The full DC Circuit Court of Appeals pulls back from the brink of health-care loony-tune-itude

It was a good day for judicial sanity, not such a good day for the Great Right-Wing Noise Machine. Cartoon by Joel Pett (March 2013) -- click to enlarge.

"When the full DC Circuit announced they would rehear the case, by contrast, that was an indication that the two Republicans who blocked the subsidies may be outliers who reached an idiosyncratic result in an easy case. The fact that all six of the other judges who have considered the Obamacare subsidies have also upheld them also lends credence to this view."

-- legal eagle Ian Millhiser, today, in "BREAKING: Federal
Appeals Court Withdraws Decision Defunding Obamacare"

by Ken

In late July, I posed the question "Can the ideological perversions of two unapologetic far-right-wing activists on the District Circuit Court of Appeals lead to defunding Obamacare?" At that point, a three-judge panel of the DC Circuit Court had decided -- by the vote of the aforementioned pair of right-wing judicial psychopaths -- to ignore normal judicial standards and allow some admittedly fuzzy language in the Affordable Health Care Act, whose intent was almost impossible to mistake in the context of the law, to advance the agenda of a national conspiracy of Obama-loathers.

The Obama-loathers, of course, don't know or care anything about the U.S. health-care system. Presumably they're happy with the access to the system they have, or think they have. (A lot of them are in for rude surprises when they need access. And of course the large number of the supposed mortal foes of government-run health care already rely on Medicare, and are too dim or dishonest to grasp that they are already beneficiaries of, and in many cases only alive because of, "socialized medicine."). Their idea of our health-care "system" is that anybody who doesn't have access can just, as Alan Grayson pointed out so eloquently, drop dead.


THE LEGAL LOONS: CONFUSED OR JUST OPPORTUNISTIC?

No, the battle has never been about health care. These demonic sociopaths who have made Obamacare a defining national issue, all they care about is destroying America, if by "America" we mean a country of decency, reason, and hope. To this end they have rabble-roused an all too gullibly rousable public because, although these people know even less about Barack Obama than they do about health care, except maybe the color of this Obama guy's skin, they have chosen to make him the arch-demon of their deranged mental universe -- and drag the country with them. In the process, they have guaranteed that there is no possibliity of addressing actual human problems. Far-right-wing crazies will fight to the death to make sure that actual human problems are never addressed.

Naturally there are roving cohorts of demagogues in public life who are only too happy to pounce on this cauldron of psychosis for their own demonic purposes, purposes that begin with naked, raw, insatiable self-interest. In the course of their health-care-related crusade against honesty and decency, this gaggle of America-loathers succeeded in hornswoggling the above-referenced pair of ideologically deranged judicial perverts on the DC Circuit Court, traditionally ranked second in U.S. judicial importance only to the Supreme Court itself.

The substance of the issue latched onto by the Obama-loathers and their judicial-pervert supporters concerns use of the word "state," which in one instance in the ACA is used as a term for the government ("the State"), a sense that is utterly clear in context but when maliciously misread can be erroneously taken to refer to a state, as in one of the 50. Here's how ThinkProgress's legal eagle Ian Millhiser explained what he called at the time "a proofreading error" in the statute.

The two Republicans’ decision rests on a glorified typo in the Affordable Care Act itself. Obamacare gives states a choice. They can either run their own health insurance exchange where their residents may buy health insurance, and receive subsidies to help them pay for that insurance if they qualify, or they can allow the federal government to run that exchange for them. Yet the plaintiffs’ in this case uncovered a drafting error in the statute where it appears to limit the subsidies to individuals who obtain insurance through “an Exchange established by the State.” Randolph and Griffith’s opinion concludes that this drafting error is the only thing that matters. In their words, “a federal Exchange is not an ‘Exchange established by the State,’” and that’s it. The upshot of this opinion is that 6.5 million Americans will lose their ability to afford health insurance, according to one estimate.

NOT THE RESULT THE LEAGUE OF LOONS EXPECTED

In that post Ian also gave us a crash course in the judicial history of the two DC Circuit ideological perverts, Raymond Randolph, a GHW Bush appointee, and the reputationally "more moderate" Thomas Griffith, a GW Bush appointee.

