For the most part the script for Elana Kagan’s appearance before the Senate Judiciary Committee had already been written.  Historian Joseph J. Ellis described the scene well nearly two months ahead of time:

These hearings have become highly partisan affairs over the past 30 years, and given the recent closed-ranks posture of the Republican opposition, we can expect all the sharp-edged political weapons to be deployed against the nominee. The chief weapon will be the claim that Supreme Court justices should interpret the Constitution as it was written, not impose their political or personal convictions on the semi-sacred text. Woe to the nominee who has left a paper trail that deviates from the original intentions of the Founders, or what a hostile Senate interrogator defines those intentions to be.

The RNC, for their part, telegraphed their Party’s intentions for the hearings in advance.  As noted at The Hill, May 10, Republicans on the Judiciary Committee would focus on Kagan’s DADT position at Harvard, and her 1993 speech before the Texas Law Review in honor of Justice Thurgood Marshall.

… She quoted from a speech Marshall gave in 1987 in which he said the Constitution as originally conceived and drafted was “defective.”

Marshall cited in particular the definition in the original Constitution to slaves as representing three-fifths of “free Persons” when counting the nation’s population. That reference was rendered moot after the Civil War with the ratification of the 13th and 14th amendments abolishing slavery and granting full citizenship to all people born in the U.S.

True to form, the GOP contingent led by Sen. Jeff Sessions (R-AL) proceeded to frame Marshall as a “liberal activist” –   the same Justice Marshall whose work on behalf of the NAACP in 1954 helped facilitate the end of segregation, later serving as U.S. Solicitor General, elevated to the Supreme Court during the LBJ administration.

Interestingly, when asked later, Senators Sessions, Orrin Hatch (R-UT), and Tom Coburn (R-OK) were unable to list a single instance of “judicial activism” perpetrated by Marshall.  But their strategy wasn’t about making a sustainable legal argument; rather, Republican criticism of Marshall turned out to be yet another sounding of the dog whistle intended for their base who, apparently, lament the outcome of Brown v. Board of Education – Stay classy, GOP!

Fortunately Senator Al Franken (D-MN) was on hand to set the record straight on two counts.  Watch the below clip, snipped by firedoglake.com, as Franken elevates the term “judicial activist” out of the meaningless context in which it is so often used, successfully defending Marshall’s legacy in the process.

Within his assessment of the “Judiciary Committee Winners and Losers,” Harper’s Contributing Editor and legal expert Scott Horton highlighted Franken’s performance:

…I applaud Al Franken. Not only did he provide an alternative point of interest during slow points with his skillful doodling, Franken also proved himself an astute student of the Republicans. For years, they have used confirmation hearings to take their digs at their least favorite judges and judicial policies. Franken has responded in kind, taking a deep look at the Roberts court’s strange biases in favor of business and against labor and its innate hostility to business regulation. Who are those “activist judges” that Sessions complained about? Franken makes a persuasive case that they’re precisely the judges Sessions is so wild about: John Roberts, Sam Alito, Nino Scalia, and Clarence Thomas.

Back from his vacation, Stephen sends up Senator Jim “Creme” DeMint (R-SC) and his “Waterloo” meme.  DeMint articulated what became the Republican strategy to “break” Obama by defeating the administration’s effort to reform health care in July, 2009.

Now that the Democrats have successfully passed reform, DeMint has taken to pushing back the goal posts, telling Face the Nation‘s Bob Schieffer that the true test of the GOP’s cynical strategy will come with the results of the 2010 midterm elections.

Stephen, of course, has some fun with DeMint’s assessment:

Crossposted at Care2.com ~ Originally published 6 March 2010

President Barack Obama outlined his administration’s proposal Wednesday, seeking to bring reform of the American health care system to a successful conclusion.  Considering  the recent spurious criticisms from reform opponents, it appears that, indeed, the arduous process of steering health care reform through Congress may well be nearing its end.

It’s really only become apparent in the last week or so.  Leading up to and during the White House bipartisan health care summit, Republican politicians have repeatedly acknowledged the need for reform, but that Democrats should scrap their health care bills and “start over.”

