In Solicitor General Donald B. Verrilli Jr.’s closing arguments before the Supreme Court in defense of Obama-care last week, The Scrapbook couldn’t help but notice a rather desperate gambit. He twice defended the health care law’s constitutionality by arguing it will help secure the “blessings of liberty,” as if the phrase stated in the Constitution’s preamble is a catchall that trumps the limits on federal power of the Constitution proper.
Talk about a tell. Blogging at the Volokh Conspiracy, George Mason University law professor David Bern-stein summed it up:
If anything, I think a typical reaction of Federalist Society types [i.e., judicial conservatives] is that reliance on the preamble [is] the last refuge of those who don’t have a serious constitutional argument to make; “you mean you’re not an originalist or a textualist and you want us to engage in ‘living constitutionalism’ with regard to all sorts of very specific and substantive constitutional provisions, but then you want us to take the preamble seriously?”
This grasping at straws was just the capstone to what even liberal observers admitted was a week of self-immolation for Verrilli in response to conservative justices’ basic questions about limits on federal power. It’s not like Verrilli should have been blindsided by conservative concerns that Obamacare’s health insurance mandate exceeded constitutional constraints. If he had read the opposing briefs and lower court decisions, absolutely nothing the justices asked him should have been surprising.
However, he wasn’t the only one caught flatfooted by a critical court. Recall that when Nancy Pelosi was asked about the constitutionality of Obamacare back in 2009, she responded as if she were being asked about a sighting of Bigfoot: “Are you serious? Are you serious?” The week before the case, the New York Times’s Linda Greenhouse actually griped that the media were failing “to let readers in on the fact that one side’s argument is so manifestly weak that it doesn’t deserve to win.” Whatever the outcome of the case, no one serious (and by that we mean deeper thinkers than Greenhouse and Pelosi) believes that now.
Having already expressed complete disdain for the briefs against the mandate, Slate legal analyst Dahlia Lithwick wrote a column following Verrilli’s catastrophic debut—and by “wrote a column” we mean had a public breakdown—contending that people who disagree with her particular brand of constitutional Rorschach analysis think freedom is a “dark, dark place” and want to turn the clock back to 1804.
Also last week Senator Richard Blumenthal (D-Conn.) held a press conference essentially trying to bully the Court, warning of “grave damage” to its reputation if the Obama-care health insurance mandate is declared unconstitutional. “The Court commands no armies, it has no money; it depends for its power on its credibility,” said Blumenthal.
We probably weren’t the only ones to hear echoes of Stalin’s famous gibe: “The pope! How many divisions has he got?” (And speaking of armies and credibility, this is the same Senator Blumenthal who repeatedly and falsely claimed while running for office to have served in Vietnam.)
The prize for unhinged emotionalism, however, has to go to Atlantic writer and 60 Minutes legal analyst Andrew Cohen, who wrote, “The arguments in the Care Act cases may be funny to Justice Antonin Scalia, the bully that he is, but they aren’t funny to the single father who will avoid bankruptcy because of the law.” Note well, wisecracking justices: No comic relief during those tedious hours of oral argument or you will be found in contempt by Cohen.
Until the Court rules on the mandate, it’s Anthony Kennedy’s world, and we’re just living in it. But we can safely say that no matter what happens, it will be near impossible to ignore or dismiss the arguments against the mandate from now on. Not completely impossible, though. Liberals can still follow the lead of the New York Times’s Gail Collins, who reacted to last week’s arguments as follows: “I have my hands over my ears. Not listening.”
Collins thus is the very model of the modern liberal: living in an ideological bubble, deaf to all other arguments, and proud of it.
God and Man at Vanderbilt, cont.
When we last checked in on Vanderbilt University, the administration was defending its “all comers” policy for leadership in religious student organizations. In the name of compliance with its nondiscrimination policy, the university decreed that religious groups must not bar students from eligibility for leadership positions based on, among other factors, their religious beliefs. Five religious student groups were placed on probation for failing to adopt this in practice, while other faith groups around campus, including Vanderbilt Catholic, openly protested the policy.
