The Erosion of the Rule of Law

In sports, referees and umpires are doing their best when they are unnoticed, or so the saying goes. While Chief Justice Roberts famously compared the job of a judge to that of an umpire, to, as he put it, "call balls and strikes," the sad charade that passed for reasoned debate in the Supreme Court this week reminded those of us who care about the rule of law just how far down the rabbit hole this once august institution seems to be falling.  

The "rule of law," that foundational concept that separated our country from the monarchies and dictatorships of Europe for so long, stands for something deeply profound and meaningful in our system of government, not just that we are all equal under the law, but that no one is above the law.  Courts do not marshal armies in their favor, we have, as a country, agreed to a social compact where a court's word is final.  It is because of this fact that the Supreme Court's authority is at its apex when it speaks as one - in cases that have involved issues like school desegregation, executive power, freedom of the press, miscegenation, contraception and others, unanimity imbued those decisions with a force that affirmed our core principles as a nation.  

On the other hand, the closer the Court drifts towards 5-4 decisions, the murkier it makes public policy.  Decades after cases involving affirmative action first split the Court, cases are still being litigated based on the decision of a single Justice, Byron White, who attempted to split the difference in the now famous Baake case.  Similarly, although the clarion call for school desegregation was unquestioned, when the Justices waded into the granular aspects of policy implementation, and particularly busing, the resulting public backlash was felt from the neighborhoods of South Boston to communities throughout the South.  Nearly 40 years after Roe v. Wade, states continue churning out restrictions on abortion rights that are litigated in courts throughout the country.  

Narrow majority rulings have become de rigueur as the Court has drifted rightward. While the Court's shift began in the early 1970s, even then, the Court was able to reach consensus in the highest profile matters, such as President Nixon's refusal to turn over the Watergate tapes and whether newspapers could publish The Pentagon Papers.  The Court's shift accelerated with the elevation of Justice Rehnquist to Chief Justice and the appointment of Antonin Scalia in 1986.  These two appointments began a pattern where "conservative" judges were replaced with even more conservative judges, but, as damaging, "liberal" judges were replaced by more moderate judges - in other words, the Court drifted right from both sides of the spectrum.  

Whereas neither President Clinton nor President Obama risked nominating "liberal" justices, both Presidents Bush had no such qualms about appointing deeply conservative (and young) lawyers to the bench.  Clarence Thomas, who was confirmed by the Senate at age 43 to take the seat of liberal icon Thurgood Marshall, and has already been on the Court for 21 years, may end up serving longer than any other Justice in history. Chief Justice Roberts (age 50 at appointment) and Justice Alito (age 56 at appointment) are both likely to serve more than 25 years. Although Justice Souter was a moderate, he was still to the right of the man he replaced, William Brennan, and the Justice who replaced him, Sonia Sotomayor, is at best, at the same point on the judicial spectrum as Souter, if not a bit to his right (she was originally appointed to the federal bench by President George H.W. Bush).

The full expression of this change occurred in 2000, when a five member majority abruptly ended the Florida recount and handed the Presidency to George W. Bush.  What was so offensive about that decision was not its ultimate outcome (though many, including me, think it was a perversion of justice), but rather, that the Court's decision felt anti-democratic.  No single name was attached to the Court's opinion, it was issued per curium, and specifically eschewed any precedential value.  Instead of erring on the side of ensuring voting rights, by, for example, dictating an expedited schedule for recounting all state ballots under a uniform standard, the Court turned due process on it head, arguing that a recount would violate the rights of those who had voted if those whose votes were not counted were somehow included under a non-uniform standard.  For good measure, the court threw in specious arguments that said time had run out and that somehow the republic would be endangered if the matter was not resolved.  Of course, there was still more than a month until Inauguration and, in at least one prior Presidential election (1876), the winner was not certified until two days before the Inauguration, which in those times, was in early March.  

While the Bush v. Gore decision was a low point for the Court's jurisprudence, it also carried a strong odor of political shenanigans (Justice O'Connor is reported to have bemoaned Gore's apparent win early on Election Night by complaining she would have to stay on the Court for another 4 years). The gatekeeper of our electoral function had instead picked sides and the trust people placed in the Court as an institution dropped precipitously.  

Unfortunately, when you subvert the foundational concept upon which our nation is founded, the message you send to others is not positive.  It is unsurprising that the Bush Administration felt no qualms about instituting a torture regime and (allegedly) violating both the Geneva Convention and federal law.  To read Department of Justice memos from this time period is to see an interpretation of Constitutional power that is unfettered by Congress or judicial review. From there, it is not a significant leap to engage in warrantless wiretapping of communications, demanding compliance from telecommunications companies in the production of phone records in violation of FISA, and destroying videotaped evidence of torture in contravention of the law.  When lawsuits were filed,  the Bush Administration got Congress to pass legislation providing retroactive immunity that excused the conduct of the telecoms.  And in all of this, no one served a day in jail. While the Supreme Court may have partially redeemed itself by reaffirming the basic rights of prisoners to habeas corpus in a series of cases involving Guantanamo Bay detainees, even there, the Court's opinion was not unanimous and when it issued its instantly infamous Citizens United decision in 2010, it opened the floodgates to unregulated financial contributions by corporations that are already perverting out elections.  

Which brings us to last week's oral argument on the Affordable Care Act. It is not just that Justice Scalia parroted a FOX News talking point about whether a law could mandate that people eat broccoli or that he was unaware that the so-called "Cornhusker Kickback" was not actually in the final version of the Affordable Care Act, it's that the questioning belied what appeared to be an unfamiliarity with the basic precepts of insurance, and how it operates, in favor of attempting to question why policies had to require things like substance abuse treatment or pre-natal care.  Unfortunately, Solicitor General Verrilli missed obvious opportunities to rebut these questions by pointing out that many insurance policies, such as auto and home, contain clauses that many people never have to utilize, or that having health insurance be purchased at the "point of contact" is laughable on its face (as if an uninsured person riding in an ambulance would be in condition to pick a Blue Cross/Blue Shield policy).  

More broadly though, questions about the individual mandate and the expansion of Medicaid suggested at least four members of the Court are prepared to significantly trim the Commerce Clause power of the government even though health care consumes one-sixth of our economy (never mind the fact that Congress has already regulated in areas of health care like ERISA and HIPAA and that even in this case, the states challenging the Affordable Care Act concede certain portions of the regulation (like health care exchanges) are within Congress's authority).  Moreover, the long established right of the federal government to predicate the transfer of its dollars to states with "strings attached" (something that most would have assumed was settled in South Dakota v. Dole) was brought into question when the Court took up the ACA's provision that expands Medicaid.  

The potential for the Court to overturn or meaningfully alter legal precedent is something that erodes the strength of the rule of law.  A touchstone of Supreme Court jurisprudence is the idea of stare decisis, that precedents should be given deference so that decisions cannot be overturned solely because the make-up of the court changes.  If the Supreme Court shows a willingness to jettison this concept, the very framework upon which federal courts interpret the law will be undermined. This is not to say that Justices, be they liberal or conservative, are not going to bring their own interpretation of the law to their opinions, however, the Supreme Court must be particularly circumspect in issuing sweeping proclamations that suggest politics, not the law, are driving their decisions or overturning long-established precedent.  While decisions of lower courts have largely fallen along party lines, with judges appointed by Republican Presidents striking down either the Affordable Care Act in toto or just the individual mandate, two prominent Republican appointed judges did vote to uphold the law and disposed of the arguments in a far more straight forward way than the questioning at the Supreme Court would suggest the Justices are looking at the law.  

