The Republican Slump

Baseball is the American game, and it’s full of the inexplicable. Even the best players fall into a slump now and then. They can’t buy a hit and they don’t know why. The batting coach doesn’t know why. The manager doesn’t know why – and no adjustments help, and a different bat doesn’t help. Even if the star-in-a-slump connects with that perfect pitch and wallops the ball, it screams right at the shortstop, who grabs it and smiles. There’s that old advice – “Hit it where they ain’t.” What kind of advice is that? Sometimes a few days off helps, and sometimes it doesn’t. The fans’ sympathy turns to disgust and then the booing starts. That only makes things worse – but there are those times where it’s one strikeout after another, game after game, week after week. Nothing that worked before works now. Baseball is a cruel game.

Yeah, well, life is cruel. There are slumps, and the Republicans are in one. Not to belabor the point, things went bad for the Republicans after the skinny white kid – high on dreams of starting a race war to rid America of those black folks who were taking over and raping our women – murdered nine folks in the most historic black church down in Charleston. All the Republicans running for president, or about to, and the folks at Fox News, and conservative taking heads everywhere, tried to spin this. This wasn’t about race. The kid must have hated Christians, so this could have happened at a white church. It was chance, or it was inexplicable – no one knows why these things happen. And then the kid’s manifesto surfaced – he explained it well enough. This was racial resentment of the kind Nixon had stirred up with his Southern Strategy – that Lee Atwater stuff – that has won Republicans many an election since and is now a staple on Fox News. “Those people” are the reason that your lot in life is miserable. They take your money – welfare – and they’re living large and laughing at you. They have to be put in their place, or at least they have to learn some sense of personal responsibility – a white thing they just can’t seem to get. The skinny white kid had that whole argument down cold, and he took it to its logical end.

There was no getting around this. That’s what Republicans had been saying too. This was going to happen sooner or later. The chickens had come home to roost and now the squirming began. The 2016 election is at stake. Racial resentment just lost its aggrieved noble glow. So, what else have they got? They’re working on that.

That was the first strikeout, and then things got worse with the Confederate flag. The skinny white kid had that Confederate flag thing going and was into that Lost Cause of the Confederacy thing too. Southern nobility fought bravely and fairly, for a good cause. Is that so? What began as scattered calls for removing the Confederate battle flag from a single state capitol intensified with extraordinary speed and scope into a passionate, nationwide movement to strip symbols of the Confederacy from public parks and buildings, license plates, internet shopping sites and retail stores – because the Confederate flag is directly tied to the Confederate cause, and the Confederate cause was white supremacy.

That finally sunk in. The Republicans then collectively admitted, one after another, that the Civil War had been a bad idea in the first place and the North had been right all along, and the North had won the thing anyway. Go ahead. Dump the flag. Remove the statues. They were okay with that, and with that they threw away a big chunk of their base. They are the de facto party of the South and they just walked away from the South. They threw away the Bubba vote. That was the second strikeout.

Could things get worse? Of course they could. They’re in a slump and it was time for the Supreme Court to hand down their end-of-term decisions, and that would be two more strikeouts with a third to come. The Supreme Court ruled that four misplaced words in the massive Affordable Care Act didn’t negate the whole thing. Now no one knows why they even decided to hear the case. That was another strikeout. The Supreme Court also saved the Fair Housing Act of 1968 – Texas cannot use its tax subsidies for housing development to keep “those people” (blacks and Hispanics) out of the “good” parts of town, claiming they meant no harm. Intention doesn’t matter. The net statistical effect of your decisions matters, whether your heart is pure or not – and this was the same Supreme Court that gave them Citizens United and two years ago gutted the Voting Rights Act of 1965, allowing them to make sure none of “those people” ever voted again. They didn’t expect that. That was another strikeout. The ruling on gay marriage may be another, if, as expected, the nine rule that gay marriage seems to be constitutionally protected, as a right. Sometimes you can’t buy a hit.

The odd thing was that the Affordable Care Act ruling was fairly straightforward:

The Supreme Court ruled on Thursday that President Obama’s health care law allows the federal government to provide nationwide tax subsidies to help poor and middle-class people buy health insurance, a sweeping vindication that endorsed the larger purpose of Mr. Obama’s signature legislative achievement.

