I agree with this 100%. That's sort of where the "politics as sport" stuff comes from with me. The fact Romney is going to be the GOP nominee and is campaigning on a platform of repealing Obamacare which he invented himself is laughable. Just like the left that hated all the wars and lack of regulation when the Republicans were in power and did nothing to change it when they won big a few years back. It's just filled with extremists and hypocrites.

Supreme Court May Be Most Conservative in Modern History - NYTimes.com

FWIW, the Court observers whose opinion I respect the most seem to have no idea how the ACA case will come out.

I think this is the thing htat is missing from American politics - something like a proportional representation system. It gives an appropriately sized voice to groups like the Green Party, the Tea Party, the LIbertarians, whoever else. And it provides more "competition" among political parties. For a country which believes in the free market, we have a political monopoly system. Who thinks both of these parties as they exist now would still be in power if it was easy for the American people to replace them? We would have a stronger, more diverse set of parties that better reflect people instead of two parties which don't really reflect anyone at all.

That's one of the key points of the Senate. The House is/was the popularly elected side, with representation based off population, the Senate keeps every state on equal footing.

Of course, they fucked the whole idea all up when they went to direct election of Senators and greatly expanded federal powers, but hey.

The problem is that no party tries to start at the grassroots level. Everyone tries to go for the big prize off the bat and it doesn't work. That said, we've gone one of the longest spans in our history without a strong 3rd party candidate (last being Perot in 92).

I agree, Warhammer, but the system is also a winner takes all system, and there's never going to be a particularly viable 3rd option, never mind a 4th, 5th or 10th option.

I think an impactful 3rd party candidate is coming this year. I don't think they will be included in the debates (weird that the committee that decides this is made up of Dems and Repubs) but I predict 5%+. I will entertain friendly wagers with people on this board who think I am out of my mind.

I agree with Warhammer that the focus should be on local elections with state elections secondary and national elections on the back burner but I do think there could be a debate with a 3rd or 4th voice that would show what a sham the two parties we have now are. (And for anyone who says what about the 5th or 6th I want to see if you are consistant in the college playoff threads with this line of thinking) Look at the amount of votes Perot got and I wouldn't even call his platform all that solid. Like I said in my previous post its insane that we let the Republicans and Democrats decide whether there should be other voices in the debates for the President of the country.

Just from a practical sense, who else would make the decision?

As for a third party, it isn't going to happen. It would take an enormous amount of time and money to build a party from the grassroots and before it managed any size one of the two major parties would co-opt it's agenda. The GOP has enough libertarian ideas to keep a libertarian party from growing.

A third party has little chance though because in order to distinguish itself from the genero-parties it has to take on very strong stances of one sort or another. And in a winner-takes-all election system, not enough people are going to be willing to back such an extreme change in our president, or for the most part our legislators. This is why proportional representation works - plenty of people would be willing to give that 5% stake to a new party, they're just not willing to hand over 100% to a newcomer, especially one with very different views.

Its easy to say that - but it 'can' happen, people have quoted England as an example of a multiple party system - this is true, but it ignores the fact that it wasn't always that way.

The Lib-Dem's in the UK were founded in 1988 as a merger between the Liberal Party (founded 1859) and Social Democrats (founded 1981) ... its taken a while but they're now in a position of power, although it can easily be argued that because of how they've handled it (ie. bending over and letting the Conservatives roger them at whim) they won't be in a similar position again for quite a while ;)

In the US if two strong groups merged or co-operated with another group in a similar way I could see a similar force emerging over time, although unfortunately the two groups most likely to that I could think of would make a horribly negative effect on policy (them being the libertarians combined with the christian pressure groups).

5%+. Bookmark this post and come back in November.

5% or more from the previous general election?

What would a merger of those two groups offer people that they couldn't get from the GOP? If they did manage to develop a popular platform the GOP would take over enough of their ideas to make them largely indistinguishable. At that point do you vote for the purity and no power or enough purity and half or more of the power?

That's what happened to Perot's movement. The popular parts got co-opted by the two parties and all that was left was a paranoid guy with a lot of charts.

The guy could draw a mean chart though. One heck of a mean chart.

I'm hard pressed to think of two groups (outside of diametrically opposed ones obviously) that would have less in common to work with as a unified force.

A significant number of, let's say religious/social conservatives, are also extremely strong "law & order" folks, pretty much the anti-thesis of the libertarians. And vice versa for that matter.

Not a coalition I can see happening under virtually any circumstance really, each holds the other in pretty considerable contempt when you get right down to it (and you'd have to get down to it, rather than squint to avoid the differences as happens at times now under the broader GOP banner).

And 20% of the vote.

Yeah I was thinking the same thing when I saw that post. Those factions of the party may agree on economics (such as cutting out a lot of the federal welfare state) but even then one wants to spend money on social causes while the other doesn't want to spend money on anything. And they certainly don't see eye to eye on just about everything else.