At one time, the Supreme Court stood as a beacon for social justice, its members standing unified in favor of ending school segregation, miscegenation, and with strong majorities for the idea of a right to privacy between couples, for the concept of "one person, one vote" and for separation between church and state within the schoolhouse doors.  Although President Eisenhower may have lamented his selection of Earl Warren as Chief Justice and his appointment of William Brennan as an Associate Justice, the Warren Court, its willingness to correct societal injustice and the Chief's ability to bring majorities together to ensure that there was equal justice under the law remain a touchstone of modern jurisprudence. Today, a majority of the public expects that whatever decision is made about the Affordable Care Act will be done based on politics, not law. Although our judiciary is independent precisely because it is sometimes called upon to make unpopular decisions, the modern Court is attempting to use its insularity to re-write decades of law and that is something that should be deeply troubling to all Americans. 

Mad Men Season 5 - The Times They Are A Changin'

The fifth season of Mad Men opened with all the subtlety of a jackhammer and all the nuance of a steamroller.  A protest outside the offices of rival Y&R announces that the Sixties have truly started and our characters are at the water's edge of the most radical social transformation of the 20th century (they just don't know it).  Over the next two hours, Matt Wiener unfolded a scattershot of plot lines that are sure to keep die hard fans eager for another Sunday night of entertainment. 

In the new Draper household high atop a skyscraper in New York City, Don is celebrating another birthday - his 40th - and the imagery is interesting.  At the beginning of Season 3, Don also celebrated his birthday - his "real" birthday - with a painful flashback to his conception and birth to a prostitute who died shortly after delivering him and named him "Dick" after suggesting his father's penis should have been boiled in hog fat.  That scene took place in the first Draper family home, at night, without anyone around.  In 1966, Don is dutifully making breakfast for his three children as sunlight streams through the apartment windows and his new wife Megan ambles out to join the family.  

The birthday he will celebrate on June 1st is not his, but rather, that of the real Don Draper, but the season premiere suggests that the Don Draper we have known for the past four seasons, who lives in shadows, is petulant and egotistical, and swallows his misery in whiskey is gone, replaced instead by a man at peace - who does not attempt to talk Heinz into accepting a creative pitch, rarely touches the bottle and arrives (and leaves) work on time, with his wife.  After refusing to back up Peggy in her Heinz pitch she says of Don, "I don't recognize that man.  He's kind and patient … it concerns me."  Peggy's concerns could be shared by viewers who were probably saying the same thing - who is this guy?  It was telling that Don had shared the "Dick Whitman" secret with Megan (think of the years he withheld that information from Betty) and engaged in erotic role play with her in the apartment - he wants to be happy (and he notes, in opining on the futility of white carpet, wants to make Megan happy).  

If it has taken Don until mid-1966 to find happiness, junior partner Peter Campbell appears to be at the other end of the suburban anomie train that led Don to 6th and Waverly and the arms of his 25 year old secretary.  Same train, same commute, same wife and daughter (even the same home layout that has Pete entering through the kitchen).  But whereas Don's sense of alienation stemmed from his belief that he did not belong, that he was somehow a fraud, Pete's frustration comes from lack of recognition for work well done - "there's no fruit to my labor," he whines to Trudy after a long day at the office.  To which ever cheerful (and quippy) Trudy reminds him "dissatisfaction is a symbol of ambition."  Of course, Pete's problem has never been a lack of ambition, but as opposed to the naked version of it he showed early on, now his desire for career advancement is tied directly to years of dues paying, to cultivating new clients, growing small accounts into larger ones and now, with Sterling Cooper Draper Pryce poised to rebound, to the future of the company.  

Pete's pushy manner in Season 1 led him to try and blackmail Don into promoting him, but now, Pete tries to make a rational argument for taking Roger's corner office.  Roger, sadly, is not even a shell of his former self, having brought in no business since the departure of Lucky Strike nearly a year before, he appears to be resting on a rather large stack of money that he uses to bribe his former full time secretary into coming back and sitting in front of his office and into paying off Harry Crane to switch offices with Pete so Roger will not have to.  In his personal life, Roger and Jane appear bored and uninterested in each other, though for what reasons we don't know, Jane has become a cipher who makes a random appearance and then sort of fades out, but Roger slips a not so subtle warning to Don when he notes that they (second wives) are great until they "start asking for things."   

The set piece for A Little Kiss is Don's surprise 40th birthday party, an event that the writers use (albeit a bit ham handedly, to me it felt like Mad Men meets Austin Powers) to show the swiftly changing culture, in the vibrant colors of psychedelia popping on Trudy's dress, the shortness of Megan's hemline and the casual use of marijuana on the apartment deck.  While youth mingle regardless of race or sexual orientation, the men of Mad Men belie their comfort with the counter culture by the amount to which they cling to the fashion of yesteryear - on the extreme from stodgy jacket and tie for Don and Roger, to Ken's middle ground, and toward Pete (in a jacket one can only hope ended up being burned) and Harry, who appears to most fully embrace the times (although his wife has not been seen since Season 3's "My Old Kentucky Home.").  What is most interesting about how this narrative will play out is the audience knows that the Summer of Love is just 12 short months away, that political assassinations and a chaotic Democratic National Convention are 2 years away, and a war that was distant and largely ignored will take center stage and split the country for years to come.  

In the balance, a few crumbs were tossed to viewers - Roger's glib comment that Joan's baby always needed attention suggests little Kevin is a chip off the old block, Abe and Peggy are still dating, and Lane may have died and gone to "chocolate bunny" heaven when he collected resumes of the black women who sat in (in) the lobby of SCDP in response to a gag ad the firm placed in the New York Times (the presence of his wife in New York appears to have made him more unhappy, not less). In the end, if Season 4 was largely about how women's roles were evolving in the 1960s, it appears quite clear that Season 5 will be about men and how they experience the change around them.  Roger, clinging to his role in the office, Don, striving for happiness and balance, Pete, trying to bridge that half-rung that stands between him and the other firm partners while transitioning to suburban life, and the others, grappling their way through what will be turbulent years (and horrible fashion).   

Hope Springs Eternal

In 1971, when Bob Short absconded to Texas with the second iteration of the Washington Senators, I was still in diapers and therefore oblivious to the idea that my hometown would be without a baseball team for the next 34 years.  Growing up in Washington, D.C. in the 1970s and 1980s was not an awful experience for a sports fan.  The Redskins were great, going to four Super Bowls (and winning three) between 1983 and 1992, the Bullets twice made the NBA Finals, winning the title in 1978 and losing their bid to repeat a year later and while the Capitals became notorious for their ability to lose playoff series in excruciating fashion, at least they were *making* the playoffs.  If Washingtonians desired a fix of the national pastime, the Baltimore Orioles were a quick hour's drive up the Baltimore-Washington Parkway, playing at Memorial Stadium and fielding competitive teams year in and year out, losing an epic World Series to the Pittsburgh Pirates in 1979 and defeating the Philadelphia Phillies for the title in 1983.  

