Another Law Decided at the Buzzer

Have you ever heard the joke, “How many people voted for Bush in 2000? Five.” Yeah, it’s a pretty lame and dated anecdote meant to point out just how fragile the difference can be between something being considered the law of the land or blatantly illegal.

It all came down to one vote again today. When the Supreme Court released its decision that basically throws out the Voting Rights Act of 1965 until the criteria that was used in determine what states are subject to it gets a huge overhaul. A criteria that will garner huge support in congress to act on immediately, such that if we are lucky will be completed sometime right after they fix the budget, medicare, social security, and win the war on terror. The part of the decision that catches my attention is that, yet again, a Supreme Court decision that will affect millions of Americans came down to effectively a single vote.

It wasn't always this way. From 1801 to 1940, less than 1 in 50 of the Supreme Court's total rulings were resolved by 5-to-4 decisions. Under Chief Justice Roberts, who assumed his role in 2005, more than 1 in 5 Court's rulings have been decided by "minimum-winning coalitions." In the two most recent Courts, more than a fifth of all rulings were decided by 5-to-4 votes.

That's not to place the blame on Robert's feet. The trend started a decade before his appointment, and he actually acknowledged the trend early in his term. "I do think the rule of law is threatened by a steady term after term after term focus on 5-4 decisions," Roberts told The New Republic's Jeffrey Rosen in 2006. "I think the Court is ripe for a similar refocus on functioning as an institution, because if it doesn't, it's going to lose its credibility and legitimacy as an institution."

Now is the day and age when a suit is brought before the court that we start to tally the votes for one side or the other without even hearing the merits of the case itself. Such as today’s decision concerning the Voting Rights Act. Most people predicted that a decision would be within the narrow range of 3-6 to 5-4. Most pundits only considering Kennedy and perhaps Roberts as the votes that could ultimately make or break the law of the land.

This is the law of the land, not a questionnaire pertaining to the case of Boxers v. Briefs. How can nine people with resumes the size of the decisions they publish seem incapable to build some degree of consensus in matters like this? OR the Affordable Care Act OR Citizens United OR Walmart v. Dukes OR Ashcroft v. Iqbal OR the aforementioned Bush v. Gore? I find myself asking that if the Supreme Court of the United States can't come to a true consensus about what the government should and shouldn't be able to do, how is it that anyone can claim any such knowledge. Poll four of the highest judges in the land and they'll tell you that Obamacare is illegal, but since they are outvoted by one person, all 300,000,000+ Americans must abide by it. It seems like a titanic switch to be hinged on the whim of a couple human beings.

So much is determined not as a result of an interpretation of law, but because one interpretation swayed one more person then another. Maybe the Supreme Court should be more like a trial jury, where consensus needs to be built or another court panel gets to make the decision. The process seems to have worked up until recent times. when both parties leverage anything they can to pass their agendas, partisan nominees seem to be more common place at all levels of federal courts. Sides with slight advantages doing what they can to hold onto them, while the side with a slight disadvantage does everything they can to get an in. If I where a movie writer, I'd get to work on a screen play about justice assassination plots in order to swing a 4-5 vote to a 5-4. Perhaps the writers of 24 over at Fox would pick up on that?

Alas, the problem will continue to get worse before it gets better, with both conservative and liberal senators very aware of the tally when deciding how many skeletons to dig out of the closet before even allowing a confirmation vote to proceed. The idea of a president on either side of the isle nominating a true moderate in the hopes of having a more mature Supreme Court seems about as likely as Congress getting audited by the IRS only to be told they are entitled to a larger refund.

Practice what you Preach

Readers of this blog know that I can be critical  of the representatives of my home state, Iowa. But, this week I'm quite proud of my Senator Chuck Grassley, not for any specific action taken this week, rather for an amendment to a bill he presented years ago during the now infamous Affordable Care Act debate.

The Grassley Amendment in the Affordable Care Act (a.k.a. Obamacare) legislation that ensured that the government could not offer members of the House and Senate and their staffs any insurance plans but those created by the bill or those that were part of the exchanges set up in association with it. A simple exercise in practicing what you preach. If Congress, acting at the behest of President Obama, was going to shove this unpopular idea down the throats of an unwilling nation, those involved in making the law were going to have to live with it the same as the rest of the country. Fast forward three years later when there are only six months remaining before this provision goes into effect, it appears a new bipartisan consensus has emerged in  Congress, I'll pause here for you to get back up in your chair after being blown away by that little factoid... good? OK. It appears that nobody in Congress wants any part in participating in the nationally mandated program

Though Democrats have berated the House Republicans over more than a few dozen attempts to repeal the act,many in Washington view the impending deadline with horror since the prospect of being forced into ObamaCare insurance has set off a mass exodus of members and their senior staffs who would rather retire and stay grandfathered into their current insurance programs, touted as being very nice, then be submitted to the same type of rules and regulations that you and I are subject to. As Politico reports, there could be a surge in resignations before December 31 among congressional staff since doing so will allow representatives, senators and other congressional employees to retain their old federal insurance plans.

