University of Houston law professor David Dow has created a stir with a Daily Beast column suggesting that if the Supreme Court does strike down ObamaCare, the offending Justices (or presumably, at least one of them) should be struck down via impeachment. Here is Dow’s thundering conclusion:

We can argue about whether President Jefferson was right to try to impeach Justice Chase. But there’s no question that he was right to say that impeachment is an option for justices who undermine constitutional values. There are other options, as well. We might amend the Constitution to establish judicial term limits. Or we might increase the number of justices to dilute the influence of its current members (though FDR could tell you how that turned out). In the end, however, it is the duty of the people to protect the Constitution from the court. Social progress cannot be held hostage by five unelected men.

That hearty populist perennial from a bygone age, term limits for judges! Court-packing! Wow! I’m sure the wingnutosphere will feast on these provocations for days!

While I enjoyed Dow’s piece and agree with much of his analysis (and more, since he doesn’t really dwell on the broader implications of a decision unraveling Commerce Clause precedents), I hope talk of the I-word doesn’t get popular on the Left. The institutional barriers that nearly killed the Affordable Care Act and did in fact water it down are nothing compared to those that inhibit impeachment (much less a constitutional amendment establishing judicial term limits). I don’t know when this hypothetical act would supposedly occur; I guess it would have to be after Democrats regain control of the House and win two-thirds of the Senate (a mathematical impossibility this year since only 10 Republicans seats are up). A second term for the president, with the power to appoint new Justices as openings occur, seems less of a reach.

Assuming, as I do, that Professer Dow fully understands the political realities, it’s not clear what exactly is to be gained by I-talk.

Unless, of course, my very worst fears are realized and the Court strikes down not just ACA but Medicaid and other federal-state programs as offending state sovereignty. Then, hell yes, the I-word, and every other word I could throw at counter-revolutionary Justices would fully enter my vocabulary.

Sometimes a story lede is so striking and self-explanatory that any further commentary just distracts from the obvious:

After 16 years of trying to marry their party’s support for drilling and climate change denial with environmental protection, Republicans for Environmental Protection is dropping the word “Republican” from its name.

‘Nuff said.

But below is a reminder of the days when it was easy to be green—and Republican.

I wondered what tack Mitt Romney would take in following the president in an appearance before the newspaper editors association. But he really took my breath away:

In just the few years since my last campaign, the changes in your industry are striking. Then, I looked to Drudge or FOX or CNN online to see what stories were developing. Hours after a speech, it was being dissected on the Internet. Now, it’s Twitter, and instantaneous reaction. In 2008, the coverage was about what I said in my speech. These days, it’s about what brand of jeans I am wearing and what I ate for lunch.

Most people in my position are convinced that you are biased against us. We identify with LBJ’s famous quip that if he were to walk on water, your headline would read: “President Can’t Swim.”

Some people thus welcome the tumult in your industry, heralding the new voices and the unfiltered or supposedly unbiased sources. Frankly, in some of the new media, I find myself missing the presence of editors to exercise quality control. I miss the days of two or more sources for a story - when at least one source was actually named.

After reporting this remarkably hypocritical statement, Politico’s Alexander Burns blandly notes:

[I]f you look over the arc of the primary season, it’s hard to see him as one of the major victims of anonymous sourcing, overhyping of trivia, et cetera — especially when you consider that his campaign is as eager as anyone to engage in the sins of Twitter, not-for-attribution sourcing and shielding the candidate from direct questions.

Now I suppose when you have already developed a reputation for towering mendacity on subjects large and small, a medium-sized lie about your views on media accuracy is as easy as changing those jeans and a lot easier than changing your entire political persona on a regular basis. But you might think at some point the man would fear being struck down by a thunderbolt right on the spot if he lectures the media—old or new—about “sourcing” and “quality control.” Where’s the “presence of editors” when Mitt Romney opens his mouth each day? The mind reels.

One of the inherent functions of the MSM “conservative columnist” is to find novel, reasonable-sounding arguments to support atavistic policies and politics. David Brooks, for example, is best known for his athletic ability to approach a subject from a lofty non-partisan perspective before skydiving to the ground at a point that often happens to coincide with the tactical positioning of the Republican Party.