Although the drumbeat for a third baseball franchise in Washington began as early as 1974, when the San Diego Padres were rumored to be relocating to D.C., and continued intermittently through the 1980s and 1990s, when others attempted to lobby Major League Baseball for an expansion franchise for the nation's capital, Washington laid dormant, with an aging multi-purpose stadium (beloved RFK) unsuited for the trend toward retro parks upgraded with luxury suite amenities even as new franchises sprung up in places like Miami, Denver and Phoenix.  When all hope for a team seemed lost, MLB decided to relocate the Montreal Expos, a once proud franchise that had groomed players like Randy Johnson, Larry Walker, Pedro Martinez, Vladimir Guerrero and others, before falling on hard times, unable to draw more than a few thousand fans to their aging home at Olympic Stadium.  Even then, Washington had to compete against other potential landing spots in places like Las Vegas and Portland.  As MLB shopped the franchise, they levied a final indignity on the Expos franchise, forcing them to play several "home" series in San Juan, Puerto Rico, further alienating the few diehard Canadians that still supported the team.  

Although MLB profited handsomely from the move (the league purchased the Expos for $120 million from Jeffrey Loria, who turned around and bought the Florida Marlins, and then sold the now Washington Nationals to the Lerner family for $450 million), the team itself was hardly ready for prime time.  None of that mattered the day the move was announced.  City leaders donned the iconic "Curly W" ball cap and announced the team's relocation, along with an agreement to build a state of the art stadium in downtown Washington.  The city got a team, MLB got paid and long suffering fans could once again look forward to spring for something other than the Cherry Blossoms.  

The months leading up to Opening Day 2005 were well .. weird.  The team itself had little in the way of a farm system, uniforms were sort of slapped together on the fly, and for a while, ticket sales and marketing were done out of trailers in the parking lot of RFK Stadium.  The team opened the season with nine road games to give groundskeepers and workers time to put the finishing touches on RFK, which receives some modest upgrades to make it more appealing for the fans (the new Nationals Park would not open until 2008). Of course, none of that mattered when Livan Hernandez took the hill on April 14th and threw the first pitch a Washington hurler had tossed in RFK since 1971. 

That first year, or at least the first half of that first year, was magical.  The team, made up of cast offs, has beens and never wases, seemed to always escape danger or win in unexpected fashion.  Unknown players like Chad Cordero and John Patterson played well above what their careers would ultimately be and halfway through the season, the Washington Nationals, a team that did not even exist a year before, were leading the NL East with a 50-31 record. Of course, baseball being what it is, the law of averages kicked in and the second half of the season was a funhouse mirror reflection of the first - the team's record was perfectly inverted - 31-50 - ending the season at precisely .500.  

Little did the more than 2.7 million fans who turned out to watch the team in that inaugural season know, but the midpoint of the 2005 season would be the high water mark for the franchise for years to come.  The bloom quickly fell off the Nationals' rose in 2006, as the team limped to a 71-91 record and settled into the basement of the NL East.  A year later, with a new manager but little talent, the Nats failed to have a starting pitcher win 10 games, journeyman Mike Bacsik was forever immortalized as the pitcher that gave up Barry Bonds's 756th home run and although the team improved modestly from 71 wins to 73, barely beating out the Marlins for 4th place in the division, they still finished 16 games behind division winner Philadelphia.

When Nationals Park opened in 2008, the team rang in its first game in grand style, beating the Atlanta Braves when third baseman Ryan Zimmerman crushed a home run in the bottom of the ninth.  The memory would have to last fans all year long, as the team lost more than 100 games and did not finish within earshot of any other team in the division.  Ownership was pilloried for the poor product on the field, for failing to spend money to lure free agents to Washington and the questionable moves of the team's General Manager, Jim Bowden.  The only bright spot after Zimmerman's walk off was on the last weekend of the season, as the Seattle Mariners won a couple of meaningless games against the Oakland A's, thereby guaranteeing the Nationals the first pick in the amateur draft.  That pick was used to select San Diego State pitching phenom Steven Strasburg, widely regarded as one of the best college prospects of the past 20 years. 

2009 would be no better, as the team duplicated its 59-103 record and suffered an embarrassing scandal involving its Dominican Republic operation, resulting in the termination of General Manager Jim Bowden and his Special Assistant, Jose Rijo.  The team did not perform much better,  firing manager Manny Acta in July when the team stood at a miserable 26-61 record and suffering the embarrassment of having its two biggest stars, Zimmerman and first baseman Adam Dunn, come out for a game in April with the word "Nationals" misspelled on their jerseys. Again, a lone bright spot in this season of despair was the first overall pick in the draft, a precocious, and prodigiously talented slugger from Nevada named Bryce Harper.  More importantly, at least in the short term, was the promotion of scouting director Mike Rizzo to the GM slot.  Rizzo and team President Stan Kasten poured enormous resources into bolstering the front office, hiring additional scouts and personnel to rebuild the farm system, sniff out potential trades and begin remodeling a franchise that was not only regressing on the field, but losing its tenuous grasp on the fan base.

Whatever good will the Nationals had engendered as a scrappy upstart thrust into an uncomfortable situation back in 2005 was long gone by the time the team celebrated the 5th anniversary of its relocation to Washington.  But baseball is a funny sport.  It requires (and rewards) fans and teams alike that take the long view.  Unlike football, which unfolds quickly and team dynamics and momentum are quickly apparent, baseball is largely sub rosa, often changing slowly and under the radar.  For the Nationals, the small changes it was making below the surface began to bear fruit during the 2010 season.  Rizzo's savvy staff plucked Matt Capps out of the free agent bargain bin, watched him have an All-Star first half of the season and then smartly flipped him to the Minnesota Twins for premier catching prospect Wilson Ramos, whose path to the big leagues was blocked by Joe Mauer.  An earlier trades the Nationals made, sending Ryan Langerhans to the Seattle Mariners for an aging prospect named Michael Morse, a classic "toolsy" player who had never reached his potential, also bore fruit as Morse started to steadily produce at the major league level.

In addition to these important moves, the hard work the Nationals brain trust did in prior drafts began to pay off.  Drew Storen, a well-regarded closer from Stanford, selected in the same draft as Strasburg, rocketed through the minor leagues and made his major league debut that summer.  Two other prospects, shortstop Ian Desmond and second baseman Danny Espinosa, were also making their way through the minor leagues, with the former making the major league roster in 2010 after receiving a September call-up the prior season and the latter getting his own late season call-up in 2010.  Other selections like Jordan Zimmermann, a hard throwing right hander who the Nationals selected in the second round of the 2008 draft out of remote University of Wisconsin-Stevens Point and Jesus Flores, a catcher plucked from the Mets in the Rule 5 draft, showed flashes of greatness before experiencing devastating injuries (Zimmermann had Tommy John surgery and missed the 2010 season, Flores suffered a nearly career ending shoulder injury in late 2008 and did not return to the big leagues until 2011). 

As the team restructured its major league line-up, the buzz surrounding Strasburg's inevitable promotion to the big leagues loomed in the background.  When that day finally came in early June, Strasburg did the one thing that rarely happens in sports - he exceeded the "hype."  Taking the mound against the weak sister Pittsburgh Pirates and before a sell-out crowd, Strasburg baffled hitters on his way to recording 14 strikeouts with a triple digit fastball and a curveball that harnessed speed and movement to move in ways that appeared to defy the laws of gravity.  While the team still struggled, Strasburg's emergence was the most promising development for a team that was languishing in the standings and home attendance.  Although Strasburg's season would be devastatingly cut short when he snapped his ulnar collateral ligament, resulting in Tommy John surgery, the team's 10 game improvement suggested that the team had, through drafts and trades, begun to turn the corner by forming a nucleus of everyday players and pitchers at almost every position. 