Now, you may recall that at almost the same moment a panel of the Fourth Circuit Court of Appeals (Jesse Helms's old court, which under his watchful eye was an all but impregnable fortress of far-right-wing ideology) reached the opposite conclusion about the reading of the ambiguous "the State" -- that it's not judges' job to make it up according to the sawdust shaking around in their heads.

Interestingly, the far-right America-loathers devised a strategy that made the Fourth Circuit panel's incalculably saner and legally sounder ruling work in their favor. The strategy depended on their being now opposite rulings from two different circuits, a condition that generally argues for resolution by the Supreme Court. As Ian explains in his post today, the far-right-wing judicial perverts (my term, I should make clear, not his) obviously reasoned that they stand a much better chance now with the Supreme Court, with its generous supply of far-right-wing legal perverts, than with a hearing ("en banc") by the full DC Circuit Court.

So the League of Far-Right Legal Perverts devoted much of their appellate bravado to arguing that the full DC Circuit should be bypassed in favor of an immediate emergency hearing by the Supreme Court. Ian patiently explains how the argument was framed as well as why it was ridiculous -- and how it was nevertheless trumpeted by the Lying Liars of the Great Right-Wing Noise Machine, like the bloviators of the Wall Street Journal and National Review, who fill in with outright lies where obfuscatons and delusions alone won't do the job.

To be clear, what the full DC Circuit Court did today wasn't to overturn the panel's ruling, but simply to void it, undertaking to hear the case itself and issue its own ruling. It's still possible that the full court will reach the same conclusion as the pair of judicial psychopaths who prevailed in the panel ruling, but that doesn't seem likely. And today's action represented an immediate setback for the legal-pervert strategy of targeting the Supreme Court -- as of now, there are no longer opposite rulings in force from two different circuits.

Ian's explanation takes the matter a step further, and I found it fascinating. Essentially, today's action potentially changes the cast of characters in the eyes of the Supreme Court justices, recasting the two loons on the DC Circuit panel as possible "outliers who reached an idiosyncratic result in an easy case."

[T]he justices typically use the lower courts as a mechanism to screen the few cases raising issues that are difficult enough to warrant Supreme Court review from the vast bulk of cases that do not. This is one reason why the justices tend to hear cases where two courts of appeals disagree — because that disagreement is a sign that the case is sufficiently challenging that it requires a definitive ruling from the nation’s highest Court. When the full DC Circuit announced they would rehear the case, by contrast, that was an indication that the two Republicans who blocked the subsidies may be outliers who reached an idiosyncratic result in an easy case. The fact that all six of the other judges who have considered the Obamacare subsidies have also upheld them also lends credence to this view.

"Now that the DC Circuit has ignored [the right-wing legal loons'] attempts to scare them off with accusations of partisanship," Ian concludes, "this case no longer meets the usual criteria for Supreme Court review."

Not at all the result the League of Legal Loons was expecting today. (Thank goodness.)

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Let me say again that Elizabeth Warren isn't so much unconfirmable to the CFPB as she is unnominatable

by Ken

There has been much online chatter, bordering on excitement, among our online brothers and sisters of the Left regarding the New Republic cover story by John Judis, "The Unnecessary Fall: A counter-history of the Obama presidency" (unfortunately available free only to subscribers).

UPDATE: A LINK TO THE COMPLETE ARTICLE

Our friend Jimmy the Saint passes along the above link, which seems to take us to the full text of the Judis article "without giving Peretz any money," as he puts it, referring to the magazine's infamously scummy proprietor. This strikes me as an altogther worthy goal.

I think these early grafs summarize the basic proposition:

Politicians, such as Franklin Roosevelt or Ronald Reagan, who found a way of using populism’s appeal during downturns have enjoyed success, while those who have spurned it have suffered accordingly. If, in circumstances like the present one, you don’t develop a populist politics, your adversaries will use populism to define you as an enemy of the people. That’s what Carter discovered during the stagflation of the late ’70s. And that’s what has happened in the last 20 months of the Great Recession to Barack Obama and to the Democratic Party he leads.

Obama took office with widespread popular support, even among Republicans, and some of his first efforts, including the $800 billion stimulus, initially enjoyed strong public favor. But that wide appeal began to dissipate by the late spring of 2009. Disillusion with Obama fueled the November defeat of Democratic gubernatorial candidates in New Jersey and Virginia. By January 2010, it was a crucial factor in Republican Scott Brown’s astonishing victory over Martha Coakley in Massachusetts.