This has led the same Democrats who pushed for the passage of ObamaCare to demand that it be changed to let the inhabitants of Capitol Hill off the hook, one such outspoken person was John Larson of Connecticut who seems quite confident that an arrangement will be made to suit their own specific needs and wants without it effecting anyone else who may want the same considerations. But even though Republicans have just as much incentive to want to amend the bill to save their own members and their staffs, their answer should be no. If Congress doesn't want to cope with the far higher costs and poorer coverage that ObamaCare will ensure, they can scrap the entire bill rather than just adding a single paragraph to the already  it to suit their own interests.

If a Democratic like Connecticut’s John Larson, who voted for the legislation probably without reading it, thinks it’s unfair to expect his employees to be put in the same boat as his constituents, then maybe he should rethink the entire measure that he played a pivotal role in passing when his party controlled Congress.

Most Americans, who already think about as much of Congress as a vegan thinks of McDonalds, will shed few tears for the travails of these servants of the masses. Nor will they think the exodus of said members and staff will do the country much harm. But, to be fair, if the kind of turnover really does take place, a void of experienced staffers and veteran politicians could make Capitol Hill an even more dysfunctional place than it already has become. Losing their staffs (who provide much of the expertise and institutional memory of this branch of government) may be a disaster, but Congress must suffer along with the rest of us if they are to retain even a shred of credibility.

Secrets: Part 3 of 3 - Whistleblowers

Deep Throat would be hunted down like the dog he is today.

The story of wiretapping a reporter did not begin last month with James Rosen, back in 2006, a panel of three federal appeals court judges in New York struggled to decide whether a prosecutor should be allowed to see the phone records of two New York Times reporters, Judith Miller and Philip Shenon, in an effort to determine their sources for articles about Islamic charities.

One of the Judges of that panel, Judge Robert D. Sack recited lines from the movie "All the President's Men" when forming his arguments. He spoke of the part where Bob Woodward, in the process of unraveling the Watergate scandal for The Washington Post, meets his source in an underground parking garage.

“First of all,” Judge Sack asked, “do you really have to meet in a garage to maintain your confidentiality? Second of all, can the government go and subpoena the surveillance camera?”

Six years and six press leak prosecutions later, those questions seem as naive as their answers are obvious: yes and yes.

It used to be that journalists had a sporting chance of protecting their sources. The best and sometimes only way to identify a leaker was to pressure the reporter or news organization that received the leak, but even subpoenas tended to be resisted. Crazy talk about the freedom of the press kept being brought up. Today, advances in surveillance technology allow the government to keep a perpetual eye on those with security clearances, and give prosecutors the ability to punish officials for disclosing secrets without provoking a clash with the press.

But in today's government structure, the ability for the watchmen of our secrets to maintain them as such is inhibited. We live in a world where data flows too easily, to too many people, at such speeds and frequency that oversight is impossible, the perfect example of this issue can be explained in one proper name, Edward Snowden.

The tools that allow a person to keep a secret for themselves no longer apply in such a huge superstructure. Information needs to change hands, be reviewed, and ultimately end up in the correct hands for it to be actionable and worthy of being gathered in the first place. So rather then trying to find the leak that is causing this seepage of information, the government has decided to go after then sponge that is socking our secrets up. My crude metaphor is of course, meant to refer to the government pursuing the persons who are publishing the secrets, rather then those who share them.

The changes have unsettled a decades-long accommodation between national security and press freedom, one in which the government did what it could to protect its secrets but exercised discretion in resorting to subpoenas and criminal charges when it failed. Even the administration of George W. Bush, no friend of leaks, more or less stuck to this script.

That does not seem to be the view of the Obama administration's Justice Department, which has used the tools of the Patriot Act and other recently made legal avenues to bring more prosecutions against current or former government officials for providing classified information to the media than every previous administration combined.

To what end does this new culture of pursuing these links lead? An obvious conclusion would be that it increases the level of paranoia of those within the system, feeling eyes lurk over them every time they hit 'send' on an email, causing high levels of anxiety that a misstep or a mistake could lead towards a leak investigation. This adds a second layer of 'security' around the governments secret keeping apparatus as information that could or would normally be shared with the general public as a way of maintaining the public trust begins to become omitted out of fear of prosecution. The shining example of that is a bureaucratic being led in front of congress to give testimony only to claim innocence and then claim the fifth.

We, the people, are left forced to trust a system that forces itself to be less trustworthy. The government won their case in a 2-1 decision against the ability for the press to maintain their leaks confidentiality back in '06. Opening the way for these historic levels of prosecutions. In a dissent, Judge Sack said he feared for the future.

Part 1: Too Many Parts
Part 2: What is Sacred?