These positive indicators started to come together in 2011.  Even when manager Jim Riggleman inexplicably resigned in the midst of an 11 game winning streak, the team showed resilience.  When $126 million free agent signee Jayson Werth struggled at the plate and another free agent, Adam LaRoche, was lost to season ending shoulder surgery, others stepped up.  LaRoche's place was taken by Morse, who clubbed prodigious home runs, and younger players like Espinosa and Desmond picked up the slack left by Werth's weakness and the loss of Zimmerman to an abdominal injury.  Other young players, like uber-talented but erratic reliever Henry Rodriguez emerged and Storen and his All-Star set up man Tyler Clippard (who the Nationals had acquired from the New York Yankees several years before), solidified a bullpen that, in the span of just a few seasons, went from one of the worst in the history of baseball to one of the best in the league.  The team's hot second half, under the guidance of World Series winning manager Davey Johnson pushed their record to 80-81 (a game that was rained out was never played), the team's best record since landing in D.C. 

Which leads us to today, to the idea that "hope springs eternal" and that the happiest day in any baseball fan's life is the day that pitchers and catchers report for spring training.  Baseball's pastoral roots encourage the concept of renewal, that even in the darkest winter (two consecutive 100+ loss seasons) the promise of spring (Strasburg's return, Harper's future promotion, the promise of Espinosa, Zimmermann, Desmond, and Ramos) is right around the corner.  For the first time since the team came to Washington, the Nationals are considered a legitimate contender.  Rizzo's investment in better scouting and drafting stocked the team with the league's best farm system, which he deployed in the service of trading for All-Star pitcher Gio Gonzalez and ownership's commitment to spending locked up Zimmerman deep into his 30s and brought in competent starter Edwin Jackson.  With Jordan Zimmermann and Strasburg now both fully recovered from their Tommy John surgeries, the Nats staff is top notch and backed up by a well regarded bullpen, which added former All-Star Brad Lidge for a mere $1 million. 

In a larger sense, the Nationals are not only set up to contend for one of the now two wild card spots available in each league, but Rizzo's maneuvers have set up the team to compete for years to come. The Nationals spent prolifically for amateur talent in recent years, paying top dollar for players like Matt Purke, Anthony Rendon and Brian Goodwin in the hopes of creating a steady pipeline of pitchers and everyday players well into the 2010s.  At the major league level, the team is young and talented, with position players and quality pitchers locked up for the next several years while creating depth that affords the team flexibility to make trades into strength and the wealthiest owner in the game now willing to consider splashier free agent signings to get (or lock up) players that can help the team contend.   In this way, the Nationals are potentially on the cusp of the type of run experienced by the Atlanta Braves in the 1990s and the Philadelphia Phillies of the late-2000s, where both of those franchises rode young talent and strategic free agent signings into division dominance and deep runs into the playoffs that resulted in World Series victories.  

In the city itself, the Nationals' timing is also fortuitous.  While the Redskins remain the city's first love, the team itself is awful (a whole separate blogpost would need to be dedicated to the terrible free agent signings, trades and draft picks of the past 20 years), the Wizards nee' Bullets would be considered a laughingstock if the NBA did not also have the Los Angeles Clippers and the Capitals have tantalized a small but loyal fan base a couple of times only to fall short in the playoffs.  With Strasburg back in action, Harper on his way up, and a team that has more major league talent than it has at any point since its move from Montreal, there is legitimate industry buzz that the team might be a sleeper for the playoffs (and even the World Series!). A winning squad will launch a virtuous cycle of revenue, national media attention and fan support that will allow the team to retain younger players as they reach free agency, compete for marquee free agents and reinvest in the farm system through its deep and talented scouting department.  For long suffering fans like me, it does not get any better than this.  GO NATS!

Mitt's Math Problem

Politicians and commentators alike argue that one of the main reasons the GOP nomination is not only still up in the air, but may result in a contested convention, has to do with changes that were made to the way in which primary and caucus delegates are awarded. In the past, states routinely awarded delegates in a "winner take all" format that gave all delegates to the victor, whether the margin of victory was 1 vote or 1 million.  This year, many states are apportioning delegates based on the percentage of the vote a candidate wins (so long as they pass a threshold) and/or by congressional district, thereby ensuring that in most contests, more than one candidate is awarded delegates.  This change, pundits argue, has diluted Mitt Romney's victories, embellished Rick Santorum's support and encouraged Newt Gingrich to stay in the race in the hopes that a brokered convention results in, well, who knows.  

Like most pieces of conventional wisdom, this bit has some superficial appeal.  After all, instead of winning all of Ohio's 66 delegates or Michigan's 30 delegates, Romney split those states' delegates with Senator Santorum, who received 21 delegates in Ohio and 14 in Michigan.  Of course, the same is true for Romney in states he lost to Santorum, like Oklahoma, where Santorum netted 14 delegates to Romney's 13 even though Santorum beat Romney by more than 5 percent of the vote. The net result (depending on whose count you believe) is that while Romney has amassed a healthy lead in the delegate count, it will be difficult for him to reach the 1,144 delegates he needs to win the nomination.

So there you have it, right?  But for that pesky change in the way delegates are apportioned, Governor Romney would have sewed the nomination up long ago, and instead of draining resources to fight off Santorum and Gingrich, could start training his fire on President Obama.  There are at least two problems with this narrative.  First, the winner take all vs. apportionment trope fails to account for the fact that successful candidates can and do collect all (or almost all) delegates even in states where proportional allocation takes place.  For example, Mitt Romney won Massachusetts, a state with proportional distribution of delegates, but won all of them because of his huge win. Similarly, Newt Gingrich won South Carolina by a wide margin, and even though it awards delegates based on which candidate wins each congressional district, Gingrich still collected 23 of its 25 delegates.  

Second, and less reported, is the fact that proportional allocation is actually benefitting Romney, not hurting him.  I did a quick back of the envelope calculation of the states that have already voted and assumed that all of them were winner take all.  In that case, Romney's delegate lead over Santorum shrinks remarkably.  Under the current system, Romney has a more than, or near 2:1 lead in a sampling of counts: 495-252 (New York Times & Wall Street Journal), 496-236 (Real Clear Politics), and 471-218 (CBS News).  Because of this lead, his campaign has leaned heavily on the "math" argument that no other candidate is in a position to claim the nomination, something the mainstream media has largely internalized by consistently referring to Romney as the inevitable nominee.  Flip the numbers to winner take all, however, and that narrative would significantly change. Under that scenario, Romney's count goes up to 533, but Santorum's count nearly doubles, to 415, making the race, at least on paper, appear far closer.  

And if your campaign is, as Romney's appears to be, predicated on math, it is a far more persuasive argument to make when your lead is nearly two to one than it is the the gap is a mere 120 delegates.  For that, Romney should be thankful, but the other part of the media narrative suggesting that Romney's slog to the nomination has been stymied by these new rules is equally faulty.  Romney's weakness has been hidden and protected by an onslaught of Super PAC advertising on his behalf.  While Romney's campaign has spent money as quickly as it has collected it, the backstop of tens of millions in Restore our Future advertising has done the "blocking and tackling" that is opening the holes through which the Governor is attempting to run to daylight.  At critical junctures in the campaign, where Romney risked losing control entirely - between South Carolina and Florida, after Santorum's "sweep" of Colorado, Missouri and Minnesota and in Ohio on Super Tuesday - Super PAC advertising dollars simply overwhelmed the meager resources of Romney's competitors.  