The 6-to-3 ruling means that it is all but certain that the Affordable Care Act will survive after Mr. Obama leaves office in 2017. For the second time in three years, the law survived an encounter with the Supreme Court. But the court’s tone was different this time. The first decision, in 2012, was fractured and grudging, while Thursday’s ruling was more assertive.

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Chief Justice John G. Roberts Jr. wrote for a united six-justice majority.

He knew bullshit when he saw it, but this was curious:

In dissent on Thursday, Justice Antonin Scalia called the majority’s reasoning “quite absurd” and “interpretive jiggery-pokery.”

He announced his dissent from the bench, a sign of bitter disagreement. His summary was laced with notes of incredulity and sarcasm, sometimes drawing amused murmurs in the courtroom as he described the “interpretive somersaults” he said the majority had performed to reach the decision.

“We really should start calling this law Scotus-care,” Justice Scalia said, to laughter from the audience.

That didn’t matter:

In a hastily arranged appearance in the Rose Garden on Thursday morning, a triumphant Mr. Obama praised the ruling. “After multiple challenges to this law before the Supreme Court, the Affordable Care Act is here to stay,” he said, adding: “What we’re not going to do is unravel what has now been woven into the fabric of America.”

And the gist of it all was this:

The case concerned a central part of the Affordable Care Act that created marketplaces, known as exchanges, to allow people who lack insurance to shop for individual health plans. Some states set up their own exchanges, but about three dozen allowed the federal government to step in to run them. Across the nation, about 85 percent of customers using the exchanges qualify for subsidies to help pay for coverage, based on their income.

The question in the case, King v. Burwell, No. 14-114, was what to make of a phrase in the law that seems to say the subsidies are available only to people buying insurance on “an exchange established by the state.”

A legal victory for the plaintiffs, lawyers for the administration said, would have affected more than six million people and created havoc in the insurance markets and undermined the law.

Chief Justice Roberts acknowledged that the plaintiffs had strong arguments about the plain meaning of the contested words. But he wrote that the words must be understood as part of a larger statutory plan. “In this instance,” he wrote, “the context and structure of the act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”

This is over now. There’s nothing more to say. The umpire called that third strike. You’re out. Roberts, in his confirmation hearing, had said this:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire. … And I will remember that it’s my job to call balls and strikes and not to pitch or bat.

Barack Obama, a senator at the time, voted not to confirm him. Irony is fun, but so is arguing with the umpire:

After the Supreme Court ruled 6-3 to reject an existential challenge to Obamacare on Thursday, conservatives took direct aim at the author of the decision: their one-time hero Chief Justice John Roberts. Their sentiments were channeled by several Republican presidential candidates, who lashed out at the Roberts Court for its purportedly activist pro-Obamacare ruling.

“Roberts told everybody he was just going to be an umpire and call strikes and balls, but now as justice he’s got two results-oriented decisions that go far beyond that role,” said Club For Growth President David McIntosh, suggesting his group will seek to avoid future nominations like Roberts. “What the Club does, in picking candidates, is look at their record, and look at not just what they have stood for on economic issues but what they’ll do in the future.” …

Elsewhere on the right, Roberts’s decision was being interpreted as a failure of Republicans to properly vet nominees – or worse. Phil Kerpen, whose group American Commitment had popularized videos of Obama administration consultant Jonathan Gruber appearing to make the plaintiffs’ case in King, directed followers to a 2005 column that decried Roberts as a “political” appointee who would not rely strictly on the Constitution. ….

Senator Ted Cruz of Texas, a former lawyer who has argued cases before the Supreme Court, came out swinging against the ruling as “judicial activism, plain and simple,” and swiped the majority as “robed Houdinis” who made a “nakedly political” move.

“These judges have joined with President Obama in harming millions of Americans,” he said. “Unelected judges have once again become legislators, and bad ones at that. They are lawless, and they hide their prevarication in legalese. Our government was designed to be one of laws, not of men, and this transparent distortion is disgraceful.”

