The President gave an excellent speech last night and did some things right that he should have done months ago. Until further evidence, I'm still of the view that the future of healthcare reform is not dependent on the detail of the President's plan but on the big issues that he finally addressed tonight.
He linked healthcare reform to the role of government. Moderate voters are worried about what they perceive to be the rapidly expanding role of government. The President addressed that issue head-on tonight. Moreover, he explained why providing healthcare for all Americans is not only consistent with fundamental American values, but it is who we are as Americans. Both of those moves were necessary to re-shaping the debate and should have been the way he framed the debate from the beginning. These moves also infused the President's case with the necessary emotion and passion that was lacking in his last major healthcare address.

The President also attempted to more effectively portray his approach as the more moderate approach of those out there. He repeatedly noted how his plan borrows ideas from both conservatives and liberals. He offered a limited public option and opened the door to medical malpractice reform. He also noted that his plan rejected extreme positions from both Republicans and Democrats. But make no mistake, the President has picked his side and he is going with his party. The Republicans are on notice that he is willing to go at it without them.

Finally, the President started to articulate the case why Americans should trust him to solve this problem. Median voters will be moved to the President's side not because of the detail of his presentation, but because the President has given them reason to believe that he understands their concerns and they can trust him to handle this issue.

The question is whether this is too little too late. The shine on the Obama presidency has nearly worn off. Republicans are no longer afraid to oppose him and conservative Democrats are trying to figure out where they stand. The calendar does not favor reform. But I'm not ready to bet against Obama, yet.

The Sotomayor Confirmation

I tried -- I really, really tried -- to watch the Senate "deliberations" over the Sotomayor nomination.

I really did.

But I could not take it anymore.

First off, who are these people, and who are they talking to? If I hear that Supreme Court justices are appointed for life one more time, and how important their rulings are, I will scream. They could not possibly be talking to one another. Is it C-SPAN viewers? All three of them?

Worse yet, does anybody follow what they are saying, and believe any of it? To some, Sotomayor is a terrific judge, like no other, well qualified, well-rounded experience. To others, she is a judicial activist, an affirmative action baby (this is implied, of course), not fit to serve on our highest court (after some of our more recent nominations, you'd think this argument was no longer availing). Surely they are not talking to the dreaded "independents" of election lore, the types who wait until the last moment, and the last argument, to make up their minds. So what is it? Have these people nothing better to do?

So I finally gave up. Closed my browser and tended to more fruitful things, like cleaning my office.

Call me naive, but this "debate" makes me shudder about the future of our politics.

Gotta love "deliberative" democracy.

The Birthers Come to Court . . . then what?

Was President Obama born in Hawaii, or wasn't he? And if he was, why can't he produce an original birth certificate?

I do not know where President Obama was born. Nor do I care.

But that is not the real question posed by those who challenge President Obama's birth status.


Assume for the purposes of this post that the "Birthers" are right and President Obama was not born in Hawaii as he claims. This would mean that he is not a "natural born citizen," and thus ineligible for his current office as required under Article II ("No person except a natural born citizen . . . shall be eligible to the office of President").

Would a federal court accept such a challenge to the president's status? No, really: would the U.S. Supreme Court remove a sitting President on the basis of a challenge to his citizenship?

Let me ask a different question: what if a recently elected President and Vice-President were from the same state? Under the Twelfth Amendment, they cannot both be elected. Assuming two candidates were in fact elected, would a court remove a newly elected Vice-President from office due to his residency status?

I seriously doubt it.

At the end of the day, you have to love the political question doctrine.

What Does Obama's Sagging Poll Numbers Mean

The current slippage in the polls is turbulence or more likely a shot across the bow. Bush I and Carter had higher poll numbers at this stage than Obama and we know how they ended up. It is clearly not time to panic but seatbelts should be securely fastened.



The polls are more immediately significant because they are providing the Republicans with both the moxie and more importantly a message for taking on the President. If you're a Democrat would you rather have the Republicans talking about the deficit and the President's "experiment" with our healthcare system or would you rather that they drone on and on about Sotomayor's "wise Latina" comment. Would you rather the media focus on Palin's next step or about the public's growing lack of confidence in the Administration's plans for the economy? Where's Rush Limbaugh?

Further, moderate Democrats are now more emboldened to take on the Democratic leadership as well as the administration. If you're a House Democrat in a conservative district you can't count on the President to save you when the polls show that independents are at best split on his policies and even conservative Democrats are starting to abandon him.

The slipping polls are a tax on the President and his administration. He may have to bargain more with the conservatives in his own party. He has to use the bully pulpit more and use up more of his personal capital. He is being forced in a very public way to take ownership of his policies.He may have to trim the ambition of his agenda.

I continue to believe that the President will ultimately be judged on the success or failure of his economic policies. Given that he has been in office for less than six months, he should be given a better chance to prove himself. But this a negative data point and a warning that should be given at least some attention.

Thoughts on BIYHWB (Being In Your Home While Black)

The year is 1963, in St. Augustine, Florida, days after the September 15th church bombing in Birmingham, Alabama that killed four innocent girls. Intending to challenge the Klan's views, four black men attend a Klan rally. They don't get very far. While in the parking lot, deciding what to do, a car comes behind them. A man steps out, shotgun in hand, and apprehends them. The man proceeds to march them off to the rally, where they are beaten with fists, chains and various assortments of clubs. The wounds send the men to the hospital.

Ask me how this story relates to the recent arrest of Distinguished Harvard Professor Henry Louis Gates while inside his home.