The other New York Times house conservative, Ross Douthat, is usually a bit less predictable in his approach, if not his conclusions. Today he offers one of those counter-intutive “sympathy for the devil” columns that are supposed to get people to rethink their preconceived ideas on a subject. Playing off Tim Noah’s recent TNR piece on “crankocrats”—billionaire wingnuts who are tossing their spare change with sometimes massive effect into the 2012 presidential contest—Douthat suggests the cause of small-d democracy is being valuably promoted by Foster Friess and Sheldon Adelson, major benefactors of super-PACs supporting, respectively, Rick Santorum and Newt Gingrich:

[C]onsider what would have happened without the rich cranks. Mitt Romney, who attracted far more big-money support overall than any of his rivals, would have probably followed up his near-win in Iowa and his victory in New Hampshire with an easy win in South Carolina, and the primary campaign would have been, to all intents and purposes, finished after that. Instead of having the Republican nomination decided by millions of voters nationwide, it would have been decided by the voters in just three states - and, of course, by Romney’s sturdy donor base.

An extended primary season, which has featured competitive races in dozens of states instead of just a few, hasn’t necessarily been good for the Republican Party’s general election prospects. But it has produced a far more small-d democratic outcome than the alternative universe where Adelson and Friess stayed on the sidelines and Romney wrapped things up early. Because of their donations, the frontrunner has had to confront actual voters day after day and week after week, in Wisconsin and Nevada and Alabama and everywhere in between.

The glaring problem with Douthat’s analysis, of course, is that Mitt Romney has benefitted from “cranky” Super-PAC support a lot more than his rivals. According to the Sunlight Foundation’s comprehensive tracking of campaign expenditures, as of the end of February, the last FEC filing date, Mitt’s Super-PAC, Restore Our Future, had shelled out over $40 million, as compared to $17 million for Gingrich’s Winning Our Future and $7 million for Santorum’s Red, White and Blue Fund. The gap between Team Mitt and the others undoubtedly grew much greater since then, as Adelson closed his checkbook and Restore Our Future swamped Red, White and Blue by huge margins in state after state.

Maybe Mitt would have won earlier without Super-PACs existing, but that’s hardly a certainty; more likely, Gingrich would have folded earlier and Santorum would not have had to compete with him for conservative votes in the South and Midwest. The one thing that is abundantly clear is that the Super-PACs helped make the GOP competition exceedingly negative, and in particular, kept Romney nominally separate from the endless bashing of Gingrich and Santorum for insufficient conservatism that might have been significantly less credible coming from Mitt’s campaign itself.

But I’ll give Douthat credit for making me think about this alternative history of the GOP race. As is often the case, however, his premises don’t lead very reliably to his preferred conclusions.

Last night on Twitter I tossed out the theory that the Judge Jerry Smith’s challenge to the president from the bench and the rapturous conservative reaction it has provoked might turn out to be a “Terri Schiavo Moment” for the Judicial Right. By that I meant an incident providing a very public glimpse into a veiled, radical perspective that supposedly mainstream, respectable figures embraced.

Most of you probably remember the Schiavo incident, exemplified by Sen. Bill Frist’s diagnosis of the Florida woman from the Senate floor.

Interestingly enough, when I posed the theory late last night in a conversation with some other progressives, I unintentionally touched off a heated and sometimes angry debate—not because I considered the two incidents analogous (everyone seemed to concede that), but because I was making the “mistake” of thinking that any conservative outrages would have a tangible political impact in this particular day and age.

One argument in that direction was simply that the country was too polarized for “persuasion” to matter any more, if it ever had. We just had to accept that Americans had become two warring tribes and all we could do is pick up sides and go at it. Another was that the MSM was so mired in “false equivalence” habits that conservative “outrages” would be deemed no worse than trumped-up liberal “outrages,” no matter what was said and done.

Among those objecting to my Schiavo comparison, there was a palpable fear that progressives were again falling into the trap of “reasoning” with people about conservative intentions instead of just going to war with an energized base that already understood the stakes of the battle.