While some in the media, and many Republicans who speak on the record, suggest that this long primary season will actually benefit the nominee once chosen, that too is a faulty premise.  The easy analogy is to the 2008 Democratic primary season, where Barack Obama and Hillary Clinton fought until the bitter end in June before Obama secured the delegates necessary to win the nomination.  Again, this analogy has some superficial appeal, but if you scratch an inch below the surface, the similarities quickly unravel.  First, Democratic enthusiasm, in the form of voter turnout, was off the charts in 2008.  This year?  Republican turnout is flat or down in most of the states that have voted thus far.  Second, Obama and Clinton were both viewed as serious candidates, "rock stars" of the party who were raising tens of millions of dollars and taken seriously as future commanders in chief.  This year?  Sure, Romney is probably "qualified" to be President, but if he is Hillary in this analogy, his opponents are not Obama, but rather, Tom Vilsack or Chris Dodd, fringe characters who have raised little money and were polling in the low single digits through much of the pre-Iowa contest.  Third, the idea that if Romney could beat these lightweights, he would morph into the competitive, appealing and moderate challenger that can give Obama a close race belies the fact that in his obsequiousness and phony pandering to the right wing elements of the party (Personhood Amendment, defunding Planned Parenthood, immigration, etc.) a switch back to the moderate center is impossible. 

Which brings me to the final critical piece in this puzzle and it is something that Senator Santorum pointed out and I happen to agree with.  While Governor Romney has been able to paper over his flip flops and minimize the damage of his myriad gaffes (the $10,000 bet, his fleet of Cadillacs, not caring about the poor, etc.) because his opponents are underfunded and disorganized, that will not be the case in the general election.  The President's re-election campaign is well funded, strategic and knows how to go for the jugular (even if it's done with a scalpel and not a chef's knife).  The idea that the modest amount of opposition push back his opponents have been able to generate will prepare Romney for the blitzkrieg of advertising, media and targeted strategies Obama will rain down on him is absurd and the extended primary season will do little to prepare him for it. 

Mitt's team may bemoan the extended primary season, but the simple fact is he is a weak candidate that the party is tepidly endorsing.  Were these contests winner take all, his weakness would be further exposed and without the overwhelming financial advantage his Super PAC affords him, he may not even be in the race anymore.

Mitt Pandering = Electoral Waterloo

President Nixon is generally credited with the observation that to win the Presidency, a candidate must lock down his base during the primary season and then tack to the center for the general election.  For whatever his ethical shortcomings, Nixon was a shrewd evaluator of the electorate and a hugely successful politician even though he nakedly abused his power and resigned in disgrace.  His axiom of moderating one's positions between the primaries and the general election is now taken as a political article of faith among the commentariat and with particular applicability this year, when the presumed Republican front-runner is showing an enormous amount of weakness among the most conservative elements of the party whose support he needs to win their nomination. 

It is unsurprising that Nixon would take such a cynical view of the American people.  His strategy assumed that our citizenry is ill-informed, easily malleable and would blithely ignore what candidates say to get elected and to a large degree he turned out to be right[1]. In recent times, George W. Bush campaigned as something called a "compassionate conservative" and then went on to preside over the most toxic combination of regulatory malfeasance, economic redistribution to the wealthy and war mongering in our nation's history.  Of course, had anyone looked past the catchy slogan they would have seen his lazy form of governing on stark display in Texas and that he had surrounded himself with a cabal of neo-cons with a major hate boner for Saddam Hussein, but hey, why expect the American people to actually learn about candidates when all we care about is whether we want to drink a beer with them? 

Indeed, it is hard to fault politicians for lying to the electorate.  For every voter who claims to want to be told the truth, we can point to a Walter Mondale, who had the temerity to say that he would raise taxes and got crushed by President Reagan, who, after he got re-elected …wait for it… promptly raised taxes[2].  Al Gore talked about putting the Social Security surplus in a much maligned "lock box" so that the trillions that had accumulated would be there for the baby boomers and was cruelly mocked for that idea.  Meanwhile, George W. Bush took a hammer to that piggy bank, gave huge tax cuts to the rich and accelerated borrowing to pay for 2 wars, an expansion of Medicare and even more tax cuts.  Cut to 2008, a Great Recession, an aging population and well, we've lived through the rest of that story. 

Obviously, our culture has changed significantly since Nixon first won the Presidency in 1968.  Had cable networks and the Internet existed at that time, one can only imagine the ridicule some of Nixon's more famous attempts at authenticity would have received - the famous photo with Elvis in the West Wing or walking the beach in his wing tips would have been met with scorn and derision.  Or it wouldn't.  The lens through which you view politics today is self-selecting - 40 years ago, there were newspapers with acknowledged slants either "left" or "right," but by and large, the consumption of news was filtered through august reporters and journalists like Walter Cronkite, Jules Witcover and others who, we know now, did a fair amount of self-editing of stories they deemed unworthy of the public's consumption (think JFK's womanizing). 

On the other hand, while the Internet can quickly make a photo or gaffe "go viral," on a more substantive level, it exists as a video and audio repository for a candidate's statements, which is why Mitt Romney is in a deep pile of doo doo if he ends up winning the Republican nomination.  Romney's problem is actually two-fold: First, in his zeal to win the nomination, he has taken policy positions that are diametrically opposed to his prior positions; and second, he’s running against a President for whom opinions of the electorate are largely set.

To his first problem, because Romney has been running for office for the better part of twenty years, a vast library of his flip flops from his Senate run in 1994, through his gubernatorial race in 2002, his first Presidential campaign in 2008 and today, exists, it's just that none of his Republican foes have had the money, organization or resources to effectively hit him on these points and amplify them into a broader narrative of his lack, as David Axelrod so aptly put it, a core.  That will not be a problem for President Obama's campaign, whose sophistication, deep pockets and advertising muscle will effectively paint Romney not only as a flip-flopper, but in his current iteration, someone who is supportive of "personhood" amendments, limiting access to birth control, and passing tax cuts that greatly benefit the rich. 

Obama’s ability to advertise and message will not just be damning at 30,000 feet, but rather, in the microtargeting his campaign will be able to do in places like Arizona, New Mexico and Nevada, where Romney’s rightward shift on immigration will not sell, in the suburban clusters of Northern Virginia and the Philadelphia suburbs where Mitt’s calls to defund Planned Parenthood and eliminate Title X will make him a pariah, in the retirement communities in Florida where embrace of Paul Ryan’s plan to end Medicare as we know it[3] will kill him with seniors and those nearing retirement, and in Michigan and Ohio, where four simple words “Let Detroit Go Bankrupt” will speak louder than the millions in commercials Romney’s campaign will run trying to explain why he was against the government bailout of GM and Chrysler.