5% or more in the November 2012 Presidential Election

But isn't what Marc described essentially a large portion of the Republican party today? Libertarians & Social Conservatives?

To me, the most logical 3rd party would be made up of the libertarian wing of the Republican party with the more fiscally conscious Democrats. I think those 2 factions tend to meet in the middle more since they both tend to put social issues on the backburner of importance unless it is something fundamental. The key here is that this type of group MUST adopt agendas that each of the established parties simply cannot adopt holistically. Such as...Repubs could not reasonably adopt anything which says to leave your religion at the door, just as Dems could never adopt a pure socially-agnostic agenda which doesn't seek to reward those who don't succeed in society as much as others.

I could actually see where this could become a populous movement.

If we sit here and say it can't be done, it will never get done. Are there roadblocks? Sure.

1) This election is too important to throw away your vote!
- It will continue to be so until enough people choose to do this. Each time we keep putting our votes behind the same parties that are in power, all it does is keep them in power.

2) They just co-opt all the best points of the third party platform.
- Hold their feet to the fire on this. Why did they only move to the left or right when another party entered the mix? Why don't they stand on their core principles? Why do they only change when threatened?

3) A Third Party is not viable in America. There's too many different factions!
- There is no reason why there cannot be a Right, Left, Center-Right, and Center-Left party as a start. Sure, there is more to the spectrum than that, but there is no reason why you couldn't have more groups. Heck, you could even have regional parties. A democrat from Texas shares little with a democrat in Massachusettes as is.

And zero electoral votes.

Even in some country like Brazil that has umpteen political parties, they still align about 70% of the elected representatives under the same left leaning coalition. I don't know about any other multiparty states, but we pretty much function as 50 different state-level republican and democrat parties in this country.

I'm confused. Are you talking about qualifications for a debate or is this a prediction not connected to the question of debates?

The problem is not necessarily the lack of will but the problem with the structure. Autumn is completely right- I'm not expert but one of my electives in college was a political parties class. Because of the winner-take-all system, it basically forces you down to two avenues of power. You can have a third party, but it will basically either die out or replace one of the other two. And we've seen that throughout history. But, basically, without any guarantee of power which a proportional system grants, you usually only have 2 parties. It's very hard to have 3 existing.

SI

OK, obviously this judge is a whiny bitch and he's just taking his frustrations out on some poor DOJ attorney during another case's oral argument this week, but why is Obama waging war on the judiciary through the media? What does he have to gain? Is he trying to intimidate the supreme court justices? 99% of cases where the U.S. is a party are not political super-drams like Obamacare. It's a lot of regular old stuff where even conservative justices tend to side with the government. Obama came off like Pat Buchanan yelling about unelected justices and judicial activism, and even going further, seemingly questioning the role of judicial review generally (he did try to clarify yesterday after the shitstorm started up). I think there's some rhetoric out there clearly overreacting to it, but it reminds me of something Bush would say that might be taken out of context a little and become a liberal rallying cry about how we were turning into a dictatorship or something. But Obama usually doesn't give his opponents as much ammo because he doesn't say as much stupid stuff as Bush did. But this was pretty stupid.

Fifth Circuit to DOJ: Prove You Support Judicial Review - Law Blog - WSJ

Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?

Kaersvang: Yes, your honor. Of course, there would need to be a severability analysis, but yes.

Smith: I’m referring to statements by the president in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress.

That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.

Kaersvang: Marbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no –

Smith: I would like to have from you by noon on Thursday…a letter stating what is the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.

The fact that the "Judge" in this case uses the term "Obamacare" tells me what his agenda is.

How about we call the damn thing by it's legal name? Oh no...we can't do that, because if we call it the "AFFORDABLE CARE ACT" it sounds too positive, right?

I think most federal judges have agendas, you probably have to have an agenda for a president to want to appoint you, but that's just reality. I just don't see how it helps a president with them as a group, including the moderates, to question the concept of judicial review. Appellate judges are pretty touchy about that. I guess he's probably trying trying to sell the public on something - but he's using "judicial activism" as the right would, as a dirty word, which is contrary to other positions he's had and will advocate for down the road. A better argument/public statement would be that Obamacare IS constitutional.

Really, 'waging war on the judiciary'? His comments fall far short of the ones Tom DeLay used, such as "The men responsible for Terri Schiavo's death will have to answer to their behavior.", in response to a question about threats of violence against judges.

It's a figure of speech, I didn't mean to suggest that he's literally moving tanks into the courthouses.

Well sure, the comments fall short of what a lot of Republicans say all the time, it was just surprising to hear it form a sitting Democratic president, whose agencies will represent the United States in these courts hundreds or thousands of times before he's done.

That was the point he was making. The Republicans over use the term "judicial activism", and he felt this would be an example of just that if the ACA were overturned.