While I understand that perspective, I consider it not only overwrought but potentially self-paralyzing. You don’t have to get into deep analysis of “memes” and “narratives” to grasp that political competition is dynamic, that many voters, even habitual partisans, have mixed feelings and opinions, and that elections are ultimately decided not just by “winning” segments of the electorate but by reducing margins of defeat where you can. The Schiavo incident, I believe, did contribute to the disastrous GOP performance in 2006 because it alienated many independents and some Republicans who thought the GOP was committed to minimal government interference in private life, and minimal federal interference with state-level policies and decisions. It was galvanizing precisely because it offered a direct, visceral glimpse into the conservative id, and into a political party that had become dangerously dependent on support from cultural extremists (in that case, the anti-choice movement, which was deeply invested in the claim that the Democratic “party of death” wanted to legitimize euthanasia as well as “infanticide.”

I don’t know that a judge in Texas suddenly challenging the President of the United States to a constitutional fistfight can really be compared in its power to the spectacle of U.S. Senators calling themselves into a special session to micromanage an end-of-life decision in Florida. It obviously involves arcane issues that don’t much affect regular folks immediately. But at a time when the entire conservative movement and the GOP is fixated on the twin goals of destroying health reform and the president who has succeeded in enacting health reform legislation, exposure of their remarkable hypocrisy and extraordinary aggressiveness could turn more than a few persuadable heads. And if nothing else, progressive voters may gain a better understanding that presidential appointments to lifetime positions on the federal bench have real-life consequences for decades.

So rage on, Judge Smith, and cheer on, conservative battlefield converts to the value of judicial review. If nothing else, you may semi-permanently disable yourselves from shouting about judicial activism.

Here are some Wednesday mid-day news treats I found in the virtual kitchen:

* Joe Scarborough says “no one” in GOP Establishment thinks Romney is going to beat Obama in the general election. “No one” is a nice, round number, easy to remember.

* TN Gov. Bill Haslam, usually thought to represent what passes for moderation in GOP these days, indicates he’s likely to sign bill authorizing science teachers to question evolution. His state, of course, was the site of the famous “Monkey Trial” on teaching of evolution in 1925. How far we’ve come!

* DNC Chair rebuts Orrin Hatch claim that Democrats will “throw the Mormon Church at [Romney] like you can’t believe.”

* Q-Poll shows NY Gov. Andrew Cuomo having 68/19 approval/disapproval rating, with nearly even approval numbers among Democrats, Republicans and indies.

* Pew shows 56% of Republicans objecting to “too much coverage” of Trayvon Martin killing. That’s interesting, since it’s just now being officially investigated.

Full-scale blogging to resume shortly.

Most everybody is enjoying a moment of hilarity at the expense of Sarah Palin, who returned to type after a mild-mannered and self-deprecating appearance on the Today show by suggesting that Rep. Allen West of FL would be an ideal running-mate for Mitt Romney.

West, as you may know, has more or less supplanted Michele Bachmann—who toned the craziness down just a notch in order to run for president—as the most quotable wingnut in the U.S. House of Representatives. When in February Think Progress compiled a list of West’s “most outrageous statements,” they had so much material that they didn’t stop at the usual “top ten,” but included fifteen.

But ridiculous as the idea of Romney-West undoubtedly is, it’s worth paying a bit of attention to Palin’s rationale for West, as explained to Sean Hannity:

[W]hen I talk about going rogue, what I want to do is encourage the GOP nominee to not think that they have to go with somebody necessarily safe that conventional wisdom perhaps would lead somebody to believe that, if it’s somebody, quote-unquote, safe, that they’re not going to get beat up by the media, because no matter who it is.”

“They’re going to get beat up,” Hannity agreed.

“They’re going to get clobbered. The media will make things up about them and their record and their reputations and their families,” Palin said. “So no matter who it is, so they might as well get someone who is passionate and strong, as I say, like about Allen West, understands the Constitution and wants to put government back on the side of the people.”

The planted axiom here is that since “the media” are going to make any running-mate sound as crazy as West, GOPers might as well go with the real thing, which is what they actually want. To put it another way, the only possible reason for choosing a more conventional figure is deception.