I'll tell you.

Go back to the Klan rally. Sheriff's deputies finally arrived at the scene, yet rather than see a beating, they saw a "fight between Negroes and Klansmen." The four black men were prosecuted by local authorities, as were four Klansmen. The charges against the Klansmen were dropped in due time. The jury convicted the leader of the four black men, Robert Hayling, of criminal assault. Yet, in the absence of injuries to the Klansmen, and the many wounds on Mr. Hayling, the judge limited his punishment to a mere $100 fine.

Now, try to make sense of the Gates arrest.

A neighbor calls 911 and reports a break-in by two black males with backpacks in the Gates home. Once the police arrive at the scene, Gates is already inside his home. According to the police account, the officer at the scene asks Professor Gates to step outside, yet he refuses. Professor Gates produces identification to show that he in fact lives in the home and is the person he claims to be. According to the arresting officer, Professor Gates turned belligerent and began yelling. He was subsequently arrested.

Professor Gates disputes this account, of course.

Whichever side you believe, this story is a chilling reminder of the challenges posed by race in this country.

And I must wonder: can you even begin to wrap your mind around the fact that a distinguished Harvard professor who happens to be black was arrested in his own home for talking back to the police?

Are you kidding me?

This would be unbelievable if it weren't such a commonplace aspect of the lived experiences of persons of color. Or as Randall Kennedy said after the incident came to light, "[t]his is really, truly remarkable. But it would be wrong to say that this is sort of completely out of left field. The facts are so striking here. It is part of a pattern that is well-known. It will resonate with lots of black people, especially black men, who have experienced something similar."

This is what our post-racial America is supposed to look like?

I wonder if our Oracles of Delphi are paying attention, and if so, what their reactions would be.

Empathy, Racism and Our Highest Court

The Sotomayor nomination has taught me two things. The first is that the American public might in fact be dumb and dumber. The second is that Chief Justice Roberts might well be a racist.


The first insight came to me soon after the nomination became public, and the "wise latina" comment gained currency. Her comment was this: she "hope[d] that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life." If I understand her correctly, these words must mean that judicial experiences affect the way one understands legal issues and arrives at legal conclusions.

If I am right about that, then I wonder: is that it? To say that the depth of one's experiences enrich one's approach to judging should not be controversial. This is true for any judge, whether Thurgood Marshall or Clarence Thomas, Sandra Day O'Connor or Earl Warren.

Does anybody seriously dispute that?

Yet a who's who of conservative punditry assailed her as a racist.

Is anybody out there stupid enough to believe that she is?

The second insight flows directly from the first. Recall here President Obama's stated intentions to appoint judges with "empathy" for the downtrodden. To the aforementioned critics, this is code for appointing activist judges.

To this charge, you can either laugh or cry.

This is actually an easy one. Consider poor, downtrodden Frank Ricci, the firefighter who studied for hours on end, spent a good chunk of money, aced his test, yet was denied a promotion after the city of New Haven threw out the test because of its racial impact.

The Supreme Court sided with Mr. Ricci, in a 5-4 decision delivered by Justice Kennedy and signed by the four remaining conservative justices.

To understand Ricci, it might help to read President Obama's words. Here is what he said:

You know, Justice Roberts said he saw himself just as an umpire. But the issues that come before the court are not sport. They're life and death. And we need somebody who's got the heart to recogni-- the empathy to recognize what it's like to be a young, teenaged mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges.

On this argument, it appears that we also need somebody who's got the empathy to recognize what it is like to be a white firefighter in a world where the rules are stacked against you. Or something like that.

In fact, to read the Court's race jurisprudence post-City of Richmond v. Croson is to see a Court empathetic to the travails of white people, innocent victims trampled at the hands of a racist elite. It is hard to read it any other way.

I get it: it is empathy when applied to rulings we disagree with, but strict constructionism and "fidelity to law" when we agree.

Is anyone stupid enough to believe that?

This brings me to the Chief Justice and his record while on the Court. "In every major case since he became the nation’s seventeenth Chief Justice," wrote Jeffrey Toobin, "Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff."
To this list, we can add that Roberts has also demonstrated deep antipathy towards the interest of persons of color, on issues as far ranging as voluntary racial integration plans, voting rights, or hiring and promotion.

Which leads me to no other conclusion: if Judge Sotomayor is a racist for believing in the value of judicial diversity, what does his track record make Chief Justice Roberts?

Maloney Uses N-word, So What!

Politico's Glenn Thrush is reporting that House Representative Carolyn Maloney used the N-word in relating a complaint voiced to her about Kirsten Gillibrand, the Democratic Senator also from NY. Maloney, apparently against the advice of the national democratic leadership, is challenging Gillibrand in the Democratic primary. In relating her story, Maloney quoted the complainant who used the word "nigger" instead of saying "the N-word." I say so what?


This is certainly a political mistake on her part both to use the word and not to appear to give deference and respect by using n-word as a substitute. And Representative Maloney has predictably apologized.

But, if I were a potential constituent and voting in the Democratic primary, I would not allow what can be legitimately characterized as a lapse in judgment to affect my vote. Two reasons immediately come to mind. First, there is clearly a difference between someone calling a person a "nigger" and someone using the n-word in a way that is not meant to denigrate African Americans. We black people are sufficiently intellectually sophisticated to protest the former and let pass the latter. Second, of the many ills that plague communities of color, we should spend as little time as possible on this issue.