Left Shocked by Court Developments

RUSH: Grab sound bite two before we get to sound bites 23 and 24. This is last night. We'll do a little timeline here involving Jeff Toobin. Last night on Charlie Rose, CNN legal analyst Jeffrey Toobin -- who, by the way, for those of you old enough to remember, is the son of former NBC News reporter Marlene Sanders. He wrote a big book after the O.J. trial, and he's been at CNN for quite a while. And Charlie Rose said, Jeffrey Toobin, "How big a deal is this Obamacare case at the Supreme Court?"

TOOBIN: This is the biggest case involving the power of the federal government since the New Deal. And if this law is struck down, the federal government is gonna look very different the next day. And lots of plans and lots existing programs are in jeopardy. So, I mean, as big as you think this case is, it's actually bigger.

RUSH: Last night, Jeffrey Toobin accurately describes the size and scope of Obamacare. Today, it's Politico "breaking news," but we've got sound bites from CNN. Toobin, quote: "This law looks like it's going to be struck down. I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong... [I]f I had to bet today, Wolf, I would bet that this court is going to strike down the individual mandate." Tom Goldstein, attorney and cofounder, center-left SCOTUS blog: "The individual mandate is in trouble, significant trouble." Los Angeles Times' Noam Levey: "Tuesday's arguments may signal trouble for the mandate, widely seen as a cornerstone of the law's program for achieving universal health care coverage for the first time in the nation's history."

Politico breaking news: "The conservative justices and potential swing vote Anthony Kennedy raised concerns Tuesday that forcing Americans to buy health insurance would open the door to other intrusive requirements from the federal government..." What was so hard to predict about this? This goes right to my point. What's so hard to predict that this thing is unconstitutional? It is unconstitutional. And a Civics 101 student in junior high, after having the Constitution explained to them, would know this. And here come these legal experts: "There's no way that justices are gonna strike this down! There ain't no way," and then after one day of oral arguments, these same experts (probably just as qualified as the economic experts at the Associated Press) say: My God, these justices, they don't like the individual mandate! We're in big trouble.

Here's Jeff Toobin. He's on CNN this afternoon. The coanchor, Ashleigh Banfield, said, "Tell me everything, Jeff. What happened today?"

TOOBIN: This was a train wreck for the Obama administration. This law looks like it's gonna be struck down. Justice Kennedy, the swing vote, was enormously skeptical. Every comment Kennedy made -- uh, at least that I heard -- was skeptical of the law. The wild card in this argument was, uh, Chief Justice Roberts. Chief Justice Roberts actually asked a lot of hard questions. Roberts seemed like a much more likely vote to uphold the law than Kennedy was.

RUSH: See, he had to find something positive after saying today "was a train wreck for the Obama administration." And again he said, "I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong... this court is going to strike down the individual mandate." Wolf Blitzer then weighed in...

BLITZER: This is really huge! Uh, uh, uh, what you're saying -- and you're an authority on the US Supreme Court. You've written the major book on the current Supreme Court -- uh, The Nine. So you fully understand. But just because a justice is asking tough questions, let's say of the government lawyer -- Mr. Verrilli in this case -- that doesn't necessarily mean that that justice is gonna come down on the other side. Isn't that right?

TOOBIN: It's true, but it's not very true, Wolf. Yes, it is true that sometimes we're surprised by the justices' votes after hearing their comments at oral argument. Most of the time -- and it's not all the time, but most of the time -- the questions that the justices ask at oral argument are very good predictors of how they're gonna vote.

RUSH: So the left is in panic! Wolf Blitzer is in panic, looking for a life preserver from Jeff Toobin, who didn't give him one. And they're shocked! This is what's funny. They are shocked. We aren't. Well, we might be because we're surprised that the Constitution is actually being adhered to here, or appears to be.

RUSH: Ladies and gentlemen, I want you to temper your expectations on this. This is just oral argument, and we're nowhere near the vote on this thing and we really don't know how this is gonna go. All we have right now is palpable fear on the left. ... This fascinates me, all of this shock and surprise on the left. The media, court watchers, leftist legal beagles. They are in a state of shock, a legitimate state of shock, folks. They really believed this was gonna sail through. And we have to always keep in mind how relatively young most of these people are, and thus how they've been educated. They didn't get Constitution 101 like I did. They have been taught that the Constitution's a flawed document that needs to be changed whenever it can be.

