Nelson Playing Possum?

Chuck Schumer remarked yesterday on the dynamic facing moderate Dems with respect to health care and the public option:

So if you have a conference committee where the House has it strongly, almost rock solid, in their bill, and the Senate...if we don't have it in the bill there are 54, 55, 56 Democratic senators for it, how are they going to report back a bill without it?

This is the key question. Everybody wants to agree on jettisoning the public option, but the debate got so far away from the White House and Congress that the public option became synonymous with reform, and now nobody wants to be the one to excise it from the bill. You've even got Shep Smith going off script and slamming Republicans for distorting the public option debate. Nobody wants to put the stake through its heart.

But before everyone congratulates themselves on how health care reform "won" because conservaDems wouldn't dare to kill it, check out what Ben Nelson told Brian Beutler earlier today:

With a 60-seat majority in the Senate, Democrats are poised, theoretically, to prevent Republicans from filibustering key agenda items. Liberals and health care reformers see that as a potential bulwark against Republican obstruction and are pressuring party leaders to enforce unanimity on key cloture votes, so that nominations and major bills (like health care) can be decided by a simple majority. And just how are they doing on that score?

Sen. Ben Nelson (D-NE), one of the Senate's most visible centrists, tells me leadership hasn't said anything about it to him.

I asked, "Has leadership been in discussions with you and other moderates about voting with the party on procedural votes?"

In a statement that will bedevil liberals, he responded, "I don't know about others, but not with me."

There's almost no way that's true. And if it is, the Democratic leadership should collectively resign. There's almost nobody in the caucus whose vote needs to be assured OTHER than Ben Nelson. My suspicion is that Nelson is deliberately misreading what's been said to him to set himself up with the ability to leverage his opposition into concessions. With 60 Democratic votes, it really only takes one to vote down cloture. Everybody has the potential to demand something from reform. And Nelson is just allowing that to continue.

Meanwhile, he's being smartly squeezed back at home:

The Nebraska Democratic Party put the state's senior senator, Ben Nelson, in an awkward spot on Saturday by passing a resolution making support for a government-run insurance option a central aspect of its platform.

In a nearly unanimous vote at a committee meeting in Fort Omaha Metro Community College, about 70 attendees approved language that urges members of Congress "to vote for such health care reform proposals that contain a robust public option at all stages of the legislative process including conference and reconciliation, and encourage legislators to pass such reform."

Nelson remains one of the highest-profiled U.S. Senate Democratic holdouts on the public plan, even recently declining to commit to voting against a Republican filibuster of legislation that included the provision.

Officials at the Nebraska Democratic Party said the committee vote was not meant as a rebuke of the senator, who has historically taken a conservative approach to public policy issues. More an encouragement to all Democratic state legislators.

North Dakota Democrats just did the same thing, putting pressure on Kent Conrad - the resolution actually supports single payer with a public option as a "fallback". I don't know if these Senators are reachable, even by their home states, but it's worth a shot.

Point being, I don't think we can just assume that the Dems have 60 locked up for cloture just yet. There's a long way to go.

Tracking The Public Option Through The Senate

Those who have been paying attention understand that today was actually a pretty good day for the public option. We learned that Sens. Wyden, Carper and Nelson (FL) support it in some form, and that there are at least 51 votes for it in the Senate. However, yesterday Chuck Schumer did acknowledge that there aren't 60 votes at this time. Ezra Klein asks the right questions:

There are two questions here. The first is "60 votes for what?" Do they not have 60 votes in favor of a health-care plan that includes a public option? Or do they not have 60 votes against a filibuster of a health-care plan that includes a public option? If it's the former, that's okay: You only need 51. If it's the latter, that's a bigger problem. But I'd be interested to hear which Democrats will publicly commit to filibustering Barack Obama's health-care reform bill. If that's such a popular position back home, why aren't more Democrats voicing it loudly?

Second, why give up the public option now? If these moderates want to kill the measure, let them get full credit for doing so on the floor. They can sponsor an amendment to strip it out of the final legislation and go home to their districts having played a clear and undeniable role in the elimination of the public option.