In her peculiar way, Palin has put her finger on one of the central dynamics of the 2012 Republican presidential contest. Conservative voters have tried and tried and tried to find a candidate who authentically represents their views, only to discover, in turn, that each (Perry with his heart bleeding for the children of undocumented workers, Newt with his global warming and individual mandate heresies, Santorum with his support for No Child Left Behind, the Medicare Rx drug benefit and earmarks) wasn’t much more of a “true conservative” than Mitt Romney. So they are stuck with Mitt, dammit, but have one more chance to get a loud-and-proud champion on the ticket. And so as Jimmy Carter once asked Democrats: “Why not the best?” Why not West?

I am sure that more powerful figures than Palin will put the kibosh on that specific idea, but the fact remains that of all the criteria that are getting kicked around in the early Veep speculation, the demand for a “true conservative” is going to be the hardest for Mitt to resist. And for all the talk of “vetting” candidates to make sure someone better prepared and more controllable than Palin winds up on the ticket, the most important vetting is going to be conducted by dissatisfied right-wing activists. Allen West makes perfect sense as their opening bid.

Yesterday I mocked some of the prose presumably written by popular historian Evan Thomas in conjunction with Politico’s Mike Allen that appears in an new e-book on the 2012 Republican presidential nominating contest. Some commenters compared one passage about a tall, dark and domineering Mitt Romney during a debate appearance to the steamy offerings of the bodice-ripping romance genre.

But if Thomas’ flare for drama seems out of place in analyzing a pinstriped prevaricator like Mitt Romney, he’s had his moments in writing about more important incidents in political history. In commemoration of the 44th anniversary of Martin Luther King’s assassination, Real Clear Politics supplied a link to a 2007 essay by Thomas on the fateful week in 1968 when LBJ dropped his re-election bid, Bobby Kennedy suddenly became a presidential frontrunner, and Dr. King was gunned down outside a Memphis motel room while asking local blues musician Ben Branch to perform “Precious Lord, Take My Hand” at an upcoming event.

Here’s an excerpt from Thomas’ account of RFK’s speech that night in Indianapolis, where he was campaigning, and had to tell his largely African-American audience the news of King’s assassination:

“My favorite poet was Aeschylus,” Kennedy told his audience, not many of whom had graduated from high school, but who now listened with rapt attention. “He wrote, ‘In our sleep, pain which cannot forget falls drop by drop upon the heart until, in our own despair, against our will, comes wisdom through the awful grace of God.

“What we need in the United States is not division; what we need in the United States is not hatred; what we need in the United States is not violence or lawlessness; but love and wisdom and compassion toward one another, and a feeling of justice toward those who still suffer within our country, whether they be white or black.

“So I shall ask you tonight to return home, to say a prayer for the family of Martin Luther King, that’s true, but most importantly to say a prayer for our country, which all of us love—a prayer for understanding and that compassion of which I spoke …

“Let us dedicate ourselves to what the Greeks wrote so many years ago: to tame the savageness of man and to make gentle the life of this world.

“Let us dedicate ourselves to that, and say a prayer for our country and for our people.”

That night, as the news of King’s death spread through the blighted parts of the land, there were riots in 110 cities causing 39 deaths and injuring 2,500. But in the city of Indianapolis, where Kennedy had spoken, it was quiet.

Yes, Evan Thomas used to have much better material to work with, and better politicians.

In the midst of the furor surrounding the killing of Trayvon Martin, there may have been a bit of a discussion among the chattering classes about the broader implications of policies encouraging citizens to assume the roles traditionally assigned to police officers enjoying a monopoly on the legitimate use of deadly force

But in state capitals around the country, the gun lobby’s drive to arm the population as heavily as possible hasn’t paused for any real debate. Here’s a quick summary from Stateline’s Maggie Clark:

The Kansas House passed a bill last month to allow concealed-carry permit holders to carry their weapons into any public building that doesn’t have “adequate security,” like metal detectors or security guards, and Oregon pro-gun legislators narrowly defeated a bill that would have banned guns on schools grounds, which included K-12 schools, community colleges and universities.

Virginia repealed its statute that blocked residents from buying more than one gun a month unless they got dispensation from the police, and Oklahoma legislators are likely to allow gun owners to visibly carry their now concealed weapons.

