February 4, 2011

"[I]f the Democrats, who called this hearing, hoped to blunt the momentum of the legal challenges by showing that the lawsuits had no merit, they failed in their objective."

Randy Barnett has some thoughts about the Senate Judiciary Committee on the constitutionality of the health care law. (Which we've already talked about here, here, and here.)

Randy says:
If anything, press coverage generally reflected the view that both sides made strong arguments, and that only the Supreme Court could settle the matter. Indeed, my impression is that the hearings served to advance the credibility of the challenges. 
Clearly, we've advanced beyond "Are you serious? Are you serious?"

Randy "was particularly struck by the cordiality and collegiality shown to all the witnesses by Senator Durbin."
Not only did he genially greet each one of us beforehand and thank us individually afterwards, he paid close attention to everything each of us said, and what each fellow Senator said, for more than two hours of the hearing. 
He listened, he really, really listened!

Now, that's nice, but, really, the hearing, from Durbin's perspective, was probably the Theater of Listening. If the courts are going to uphold the law, it will be because they decide that the appropriate judicial role is deference to Congress's decision that it has power under the Constitution to pass the law. Looking terribly interested in the details of the legal arguments creates the impression that you deserve deference.  

Look! I'm living up to my independent role of determining that the law I'm drafting and voting for is constitutional.

Of course, having the hearing after the law is passed (and after the threat from the courts has materialized) doesn't really inspire the confidence that is needed to justify judicial deference to Congress.

But that's all the more reason to do good theater.

30 comments:

Tibore said...

"Of course, having the hearing after the law is passed (and after the threat from the courts has materialized) doesn't really inspire the confidence is needed to justify judicial deference to Congress.

But that's all the more reason to do good theater."


Much of Congress is nothing more than theater anyway. And not particularly good theater either.

Thorley Winston said...

Wouldn’t the time to have these sorts of hearings been before passing the law?

Original Mike said...

This is strange. I just assumed it was the House having the hearing (yes, the fact that Leahy was involved went right over my head). I think you're right, Althouse. Theater trying to influence the courts.

Triangle Man said...

Theater of listening

So cynical Professor Althouse. Not that there's anything wrong with that.

Coketown said...

Obamacare is turning into one of those nights of bad sex Ann was talking about on bloggingheads. It was sloppy, impulsive, and hastily planned; we're just, the morning after, realizing the consequences of what happened; and damage control is going to be a long, tedious process full of lots of heartbreak and apologies. If the 1099 repeal is any indication, watching the Democrats straddle the fence between voters and special interests will be as amusing as watching a man balance life with a mistress and a fiance.

"No, honey, I don't know what you're talking about. Me and the SEIU are just casual acquaintances."

"Ah come on, SEIU. Baby, please. That 1099 repeal didn't mean a thing."

Triangle Man said...

Much of Congress is nothing more than theater anyway. And not particularly good theater either.

Only the stuff you see. The rest is rehearsal and cast parties.

edutcher said...

Ann Althouse said...

Randy "was particularly struck by the cordiality and collegiality shown to all the witnesses by Senator Durbin."

Too bad the Dick from Illinois couldn't show the same to the troops fighting to keep the crazies from blowing him up.

PaulV said...

Turban Durbin, as wrong on ObamaCare as he was about the troops and Iraq.

Richard Dolan said...

"Now, that's nice, but, really, the the hearing, from Durbin's perspective, was probably the Theater of Listening."

That may well be an accurate reading of Senator Durbin, but it's predicated on viewing him as even less than two-dimensional. It's interesting to think of this, not in terms of more politcal blather, but instead as a review of a novel (OK, an HBO miniseries script) centered on the ObamaCare players. Ann's reading of Durbin suggests that all you need to know to understand him completely is where the short-term political advantage lies. But you could never frame a central character in a novel or script by giving him such a limited personality. A novelist would use Durbin's hearty greeting for his political opponents as a way to give him a more rounded character.

It's odd that we resist that sort of generous reading of the players on the political stage. That seems to be one thing on which lefties and righties agree.

SteveR said...

The fact that sound waves enter Dick Durbin's ear canals does not mean anything is heard much less understood.

Big Mike said...

An even-handed Senator Durban who listens to opposing views? Are we talking Dick Durbin of Illinois? Maybe I've seen too many sci-fi movies, but I think somebody kidnapped the real Senator Durbin and replaced him with an android.

Thorley Winston said...

An even-handed Senator Durban who listens to opposing views? Are we talking Dick Durbin of Illinois? Maybe I've seen too many sci-fi movies, but I think somebody kidnapped the real Senator Durbin and replaced him with an android.

Someone should tell the kidnappers that we have 99 more . . .

Thorley Winston said...

Obamacare is turning into one of those nights of bad sex Ann was talking about on bloggingheads. It was sloppy, impulsive, and hastily planned; we're just, the morning after, realizing the consequences of what happened; and damage control is going to be a long, tedious process full of lots of heartbreak and apologies.

That may explain why some of my DFL acquaintances have been complaining of a burning, itching sensation . . .

virgil xenophon said...