And in this way, the vise grip around Romney will tighten.  Sure, Mitt will win states in the general that he lost in the primaries, like Alabama and Mississippi, but any Republican would win those states.  His Waterloo will occur in the swing states where his primary season strategy of moving right will redound to Obama’s benefit come the fall. The box Romney will be in offers no easy outs.  If he follows Nixon's tacking strategy, he will reinforce in the minds of suspicious conservative Republicans that he is not to be trusted and thus, may dampen turnout by those who are more willing to, as I pointed out a few weeks ago[4] and had amplified more recently by George Will, wait out this election, try to limit Obama in his second term and wait for 2016.  On the other hand, if Romney does not break with the conservative orthodoxy he has espoused thus far, he will turn off the independent voters he will desperately need to beat the President.  In short, because he failed to run authentically, he has now created the conditions for being foisted on his own petard.

Romney's second problem is that attacking the President is a strategy of diminishing returns.  The American people have had the last 3 plus years to make their judgments about him, both good and bad.  How many more votes are there to be mined by screaming about Obamacare, the auto bailout or Solyndra?  Even more troublesome for Romney is that the death of Bin Laden, the withdrawal from Iraq and the killing of most of the Al Qaeda leadership leaves him little room to criticize the President on foreign policy, except to sound like a jingoistic chicken hawk on issues like Iran or North Korea, places where Obama’s sobriety and thoughtfulness are most appreciated by most Americans.

Ultimately, Romney will be left with an increasingly difficult economic argument - that even though things are now better, they would have been EVEN BETTER if he had been President.  Proving this is impossible and strips away the core rationale for Romney's campaign - that he is an economic Mr. Fix-It.  No longer needed, but thanks for playing. 

And this is why tacking is no longer effective - there is simply too much access to information for a candidate to so cravenly lie about what they would (or would not) do once in office - a candidate's history is so easily available and the media, while no longer in the role of fact checker so much as chorus, will eventually get around to creating a narrative of who you are and what you are about that can be devastating, just ask Al Gore, a decent public servant who presciently predicted W would bankrupt us but was mocked because he wore some earth tone sweaters on the campaign trail.  So keep talking up those cheesy grits and trees that are just the right height, Mitt.  It's not like the whole world is watching or anything.

---

[1]   His 1972 blowout of George McGovern was the biggest electoral rout of the 20^th century.

[2]   For more on the mythology of Reagan, read my blog post, “The Myth of Saint Ronald” - http://scarylawyerguy.blogspot.com/2011/11/myth-of-saint-ronald.html

[3]   Sorry, PolitiFact, but Medicare, by definition, is government-run health care for seniors.  Ryan would turn it into a voucher program for insurance companies – that ends Medicare as we know it, no matter what you say. 

[4]   http://scarylawyerguy.blogspot.com/2012/02/right-wing-calculus-for-abandoning-mitt.html

Mediating the Israel/Palestine Divorce

I am a regular viewer of Up With Chris Hayes, a show whose signal achievement in six short months has been the acceptance, and indeed, encouragement, of long-form discussion on public policy.  On the March 11th 2012 episode, Mr. Hayes had a full two-hour discussion of the Israeli/Palestinian "conflict" (for lack of a better term) with panelists who articulated various points of view.  As things tend to do when the topic is "Israel" and "Palestine," things got heated both on the show and on the running dialogue that occurs at the Twitter hashtag (#uppers) that I, and others, post to during the program.  

Afterwards, I gave some thought to what really needs to be done to solve this thorny problem.  Having already put out my own "30 second" proposal for peace, (http://scarylawyerguy.blogspot.com/2011/10/30-second-solution-to-middle-east-peace.html) which the folks at the State Department haven't gotten around to considering, (ha ha), I dug a little deeper into my own experience and came to realize that this long-running drama bears a lot of similarity to something else I've experienced - divorce.  

In a bizarre way, the Israelis and Palestinians are the couple that has accumulated decades of resentment and hostility, albeit instead of issues like who didn't put the toilet seat down they are arguing over who has more blood on their hands, and can no longer see the forest for the trees.  Public pronouncements become long gripe sessions over who has done what wrong (and more often) and a veritable greek chorus of supporters on both sides wage a secondary media campaign to elevate their side while maligning the other.  Imagine going through an awful divorce and having all of your and your spouse's friends and family constantly chirping about that time you forgot little Johnny's birthday party or made a scene at Thanksgiving.  This type of tit for tat does little to address the core problem, but it succeeds in getting each side to dig their heels in that much deeper because their advocates are reinforcing their sense of victimization. 

In a divorce, you can only do this for so long before the realities of limited finances and established case law start bumping up against your desire for revenge or utter defeat of your soon-to-be ex.  In politics, or at least in Israeli/Palestinian politics, no such parameters exist because no third party has ever stepped in and said "stop the nonsense and get this issue resolved."  Part of what led me to write that initial blog post about a different kind of 2-state solution was my own experience in the region but also the experience of having gone through mediation during my divorce.  Good mediators are very effective at shutting down the finger pointing and carping over who has been wronged and getting to a settlement that, if successful, leaves each party a little unhappy.

Unhappy you say?  Typo?  Not hardly.  Good compromises, good solutions, good mediations require each side to give up some things they would prefer not to do because that sacrifice allows them to get to a solution.  Whether negotiators from Israel or Palestine will admit it or not, the general land parameters of a 2 state solution are out there (even if I happen to think the idea of Israel abutted on 2 sides by Palestine is unworkable, that's the route they seem to want to go in), but the hard decisions, on right of return, Jerusalem, and security elude an answer even, if reporting is to be believed, the Israelis have extended no fewer than 3 proposals, at Camp David (2000), Taba (2001) and the Olmert proposal (2008).  

So here is what I would suggest: call Bill Clinton, give him access to Camp David and tell the Israelis and Palestinians that they aren't allowed to leave until they sign an agreement and if they do, every country that supports BOTH sides will pull any and all funding or support they give to each.  On the other hand, if they do get to an agreement, those same countries will give immediate diplomatic recognition to BOTH countries fully and completely, (something that would require all Arab nations to sign on to this endeavor).  Make this your Madrid 1991 moment President Obama, think outside the box and get these two warring "spouses" to the mediation table where they can finally divorce and go on with their lives. 

Winners & Losers From the 2012 Republican Primaries

Although it does not look like the Republican primary season is going to end anytime soon, absent a black swan event that leads to a mythical "floor fight" in Tampa, Willard's Bataan Death March to the nomination will likely succeed.  So why not take a look at the winners and losers from the weakest Republican field in modern memory.  

WINNERS

Rick Santorum.  You went from being a guy whose name was synonymous with anal juices who lost his last statewide race by 18 points to being a legitimate threat to win the Republican nomination for President.  If VH-1 had a "Best Week Ever" spinoff called "Best Primary Performance Ever," you would win by a mile.  Although the Romney machine is likely to grind your bones into powder the longer this race continues, your star is on the rise in conservative circles and you've made the sweater vest (sort of) fashionable.  Your best case scenario is having a 1 in 2 chance of becoming the leader of the free world.  Your worst case scenario is a featured spot on FOX News or whatever other part of the right-wing noise machine you want to hang your hat on and earn serious money. 

Newton Leroy Gingrich.  Nine months ago, you were nearly drummed out of the race when reporters found out you and your third wife had a line of credit at Tiffany's that was 10 times larger than the median income of an ordinary American.  In response, you alit to Greece and yet, you're in the final four.  You delivered the biggest ass kicking of the primary season in South Carolina and you've probably lined your ample pockets by shoe horning in book signings and movie nights when no one was taking you seriously.  Your primary night speeches are epochs of self-aggrandizement and ego, you seem not to see the irony in lecturing others on morality and you came out in support of a colony on the Moon and yet, I repeat, you're still in the fucking race.  I give you the Charlie Sheen #winning award. 

