epb22

Yesterday, Speaker William J. Howell published an op-ed in the Free Lance Star titled "A Time for Magical Thinking/Responsible Alternative Must be Found to Expanding Medicaid." (available here). The title seems promising. We know that Speaker Howell is against expansion but at least he is talking alternatives now, right? Well, maybe not so much.  

Willard Romney won the Republican Primary in Florida this evening by a wide margin. According to the exit polls, Romney did particularly well among voters whose primary concern was the ability to defeat President Obama. Or, to put it another way, Romney was considered the most "electable" candidate among those competing in the Florida primary (a title somewhat akin to least impaired patient in a asylum, if I can say that without offense to persons with mental disabilities everywhere).  

Far be it for me to offer any pearls of wisdom to our friends on the GOP side, but I would caution them against trying to capture that mystical creature referred to as the "electable candidate."  

For those who may be blissfully unaware of the latest emission from the Newt idea factory, Gingrich has come out with an aggressive attack on the federal judiciary.  Essentially, he believes that the federal courts have greatly over-stepped their proper role in our constitutional system (primarily by assuming the authority to bind the other branches of government to their opinions on constitutional law) and need to be reigned in by various methods such as the threat of wholesale elimination of judicial circuits or the institution of Congressional hearings where the authors of offensive opinions could be dragged in for prolonged questioning.  

Amy Davidson has an interesting post in the New Yorker's Daily Comment Blog questioning whether one should worry about Newt and his plans (available here ).  Her ultimate answer is yes on the grounds of understanding the subliminal messages this court-attacking scheme sends to voters - particularly social conservatives - and correcting the historical distortions behind the proposal.  Important reasons no doubt but they fail to recognize the true danger of this plan.

Namely, the role of the federal courts in constitutional interpretation is primarily a separation of powers question.  If you peruse the limited Supreme Court opinions which analyze separation of powers questions or the more copious  declarations from the Department of Justice's Office of Legal Counsel you will find that one factor tends to drive decisions - political consensus arrived at through historical practice.