The former is really the question. There are definitely 51 votes for a public option. It's unclear whether there are 60 for a final bill with a public option. And more specific than that, are there 60 to allow a vote on a final bill with a public option?

Mary Landrieu has come the closest to saying that she would filibuster a bill with a public option. Ben Nelson and Joe Lieberman are probably right with her. But I'd sure like to see them try to defy the President and doom a health care bill 40 years in the making over one provision. Reconciliation is always an option, given that you would only need 51 votes, but it's highly unlikely to get a public option that way. The main reason is that the Budget Committee would control the process, and Kent Conrad just voted against public option amendments yesterday, and would be highly unlikely to allow one to go through a 51-vote process. Heck, he doesn't want reconciliation at all. So Chris Bowers surmises that Harry Reid and the White House are the real pivot points right now, when the Senate merges the bill from their two committees:

The next step in the process does not actually involve Kent Conrad's Budget Committee, as I had previously reported (the Budget Commitee only comes into play with reconciliation). Instead, a source on the Hill confirms to me the Senate HELP and Senate Finance committees will be merged by an informal, behind the scenes process involving the four major players in the Senate: Tom Harkin (Chair of HELP), Max Baucus (Chair of Finance), Harry Reid (Majority Leader), and the White House. Together, these four will meet and decide what sort of bill to send to the Senate floor for debate and amendments.

During this process, we can guarantee that Harkin will push for a HELP or Schumer-like public option to be sent the floor, while Baucus will push for no public option to be in the bill at all. Given his recent statements, the best bet is that Reid will probably push against a public option too, and instead favor either triggers (which he has called a good idea) or co-ops (which seems to be the sort of public option he likes best). With two against and one in favor, this means that the only way a public option ends up in the bill that is sent to the Senate floor will be if the fourth major player, the White House, demands it.
It is all up to the White House now. If it pushes for a public option to be included in the health care bill sent to the Senate floor, then a public option will pass as part of health care reform (at that point, all we would need are 60 votes for cloture, and from what I hear we have 57 already). However, if it allows a health care bill to go to the floor without a public option, it is pretty unlikely that a public option will pass as part of health care reform.

Bowers doesn't think any floor amendment would need less than 60 votes, and while there are conflicting reports on that, he's probably right. He also doesn't think conference committee is an option, but I'm not sure I agree there. The House will almost certainly pass a bill with a public option. So it would depend on the White House umpiring that argument in committee. And that will almost certainly be decided by what they think can pass. If the Progressive Block in the House holds firm, and looks like a higher mountain to climb than getting 3 Democrats just to flip on cloture, the White House could go the other way at any step of this process.

Igor Volsky thinks we may see a new compromise floated:

Instead, the very same Democrats who defeated the national program during mark-up, will likely resurrect a discarded idea floated by the New America Foundation and momentarily embraced by the White House. That compromise will create a network of public options modeled on state employee benefit plans. The proposal could be triggered by Snowe’s amendment if reform did not meet a low affordability measure, but any state-based proposal would lack the market clout to lower overall health care spending, reform health care delivery, or hold private health insurers accountable.

Today may have been the death of the public option and the birth of state-based public options.

State-based plans won't have the economies of scale to really pressure insurers, but neither would Schumer's "level playing field" public option. Therefore, given that we're going to have to improve whatever inevitably comes out of the legislation, I'm inclined to say this is better than nothing. Apparently Tom Carper has started floating this behind the scenes.

I'm not as optimistic as Robert Creamer, but I do think that the public option still has a chance to survive in some form, and can be improved after the fact.

Showdown In The House

There's an important meeting today in the House of Representatives, where progressives and Blue Dogs will likely show their cards on health care reform.

The Blue Dog Coalition is engaged in a member-to-member whip operation in the House, beginning with a survey of its 52 lawmakers, to find out where they stand on critical health care issues. The principal focus is the public insurance option, but the canvass also touches on various tax and revenue increase proposals to pay for reform.