South Dakota lawmakers ventured the farthest in removing gun restrictions this session by voting to get rid of concealed-carry permit requirements and allow any state resident over age 18 with a valid drivers’ license to carry a concealed weapon without undergoing the background check now needed for a permit. Under the legislation, law enforcement officers in the field would have had to assess whether the gun owner had a criminal background or mental illness history that would preclude them from carrying the gun.

This last measure, at least, did go too far, and was vetoed by Gov. Dennis Daugaard after pleas from law enforcement officials. Alaska, Arizona, Vermont and Wyoming, however, already allow the carrying of concealed weapons without a permit.

More generally, as Clark noted:

[L]egislation loosening gun restrictions is still gaining momentum, even in Washington. The national “right-to-carry” reciprocity act was just introduced in the U.S. Senate, which would allow any person with a valid concealed-carry permit to carry their handgun in any other state that issues permits. The National Rifle Association is heavily supporting the bill, which passed the House last year by a vote of 272-154.

Like the rash of new laws around the country restricting abortion rights, the let’s-arm-everybody drive is in no small part a consequence of the 2010 elections, which may have largely been fought on other issues, but nonetheless empowered ideologues with a much broader agenda than was typically advertised.

I’m sure you’ve probably heard about this by now, but it’s a pretty remarkable story: a Fifth Circuit Court of Appeals Judge with the silent acquiescence of two colleague on a three-judge panel dealing with a secondary challenge to the constititutionality of the Affordable Care Act freaked out yesterday and demanded that the Department of Justice file an immediate statement repudiating what the judge chose to interpret as the president’s defiance of the power of judicial review. Here is CBS’ Jan Crawford’s updated report after reviewing audio of the incident:

In the hearing, Judge [Jerry] Smith says the president’s comments suggesting courts lack power to set aside federal laws “have troubled a number of people” and that the suggestion “is not a small matter.”

The bottom line from Smith: A three-page letter with specifics. He asked DOJ to discuss “judicial review, as it relates to the specific statements of the president, in regard to Obamacare and to the authority of the federal courts to review that legislation.”

“I would like to have from you by noon on Thursday — that’s about 48 hours from now — 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,” Smith said. “What is the authority is of the federal courts in this regard in terms of judicial review?”

Smith made his intentions clear minutes after the DOJ attorney began her argument, jumping in to ask: “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 replies yes, and Smith continues: “I’m referring to statements by the president in past few days to the effect, and sure you’ve heard about them, that it is somehow inappropriate for what he termed ‘unelected’ judges to strike acts of Congress that have enjoyed — he was referring to, of course, Obamacare — to what he termed broad consensus in majorities in both houses of Congress.”

In asking for the letter, Smith said: “I want to be sure 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.”

Smith, who got his lifetime appointment from Ronald Reagan, is a conservative judge on a famously conservative circuit, notes ThinkProgress’ Ian Millhiser:

The United States Court of Appeals for the Fifth Circuit may be the most ideological court in the country. When the oil industry’s allies in Congress wanted to protect the industry from drilling lawsuits, they passed a bill trying to force those lawsuits into the reliably industry-friendly Fifth Circuit. When a high school cheerleader sued her school district after it made her cheer for her alleged rapist, the Fifth Circuit ordered the alleged rape victim to pay more than $40,000. When one of the court’s few progressives asked a series of probing questions to a prosecutor during a court hearing, Fifth Circuit Chief Judge Edith Jones yelled at him to “shut up” and asked him if he would like to leave the courtroom

read more »

Unless you were a voter from one of the jurisidictions involved, last night’s Primary Watch was pretty underwhelming. Santorum didn’t get his upset win in Wisconsin. But the early exit polls there turned out to exaggerate Romney’s margin of victory, which led to a lot of ultimately erronous commentary about how Mitt had finally won evangelicals and “very conservative” voters in a seriously contested state. So it was not the crushing defeat for Rick it initially looked like, and the Death Watch surrounding his campaign will have to continue at least until April 24, when a loss in Pennsylvania would be very difficult for him to rationalize.