Meanwhile, the Democrats began to show some spine leading up to the summit, signaling their willingness to use the budget reconciliation process to pass reform, if necessary.  Consequently, Republicans’ concerns over the use of reconciliation became more prominent within their media talking points, and at the Blair House summit where the issue was frequently raised. Since the summit’s conclusion, however, GOP concerns over reconciliation have evolved into what appears to be panic.

Republicans are decrying the potential use of the parliamentary measure, attempting to gloss over the GOP’s historical record, having happily employed the measure when it suited them.

Further, in their attempts to rationalize their hypocrisy — insisting that the pending health care legislation is beyond the parameters of reconciliation — they have engaged in a campaign of historical revisionism.  Senator Orin Hatch (R-UT) wrote an op-ed, published Mar. 2 in the increasingly subjective Washington Post, is a prime example of how Republicans are falsely framing the historical use of reconciliation.

Regarding Hatch’s opinion piece, Steve Benen of The Washington Monthlywrites, “Hatch is simply and unambiguously wrong.  And the Post published his demonstrably false arguments anyway…” From Benen’s Political Animal blog, Mar. 2:

The whole pitch is absurd to the point of being insulting. Hatch has repeatedly supported up-or-down votes on legislation large and small. Indeed, he thought it was a great idea for delivering massive tax breaks for the rich — packages that cost far more than health care reform now — but whines incessantly when Dems consider the same procedure to pass a modest fix related to health care.

Hatch really ought to be embarrassed.

But Hatch, and those who mimic his intellectually dishonest argument, aren’t embarrassed, as Rachel Maddow deftly explains in this clip from her Mar. 2 MSNBC broadcast:

Visit msnbc.com for breaking news, world news, and news about the economy

Adding emphasis to his lack of shame, Hatch tweeted his response to Maddow’s damning assessment.  Here’s his tweet by way of PoliticusUSA:

@maddow ran me down on her show last night over my views on health care reform. Wonderful badge of honor.

However, if you watched the above clip you’d know that Maddow’s assessment had nothing to do with his “views.”  Rather, as Maddow indicated in her response tweet, it was Hatch’s misstating of the facts which were at issue.

Sadly, no matter how plainly the GOP’s efforts to falsely frame reconciliation are laid out, they’ll continue beyond the bill’s passage.  And, as Maddow put it in the above clip, “It’s going to pass.”

What I’m struggling with is, how could Republicans expect anything different from the Democrats?  It seems to me that consistently obstructing Democratic efforts on health care — and everything else, for that matter, guaranteed that reconciliation would be used.

They’ve already telegraphed their intentions to use health reform’s passage as a campaign issue in the 2010 midterms, asserting that using reconciliation will cost the Democrats votes.  However, wouldn’t a failure by the Democrats to use any means at their disposal to conclude a year’s worth of work cost them more?

Frankly, the GOP needs to get over it.  I think is was Jon Stewart who put it best.  Following Obama’s 2008 election to the presidency, Stewart reminded the already whining congressional Repbulicans of what their electoral losses meant.  “You’re in the minority,” Stewart said.  “It’s supposed to taste like a s#!t sandwich.”

See Also:

• Igor Volsky, “Republicans ‘Agree On About 80% Of the Issues,’ But Want to ‘Start Over’ on Health Reform.“  ThinkProgress.org, 26 February 2010.
• Watch Rachel Maddow’s March 3 follow up segment regarding her tiff with Sen. Hatch at MSNBC‘s site.

One of my favorite Tweeps, @pourmecoffee, put it well:

Stimulus turns 1 today. Happy birthday to you. Happy birthday to you. GOP was against you, but takes credit for you, too.

via The GOP has a Palin Problem, cross-posted from Care2.com ~ Originally published, 10 January 2010

The National Journal conducted a poll of 109 Republican Party leaders, asking them to “rank 5 candidates in the order of likeliness to capture the GOP nod.”  That former MA Governor Mitt Romney topped the lists of those polled with 81 points, 62 per-cent of which were first place votes, is unsurprising.  Were it not for half-term Alaska Governor Sarah Palin’s poor showing (25 points) it probably wouldn’t be worth talking about.