In the postmortem debate over these defeats, some Democrats have blamed Obama’s dogged pursuit of health care reform while the economy was hemorrhaging jobs. That may have been a factor, but the real damage was done earlier. What doomed Obama politically was the way he dealt with the financial crisis in the first six months of his presidency. In an atmosphere primed for a populist backlash, he allowed the right wing to define the terms.

It's an eminently solid piece, very much worth your attention, but I'm not entirely sure I understand what the fuss is about. Is there anything in it that isn't thrice familiar to, say, the average Down With Tyranny reader who's been paying attention since the dawn of the Obama administration? True, Judis does a nice job of bringing it all together: the public 's well-justified perception that administration economic policy is being made by (and for) Wall Street insiders, which "colored its view of the auto bailout, the stimulus, and health care reform"; the "delayed and muddled response to the BP disaster in the Gulf"; the deaf ear the White House economics team turned to economists of the stature of Paul Krugman and Joseph Stiglitz coupled with the president's "inability to explain to the public why he sought such a large stimulus" and subsequent public abandonment of the jobs issue; the president's own well-documented "strange aversion to confrontational politics," which has led to a "disastrous" attempt "to elevate Obama above the hurly-burly of Washington politics" and enabled the Right to define his "otherness." See anything new there? Anything we haven't all be screaming about for many months now?

In addition to stringing all of this together, the piece certainly has the built-in virtue of appearing in that bastion of right-wing non-liberalism The New Republic, so that it can't be dismissed by smarmy asswipes like White House Press Worm Robert Gibbs as the drug-induced ravings of "the professional left."

For all the excited chatter on the Left, I can't say that I see even yet any indication that anyone inside the administration grasps any of the stuff Judis cites, which dumbfounds me, but then, what's new about that? For how long now have I been dumbfounded?

It's not as hard to understand in the case of someone as fundamentally corrupt as Rahm Emanuel. Wasn't Howie warning as soon as the president-elect tapped the party's leading megacorporate superwhore to be his chief of staff that this was likely to be the death knell for his administration? My own apprehensions were targeted slightly differently: that in the chief of staff's crucial gate-keeper's role, he would control access of people and information to the president. That really doesn't seem to be an issue. Rahm seems to "protect" the boss from things he really wants to be protected from.

Bur for all we hear of discordance inside the administration, there really doesn't seem to be any serious counterweight to the Rahmesque world view as X-and-O-ed by Larry Summers and "Tiny Tim" Geithner. I get the feeling that Gabbling Gibbsy is just a knuckle-dragging imbecile, of no importance except insofar as he (a) does such an execrable job of representing the administration's views to the media and (b) is allowed to treat the Right worshipfully while liberally trashing the Left. More to the point, that all of the administration insiders remains so uniformly clueless, how can that happen?

A lot of progressives given to hopelessly wishful thinking keep pointing to even the compromised initiatives of the administration as being "starts" that can be built on. Do they have working brains? Do they really not see that this administration has degraded and discredited every authentically progressive program it has laid its grubby mitts on? In the case of the health care giveaway to the insurance companies, I mean "reform," it will be years before average Americans see any meaningful benefits, years in which their economic footing is becoming at best increasingly shaky and at worst just plain freefall.

Because of the way the "reform" was bludgeoned through, it has almost no friends and mortal enemies, popular and political, all over the political spectrum, enemies who will be lying in wait for its failure, doing everything they can to facilitate its failure. As for the climate and energy "reform" package the administration tried so pathetically to squeeze through,, it contained so much simply monstrous anti-progressive regression that even now nobody I trust on environmental matters will say that it would have done more good than harm.

Immigration reform? This administration hasn't a ghost of a whisper of an idea how it might be accomplished, and contented itself with unconscionable sops to the demagoguing right-wing nativists like that $600 million the administration found somewhere, at a time when it couldn't find a paltry few bucks for teachers, whose only effect -- apart from throwing $600 million down the drain (unless you want to count it as economic-stimulus spending) -- is to legitimize anti-immigrant demagogues' insane delusion that "fortifying" the border in any way whatsoever enhances our security or economic well-being, thereby making any kind of reality-based immigration reform even more impossible.