For the first time since they formed in 1995, the Blue Dogs have been out-organized by their liberal counterparts. The Congressional Progressive Caucus completed its first survey and began whipping back in the spring. They launched a final whip count last week that will be finished by Wednesday evening.

The whip count builds on an earlier letter that 60 members of the progressive caucus signed, pledging to oppose any health care bill without a "robust public option."

"We're going back to those people and saying, 'Hey, are you still with the letter?'" said Rep. Raul Grijalva (D-Ariz.), co-chair of the CPC. "And if there's been slippage, how much? And if we have a committed core, how many?"

Grijalva is asking members to back the public option all the way through the process, not simply on the first vote on the House floor.

The count comes in advance of a critical House Democratic caucus meeting Thursday morning in the Capitol, where leadership will take their own whip count. The fate of the public option in the House will be largely determined by the parallel whip efforts -- and how aggressive each bloc is in pushing for its priorities. In other words, it comes down to which pack wants it more, the Blue Dogs or the progressives.

So far, Grijalva has intimated that he still has the votes, although he hasn't delivered an exact count. Blue Dogs are trying to bait Pelosi by claiming she doesn't have the votes for the bill as currently constructed, but we'll probably know that by tonight. For Pelosi's part, she has a plan to start finalizing the bill after the meeting, with a possible floor debate on the public option. However, she shot down the trigger today as "an excuse for not doing anything."

The Blue Dogs are also whining about not being protected from tough votes, because the mission of public service is to come up with the most bland, inoffensive legislation possible and not to do anything that might make anyone mad. That's the picture of leadership. These ConservaDems either don't understand politics very well or are just being opaque about their true feelings.

Politically vulnerable Democrats say Speaker Nancy Pelosi and other House leaders aren’t offering them the protection from tough votes that they did in the last Congress.

Conservative Democrats fear that dozens of members could be swept out of their districts in the midterm election next year, and that fear has been intensifying in recent weeks.

Between a tough vote on a climate change bill that many don’t expect to become law and a leftward push on healthcare legislation, Pelosi’s (D-Calif.) critics within her caucus say she’s left the so-called “majority makers” exposed.

“She keeps trying to push an unpopular package,” said Rep. Gene Taylor (D-Miss.), a centrist Blue Dog Democrat, referring to healthcare. “I think it’s fair to say they were better at it before.”

Another Blue Dog lawmaker put it more bluntly.

“They’re seriously endangering their majority,” said the Blue Dog, who requested anonymity. “With the increased margin and a [Democratic] president, there seems to be a different feeling.”

What would endanger the majority are two things - no health care bill, or a health care package without a public option, which translates into a health care package that nobody in the country would like. What you would have left is an individual mandate to force people to shell out money to private insurers only, without the price controls to make that insurance affordable, a recipe for a continued skyrocketing of premiums. People interface the health care market primarily through those premiums as long as they remain healthy, and without competition in the insurance market it's going to be hard to dial them downward. There is currently no provision forcing insurers to lower premiums as a function of lowered overall health care delivery system costs. Only competition will provide that.

As I've said, the insistence on the public option is a self-preservation strategy. Rahm Emanuel might want to throw up his hands and pretend that only Congress decides on it, but he may want to get involved. As someone who claims to have brought the Democrats the House and Senate, he should know a thing or two about losing a majority. He could also recall 1994, when he worked in the Clinton White House and pushed NAFTA on the Congress, and watched as conservative Democrats from rural districts, who lost the trust of the people through selling out their jobs, were the first in line to fall from the Gingrichites. Failure to energize the base and provide something tangible for people could produce a similar result.