Unfortunately for campus Catholics and Vanderbilt community members of all faiths, the leadership of Vandy Catholic has decided not to reregister as a student organization for the upcoming fall semester. “The discriminatory nondiscrimination policy of Vanderbilt University has forced our hand,” said Father John Sims Baker, the university’s Catholic chaplain, in a statement posted on the group’s website. A letter signed by Vandy Catholic’s five student leaders explains the decision further:
After much reflection, discussion, and prayer, we have decided that Vanderbilt+Catholic cannot in good conscience affirm that we comply with this policy. While organizational skills and leadership abilities are important qualifications for leaders of Vanderbilt+Catholic, the primary qualification for leadership is Catholic faith and practice. We are a faith-based organization. A Catholic student organization led by someone who neither professes the Catholic faith nor strives to live it out would not be able to serve its members as an authentically Catholic organization. We cannot sign the affirmation form because to do so would be to lie to the university and to ourselves about who we are as an organization.
While this policy may change our status as a registered student organization, it will not change our mission. We will continue to serve the Vanderbilt community as a welcoming and faithful Catholic campus ministry, proposing Jesus Christ in all that we do.
“We regret, but respect, their decision,” university spokeswoman Beth Fortune emailed the Tennessean. “We believe, though, that the vast majority of our more than 400 registered student organizations easily will comply with the policy.”
Of course, Vandy Catholic will no longer be among those 400 student organizations, depriving Catholics and even interested non-Catholics among Vanderbilt’s undergraduates easy access to a vibrant student group. Baker has said that the group will reorganize off-campus, with the blessing of Nashville’s bishop, but the fact that Vandy Catholic found its continued affiliation with the university untenable speaks volumes about the values of the Vanderbilt administration.
Is it desirable for the university to continue defending a policy that makes little practical sense and is, intentionally or not, hostile to religious students who wish to organize themselves according to the tenets of their faith? Is it in the university’s interest to portray itself to prospective students as intolerant of peaceful expressions of faith and of organizations that seek to foster such expressions?
If the Vanderbilt administration truly regrets the loss of the group, it’s not too late to undo the new policy and reinstate freedom of association.
Don’t Let the Door Hit You . . .
Current TV, a.k.a. the Al Gore cable channel that no one watches, released a rather unsurprising statement this past Friday afternoon. You don’t need a Yale Ph.D. in Comparative Literature to read the bitterness between the lines of this press release:
We created Current to give voice to those Americans who refuse to rely on corporate-controlled media and are seeking an authentic progressive outlet. We are more committed to those goals today than ever before. Current was also founded on the values of respect, openness, collegiality, and loyalty to our viewers. Unfortunately these values are no longer reflected in our relationship with Keith Olbermann and we have ended it.
According to the New York Times account, “Olbermann will not be given an opportunity to sign off.”
Ouch. In case you were wondering, Current TV has announced that it has already found a successor to Olbermann, who presumably does embody the “values of respect, openness, collegiality, and loyalty to our viewers”—Eliot “Client No. 9” Spitzer.
Earl Scruggs, 1924-2012
Jazz has been called America’s classical music, but country music—especially the bluegrass variety—is equally indigenous, having emerged from the mists of the Scotch-Irish enclaves in the Appalachian Mountains. This is not a debate about jazz versus country (The Scrapbook likes them both) but another way to say that, when Earl Scruggs died last week at 88, America lost one of its greatest native artists.
To say that Earl Scruggs was the best banjo player who ever lived is a little like saying that Charles Dickens was a talented storyteller. His three-fingered “Scruggs style” of picking revolutionized technique, and every player since Earl Scruggs arrived on the music scene 60-plus years ago is under his influence. The Scruggs-style banjo is played with picks on the thumb, middle, and index fingers, and the strings are picked in sequence at lightning speed while the melody is interspersed among the rolls. It’s a complicated, rhythmic, highly syncopated style, and you don’t even have to be a fan of country music to be hypno-tized by the sight and sound of Earl Scruggs playing “Foggy Mountain Breakdown” and “Salty Dog Blues” on YouTube.
Earl Scruggs was from North Carolina, and like many of the great bluegrass musicians of the last century, got his start playing with Bill Monroe, the father of bluegrass. But it was not until the late 1940s, when he joined guitarist Lester Flatt to form the Foggy Mountain Boys, that he started gaining renown outside the concert hall and AM radio circuits of the South. Connoisseurs of pop culture will know the Foggy Mountain Boys’ theme song to The Beverly Hillbillies (1962)—“Come and listen to my story ’bout a man named Jed”—but students of folk history remember as well their catchy tune about Martha White Flour (“Goodness gracious, good and light, Martha White”), the sponsor of their Nashville radio and television shows.
By all accounts, Earl Scruggs was a good-natured, eminently approachable man whose absolute mastery of his instrument had no effect on his natural modesty. He performed with a wide variety of musicians, almost until his death, and his banjo playing was never anything other than superlative, exuberant, transcendent—and quintessentially American.