And of course this monstrous giveaway didn't pick up a single vote for a rational reform program, or redirect the discussion, except in the direction of accepting ever uglier and more dysfunctional xenophobic "thinking" on the subject of immigration. And so on down the policy-initiative line.

Maybe that's what the Obama administration's passivity and first-resort waving of the white flag are all about: They're fraidy-scared that Republicans will say bad things about them.

I suppose a better explanation, and one that my esteemed colleague Ian Welsh keeps coming back to, is that the Obama administration really hasn't compromised anything in terms of its beliefs and goals. Which is certainly a cleaner explanation than falling back on the sheer ineptitude of its nuts 'n' bolts "getting stuff done" apparatus -- though I really do think that these people have no clue as to how serious new initiatives do get done. (For an instructive counter-example, see below.)

I STILL SAY, THE QUESTION ABOUT ELIZABETH WARREN
ISN'T HER CONFIRMABILITY BUT HER NOMINATABILITY

One theme that recurs in much of the leftish response to the Judis piece is the heightened importance of the administration nominating Elizabeth Warren to head the new Consumer Financial Protection Bureau (CFPB). It makes you wonder about these people.

Let me say again, they're dreaming. Yes, Treasury Sec'y "Tiny Tim" Geithner got shamed into denying that he was personally blocking such a nomination, and saying how much respect the administration had for Professor Warren, and that she would definitely be considered for the CFPB job.

Oh, sure, she'll be "considered." I stand by the suggestion I made when I wrote about this last month, that she'll be "considered" more or less thusly:

Dear Professor Warren:

After careful consideration, we've decided we would sooner eat poison than let you anywhere near the CFPB.

Have a nice life.

Yours truly,
A Senior White House Official

Again, if by chance political pressure forces her down their throats, you can be sure the bureau will be frozen out in terms of support and funding. Which is probably what's going to happen anyway, and that's in a Democratic administration. Can you imagine in, say, a Romney administration?

I shared the above opinion with a listserv and got the response, from someone with actual "inside" White House experience, that the funding can't be cut because of language Professor Warren herself got inserted in the enabling legislation. That seems to me hopelessly naive. To imagine that the White House that really wants to freeze an agency out can't find by rough count a jillion ways around a minor legislative impediment like that? Clueless as the Obama people seems to be in most respects with regard to the levers of government, trust me, they'll find all jillion of those ways. Leaving the presumptive consumer financial protectors, if any, whining to nobody who's listening, "But they can't do that! It says so!"

A QUICK NOTE ON "NOMINATABILITY"

The most conspicuous response I got to my previous post, titled "Of course Elizabeth Warren would be confirmable as CFPB head. The real question: Is she nominatable?," was a tweetback to Howie's tweet of the title from someone I formerly had big-time respect for, chiding us for going the way of Sarah Palin into making up words. Which successfully compounded insult with ignorance -- of the English language, and of course what is actually so buffoonish about Princess Sarah's linguistic blundering.

First off, I wonder how many dictionaries the writer consulted in declaring "nominatable" a made-up word. Personally, I would have proceeded very cautiously, because -- just like "confirmable," which by astounding coincidence appeared cheek by jowl with it -- it's a word formed according to an absolutely fundamental and familiar process of English coinage: adding "able" to a verb that indicates a process capable of being accomplished. Yes, a bit of levity was intended, also as a way of calling attention to the concept of nominatability, a word that is surely understandable to any reader of English, and for which there actually is no "official" word.

Poor Princess Sarah, when she was caught "refudiating," had been fed a fact that she was totally unequipped to argue: that writers frequently make up words, not least Shakespeare. Alas for the princess, "refudiate" wasn't any kind of neoloigism, it was simply a blunder by someone with an alarmingly shaky familiarity with the language. I would argue that "nominatable," by contrast, whether or not it conveyed a bit of fun as well as extra meaning to readers, was created in one of the most time-honored modes of word coinage. That is, assuming it truly doesn't exist in any dictionary.

