the breeder questions relevant to our conflict. Empathy is the attempt to put myself in the other fellow’s shoes. If I’m a judge assigned to settle the conflict between the service station owner and the breeder empathy requires me to try to appreciate each party’s gripe as sympathetically as I can. As a judge empathy requires me to appreciate everything I can about each party relevant to the rules governing the legal conflict. Understood in this manner, empathy for one litigant cannot mean bias toward the other. Rather, it means appreciating each party’s circumstances and each party’s complaint.  I must try to appreciate why each party feels wronged and what is required to make them feel whole. Yet, according to Senator Sessions, empathy is inappropriate, perhaps even dangerous, because it’s a zero-sum game. If I genuinely empathize with one party, I must show bias toward the other party. It’s difficult to understand how a leading figure in the Senate can be so unaware of the role empathy plays in human conflict resolution. Just imagine a parent settling an argument between two children. Empathy doesn’t require favoring one child at the expense of the other. It means understanding each child’s complaint sympathetically and impartially and then fashioning a resolution that is fair to both children.

We all have our blindness, but I cannot fathom the criticism that President Obama should be acting aggressively in supporting the Iranian demonstrations beyond calling for the cessation of violence and out solidarity with the Iranian people.  Anything the President does potentially damns the United States and harms the demonstrators. Comparing our action in Eastern Europe or the Philippines with current events in Iran makes no sense. Eastern European countries were fighting the Soviets, nationalism reigned against an evil oppression. We did not have a history in these countries as the great Satan. In the Philippines, we were the good guys and had much more leverage. The situations are simply comparable. Yet, the Republican stridently urge President Obama to side with the reforms thereby unifying the entire nation against us.  One can only suspect the Republicans want failure. How else can their irresponsibility be explained?  What good would it do to interject ourselves into a rebellion that it owned by the Iranian people not by any foreign nations especially ones that have played such a dark role in this history of Iran. Perhaps, the Republicans want the wrath of the Iranian leadership and the reformers unleashed on the United States to justify military action against Iran. Is this was Bush-Cheney would do?  Is this what insanity demands? Keep in mind people are dying in the streets. What should the U.S. due provide the Iranian dictatorship with even greater justification from its perspective to kill its youth? Shame on these arm chair warriors.

Check out Paul Krugman’s insightful column–”The Big Hate”–in today the NY Times here. Absurd Right Wing claims, lies, and distortions–uncontradicted by mainstream Republicans–have a way of translating into to violence.

Earlier this week I posted virtually the entire transcript from a Bill Moyers’ Journal program on the role of the media in American society. Let me reprise one exchange that demonstrates the way the media should handle unsubstantiated claims in this case concerning Judge Sonia Sotomayor. Bill Boyer first quotes Bob Schieffer interviewing Senator Kyl on Face the Nation.

BOB SCHIEFFER I want to get right to the quote that has caused all of the controversy that Washington has been talking about all week. What Justice, or Judge Sotomayor said in the speech eight years ago. And here it is. She said, “I would hope that a Latina woman, with the richness of her experience, would more often than not, reach a better conclusion than a white male, who hasn’t lived that life.” Senator Kyl, is that enough to keep her from being confirmed as a Justice on the Supreme Court?

BILL MOYERS: So, instead of deconstructing the quote, Bob plays the beltway card: is this going to cause her not to be confirmed?

JAY ROSEN: Well, first of all, Bob Schieffer forgot to ask himself whether the controversy that had gripped Washington was a legitimate controversy. And surely that’s one thing we need him for.

BILL MOYERS: Who’s to decide that? Legitimacy-

JAY ROSEN: Well-

BILL MOYERS: -or illegitimacy?

JAY ROSEN: Well, Tom Goldstein, an author of the SCOTUSblog, which is a very carefully put together blog about the Supreme Court, and a law professor – looked at the record of Sotomayor’s decisions. In 96 cases, where there were discrimination claims before the court, she decided against the claim of discrimination 78 times. And there were only about ten where she sided at all with a plaintiff charging discrimination.

Now, if you know that, if you know that record, then the whole controversy looks kind of fake from the beginning. And so, what Bob Schieffer did was take what Washington is buzzing about, refused to fact check it, take it as a given, and ask a kind of insider political question. “Is this going to sink her nomination?” Which is premature and which abandons his role as a journalist in determining what is a legitimate controversy. What should we be arguing about? Which views have standing as facts, as fact-based?

This is a good example of distinguishing between legitimate and illegitimate controversies. Indeed, this record might give progressives pause, but in no way can it be used support the contention that Judge Sotomayor believes in race-based justice. Bob Schieffer, a distinguished journalist, failed in his responsibility to the public by pursuing a baseless, sensationalist question rather than attending to the actual record which strongly suggests there’s no possibility of inferring from Judge Sotomayor’s judicial record the sort of radical the Republicans are so intent on portraying her as.

Just before the United States invaded Iraq in 2003, I had an argument with a friend of mine who supported the invasion.  I told him that I did not think there was any reason for the United States to invade Iraq.  He asked me whether I thought that the President was lying about weapons of mass destruction, and was astounded by my answer.  My friend was astonished that I believed that  the President of the United States, leader of the free world, would lie to the American People about such an important issue.   Oh, what an innocent time that seems now!  Now, we know that not only was President Bush lying then, but that members of his administration continued to lie about the reasons we were in Iraq after it became clear that there were no weapons of mass destruction.  Most notably, Vice President Cheney spoke often about the supposed link between Sadam Hussein and the 9/11 attacks, even though no such link was ever established.

The release of the torture memos last week gives us an upsetting glimpse into the inner workings of the Bush administration during that time, and may provide evidence that the administration was involved in an even bigger lie.  Why would the US intelligence officials use torture on terrorist suspects when not only were those methods prohibited by US and international law, but those methods had never been proven to work better than other interrogation techniques?  We have now learned that the torture methods used by US intelligence officials were modelled on methods used by the North Koreans to illicit false confessions from captured members of the US military.  Why would our government want to illict false information?  Could it be that our government used torture to try to manufacture a link between Iraq and 9/11, betwee Al Qaeda and Sadam Hussein?  If so, then our government was using inhumane interrogation methods such as waterboarding, that we have prosecuted as war crimes in the past, not to protect us, but to keep us in the dark.  It’s a shocking proposition, to be sure, but given what we have learned, we need proof that it’s not true.  That’s why we need an investigation into the Bush administration’s torture policies – to make sure our leaders didn’t use torture to support their lies, and to keep from telling the Big Lie to us again in the future.