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.

DustyMoment wrote:
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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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Whether they try or not, the Senate Dems have absolutely no chance of succeeding. Like you said, even if they could ram it through the Senate, the House will block it. So what would this accomplish? It would be a wasted exercise and I’d think they’d be considered a laughing stock for trying to ram through something that’s already been deemed unconstitutional.

Correct. For 2 years, the Dems had the enviable position of having the House, Senate & White House, and this bill is what they did with it. It took the better part of a year—half the time they had.

They’re not in that position now, and we need to do everything we can to make sure that they don’t get into that position or anything near it (!) again anytime soon.

It’s important to vote for whoever the Republican nominee is. Obama must be replaced.

People whining about Romney? They sound like a man being chased by a bear who is too picky to choose a tree to climb up, because after all, none of them are ABSOLUTELY PERFECT. Who wins in that situation???

I may sound like a simpleton and crude but I just don’t like all the attempted displays of showcasing one’s intelligence.

I am currently taking the online constitution course offered by Hillsdale college. I’m learning a lot about the founders intent among other things. The language and logic they applied, while eloquent and intellectually superior to ours was for their time meant to be quite simple. The way they saw the role of government was to do 3 things...1. Provide a national defense. 2. Regulate commerce only insofar as to allow the third thing which was to ensure everyone the means to participate in commerce unobstructed by others. In other words, enumerated powers and everything else left to the states by way of individuals. Simple.

All the justice system and the legislative branch does now is complicate things and argue over what the definition of “is” is.

All this bloviating over words is annoying. And I don’t understand why the Supremes need until June to make a ruling. So they can sit around and impress each other and themselves with their own arguments all day long? I mean really. 4 of them are already in the bag for Obamacare, no surprise there. And all of them probably mostly had their minds made up before arguments were even over. Just get on with it already and either put the nail in our coffin or let us fix this sh!t.

So what would this accomplish?

Symbolism over substance. The Congress is NOT about doing what's right for America, anymore, it's about playing partisan politics.

Recall that, when Bush tried to get the original stimulus bill passed in Congress right at the end of his presidency, the House rejected it. To make whatever point they thought they were making, the Senate passed their version of the $700 Billion stimulus bill, then turned around and kicked in $145 Billion in bribes to the House to get the House to pass it, even though the taxpayers didn't want it. That was the bill that bailed out Wall Street.

It's all about symbolism over substance!

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.

Don't put words in my mouth. Hairy Reed and the Senate Dems will try to pass another version of ObamaCare just to prove that they can. Symbolism over substance. That doesn't mean that the bill will end back up on zero's desk because, as we both know, the House won't go along, this time.

What the Senate does doesn't necessarily mean that the House will agree - CERTAINLY not with a Republican-controlled House, no matter how many RINOs there are!!

If the supreme court upholds this mess we may as well shut it down and burn the constitution! There will no longer even be room for a pretense of upholding the constitution. I said years ago that it is disgusting to see two major party candidates compete for the presidency by each trying to outdo the other in promising to enact programs that violate the constitution and then the winner swears to uphold the same constitution he has promised over and over to violate in order to win the election. Of course they never admit that they are promising to violate the constitution but anyone with an honest eighth grade education can read the document and figure it out.

I still believe the founders were some of the most brilliant people of all time and possessed an understanding of human nature that is almost unknown today. For anyone, supreme court justices included, to pretend that the founders endured all that they went through to create this country and this constitution and then threw in a couple of catch all phrases which amount to, “Oh, what the hey, just do whatever suits you”, is monumental insanity.

I have never had oral argument to an appellate court, but I have done many appeals and made constitutional arguments to the trial court.
You guys speak the truth about using questions to predict outcomes.
As a long time Supreme Court watcher, I want to make this note as well.
The justices on the Supreme court are in a unique position for very obvious reasons, and some of that uniqueness explains why it is not particularly useful to compare questioning by other appellate courts to draw parallels with the Supreme Court.
For instance, SCOTUS does not have to lay out a record to protect their ruling from reversal from a higher court.
The “questions” in oral argument at SCOTUS serve multiple purposes.
You have justices like Scalia and Breyer who wear their emotions and thoughts right on their sleeves. Of course there is Thomas who has his mind made up before the arguments based on the Constitution (God bless him) and the briefs he has reviewed.
Then there is the unique blend of Kennedy and Roberts. I have no proof of this, so I admittedly am speculating here.
Kennedy and Scalia have a strange relationship to say the least. Kennedy is not wowed by Scalia’s arguments and analysis after all these years together on the bench. He knows what Scalia thinks before he opens his mouth. And he is not going to be persuaded by him.
Roberts on the other hand came in knowing full well what kind of court he was dealing with.
He is under no delusions that the 4 lefties are what they are. They won't change. So he has to work the diplomatic angle with Kennedy. My understanding is that Kennedy very much admires and respects Roberts. If the Chief were to come in with both barrels going after the government in Scalia like fashion, Kennedy would likely tune him out.
On the other hand, if Roberts appears “open minded, then Kennedy will listen more carefully to what the chief has to say during oral arguments, and more importantly at lunch one day after oral arguments.
Justices firmly rooted in their judicial philosophy are not worth lobbying. And that leaves Kennedy and his title of “swing voter”.
I believe that Roberts is using his perceived swing vote status in this case to keep Kennedy on the reservation. This diplomatic effort by Roberts is what sets him apart from the beloved late Chief Justice Rehnquist. The late Chief did not give a hoot about lobbying for votes. Scalia tried, but he could often not get a foot in the door.
I say all this to conclude that Roberts is a vote against bozocare, and his questions were designed to show Kennedy that he could be trusted. He and the other conservatives also used their questioning to show that the government's position is truly indefensible.
I feel much better about our chances at SCOTUS on this case then I did a week ago. That is for sure.
The big question is what kind of corruption, arm twisting, blackmail, extortion, etc. will be going on behind the scenes. I have no doubt either Kagan or Sotomayor will leak the vote to the white house. If I were the Chief I would likely vote with the four liberals in conference. That way misinformation gets to the white house. Then I would switch the day before it is released, and join the new 5-4 majority, leaving the former majority opinion as the dissent. Just a thought.

At some point it becomes a matter of interpretation but in my view the vast majority of federal action violates the constitution. I also don’t believe in unlimited amendment power. If the states approved an amendment saying that all babies with type AB negative blood must be aborted would that be constitutional just because the amendment passed? Not in my view. If the supreme court approves the Obamanation now being considered then there is really no point in having a constitution or a supreme court because a positive reading basically means anything goes, there are no limits. We have come close to that point already, before this matter had even come up for review.

It is plain to see that we have supreme court judges now who have ZERO intention of abiding by the document they swore to uphold, in some cases they don’t seem to be capable of even understanding the matter.

“If Roberts is incapable of controlling his court... he should resign. I have NO faith in any of those black robes... except Clarence Thomas. I not only respect him, I think that he has the most brilliant mind of any of the other Justices... as a matter of fact... I think that he should be Chief Justice.”
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Speaking as a milk white po’ Southern boy, descended from confederate veterans on both sides, raised up ten miles from the site of the first secession meeting and baptized in a mill pond by a raging Southern Baptist nutcase of a minister, I agree one hundred percent on everything you said. Of course you realize that is only the opinion of a typical racist who voted for McCain in the vain hope that he would not be quite as bad as what we wound up with.

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