Do you remember all the way back in 2008 when the top-level Obama administration appointments were being announced, and Tom Daschle was going to be both HHS secretary and health care czar? Until he wasn't going to be? And there was a growing sentiment among some of us that the perfect person for the job, way perfecter than Daschle, would be Howard Dean? After all, he has all that experience both as a medical practitioner and as a pol who has grappled in the real world with health care policy. It's a subject he understands in depth. It seemed so logical, especially considering that the Obama team unaccountably (ha ha!) hadn't tapped the governor for any other federal job.

It all seemed so logical. Except that the chances of its happening were, on a scale from zero to a zillion, minus infinity, for reasons both personal and political -- which turn out to be pretty much the same thing in this administration. Master Rahm hates Howard Dean, to put it as mildly as I've heard it put. Dean isn't by history or temperament all that "liberal," but he's everything Rahm isn't, and loathes: a decent, socially concerned, conscientious public servant who believes that solutions to our problems must be found which work for the public at large. The Obama circle apparently believes that any changes that are made to the way we govern ourselves must be done without in any way inconveniencing the country's financial and political elite class.

And I'm suggesting that, transposed to the financial world, Elizabeth Warren is Howard Dean redux. The only way the Rahmists would give even the slightest consideration to a Warren CFPB appointment is if it could achieve the opposite result from that fantasized by my deluded colleagues on the Left: if they're satisfied that it's possible to make it absolutely impossible for her to cause any disruption to the megacorporate status quo and in the process, by locking her into the job, silencing her as a potential critical voice of the job done by the first CFPB director.


HAVE WE FORGOTTEN WHAT IT LOOKS LIKE WHEN
A PRESIDENT TRIES TO SELL HIS ECONOMIC PROGRAM?

In his TNR piece Judis offers a significant counter-example that I think we could all benefit from pondering.

Contrast Obama’s attempt to develop a politics to justify his economic program with what Reagan did in 1982. Faced with steadily rising unemployment, which went from 8.6 percent in January to 10.4 percent in November, Reagan and his political staff, which included James Baker, Mike Deaver, and Ed Rollins, forged a strategy early that year calling for voters to “stay the course” and blaming the current economic troubles on Democratic profligacy. “We are clearing away the economic wreckage that was dumped in our laps,” Reagan declared.

Democrats accused them of playing “the blame game,” but the strategy, followed to the letter by the White House for ten months, worked. The Republicans were predicted to lose as many as 50 House seats, but they lost only 26 and broke even in the Senate.

Some commentators have noted Reagan’s popularity was even lower than Obama’s. But, on key economic questions, he did much better than Obama and the Democrats are currently performing–and voters expressed far greater patience with Reagan’s program. According to polls, even as the unemployment rate climbed, a narrow plurality still expressed confidence that Reagan’s program would help the economy. On the eve of the election, with the unemployment rate at a postwar high, a New York Times/CBS News poll found that 60 percent of likely voters thought Reagan’s economic program would eventually help the country. That’s a sign of a successful political operation. If Obama could command those numbers, Democrats could seriously limit their losses in November. But Obama has not been able to develop a narrative that could convince people to trust him and the Democrats.

I hope I don't need to add that I utterly loathed (and loathe) the goals of Reagan's advocacy. But when a president really and truly wants to bring about change, this is a real-life example of what it can look like.

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The McCranky leak tale has Digby wondering why reporters are so keen to "protect people who lie to them and use them for nefarious political purposes"

"Had either of the leaks probes found McCain guilty, in all likelihood he would have been recommended for censure by the Ethics Committee, but also possibly faced expulsion by the Senate or charged with perjury for having lied under oath. As it was, the worst that happened is that those observing McCain reevaluated the senator. Said one source close to the leaks investigation, 'It pricked the balloon I had that McCain might have had integrity.'"

-- Sahil Mahtani, in "McCain First, Second, and Always," in The New Republic

"Golly, if only we'd known. . . .

"I will never understand why reporters think it's so important that they protect people who lie to them and use them for nefarious political reasons. They sit idly by while a man like McCain creates a completely phony persona, wines and dines them and treats them to his 'unvarnished' off-the-record musings all the while at least some of them (and their editors) know that he is completely full of shit.

"He's run for president twice now. And it took until four days before the election for this story of McCain's perfidious treatment of his fellow senators and cover-up of his crimes to surface? A story about leaks to the press? Can we all see the problem here?"