And this represents the greatest opportunity to do that that they have all ever had. The very fact that Obamacare became law against the objection of a majority of the American people -- and the way it became law, basically under cover of darkness with every legislative trick under the sun being tried -- didn't matter. It didn't matter that it might be illegal. It didn't matter that it might be unconstitutional, because that's precisely what this was about: Making it constitutional by virtue of changing the Constitution and using this law to do it. Then all of a sudden the oral arguments come up today, and the four conservative justices and the so-called swing vote, Anthony Kennedy, all have problems with the mandate.

And they're literally shocked, A, that everybody doesn't have the same worldview of this that they do; and, B, that there is any objection to it at all. Remember for these people the government is the end. It's the be-all, end-all. Government is the final authority. Government is where everything important happens and every important decision happens for everybody. But it didn't go that way today in the case of oral arguments and so now they're scratching their heads and they're genuinely surprised. Jeffrey Toobin is genuinely surprised. The CNN legal guy predicted this would sail through, and they probably were looking at this court's actions on campaign finance law, McCain-Feingold. "Well, if that sailed through, this will."

So where we are with this is the left now blogging incessantly their fears and their hopes at the same time. There is a left-wing blog called SCOTUSblog, Supreme Court of the United States. And this is a very relevant post on that blog: "Towards the end of the argument the most important question was Justice Kennedy’s. After pressing the government with great questions, Kennedy raised the possibility that the plaintiffs [i.e., the government] were right that the mandate was a unique effort to force people into commerce to subsidize health insurance, but the insurance market may be unique enough to justify that unusual treatment."

So they take all of Kennedy's questioning here, which indicated to Toobin: This thing's dead, this thing is a "train wreck." One question by Kennedy at the end is now given them hope that he might see this as so unique that he would vote for the mandate. A reporter at the Huffing and Puffington Post is saying that it's, quote, "almost entirely unequivocal that a majority of the court thinks Obamacare is unconstitutional." They are scared to death. Lyle Denniston used to be the court reporter for the Baltimore Sun. He posts this:

"If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him," and therefore give us a huge winning majority. "But if [Kennedy] does not, the mandate is gone. That is where Tuesday’s argument wound up -- with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior." A lot of these blogs are being critical of the solicitor general, the government's lawyer, Mr. "Virility."

One blog is saying: "I can't believe how poorly prepared this guy was on the mandate! I can't believe they sent him up there and he had no idea how to answer these very obvious questions on the mandate." So apparently the government's lawyer didn't do a good job. The left can't believe he wasn't prepared any better. Well, how do you defend the indefensible? What is this guy gonna say? When that burial analogy comes up, he's dead. When the broccoli analogy comes up, he's dead. If you're up arguing before the Supreme Court that the government has the right to require us to buy health insurance, then why not burial insurance? Why not broccoli?

This guy had no answer for that other than a bunch of gobbledygook. And all of his supporters watching this know what a poor job he did, and so now they're worried, and they've just go on a little carrot. Anthony Kennedy gave 'em a little carrot dangling there at the far end of the mine. It's right down there next to the canary. He might find a way. This situation is so unique and we're talking about health care, so maybe this could be okay. That's what they're desperately hoping. But their instincts tell them that it was a "train wreck" today. And I must tell you, I still find it... I don't know, I guess I shouldn't, 'cause I know how they were educated (which was poorly). I'm still struck by the fact that they're surprised, that they're shocked.

This could not have been the first day in their lives that they've heard these objections to the mandate. But what if it is? What if they live in such a close-knit circle and they hang around only with each other? What if it actually was the first time they've heard these objections? That can't be! These objections, these arguments, against the mandate have been made throughout the media everywhere. So I guess they just locked in on the idea that it doesn't have a prayer of losing. But like so much of liberalism, and like so many liberals, they live in their cloistered world of the faculty lounge. They sit around and they talk theory all day. They don't understand dynamism. Everything is static to them.

And then they get confronted with reality one day and it's like a cold shower or a slap upside the head and they are bewildered. And it still amazes me that people who are reputed to be so intelligent and so smart can be so surprised when they hear arguments -- logical arguments -- that make it obvious this is unconstitutional. But, again, I fall back on something we must never forget, and that is: This is not about health care and it's not about the mandate per se. It's about changing the Constitution. Not piecemeal with this one. This is huge. If you have it codified as the law of the land that the government can make you buy something? Then, my friends, the Constitution has finally been defeated -- and that's what they can taste. In fact, it's in their grasp, but it's a little slippery and they can't hold onto it.