Unelected judges have once again become legislators? Roberts wouldn’t strike down legislation that has passed, fair and square – he didn’t rewrite the law, he simply read it – but there was Mike Huckabee:

“Today’s King v. Burwell decision, which protects and expands Obamacare, is an out-of-control act of judicial tyranny,” he said. “Our Founding Fathers didn’t create a ‘do-over’ provision in our Constitution that allows unelected, Supreme Court justices the power to circumvent Congress and rewrite bad laws.”

Was anyone listening to Mike? No matter:

The anger at Roberts spanned generations, uniting all manner of conservatives in distrust aimed at the Republican establishment. David Limbaugh, the author and brother of radio host Limbaugh, asked why Republicans “end up with so many Trojan Horse Supreme Court appointments.” Sean Davis, a senior editor at the conservative web site The Federalist wrote bitterly that “every fancy conservative legal foundation said Roberts was the most amazing nomination ever.”

On the more conspiracy-minded end of the spectrum, libertarian author Wayne Root wondered in the website The Blaze: “Has Supreme Court Justice John Roberts been blackmailed or intimidated? I would put nothing by the Obama administration that lives and rules by the Chicago thug playbook.”

All the man did was call that third strike, and the Washington Post’s Karen Tumulty wonders about the outrage:

Even as Republicans rose in a chorus of outrage Thursday over the Supreme Court’s refusal to gut the Affordable Care Act, party leaders were privately relieved. Republicans were spared the challenge of having to come up with a solution for the 6.4 million Americans – most of them in conservative states – who might have found their health insurance unaffordable had the court gone the other way. …

At the same time, the court’s second ruling in favor of the five-year-old law has increased the pressure on Republicans to tell the country how they would fix the health-care system.

That’s the problem:

“A Republican nominee for president will have to have a plan to replace the law,” said former Republican National Committee chairman Ed Gillespie, who in his failed Senate campaign in Virginia last year was virtually the only nationally prominent member of his party to come up with one.

David Winston, a pollster who advises the GOP congressional leadership, said, “Ultimately, the challenge for Republicans is not just how to deal with this law, but where’s the direction? Where are the alternatives?”

Republicans do have some ideas. They support, for example, the law’s provision preventing insurance companies from denying coverage to people with preexisting conditions and requiring them to allow parents to carry their young adult offspring on their policies. Most also argue for allowing insurers to sell policies across state lines.

Winston also pointed to a bipartisan proposal, advanced by House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) and ranking committee Democrat Diana DeGette (D-Colo.), that aims to accelerate the pace of medical breakthroughs.

But none of the GOP proposals would go as far as the Affordable Care Act has in guaranteeing coverage, and many health experts say that a piecemeal approach would send health-care costs soaring.

They’ve got nothing, but oddly, that’s okay now:

The practical effect of taking government assistance from people who bought their coverage on the federal ­exchanges could have made the entire law unworkable because so many consumers would have found their new insurance policies unaffordable, many health-care experts said. Republicans would have been in a difficult spot if the court had struck down federal subsidies in the majority of states.

The decision was “a bad legal outcome but a good political outcome” for Republicans, Gillespie said.

“Today Democrats, and my guess is Republicans, are breathing one gigantic sigh of relief,” said Sen. Charles E. Schumer (D-N.Y.).

They can talk and do nothing, and Chris Cillizza adds this:

Politically speaking, most Republican strategists and even most GOP politicians have privately acknowledged for quite some time that the chances of ripping the law from its roots legislatively was a nonstarter for two reasons. First, with Obama in the White House, he would veto any measure that would substantially change the law that bears his name. Second, the longer the law is, well, the law, the harder it becomes to drastically change it. Whether or not people initially liked Obamacare, they have begun to get used to it. Trashing the law in place of something else – that would, inevitably, have its own set of issues and problems – becomes a harder sell every day it remains law.