In terms of how non-Republicans interpet these late primaries, I think it’s important not to read any sort of ideological meaning into them, such as a rejection of Santorum’s “extremism.” In Wisconsin, only 28% of primary voters said Santorum was “too conservative,” barely more than the 23% who said he’s “not conservative enough” (which, of course, remains the main argument in Team Romney’s anti-Santorum propaganda). The fault lines in the GOP that have been evident throughout the primaries have only faded slightly; there’s no immediate reason to think that if Rick can hang on until May, he won’t still do well in states where a sizable majority of primary voters are conservative evangelicals. There just aren’t enough such states left to save him now.

Got a little bogged down in figuring out the wingnutosphere freakout over Hoosier “election fraud” case. But here are some late-day leftovers:

* Very weird: Federal Circuit Court panel orders Justice Department to confirm president believes in power of judicial review. All three judges involved were appointed by Republican presidents. Didn’t know judges got into spin wars.

* Mitt Romney and Paul Ryan hand out sub sandwiches at Wisconsin GOTV event. WI Democratic Party charges voter fraud. LOL. Let’s see how they like it.

* At College Guide, Daniel Luzer discusses a recent court case upholding a 1996 California initiative banning race-based affirmative action in public colleges and universities.

* Romney surrogate Trump accuses Obama of planning war on Iran to win election. Wag the Donald?

* O’Keefe-wannabee busted instantly when attempting sting on New York community organizing group. Need a new shtick, boys.

And in non-political news:

* Major League Baseball returns with expanded playoff format linked to TV contract negotiations.

I’ll be watching tonight’s primaries to see if there’s much of anything to say about them.

Selah.

An obscure Indiana indictment is getting major play on Fox News and across the conservative chattering classes. The Fox lede makes it sound pretty lurid: “Felony charges related to election fraud have touched the 2008 race for the highest office in the land.” And the headline, below which are arranged mugshot-style photos of the malefactors, reads: “4 Indiana Dems charged with election fraud in 2008 presidential race.”

Elsewhere are bloggy headlines and shouts about “voter fraud” and, inevitably, “voter ID,” viz: “The Real Reason Why Liberals Hate Voter ID: Four Indiana Democrats Charged with 2008 Election Fraud.”

Republicans promoting franchise-shrinking Voter ID laws, you see, are hard-pressed to supply evidence of any actual voter fraud, so anything that sounds remotely like it will get a lot of attention.

So what’s the big deal in Indiana? It is alleged that local Democratic officials in St. Joseph’s County (South Bend) forged an unknown number of signatures on petitions to place all three major Democratic presidential candidates (Clinton, Edwards and Obama) on the state’s 2008 primary ballot.

It is unclear why county party officials, not the campaigns involved, were responsible for this task. Only 500 signatures were required from each of the state’s congressional districts. It shouldn’t have been a very heavy lift: when the primary occurred, Obama received over 33,000 votes in St, Joseph County, and Clinton more than 30,000 (the third candidate, John Edwards, had dropped out by then); the two candidates appear to have collected over 50,000 votes each in the congressional district as a whole, or 100 times the number of petition signatures required.

So I don’t know if this was a matter of sheer incompetence (my guess), poor campaign oversight, or what, particularly since we don’t know how many forgeries actually occurred. But no one could seriously argue there wasn’t enough popular support for Barack Obama and Hillary Clinton to justify their appearance on the primary ballot, or that it had any effect on the primary results, or any vaguely remote effect on the general election. So maybe this was “election fraud” in the broadest sense of the term, but hardly “voter fraud.” And the connection to “voter ID” is non-existent.

But hey, as the saying goes, when you are a hammer, everything looks like a nail. So you can continue to expect conservative media to hammer away at this scandal and use it to justify all sorts of efforts to keep citizens from casting ballots—which really could “touch on the race for the highest office in the land.”

By the power invested in me as a blogger, I hereby convey a Special Spin Award to Santorum campaign spokesman Hogan Gidley, who had this to say about today’s District of Columbia primary:

We expect Mitt Romney to do well in the D.C., area, no shock there, in fact it might even be unanimous — I don’t know that we’ll pick up a single vote in D.C. because of the vitriol D.C. has for a someone like Rick Santorum who wants to shake things up here in Washington.

Yeah, that and the fact that the Santorum campaign failed to pay the filing fee necessary to get its candidate on the D.C. ballot.

Nice work, Hogan.