Herman Cain.  Even if you believe, as Rachel Maddow argued persuasively, that Cain's entire campaign was a sophisticated art project, who the fuck had heard of Herman Cain before 9-9-9?  Exactly.  So what if he turned out to (allegedly) be a handsy boss who had numerous sexual harassment charges lodged against him, mocked the need to know anything about foreign policy and had that weird ad with the guy smoking the cigarette.  Herman Cain took chicken shit and turned it into Mario Batali-restaurant quality chicken salad.  It tells you everything you need to know about the weakness of Mitt Romney, the radicalization of the Republican Party and the influence pop culture has on our politics that this guy became a superstar.  

National Press Corps.  The traveling campaign press corps has, as Jon Stewart observed, become the kid in school who says "you gonna take that shit?" as a means to gin up a fight.  The primary season has been an uninterrupted orgy of debates, twitter feeds and candidate boomlets that provides a never ending hit to the cerebral cortex of the cable chat-a-thon and Internet meme machine that passes for journalism these days.  They generate a lot of heat, far less light.  

President Obama.  The President has quietly used the primary season as a test run for his general election run, firing up the volunteer network, phone banks and fundraising that are still the bread and butter of Presidential politics and a successful get out the vote effort.  While Republicans are elbowing each other on the way to the far right wing of their party, the President's approval ratings have steadily risen as has the economy.  With a simple message of "Bin Laden is dead and GM is alive," his sidekick, Vice President Biden, has neatly summed up the President's re-election message - he's kept us safe from foreign threats and made courageous decisions at home to revive our economy.  He's gone from a slight underdog to a betting favorite to be re-elected. 

LOSERS

Mitt Romney. Congratulations, Mitt.  You burned through tens of millions of dollars to trash the shit out of your opponents to win a nomination that everyone agrees is worthless because Obama is going to treat you like bird cage liner.  In the meantime, you twisted yourself into so many policy contradictions that no one takes you, a guy who created an enormous amount of wealth for himself through business acumen and cold blooded decision making, seriously.  You have re-written the book on shameless pandering and your campaign pretends that there is not something called “the Internet” to expose your every flip flop.  You’ve been running for President for 6 years and have gotten worse, not better, at that job.  Please leave.

Ron Paul. You’ve raised the model of the crazy uncle who gets drunk at Thanksgiving and starts spouting off about weird conspiracy theories to an art form.  No longer must we live in a world where the term “fiat money” is relegated to the flat earth society dead enders who have flocked to your candidacy like the tie-dyed masses once did to Jerry Garcia.  The brief boomlet you experienced a few months ago only served to allow oppo researchers to dump a ton of information on your borderline racist newsletters from back in the day and your vaunted grass roots campaign could not draw the (roughly) 2,300 people it would have taken to win the one caucus where you had a half-way decent chance of prevailing (Maine).  Your strident pacifism makes you a pariah in your own party and your kooky economic and social theories make you a laughingstock everywhere else.  Enjoy your (government funded) pension when you retire from Congress at the end of 2012.

Rick Perry.  You were the hero of the most virulent strain of Obama-hating nihilists when you flirted with secessionism until you know, people actually started asking you questions about your policies and politics.  At first you defended yourself, and then you succumbed to the inevitable rite of passage where you attempt to moderate your harsher tones because the mean kids in the media think it’s beneath a Presidential candidate to talk about treating our Federal Reserve Chairman “ugly.” Also, probably unwise to run for the position of leader of the free world when you are incapable of maintaining a list of three cabinet agencies in your head at any given time, even if those agencies are ones you wanted to eliminate.

Tim Pawlenty. Who? Exactly.

Michele Bachmann. You ignored the Vietnam axiom to “quit and declare victory,” which, had you done after winning the Iowa straw poll, probably would have landed you a nice paying job on FOX News.  You mastered the art of (sometimes) sounding entirely rational at sound bite length (5 seconds) before careening entirely off the tracks. On the plus side, your husband seems very light in his loafers.

Jon Huntsman.  Almost forgot about you, but then again, so did the Republican party. Probably not a good sign when your own campaign staff misspells your name on the press credentials for your announcement tour. In fact, your best day was the day before you entered the race and the press was salivating at the idea of a (supposedly) moderate, articulate, Mandarin speaking former governor who had also served as Ambassador to several key countries giving the President a tough time in the general election.  You have no chance of ever getting elected President but you might have made a good Secretary of State in Obama's second term had you not fucked him over so blatantly to run against him.  Nice going, Jo(h)n. 

Laws Of General Applicability, Or Why The Church Was All Wet on Contraception

For the past month, debate has raged about insurance coverage for birth control, whether organizations that have a religious objection to covering birth control must nevertheless include coverage in their medical plans and now, more generally, whether employers that have religious or moral objections to birth control can refuse to provide such coverage.  The discourse has grown ugly, with mud being slung at women who have the temerity to defend the need for birth control coverage, pious politicians wrapping themselves deeply in the cloak of the First Amendment and the media, by and large, sitting back with its bag of popcorn, watching the food fight while generating days of cable news and commentary coverage on both sides of the issue.  

And all of this sturm und drang would be well and good had this question not been resolved more than 20 years ago by the Supreme Court.  In 1990, the Court granted certiorari on a case captioned Employment Division v. Smith.  In that case, the Court considered the question of whether the State of Oregon could deny unemployment benefits to the defendant, a Native American who utilized the hallucinogenic peyote as a religious, sacramental rite and was fired from his job because of his ingestion of the substance, which was illegal under state and federal law.  

Smith and his co-defendant challenged the determination of their ineligibility for unemployment, arguing that their use of peyote was protected under the Free Exercise Clause of the First Amendment.  Although they were successful in the lower courts, Smith and his co-complainant lost in the Supreme Court in a decision written by the noted left wing radical and judicial activist, Antonin Scalia. 

Yes, that Justice Scalia.  The same one who issued a concurrence in a case in 2005 that is likely to form the foundation for upholding "Obamacare."  (See, http://scarylawyerguy.blogspot.com/2011/12/my-what-expansive-commerce-clause-you.html).  In a 6-3 decision, the Court ruled in Oregon's favor and Justice Scalia's core rationale was straight forward - that a neutral, generally applicable regulatory law that compelled activity forbidden by one's religion does not violate the Free Exercise Clause.  Justice Scalia cited examples that included the prohibition on polygamy (U.S. v. Reynolds), the requirement that Amish employers collect and pay Social Security taxes even though the Amish faith rejects participation in government programs (U.S. v. Lee), and "Sunday closing laws" that affected those who celebrate the Sabbath on days other than Sunday as laws that were all upheld against similar Free Exercise challenges. 

As Justice Scalia noted, if the Court permitted people to challenge generally applicable laws based on religious belief, the "tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief." In other words, pacifists cannot challenge the appropriation of tax dollars for war purposes any more than Mormons can assert they are free to engage in multiple marriages.  Only when the free exercise of religion is tied to another constitutionally protected right will the Court invalidate that law.  So, where "a licensing system for religious and charitable solicitations under which the administrator had discretion to deny a license to any cause he deemed nonreligious" was challenged, it was struck down because it ran afoul of both the Free Exercise Clause and the right to a free press (Murdock v. Pennsylvania).