RUSH: Wolf Blitzer was in hysterics moment ago on CNN. He had the congressional correspondent Kate Bolduan on. They had this exchange. We already heard Toobin. Blitzer is beside himself with what happened today on oral arguments.

BLITZER: Kate, you were inside the courtroom! The solicitor general, uh, Donald Verrilli, uh, was he sort of stumbling? Did he not have the right answers? Uh, did he seem unprepared and overly nervous in responding to the conservative justices' tough questioning?

BOLDUAN: It's hard to get into his mind. But I can say, if you compare it to yesterday, he did appear to stumble more; almost seem apologetic for some of the answers that he was giving.

RUSH: Yeah. Yeah. So now it's time to dump on "Virility" here, the government lawyer. Blitzer: "[W]as he sort of stumbling? Did he not have the right answers? Did he seen unprepared...?" Wolf, you go defend this law up there and see how you do. There isn't anybody who can! Obama's not even trying to defend it. Pelosi's only defense is, "What do you mean 'unconstitutional'? Don't be silly!" Nobody can defend this. Nobody. It isn't constitutional.

You said - “but I’ll vote for the Republican candidate in November regardless - because the alternative is our nation’s destruction.”

I opine that it makes no difference. Romney is a ‘clone’ for Obama, he just has an R at his name.

IF Romney is the candidate, we truly have no choice. This NOT a case of sour grapes, rather a reasoned assessment of Romenys past policies and current words. He LIKES Obamacare.

Either way, we are in deep doo-doo. TPTB do not desire for ObamaCare to go away, it is the very real enslaving enablement that they have worked so hard for.

A vote for Romeny IS a vote FOR ObamaCare.

Do you think the fact that there was no “severability” written into the bill will play into any Justice’s decision? I guess, as a neophyte watcher of the Justices....I’m thinking they know if they strike down the mandate, then the lack of a severability clause really strikes down the whole mess, right? So, this mandate decision is REALLY the deciding factor...maybe?

Compromise for the sake of compromise is not a good in and of itself. Two bad guys debating letting everyone live or killing everyone, “compromise” of killing half the people isn’t moral, it’s still murder.
Everything of the bill must be tossed out, if not by the Supreme Court then by the next Congress. If this edict stands, the Republic is lost.

Mitt Romney. Another Romneybot argument.

I'm no Romneybot - I have made that abundantly clear, both in this thread and in many others. Within the present field, I support Gingrich. Realistically speaking, I don't think that Newt can win, but I support him nonetheless and will certainly vote for him EVEN IF he's withdrawn from the race by then.

Despite my wishes, if Romney wins the nomination it will be a Romney-Obama race. Possibly the worst choice EVER in our history - but nevertheless a choice. Whatever one's opinion of Romney on social matters, I do believe that he'll restore some sanity to our budgeting process, and I am quite certain that he won't be making behind-the-scenes self-out deals with the Russkies. Nor will he be bowing to the King of Saudi Arabia or anyone else. To maintain that there is no difference between Obama and Romney is quite clearly wrong - and you know it. Believe me, I do understand partisanship, but let's not carry this thing too far. Yes, Romney is the worst of the Republican candidates (IMHO), but even the worst Republican is better than Obama - and its not even close.

BTW, for those who won't support a Republican candidate who is not of your choosing, think about Obama appointing another 1, 2 or 3 justices (and, especially, replacing Thomas, Alito or Scalia). Think about the hundreds of District and Appeals Court judges he will appoint in the next 4 years. If Obama gets to do that, regardless of how this case turns out, our republic is dead. This election is THAT important - and sometimes the lesser of 2 evils is the best choice, because if it isn't chosen then the greater evil wins. Obama is an extremely radical opponent of limited government and of American exceptionalism. He will accelerate the tearing down of this country in a 2nd term - so that term must not come about. I am NOT a Romney supporter by any stretch of the imagination, and I am PLENTY pissed off at what the Republican establishment has done over the past few decades, but I'll vote for the Republican candidate in November regardless - because the alternative is our nation's destruction.

If that happens, it will through goading of the masses hasten the sort of major correction that we need per Tytler's cycle:

from bondage to spiritual faith; from spiritual faith to great courage; from courage to liberty; from liberty to abundance; from abundance to selfishness; from selfishness to complacency; from complacency to apathy; from apathy to dependency; from dependency back again to bondage.

If we elect a lukewarm GOPer, all we do is slow the death and delay the inevitable.