Not one of the party leaders or pundits polled selected Palin to top their list.  Taking into account the ideological nature of her supporters — distrustful of government, adherents to the myth of a liberal media, and, most importantly, a profound disdain for the GOP elite — this was the best outcome Palin could have hoped for.

Talented FiveThirtyEight.com political prognosticator, Nate Silver, likes Palin’s chances to win 2012 Republican presidential nomination.  Silver posted “10 reasons that Palin Could Win,” last Nov. 18.  In his Jan. 7 reaction to the Insider’s Poll, Silver reiterated his number eight reason from last year:

…If the Establishment, owing to electability concerns or whatever else, tries to put hurdles in her way by re-structuring the primary or delegate allocation process, it may only play into the victimization complex of Palin and her supporters.

Silver’s commentary is apt, and though the poll doesn’t represent any direct effort to “neuter” Palin’s potential candidacy, that doesn’t mean they wont (see video, below).  “Although the Establishment’s concerns about Palin’s viability as a general election candidate are well grounded,” Silver notes, “mostly they’re just terrified of her because she doesn’t need them. “

It might be wiser for establishment Republicans to remain hands-off, and wait for Palin to self destruct.  Her supporters have proven themselves willing to keep their blinders on, content to cling to the dazzling façade rolled out at the 2008 Republican National Convention.  However, Palin’s high visibility — albeit, NEVER in a critical forum — increases the probability of a politically fatal mistake.

Indeed, she may have already made it.  I’m not referring to Palin’s recent doubling down on her “death panel” analysis of health care reform efforts in Washington – a turn of phrase awarded “Lie of the Year” for 2009 byPolitifact.com, Pulitzer winner in that same year.  Palin’s deceit in this matter will go unnoticed by her supporters.

However, Palin’s snubbing of the 2010 Conservative Political Action Conference (CPAC) has got much attention.  Much more interesting is her commitment to speak at the National Tea Party Convention in Nashville, Feb. 4-6.

Muriel Kane posted an excellent summary about how different factions are reacting to Palin’s curious positioning at RawStory.com, Jan. 8.

Missed opportunity, simple greed, or shrewd calculation? Only time will tell the real meaning of Sarah Palin’s Tea Party gambit.

Another aspect that has, thus far, received little attention from the media pertains to whom Palin will share the stage with at the Tea Party Convention.  Senior Fellow at Media Matters for America, Eric Boehlert, posed the question in a Jan. 9 post:  “Will the press question the ‘Palin – Farah’ ticket?”

The Beltway press still refuses to raise questions about Palin’s decision to attend the first annual Tea Party convention in Nashville next month and share the stage with a fringe radical like Joseph Farah, who is an avowed gay and Muslim-hating extremist, and whose wingnut publication, [World Net Daily], remains obsessed with the loony, and thoroughly debunked, conspiracy claim that Obama was not born in America.

Of course, Kane was correct – only time will tell how this will play out.  There is a long way to go, but the potential for Palin to become the 2012 GOP nominee still exists.  So, too, does another outcome which I suggested the day Palin announced her resignation as Governor of Alaska:

If Palin does still have national aspirations, her only hope of success (in her mind, mind you) would be to position herself at the head of some third-party, the radical right-wing of the GOP finally throwing off its remaining moderate faction.

See Also:

• David Weigel, “Is Palin Getting $100,000 to Speak at the Tea Party National Convention.“ WashintonIndependent.com, 7 January 2010.

• Here’s a teaser for the Jan. 10 ‘60 Minutes‘ segment on Sarah Palin:

Palin Inaccurate says McCain Strategist

Related on Care2:

• Palin Quits – Could GOP split be in the offing?

• The Death Panel Lie – Conservative Dishonesty in the Health Care Reform Debate