"He adds that it would be an example of “judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.”"

The federal judges are always unelected, and the laws they consider all almost always "duly constituted and passed".

The next day, he broke it down more, talking about Lochner and this case specifically, but clearly, the Monday comments were meant to be inflammatory, and were meant to piss regular people off about "unelected" Supreme Court justices "somehow overturning a duly constituted and passed law." That's right-wing crazy talk, is it not? I get that it's election season, I just question what the gain with the public is v. the harm of antagonizing the federal appellate courts.

Here's the full quote he used:

"And I'd just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law," Obama said.

We can keep expanding it:

"Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step."

It's not an "unprecedented, extraordinary step" for a Supreme Court to overturn a law "that was passed by a strong majority of a democratically elected Congress." He did clarify that the next day but that's what got people's attention, and it's clear what the intent was in being more vague at first. He's struggling with how to complain about "judicial activisim" when in most cases of course, he would a prefer a more liberal, policy-based approach from appellate courts.

No one comes off well in this one. President Obama shouldn't have said what he said, especially given the grief people on the left--myself included--have aimed at those on the right making similar claims. Judge Smith embarrassed himself with his petty show of judicial grandstanding--listening to the oral argument makes him seem even worse than the stories about his comments did.

I haven't listened to the audio yet and I was horrified by the transcript alone. If a judge assigned me homework over his political butt-hurt I'd have a hard time not reacting less than professionally.

Edit: Of course, you really just have to say, "Yes, your honor, I'll have that at noon Thursday your honor", because you have to appear in front of these people, which is part of my issue with what Obama said in the first place....but Smith's conduct was worse, with Obama I just don't get the motive.

Obviously it was a political, rather than a legal, statement. I guess Obama figures it'll play to people better.

The Fifth Circuit is completely off the reservation as far as circuit courts go. Not just the hard right politics. They are also, almost entirely, a bunch of asses personally.

It was a stupid thing for the President to say. It didn't make legal sense, and it wasn't good politics. I'm sure he wishes that he had a do-over.

Judge Smith trying to make a (pardon the horrible pun) federal case out of it makes that court look even sillier than it already appeared. In my experience, I've never seen anything like that--a court demanding a letter that has a minimum length that has to reference a statement made in a non-official proceeding by a politician.

I am sure that DOJ will comply and write a milquetoast letter in order to have this all sort of die out as non-newsworthy.

But, if DOJ wanted to fight it, it raises an interesting question--can the judicial branch demand that the executive branch explain a statement that the chief executive makes outside of the context of a specific litigation. Or does separation of powers/executive immunity preclude that?

I guess it could just be considered "supplemental briefing" ordered by the court, and they have a lot of discretion to do that. And the words he used were carefully chosen, he wants to know the DOJ's position on an issue that's at least somewhat related to the case. "Why" he wants to know that probably isn't reviewable or worth fighting over. Easier just to have an intern write it and let the judge take the heat for ordering it.

This part of the story cracks me up. It's like: "DOJ, write a 2 page paper about what you did or else you have to go to detention!"

SI

I like that he specified single-spaced.

WTF

But he didn't specify font size!!

Very true. They should totally fuck with him IMO.

Would be petty, but so was the request.

Maybe some ASCII art of the President giving the finger?

If they don't comply, can they be held in contempt? I mean, what is the legal ability of a judge to do something like this. Are we going to have judges forcing litigators to defend the statements of anyone? What if a senator says something on the floor? What if a gay marriage ban is overturned and some tea party congressman rails on "activist judges"? Can the judge force the lawyer defending the ban to write an essay on the role of the judiciary? Obama was a fool for what he said, this judge seems off his rocker.

It's a great (if very theoretical) question. On the one hand, courts can order supplemental briefing and can sanction parties if they do not comply. That seems to be well-established as an inherent power of the courts.

On the other hand, the President is a special constitutional actor. And it may be that the President is allowed to make a statement without having to "defend" it in court.

What makes it interesting to me is the specific mention of the President's comments by name. If a judge asks for supplemental briefing from a party on a legal point in the abstract, that's fine. It's the idea of the President having to defend/explain, in a judicial proceeding, a statement that he made outside of that proceeding that seems a bit . . . off to me. But I'm really not sure, which is why I find the question interesting.

I think his statement was purely political. Meant to play to those in the middle. Points out the hypocrisy of those on the far right but at the same time says something that those on the left don't want to hear.

I think he knows the mandate is going to get tossed and he's positioning himself for that scenario. His position is looking like the same one those on the right have used in regards to Supreme Court rulings. It's worked for them so why not steal it.

I think it'd be hilarious if the DOJ wrote a 2 page paper on the controversy following Marbury v. Madison as to whether the court had the authority to strike down a law passed by Congress and if that was really the original intent of the Constitutional Congress.

Sounds like a paper written for high school government class

SI