Given that, the only route to invalidation or major overhaul of Obamacare in the minds of savvy Republicans was through the courts. That first took the form of the case dealing with the individual mandate. When that was lost, most anti-ACA forces rallied to the Burwell case, which was decided today. Now, whether they want to admit it or not, a significant amount of the air has come out of their balloon. …

Already many Republicans are seeking to drive the remaining energy aimed at getting rid of the law toward next November – insisting that now, controlling the presidency is the only way to make fundamental changes to it.

But in a general election context, that will be a far harder sell. Why? Because Hillary Clinton will now be able to make the very strong case that the law has been fought judicially, legislatively and through campaigns and, in each instance, has survived those challenges. “This is old news,” you can hear Clinton saying. “The Affordable Care Act is the law of the land. I know some Republicans might not like that, but the fight is over.”

That’s a compelling argument, especially to voters not closely affiliated with either party who are likely to be swayed by the sheer amount of validation Clinton can point to regarding the law.

This is over. Who wants to watch the guy who just struck out, again, argue with the umpire?

As for that other strikeout, the other ruling that was lost in the shuffle, the Los Angeles Times editorial board is all over that:

The decision involves a lawsuit by a nonprofit housing organization claiming that a state agency in Texas steered tax credits for the development of low-income housing to black inner city neighborhoods in Dallas. That policy, according to the plaintiffs, even if wasn’t designed to segregate the races, nevertheless had that effect and was therefore the “functional equivalent” of intentional racial segregation – and thus violated the Fair Housing Act. The state agency countered that the law didn’t authorize “disparate impact” lawsuits.

The Supreme Court disagreed. Writing for the majority, Justice Anthony M. Kennedy placed the Fair Housing Act in the context of other civil rights laws that allow lawsuits based on disparate impact, a concept enunciated by the Supreme Court in a 1971 decision involving employment discrimination and later ratified by Congress (including in amendments to the Fair Housing Act).

Discrimination is discrimination even if it’s not intentional:

In employment cases once a job test or other requirement has been shown to have a disproportionate outcome on workers of a particular race, the burden shifts to the employer to prove that the requirement is job-related. Likewise, Kennedy wrote, a showing of a racial disparity in a housing program requires an agency or developer to show that a particular policy (such as steering low-income housing to a black inner city neighborhood) is necessary to serve a “valid interest.” Often, Kennedy suggested, that burden will be met. He left open the possibility that a lower court might conclude that the tax-credit program in Texas was reasonable.

The decision preserves a valuable tool for remedying segregation. Kennedy recognized that it’s naive to believe all housing segregation can be attributed to conscious bias. Rather, he said, the vestiges of legally mandated segregation remain “intertwined with the country’s economic and social life.”

Or not:

In his dissent in this case, Justice Clarence Thomas complained: “In their quest to eradicate what they view as institutionalized discrimination, disparate-impact proponents doggedly assume that a given racial disparity at an institution is a product of that institution rather than a reflection of disparities that exist outside of it.”

The Times’ board addresses that:

Institutionalized discrimination isn’t a figment of liberals’ imagination. It’s a reality that obstructs the achievement of the “color-blind” society conservatives profess to desire. Dismantling such discrimination is a legitimate purpose of civil rights laws, including the Fair Housing Act. The court was wise to recognize that fact.

And it wasn’t Scalia’s day, or the Republicans’ day:

The U.S. Supreme Court said people who file housing-discrimination suits don’t have to show they were victims of intentional bias, in a blow to lenders and insurers and a surprise legal victory for the Obama administration.

The 5-4 ruling upholds a category of U.S. Fair Housing Act lawsuits that civil rights groups said are especially important – and business groups consider particularly onerous. The court said plaintiffs can base their suits on statistical evidence that a disputed policy has a “disparate impact” on a minority group.

The Obama administration has relied on the disparate-impact approach to get hundreds of millions of dollars in fair-lending settlements with Bank of America Corp., Wells Fargo & Co. and other financial companies.

It seems there were other forces at play here – lenders and insurers, and the big banks, seeking relief from pesky consumers and those who whine about fairness – you know – the people. This Supreme Court suddenly sided with the people. Republicans must have felt betrayed, again. This was more surprising than the Obamacare ruling. They were caught looking at a curveball right over the plate – strike three. The Republican slump continues. These things happen.

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About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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