Doctors For The Public Option

As we know, the Baucus draft to be released today will not include a public option, making it the only bill out of the five in the Congress not to have one. On this basis Olympia Snowe wants it off the table. On her side are Republicans, a few ConservaDems without the courage to admit their opposition and prefer to say "it doesn't have the votes," insurance companies and teabaggers. On the side of the public option are Tom Harkin, a majority of the House, a majority of the Senate, the President, four committees in the Congress, the wide majority of Americans, states as conservative as Arkansas, and doctors (h/t):

A RWJF survey summarized in the September 14, 2009 edition of the New England Journal of Medicine shows that 62.9 percent of physicians nationwide support proposals to expand health care coverage that include both public and private insurance options—where people under the age of 65 would have the choice of enrolling in a new public health insurance plan (like Medicare) or in private plans. The survey shows that just 27.3 percent of physicians support a new program that does not include a public option and instead provides subsidies for low-income people to purchase private insurance. Only 9.6 percent of doctors nationwide support a system where a Medicare-like public program is created in lieu of any private insurance. A majority of physicians (58%) also support expanding Medicare eligibility to those between the ages of 55 and 64.

In every region of the country, a majority of physicians supported a combination of public and private options, as did physicians who identified themselves as primary care providers, surgeons, or other medical subspecialists. Among those who identified themselves as members of the American Medical Association, 62.2 percent favored both the public and private options.

What's so interesting about this is that the doctors broadly prefer private plans to Medicare on the basis of adequacy of payment, because private plans reimburse them more generously, but they STILL prefer a public option for their patients, because they have a frickin' heart.

By the way, I agree with Chris Bowers on this point:

No matter what happens in the Finance committee, it is essential that there is a vote on health care reform with a robust public option on the floor of the Senate. If Democratic Senators can keep saying that their aren't enough votes to pass a public option, and if they aren't going to include on in their health care "reform" package, then at the very least they should have the decency to tell us which Democratic Senators were actually opposed to the public option.

We are the activists who worked our asses off to give them their majority. If they are going to not deliver on the hopes and dreams we had that led us to do that activism on their behalf, then they better damn well tell us who canceled the delivery. No more of this code of silence crap that is designed to try and play both sides. They have to stand up, in public, and make it clear which side they are on--the American people's, or the private insurance companies. We need a Senate roll call vote.

I believe we'll get that vote, and members of the Senate can pick a side. And Harry Reid can determine, when merging the HELP bill and the Finance bill, if that vote is to put the public option into the bill, or take it out, which adds a different dynamic to the proceedings. We also need to know whether House progressives will live up to their commitments by voting only for bills with the public option in it.

House Progressives To Keep Fighting

Despite enormous pressure against them and few institutional allies, the House Progressive Caucus will keep fighting for a public option.

Next week will be gut-check time for the bloc of progressives standing in opposition to any bill that doesn't include a public health insurance option.

The leadership of the Congressional Progressive Caucus plans a "whip count" for early in the week to gauge the strength of their coalition, caucus members tell the Huffington Post. The whip team will also approach members of the Congressional Black, Hispanic, and Asian Pacific American Caucuses.

Democrats hold 256 seats in Congress and need 218 to pass a bill, meaning 39 progressives, voting together, could tank the legislation, assuming all Republicans vote nay.

The whip count will send a message to to the administration, said CPC co-chair Raul Grijalva (D-Ariz.): "Don't cut deals with some elements of our party or with some elements of the Republican Party without including the progressives in that discussion," he suggested. "So we're going to count our votes, see how many we have and that's the number we're going to indicate to both the leadership and the administration."

Rep. Keith Ellison (D-Minn.), a member of CPC leadership, estimates that eighty to 100 members will make the pledge. The progressive caucus met on Thursday, following the president's speech, and members repeated their commitment to seeing the public option included in the bill, said Ellison.

Grijalva guessed the whip count would be lower than Ellison's estimate. "We need firm votes," he said.

I agree with Grijalva, the final number will be lower. However, there will be a number of conservative Democrats in states like Alabama and Idaho and Mississippi who won't vote for any kind of health care bill, because they're basically Republicans. So I would say that if progressives can find somewhere between 25-30 members to stand firm, they'll be able to block anything. They got 32 votes against the Afghan war, so it's not impossible.