I agree. Sotomeyer has a nice smile and looks like she could be a charmer, plus she “looks smart.” Kagan looks as ugly and dumb as a sack of potatoes, plus they won’t respect her because she didn’t recuse herself, and that makes them all look bad. I bet they don’t even say hello to her in the elevator.

I was at a dinner once where Scalia told us the same thing. The question was, “What was the most persuasive oral argument you’ve ever heard?”. Scalia’s answer, “I’ve never heard a persuasive oral argument.”

Later on, I was a law clerk for an appellate judge. I can certainly say that I’ve never seen a judge change his mind after oral arguments. More than once, I had already drafted the judge’s opinion.

Good Lord, I can’t believe all the negative doom-and-gloom posts on here!! I realize the U.S. Supreme Court justices are very unpredictable and that it’s always wise to exercise caution when anticipating a verdict, but you’d swear we are a slam dunk to lose this case based on the incessant hand-wringing and apocalyptic pessimism here! On the contrary, I’ve seen MANY encouraging questions and comments by all five conservative members of the court that would leave me to believe they’ve already pretty much decided to at least strike down the individual mandate and then it’s just a matter of how much of the rest of the law will be permitted to stand.

And one key thing that’s gotten lost in all this... Let’s not forget that Obama tried to PUBLICLY HUMILIATE the members of the Supreme Court during his State of the Union speech two years ago by arrogantly ridiculing their ruling on the Citizens United Case. Rest assure, THEY haven’t forgotten about it and you know what the famous expression says about payback!

Honestly, I don’t know how some of you can even stand to roll out of bed each day with the overly negative outlook you have on everything!

StAnDeliver wrote:

<<
It’s over. 5-4 find individual mandate unconstitional.

It was unmistakably contained in Alito’s line of questioning on burial insurance. Alito’s metaphor is easily understood as signaling his disgust at the idea of penultimately giving the Commerce Clause vis divina over every other word in the Constitution, particularly those rather important Articles regarding separation of powers. It’s a short step to render drawing (or re-drawing) that bright line.

Even the choice of wording was pointed. In fact, Alito’s questioning was so composed, the majority opinion is already written in his head, and probably Nino’s too. I wouldn’t be a bit surprised if Roberts hands the majority opinion to Alito so Roberts and Kennedy can disagree in part if necessary.
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I agree.

I also thought the other major key moment was when Justice Kennedy stated: “And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.” This does NOT sound to me like a ringing endorsement by Kennedy for the mandate being Constitutional.

DustyMoment wrote:
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Certainly, the majority of Americans hope that the SCOTUS will overturn the law. After that, there is no telling how Congress and the administration will react. IMO, Reed and the Dems in the Senate will try to ram it through and pass it again just to prove that they can.
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Harry Reid and the Senate Democrats have absolutely no chance of ramming through a similar health care bill without a veto-proof majority in the Senate and with a Republican-controlled House of Representatives.

Ancesthntr wrote:
<<
BTW, for those who won’t support a Republican candidate who is not of your choosing, think about Obama appointing another 1, 2 or 3 justices (and, especially, replacing Thomas, Alito or Scalia). Think about the hundreds of District and Appeals Court judges he will appoint in the next 4 years. If Obama gets to do that, regardless of how this case turns out, our republic is dead. This election is THAT important - and sometimes the lesser of 2 evils is the best choice, because if it isn’t chosen then the greater evil wins. Obama is an extremely radical opponent of limited government and of American exceptionalism. He will accelerate the tearing down of this country in a 2nd term - so that term must not come about. I am NOT a Romney supporter by any stretch of the imagination, and I am PLENTY pissed off at what the Republican establishment has done over the past few decades, but I’ll vote for the Republican candidate in November regardless - because the alternative is our nation’s destruction.
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AMEN! I could not have stated this any better!

Hostage wrote:
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It’s disturbing that a SCOTUS Justice is so powerful and it is uncomfortable to think how he must view his power. I wonder if enjoys the power, if he enjoys being the deciding justice on this.
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Yep... The fact that our great republic teeters on the brink and its future now literally comes down to a “yay” or “nay” vote by one judge in a black robe is disturbingly mind-boggling.

Did you miss the part where I said "IMO, Reed and the Dems in the Senate will try to ram it through and pass it again just to prove that they can. Secondly, the Dems still own the Senate with a simple majority. I'm not sure that they necessarily need a veto-proof majority, although there is even money that they wouldn't get all of the same Dems to vote for it again. But, the House is definitely out of reach.

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