-- Digby, in a post yesterday, "The Scooter Paradigm"

by Ken

Howie reported Saturday about New Republic reporter-researcher Sahil Mahtani's shocking story suggesting very powerfully that at the time of the Senate Ethics Committee's investigation of the Keating Five scandal, Sen. John McCain orchestrated a series of leaks that "essentially deflected public attention away from McCain and toward his colleagues" -- and "created 'a presumption of guilt' among the others, said one government official."

Those leaks, which were illegal whoever was responsible for them, almost certainly saved McCranky's sorry political career. If the senator was in fact the source of the leaks, they should have led to his expulsion from the Senate and possible indictment for perjury.

Mahtani, you'll recall, gathered devastating (to McCranky) information about two investigations conducted at the time: a private one by FBI super-agent Bud Hall requested from the General Accounting Office's Office of Special Investigations by Senate Ethics Committee Chairman Howell Heflin, and a public one by New York lawyer Peter Fleming in his capacity as Temporary Special Independent Counsel for the Senate.

His revelations make clear that there was little doubt at the time that the young Young Johnny McCranky was the source of the leaks, and that this wasn't exactly secret. Just about everyone in D.C. seems to have been convinced. The only thing that saved him, apparently, was the absence of "smoking gun"-type evidence of his guilt.

Now Digby has revisited the story, wondering how it happens that we didn't know about any of this at the time -- or, indeed, at any time before Saturday.

The fact is that there are some people who knew the truth about this from the beginning and they're called "reporters." They knew then and they know now that they were being leaked to by a lying creep who was trying to cover his ass. And, in their minds, that's exactly the same as protecting the identity of some low level whistleblower at the SEC who discovers that powerful people are committing crimes. Nobody said a word.

When Digby latches onto a big -- and usually neglected -- question, the argument really needs to be read in full. I think this is a really important one, and besides, it's a treat to read. So here it is:

The Scooter Paradigm

by digby

We've already talked about these latest revelations about McCain and the Keating Five, but I want to look at it from a slightly different angle.

Yes, yes, McCain is a lying piece of work who has spent his career basically acting the character of the heroic Top Gun maverick who flew a little bit too close to the sun, got burned and then spent the rest of his career pretending to seek redemption by becoming a reformer of the system that almost destroyed him. It's crap. He's corrupt, always has been.

But this latest doesn't just indict McCain. It indicts the press corps too:

[T]he Ethics Committee's was not the only investigation into the scandal. There were two other probes at the time that got barely any public attention--both of which largely focused on McCain himself. These were probes into illicit leaks about the proceedings of the Ethics Committee--leaks that repeatedly benefited McCain and hurt his Keating Five colleagues. One of those senators described the leaks at the time as a "violation of ethical behavior at least as serious as anything of which we senators have been accused."

The leaks, if they were coming from a senator, were also illegal. All five senators--including McCain--had testified under oath and under the U.S. penal code that the leaks did not come from their camps. The leaks were also prohibited by rules of the Senate Ethics Committee; according to the rules of the Senate, anyone caught leaking such information could face expulsion from the body. These, then, were not the usual Washington disclosures: Discovered, they could have stopped the career of any Washington politician in his tracks.

Golly, if only we'd known.

I'm going to call this The Scooter Paradigm, wherein the press reports stories that feature the press (sometimes even themselves personally) as if they are reporting on tribal chieftains in Afghanistan. In other words, as if they are reporting on something foreign and unknowable. The fact is that there are some people who knew the truth about this from the beginning and they're called "reporters." They knew then and they know now that they were being leaked to by a lying creep who was trying to cover his ass. And, in their minds, that's exactly the same as protecting the identity of some low level whistleblower at the SEC who discovers that powerful people are committing crimes. Nobody said a word.

I will never understand why reporters think it's so important that they protect people who lie to them and use them for nefarious political reasons. They sit idly by while a man like McCain creates a completely phony persona, wines and dines them and treats them to his "unvarnished" off-the-record musings all the while at least some of them (and their editors) know that he is completely full of shit.

He's run for president twice now. And it took until four days before the election for this story of McCain's perfidious treatment of his fellow senators and cover-up of his crimes to surface? A story about leaks to the press? Can we all see the problem here?

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