While Senate moderates and, in all likelihood, the Administration are pushing hard for a trigger, Obama's own rhetoric in defending the public option works against him here. He acknowledged in his Wednesday speech that his conception of a public option would bring some choice but would be small, only bring in 10 million people tops, wouldn't use Medicare bargaining rates, and is only a small piece of overall reform. In that case, moderates should be able to live with it, since there's so much else in the bill they seek. But of course, that's never how the game is played in Washington.

However this turns out, that vaunted unity in the Democratic caucus doesn't seem to be there completely. And that's actually a good thing. There should be a range of opinions in the caucus, and those debates can work themselves out. If one side is constantly made to knuckle under, it doesn't actually allow for any ideological variance, and doesn't give much of a reason for that side, which reflects the Democratic base, to stay in the Party.

Where You Stand Depends Upon Where You Sit

Word leaked last week of an official meeting, before Obama's speech, between him and the chairs of that Congressional Progressive Caucus, Congressional Black Caucus, Congressional Hispanic Caucus, and Congressional Asian Pacific American Caucus. But that never happened. The White House never called.

Meanwhile, today, seventeen Senate Democratic moderates, basically everyone in Evan Bayh's moderate coalition along with Arlen Specter, have been summoned to the White House. That was an appointment kept.

I suppose this could be to crack the whip, but given the juxtaposition of these events as well as political reality of who is perceived to be needed to pass a bill, that's not likely. The strategy to respect the ability of progressives to hold up legislation has of yet not borne fruit.

This is a good a time as any to print Raul Grijalva's reaction to the speech:

“I am pleased that President Obama made the right choice to recognize the importance of a public option as part of the health care reform legislation.

“A public option is the most effective way to achieve our goals of controlling costs, eliminating abuses of patients by insurance company abuses, and providing quality health care to all.

“However, the President needs to be more direct on what the public option means and what it will do for the American people.

“President Obama was elected to bring change and progress. I fear that if my party and the President do not appreciate the mandate the American people have given us, the people will lose confidence in the idea that they can vote for change and get what they voted for.

“We in the majority must have the courage to do what is in our power to do, and pass a bill that guarantees access to affordable, quality health care.

“Doing nothing is not an option. That is why I oppose efforts to delay and kill real reform with a so-called “trigger”. We cannot wait and just hope that the insurance companies will develop a conscience.

“The defenders of the way things are want to diminish and destroy the public option because they fear it will be effective. A national insurance plan would have the bargaining power to get lower drug prices and better deals with health providers.

“We cannot rely solely on the insurance companies' good faith efforts to provide for our constituents. A robust public option is essential, if we are to ensure that all Americans can receive healthcare that is accessible, guaranteed and of high-quality. Health insurance reform is an investment in our future that we cannot afford not to make.”

The President said quite the opposite yesterday, actually, defending the concept of a public option but reassuring skeptics that it wouldn't have the market share or the rate-setting ability to do anything meaningful to costs. But that's not a ringing endorsement of the policy. It's a downplaying of what the plan on offer would do. In that sense, it's correct - the public option available now would firewall people who get coverage through an employer and wouldn't be able to set rates to bargain for lower premium costs. But of course, enshrining it in legislation would give it the opportunity to expand, which is the whole point behind the progressive push. So Obama really soft-sold the public option last night, and invited weak alternatives like co-ops or triggers. So Grijalva was right to attack the President on this point.

The public option is not a fetish. It's a policy prescription which, if done right, could save massive amounts of money for people, businesses and the government, as well as provide decent health care for everyone. It's only considered a fetish by Villagers insulated from the consequences of having no insurance. Those fighting for its enshrinement are simply doing right by their communities, secure in the belief that a competitive option to insurance CEOs is the best chance for quality and affordable health care as a fundamental right and not a privilege to succeed.

They're demanding another meeting. Good for them.

...The only hope is that the President is telling ConservaDems that they'd better not join a Republican filibuster, but I simply find that unlikely.

Tea-Leaf Reading On Health Care

I'm going to play against type for a second.

I'm going to be an optimist.

There are actually lots of signs out there that health care reform will get done, and even a few that it won't be totally awful.

