Update: Read this piece at "The Fix" at the Washington Post, in which Sen. Tester is prominently featured. It seems that Sen. Tester is quite aware of the unpopularity of his vote for Obamacare and is trying carefully to thread the needle.
It's Wednesday, and time for a little Montana politics to celebrate Independence Day.
There is a lot to dislike about the recent Supreme Court ruling upholding the constitutionality of Obamacare, and since this is a blog that sticks to Montana politics, the urge to wax overly eloquent will be resisted. A couple of things stand out, however:
First, one is liable to get whiplash from following liberal opinion about the Supreme Court. Prior to the ruling, the left was preparing to discount the very legitimacy of the Court -- thinking it was going to rule against the constitutionality of Obamacare. Now, they are back to having the Supreme Court as bosom buddies, and the once-hated Chief Justice Roberts is now an exceedingly wise rock star -- Confucius meets Bono. Go figure.
On a related point, one notices that the left is accusing the right of being whiners and crybabies. Some expressions of outrage have perhaps been unseemly, but how would the left be acting right now had Roberts voted the other way? We got a pretty good preview from the full-court press bombarding the Court from Democrats and the mainstream media prior to the decision. Chief Justice Roberts was about to experience his own high-tech lynching had he decided otherwise, and he knew it.
But really, that isn't the proper analogy, is it? No, the proper analogy would be this: imagine that Justice Roberts voted exactly as he did, but that Justice Sotomayor had a last-minute change of heart, voting with Scalia, Thomas, Alito, and Kennedy.
That's the real analogy. Think about it -- has there ever been a single major case in which a justice appointed by a Democratic President has broken ranks and cast a deciding vote with a conservative bloc on a hot-button issue? Once? Ever? I’ve been Court-watching for decades and can't think of an example. Were it ever to happen, the wrath from the left against that traitorous Justice would make current conservative hand-wringing pale by comparison. For if there is one thing we know, it is this: Republican-appointed Justices break ranks, evolve, whatever... Democratic appointees never do. Democrats know exactly what they are getting in their Supreme Court picks -- Republicans just have to hope.
George Will , Charles Krauthammer, et al, are wrong that Chief Justice Roberts somehow slyly stole a march on the left by voting as he did (you know, limiting the commerce clause, giving the political fervor to Romney rather than Obama, neutralizing liberal claims of a politicized court, gaining cover for future groundbreaking decisions, yada, yada...) One can't blame them for looking for a silver lining, but it is a joke to consider this as anything but a disaster for traditional conceptions of what the Constitution is supposed to do -- namely to limit the power and reach of the federal government. Roberts has instead given the federal government a roadmap for doing basically anything it wants to do -- just incorporate a tax into anything you want to do, and you'll have his vote and that of the 4 liberal Justices. (Unless he plans to go into even greater contortions next time to undo his thinking.)
Let's be generous to Chief Justice Roberts and assume that he is playing at a high-level chess game, of which this move is 6 steps ahead on a long-term strategy. If so, Roberts is trying to be too clever by half, and it won't work. Leaving aside the fact that his legal contortions are underwhelming, he is forgetting the real point to being a Supreme Court Justice: to protect and defend the Constitution. He didn't do that, and let's not pretend that he did, even if we can come up with some theoretical short-term advantages to be gained from all of this.
The true silver lining, such as it is, is this (and here, we return at long last to Montana politics): the Supreme Court didn't mandate Obamacare. Hence this decision in no way ranks with the worst Supreme Court decisions of all time -- this ruling doesn't create law out of whole cloth in the manner of many earlier Court decisions, but rather allowed a law passed by Congress and signed by the President to stand.
Which means that the law can be (and must be) repealed and/or gutted by the same democratic process. Chief Justice Roberts said, in effect, "you elected these jokers, you get to clean up the mess or live with the consequences." For Montanans, that means a number of things:
1. Montana needs to do its part in retaking control of the U.S. Senate, firing Sen. Tester, who voted for this monstrosity and would be a reliable vote to uphold it. He would be a vote against conservative judges and justices or for liberal ones (depending on the outcome of the Presidential election.) There are a number of paths to taking control of the Senate, but most involve Congressman Rehberg winning this race. We just need to get it done.
2. We need to elect Steve Daines as Montana's U.S. Congresman. While control of the House is not in immediate jeopardy, every hand is needed on deck to keep the GOP majority a comfortable one with plenty of breathing room. He will vote to repeal Obamacare, and his opponent would vote to keep it.
3. We need to elect Rick Hill as governor. States will have some discretion in implementing provisions of Obamacare, and we need someone who will stand strong with a conservative Republican legislature. We know from the fact that AG Steve Bullock refused to participate in the lawsuit against Obamacare that he supports it. We just don't need any more of that in the governor's office.
4. We need to elect Tim Fox as Montana Attorney General. Republicans and conservative-leaning independents in this state have for too long had a tendency to treat the AG office as a "gimme" for the Democrats, who always want it more badly than we do. There may not be more lawsuits challenging this or that aspect of Obamacare (and other items of federal overreach,) but if they do happen, I want Montana's AG being a part of it. (Living mentally in the 19th century and pretending that the Copper Kings are still running Montana doesn't count.)
In short, we just have to win this fall, here in Montana and all across the country. Elections have consequences.