So what does all of this have to do with the recent firestorm around requiring religious employers (primarily those affiliated with the Catholic Church) to cover birth control as part of their health plans?  A few things, actually.  First, and most importantly, the idea that this requirement is unconstitutional is complete and utter bullshit.  No matter how much Republicans fulminate on the House or Senate floor about this unprecedented affront to religion, which itself ignored the fact that more than 20 states had similar requirements, 8 of which did not include the so-called "religious exemption" the original, pre-Obama "compromise" in their regulations, the simple fact is that had a religious organization challenged the Obama Administration in court, that group would have lost even if the Administration had not chosen to include the religious exemption at all because the requirement that birth control be covered in insurance plans was applied neutrally and did not otherwise impact other protected constitutional rights as per Smith.  

Need further proof?  None other than the 11th Circuit Court of Appeals, in its decision striking down the individual mandate in Florida v. HHS found that "Congress has legislated expansively and constitutionally in the fields of insurance and health care" citing laws such as HIPAA (patient privacy protection and insurance portability), COBRA (allowing former employees to maintain coverage through their former employers at a premium), ERISA, and Medicare.  In upholding other portions of the Affordable Care Act, the Court noted that "It is clear that Congress has enacted comprehensive legislation regarding health insurance and health care. The Act is another such example."  So even a conservative court that has struck down the individual mandate has also acknowledged that Congress has the authority to pass laws that include regulatory authority that impacts medical insurance coverage.  

And why does this all matter?  Because our country is not a theocracy that allows one religious sect to elevate its interests over others simply because they have a loud microphone and a lot of adherents.  The slippery slope we would fall down if anytime a religious organization objected to a law or regulation because it offended its religious tenets would lead to absurd results where Rastafarians would be free to smoke marijuana, Quakers could withhold their tax dollars to fight wars and Mormons could wed multiple partners.  While Republicans are furiously re-framing this issue as another example of government intrusion into the lives of ordinary, God-fearing Americans, this is a tempest in a teapot over something that was on the books in the majority of states in our nation before the proposed federal regulation and even so, it was well within the government's power to require this coverage.  That the President was willing to provide the accommodation he did was unnecessary, but yet another example of his attempt to meet his foes halfway, something, they of course, will never accept.

The Big Questions For Mad Men Season 5

We are now just three weeks (!) away from the Season 5 premiere of Mad Men.  In prior blogposts, I reviewed Season 4 (http://scarylawyerguy.blogspot.com/2011/10/tomorrowland.html) and suggested episodes from Seasons 1-4 that should be watched to get ready for Season 5 (http://scarylawyerguy.blogspot.com/2012/01/12-essential-mad-men-episodes-and-4.html).  Today, I am going to discuss the big questions that surround the show's 5th season:

When Are We?  I'm also an unabashed, though recovering, LOST fanboy, so this question seemed particularly apt.  We all know that Matt Weiner likes to do some minor time travel between seasons.  In this way, plot points can be inferred without having to see things happen.  For example, Season 3 found the nascent Sterling, Cooper, Draper Pryce Advertising Agency operating out of a suite at The Pierre hotel.  When Season 4 started, the agency was ensconced in the Time Warner Building without our having seen any of the transition.  Similarly, Season 2 ended with Betty finding out she was pregnant with Season 3 picking up about 7 months or so later, as she was in the late stages of her pregnancy.  

The minor passages in time also allow for subtle changes to the scenery the show inhabits.  The societal evolution, interior design and fashion all reflect the country's passage from the show's beginning, as the Eisenhower era drew to a close, to where it left us in Season 4, with the Rolling Stones and Beatles, Vietnam, the beginnings of urban decay and the budding growth of the youth movement.  A jump of just a few months from the Season 4 ending in October 1965 is unlikely to show much change.  A more meaningful transition deep into 1966 or early 1967 would be a watershed. 

The Second Mrs. Draper.  The whirlwind courtship of Megan by Don resulted in their engagement at the end of Season 4. Although rushed, the Don and Megan romance had a certain ambiguity.  On the one hand, it is easy to see Megan as a sort of Betty 2.0, someone raised with good social graces and a liberal arts education but with better mommy skills and a greater capacity to feed Don's ego while never challenging his stature.  Her presence in his life dovetails with Don's attempts to get more in touch with himself and reduce his drinking; however, when Don was challenged to fully evaluate himself by Dr. Faye, he opted for the safer route Megan offered of tacit acknowledgement that his best efforts at self-improvement aside, he may fail.  On the other hand, if Don truly does want to be a better person (and become one), he claims Megan is the woman to help him do it.  Ok, who are we kidding, Mad Men would not be Mad Men with a chaste, monogamous Don Draper. 

The Other Mrs. Draper.  No, not Anna.  She's dead.  But Betty, who, when we last saw her, was making goo goo eyes at Don just before he dropped the engagement bomb on her.  As fans of Mad Men know, Matt Weiner was a writer on The Sopranos, who spent most of its 5th season slowly angling Tony and Carmen back together after they separated.  Might history repeat itself?  It's an intriguing possibility, as Betty's role became much more peripheral during the 4th season, where she was often reduced to a tantruming harpy lashing out at whoever angered her at a particular moment.  If not, we will see what direction her up and down relationship with Henry Francis heads in.  

Baby Sterling.  When we last saw Joan, she was in the early stages of a pregnancy resulting from a one off encounter with Roger while trying to convince her husband Greg, currently on a tour of duty in Vietnam, that the child is his.  Quite the soap opera.  It is clear Joan wants this baby, it's less clear how Roger will react once she delivers.  One of the things I enjoyed about the latter part of Season 3 and Season 4 generally is the connection between Roger and Joan.  They complement each other perfectly - she is the nurse maid and mother figure for his terminal arrested development and he is the financial bulwark offering the life of home and family she so desperately craves.  These two belong together.

The Future of SCDP. This is actually three questions in one.  First, what will become of the ad agency?  At the end of Season 4, the firm was teetering on he edge of insolvency after losing American Tobacco and North American Aviation.  The partners had to take out personal loans to make payroll and a round of layoffs thinned the company's ranks.  Peggy swooped in and closed a new account in the season finale, and Don pitched both Heinz and the American Cancer Society, but came up empty handed.  In what shape will we find the agency when Season 5 starts? 

Second, will Bert Cooper still be with the agency?  In the fallout that resulted from the loss of American Tobacco, Coop bade farewell to the office, but we could not tell whether he was serious or not.  Although Bert's role was significantly reduced in Season 4, his presence would be missed if he was not padding around the office barefoot when Season 5 begins.

Third, did Lane Pryce give up his "chocolate bunny" for the fog of London?  Lane's father traveled from England to New York to communicate, in no uncertain terms, that Lane had to get his marital home in order.  All of the changes that could come from an ascendent SCDP (new characters, or perhaps the return of some old friends?) offer additional plot points and story lines that are yet to be told.

I Know Pronounce You Man & Peggy.  In Season 4, Peggy rejected straight laced Mark for rabble rousing (and we can assume, Jewish?) socialist-hippie Abe.  As I discussed more fully in my season review, Peggy's internal struggle between wanting to be a wife and not finding anything as interesting as what happens in the office was on full display.  Will Peggy, at the ripe old age of 26, finally find her husband or will she train her sights on career advancement at the expense of a husband.  

Like all of you, I cannot wait for the new season.  What are some of the big questions you want answered starting March 25th? 

Twitter: @scarylawyerguy