On the "getting done" part, this is uncontroversial. Without a bill that Democrats can sell to the public as a victory, they will get wiped out in 2010. They cannot live with failure. Dems in the House all have to face the voters, while some Senate moderates can hide this cycle. But regardless, the pressure from the White House and those vulnerable members of Congress to get something done will be intense. Furthermore, Blue Dogs are resigned to a bill.

Even after the tough town-hall-style meetings, unrelenting Republican assaults and a steady stream of questions from anxious voters, interviews with more than a dozen Blue Dogs and their top aides indicate that many of the lawmakers still believe approval of some form of health care plan is achievable and far preferable to not acting at all.

“I can’t tell you how comprehensive it will be, but I do believe something will get passed,” said Representative Michael Arcuri, a second-term Blue Dog Democrat from New York.

The political temperature of the Blue Dogs — and their ideological counterparts in the Senate — after the five-week recess is crucial. As representatives of some of the nation’s most conservative territory represented by Democrats, they potentially have the most to lose if a Democratic bill spurs a backlash. Even with healthy majorities in Congress, every Democratic vote is critical given the reluctance by some Democrats to consider a major overhaul and near blanket Republican opposition.

One lawmaker in the group, Representative David Scott of Georgia, said his determination to enact a health care overhaul had been increased over the recess because of what he called the spread of misinformation and other unfair tactics engaged in by the opposition.

“I think now more than ever we must get strong in our resolve to pass health care insurance reform legislation,” Mr. Scott said.

Scott is the Rep. who had a swastika painted on a sign in front of his office.

The Blue Dogs know that they will be first in line to go down if health care fails. They can try to claim in their districts that they saved the world from the eee-vul intentions of Hussein X, but that won't work. After a failed effort, anyone with a D in front of their name will be toast. And the Blue Dogs will be first up to the sacrifice pit.

Meanwhile, there are actual, definable signs that the public option will have to be a part of whatever comes out of a must-pass bill. For one, labor supports it strongly. Few interest groups in the Democratic Party hold more influence. House Dems would be dead without labor. Second, members of Congress are putting their own pressure on the President. Like Ohio's Sherrod Brown.

"I think the president needs to step forward," Sen. Sherrod Brown, D-Ohio, said this week, "be more specific, more aggressively fight for a strong health reform bill with a strong public option. I think he's going to do that."

Then you have Blanche Lincoln setting up for what I actually think is a way to support a public option and claim that she stopped the liberals from doing their worst:

Sen. Blanche Lincoln (D-AR) has been tepidly supportive of a public option in the past, so her comments to reporters today come as a bit of a head-scratcher. "I would not support a solely government-funded public option. We can't afford that," Lincoln said.

Nobody has called for a government-funded public option. The House bills have it paid for through consumer premiums, with a modicum of start-up money. She appears to be girding herself for a premium-supported public option.

Now, this could all be completely off base, as you have to practically read hieroglyphics to understand what's coming out of politicians in Washington these days. But we know with a fair degree of certainty that:

1) there has to be a health care bill
2) conservative Dems know it and won't stand in the way
3) liberal Dems sound confident that the President will push for a strong public option
4) conservative Senate Dems seem to be playing a kabuki game about it

Sure, you have ConservaDems not up for re-election next year like Ben Nelson arguing for more bipartisanship (although even the examples he gives are already addressed by the House bills). But in general, the momentum is actually pushing in favor of a bill, and maybe even a good one. You can base your beliefs on that, or unnamed sources in the White House. We'll see.

The Meaning Of Compromise

I think everyone expected Republicans to pre-emptively accuse Democrats of politicization in the wake of Ted Kennedy's death. (By the way, please politicize my death.) But that's just the far edge of the Overton window, the bluff so Democrats won't try to take comfort and inspiration to pass the cause of Kennedy's life. The far more insidious tactic, proffered by the right in a coalition with the bipartisan fetishists in the media, is to revise Kennedy's legacy as that of the ultimate centrist, in a fashion, the bipartisan dealmaker, the Great Compromiser. They've done a full-court press on this:

Senator Judd Gregg is already hinting at the idea. In an interview with the Boston Globe, Gregg hailed the bipartisan support for legislation he and Kennedy created together, adding that Kennedy knew how to “move the ball down the road with conservatives like myself.”

