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Coin of the Realm in Politics

Potentially one of the side benefits to come from the budget deal struck late Friday was the development of a modicum of trust among House Speaker Boehner, Senate Leader Reid and President Obama.

It is a testament to the generally awful state of partisanship in Washington these days that Obama and Boehner, according to several accounts, spent more personal time together over the last week than they have in all the time Obama has been in the White House. Something is wrong with that picture.

Trust, built upon a genuine personal relationship, is simply critical to getting anything done in politics. Without it you can’t make a deal, shake hands and know that the pact is secure.

Boehner told a television interviewer over the weekend that he and Obama now “understand each other better.”

“Throughout these meetings over the last four or five weeks we’ve been straight up with each other, and honest with each other,” the Ohio Republican said. “Certainly haven’t always agreed, but it was a good process.”

A Boehner aide said, probably sending shudders down the spine of Tea Partiers, that the GOP leader and the president “believe the other operates in good faith. I think they are friendly, but not quite good friends at this point. Maybe some day.”

It’s easy to dismiss the personal relationship factor in high stakes politics, but our history is full of examples were the personal touch, backed not by agreement always, but always reinforced with trust, has made progress possible.

The great Montana Senate Majority Leader Mike Mansfield insisted that Senate GOP leader Everett Dirksen get the lion’s share of the attention when the Senate debated civil rights legislation in the 1960’s. Even though Mansfield outranked him, the important meetings were held in Dirksen’s office and Mike gave way to Ev when it came time to talk to the press.

Ronald Reagan and Tip O’Neill couldn’t have been different politically, but they developed personal rapport and that led to trust. Obama and Boehner would do well to study that model.

By all accounts, Obama and Boehner love their golf. As the cherry blossoms come out in Washington pointing to the end of a gloomy winter, Obama ought to call up the Speaker, pick him up at the Capitol and find a place where the two of them – maybe with one key aide apiece – can play eighteen and finish with a couple of beers.

Progress is politics is made of such small, but meaningful gestures. Now is the time to build more trust. The next budget deal will be much more difficult.

The Judges Decide

The Supremes and Health Care Policy

As the first anniversary of the controversial national health care reform legislation – or more correctly health insurance reform legislation – came and went a while back there was increasing acceptance of the notion that the U.S. Supreme Court will get the last word on the issue that continues to shape our politics.

That word will likely be handed down across the street from the U.S. Capitol right in the middle of the next presidential election campaign.

One of the most vocal defenders of the controversial law, New York Rep. Anthony Weiner, admitted recently what many are thinking: the Supreme Court will overturn the law, or at least the portion that mandates individual coverage. “If lightning strikes, and it turns out that as many of us believe, the Supreme Court turns out to be a third political branch of government and they strike down the mandate — big deal,” Weiner said. “Big deal!” Weiner argues that rejection of the individual mandate requirement will re-open the debate about the so called “public option.” We’ll see.

It will be fascinating if, as Weiner and others predict, the nine justices of the nation’s highest court enter this political thicket. There was for a time in our history a self-imposed reluctance on the part of the court to stick its nose far into the “political” territory of the Congress and the president. Barring a sharp question of Constitutionality, judges once thought it the “conservative” position to defer to the elected branches of government on questions of broad policy.

Conservatives would argue that those days of real judicial restraint became sand through the hour glass during the “activist” days of the Warren Court in the 1950’s and 1960’s. Liberals argue, on the other hand, that it has been “conservative” courts, beginning most importantly during the Reagan Administration, that have ranged far and wide over the political territory that some suggest is better left to legislators and to the one person in our system who is elected by all the people – the president.

But whether you consider it “activist” that the Supreme Court, almost eagerly it seemed, stepped into the Florida recount in 2000 and ultimately ruled in a way that put George W. Bush in the White House, or that Chief Justice Earl Warren worked hard to engineer a unanimous Supreme Court decision in 1954 to overturn state laws allowing racial segregation, the fact is that the Supreme Court – and particularly the very conservative majority on the Roberts Court – is poised to impact the political narrative of 2012. It has happened before. The Brown v. Board of Education decision on segregation, and subsequent Congressional efforts to enforce and expand on the decision, were arguably a catalyst for the systematic and still continuing swing of the southern United States from the Democratic to Republican parties. Richard Nixon’s now famous – or infamous – “southern strategy” in 1968 successfully capitalized on the sense that “activist” liberal judges were remaking the country in a frightening way.