Polite? The guy who compared American soldiers to NAZIS! On TOTALLY UNSUBSTANTIATED trumped-up charges?
Oh, THAT Mr. Polite.

Maguro said...

Should be a civility bullshit tag here as well.

paul a'barge said...

theater.

right.

Randy Barnett is doing Sally Field.

Hoosier Daddy said...

I think somebody kidnapped the real Senator Durbin and replaced him with an android.

Its possible that after seeing so many of his fellow Democrats packing thier bags in November, that his political self preservation instinct is kicking in.

Big Mike said...

Someone should tell the kidnappers that we have 99 more . . .

100, if you count VP Biden (President of the Senate).

Big Mike said...

@Hoosier, Durbin's not up for reelection in 2012.

ricpic said...

Do you seriously believe the Supremos give our congresscritters credit for constitutional literacy, given the recent declaration by Chucky Cheese Schumer that the three branches of government are "the House, the Senate and the President?"

Phil 3:14 said...

The little I listened lead me to the same conclusions.

To be fair this isn't the first law that turned out to have constitutional issues that ended up in the SCOTUS.

I do agree with other pundits who suggest that if the mandate falls then it is a house of cards. The good thing in all of this is we're seriously talking about healthcare AND $$$$$.

Crimso said...

"@Hoosier, Durbin's not up for reelection in 2012."

If I was one of his constituents, it would take considerably longer than that for him to convince me I should vote for him.

J said...

the confidence that is needed to justify judicial deference to Congress.


Well, the flipside to that would be...should citizens allow the Black Robe gang to decide on whether a law passed by millions (acting via their congresspersons) meets their own rather vague criteria of Constitutionality?? (doesn't some legal bureaucrat do that before allowing a popular vote, anyway?).

Lawyer Im not but ...count me as one who doesn't think Judicial Review dropped from the platonic heavens of Justice (Jud. Rev itself not in the original US-Con).

Neither John Marshall or Jefferson were flawless humans beings, but in terms of the Jud.Rev chessmatch (eg Marbury vs Madison raht), TJ looks, at least on paper, to have been the winner, ideologically speaking. The Amer.Rev was not about re-empowering magistrates.

Issob Morocco said...

Just remember what we say in Illinois.

Dick Durbin, before he dicks you.

Martin L. Shoemaker said...

J said...

Well, the flipside to that would be...should citizens allow the Black Robe gang to decide on whether a law passed by millions (acting via their congresspersons) meets their own rather vague criteria of Constitutionality??

Yes. If the citizens disagree, let them pass an amendment to say, "This Constitution now explicitly allows this."

(doesn't some legal bureaucrat do that before allowing a popular vote, anyway?).

As this story clearly demonstrates: not in this case. They didn't get around to staging their kangaroo court until a year after passage, and then only as a media/courtroom tactic.

You're arguing that the Court is imperfect. So it is. And so is Congress, and so is the President. Hence a balance of powers structure where they provide checks and balances on each other.

Jim Lindgren said...

When Durbin appeared at Northwestern, I asked him a hard question about something he seemed to have a crude understanding of -- the unitary executive. He shocked me by coherently discussing some of Thomas's opinions on the topic.

On the other hand, Durbin has said some ignorant and deeply offensive things over the years (including about the Federalist Society).

He's not dumb, though.

dont tread 2012 said...

@Phil 3:14

"I do agree with other pundits who suggest that if the mandate falls then it is a house of cards. The good thing in all of this is we're seriously talking about healthcare AND $$$$$."

Uhhh, yeah. Big of you to point out, Phil.

And if this Mongolian Clusterschtupp of a bill was so wonderful, bestowed upon the American people by 1 party government, tell me why:

1. Congresscritters are exempted from it.
2. Favored business groups/unions have already been exempted from it.
3. To 'participate' in their scheme, you are forced (coerced) under the threat of a penalty/fine.
4. Enforcement of this great idea is backed up by new IRS hires.
5. Employers would be required to 1099 ANY activity where a transaction of more than $600 occurs.
6. Have I mentioned even 1 thing about health 'care' yet????

Does anyone think ANY of this is would be necessary if this scheme was so flippin' great???

Of course not. And this is all courtesy of the same jackboot mongoloid DEMOCRATS that have run most of the struggling metro areas of this country directly into the budgetary red over the past 40-50 years.

Let there be no mistake. These people must be stopped. Middle class resistance to the institutional thuggery of the left must continue to grow.

No quarter.

SGT Ted said...

After the way the Democrats rammed the bill through without reading it, all the while calling the opposition tea baggers and Nazis, its all too obvious that the "hearing" was political theater bullshit. They have no intension of listening.

SGT Ted said...

I will never pay the mandate. I will rebel. Congress and the President can go fuck themselves.

pavlova8 said...

February 3, 2011 at 09:28 PM

WASHINGTON -- The Obama administration won a victory Thursday in the winding legal debate surrounding the president's signature health care law, as a federal judge in Mississippi threw out a suit challenging the constitutionality of the bill.
what do you make of that?