Earlier in the 20th Century, another unanimous Supreme Court, this time in 1935 and with a conservative majority, happily overturned the cornerstone of Franklin Roosevelt’s New Deal reforms by rejecting much of the National Industrial Recovery Act. FDR was livid, particularly with “liberal” judges like Louis Brandeis who were willing to reject his reforms that enjoyed broad public and Congressional support. Roosevelt contended the “nine old men” on the 1930’s Court were intent on imposing on the country a “horse and bugging” definition of interstate commerce, while rejecting the needs of small business and individuals. Safely re-elected in 1936, Roosevelt tried to get even by “packing the court.” He lost badly and the political bitterness and impact of that fight lingered for years.

In a splendidly provocative and highly entertaining new book, The Conservative Assault on the Constitution, Erwin Chemerinsky, the founding dean of the UC Irvine Law School, and a widely respected Constitutional scholar, argues that it is conservative judges, at least since the days of Nixon, who have done the most to change the way we think about – and judges apply – the 21st Century Constitution. “

Since 1968,” Chemerinsky writes, “conservatives have sought to remake constitutional law and they largely have succeeded. They initially set out to overturn the decisions of the Warren Court, but soon began to aggressively pursue a vision of constitutional law that consistently favors government power over individual rights … and the interests of businesses over individual employees and consumers. Because decisions come one at a time over years and because the Court never overruled the Roe v. Wade abortion decision (though it came within one vote of doing so), it is easy to underestimate how successful the conservative assault on the Constitution has been.”

Professor Chemerinskey cites numerous cases, involving everything from the rights of criminal defendants to what he calls the “re-segregation” of American schools, to buttress his point. Perhaps the highest profile recent example – Citizens United – found the Roberts Court, apparently with little hesitation, overturning a century of settled law when it allowed, on First Amendment grounds, unlimited and unregulated corporate money to re-enter American politics.

Whether you agree or not that “conservative judges” have become the real judicial activists, it’s indisputable that “liberals” have lost the battle to frame broad political battles around the court’s make-up and decisions. Richard Nixon drew the political lines that have defined more liberal justices as the activists, while conservatives talk almost exclusively of Justices like Roberts, Scalia and Thomas as staunch defenders of the Constitution, motivated by real “judicial restraint.”

We will soon see how well that framing hangs together when a conservative Roberts Court overturns the liberal health policy reform of a Democratic Congress and president. Barack Obama already had his mini-FDR moment when he directly criticized, to the justice’s faces, the Court’s Citizens decision. The president may soon have reason, in the middle of his re-election campaign, to take on the “activist Roberts Court” again and once again the Supreme Court – appointed for life and presumably insulated from the daily grind of partisan politics – could dramatically impact American politics.

Poetry Month

Billy Collins on…What Was It?

In celebration of National Poetry Month – I love that poetry month coincides with the start of the baseball season – a great little poem for all of us growing a little older every day.


The name of the author is the first to go
followed obediently by the title, the plot,
the heartbreaking conclusion, the entire novel
which suddenly becomes one you have never read, never even heard of,

as if, one by one, the memories you used to harbor
decided to retire to the southern hemisphere of the brain,
to a little fishing village where there are no phones.

Long ago you kissed the names of the nine Muses goodbye
and watched the quadratic equation pack its bag,
and even now as you memorize the order of the planets,

something else is slipping away, a state flower perhaps,
the address of an uncle, the capital of Paraguay.

Whatever it is you are struggling to remember
it is not poised on the tip of your tongue,
not even lurking in some obscure corner of your spleen.

It has floated away down a dark mythological river
whose name begins with an L as far as you can recall,
well on your own way to oblivion where you will join those
who have even forgotten how to swim and how to ride a bicycle.

No wonder you rise in the middle of the night
to look up the date of a famous battle in a book on war.
No wonder the moon in the window seems to have drifted
out of a love poem that you used to know by heart.