Meanwhile, Karl Rove hailed Kennedy on Fox this morning for being “willing to compromise.”

Other GOPers are floating the idea in The New York Times anonymously, in a discussion of how to navigate the politics of Kennedy’s death:

Republicans also noted that Mr. Kennedy, though an ideological liberal, was a legislative pragmatist who worked with Republicans to strike compromises on difficult subjects like health care, education and immigration. They said they saw little such reaching across the aisle in his absence.

Any member of the United States Senate with a long record will have many moments of compromise, whether between the parties or intra-party. But the idea that Kennedy should be remembered for "making the right concessions," solely in the context of bipartisanship, is a media projection helped along by a right wing who wants to blame Kennedy's absence for political polarization and the eventual death of a health care bill. We see this today with Steven Pearlstein's eleventy-billionth column arguing for the wise, high Broderist, split-the-baby approach:

And while there will be plenty of liberal Democrats who will be fuming about all the compromises forced upon them, somewhere from above will come a familiar voice with that distinctly Boston accent, whispering, "The dream will never die. Take the deal."

Notwithstanding the fact that Kennedy's staff wrote the HELP Committee version of the bill, and Kennedy himself labored over it, and that includes a public option, misses the point of Kennedy's legislative style, which continued to focus on broadening his goals and moving ever forward even when the odds weren't on his side. As Jonathan Cohn writes:

But this notion that Kennedy's liberal reputation somehow belied his pragmatism--a notion already gaining traction in the media, which has turned non-partisan accommodation into a fetish-- misses the point. Kennedy compromised on means, not ends. He would negotiate because it helped achieve his broader goals--signing on to NCLB, whatever its cookie-cutter standards, because it would send money to schools in poor, underfunded districts; embracing the Medicare drug benefit because, however poorly designed, it'd save senior citizens from having to choose between medicine and food.

It was precisely because Kennedy's devotion to his notion of social justice was so clear and dependable that he could make such deals stick. Liberals trusted him because we knew he wouldn't sell out the broader cause. If it was good enough for Kennedy, we figured, it was good enough for us. We knew he didn't see pragmatism as an alternative to ideology. It was just a necessary method of fulfilling it [...]

In the hours since Kennedy's passing, his speech to the 1980 Democratic convention--his most memorable oration, along with the RFK eulogy--has gotten a lot of play. Typically the networks show the final quote, in which he promises to continue his crusade even as he gives up his quest for the presidency. But the more important passage is where he invokes Franklin Roosevelt as an unabashed defender of the common man against the forces--and, yes, the people--who would disregard his well-being. Like FDR, Kennedy was not afraid to talk about values, to talk about right and wrong. Now that Kennedy is gone, who will pick up that torch?

Blue Dogs and ConservaDems have high praise for compromise these days, but their version of it basically preserves corporate goals and sells out their constituents in the exchange. Kennedy's version was precisely the opposite. His concern was "the least among us," the poor, the elderly, the disabled, the sick, the oppressed, the downtrodden, the less fortunate. He tried to get something for them, whenever possible. Pundits can call that "bipartisanship" but they ought to understand what that means.

The deviousness of the conservative project, to lament Kennedy's passing because now wild-eyed ideologues (like Max Baucus?) will go crazy, is clear. The true scoundrels, however, are those in the press trying to position the life of the man who did as much to advance the causes of the voiceless as anyone in the history of the Senate as someone who preferred half a loaf. Democrats should take a better lesson.

No, mere words cannot honor Ted Kennedy's memory. To pretend otherwise would be to cheapen his legacy, to lie about who Ted Kennedy really was. He was, for the vast majority of his life, a fiercely ideological public servant. It was his commitment to that New Deal social compact which defined him, which made him relevant to you and me. And his actions, not his words, were what marked him as the greatest Senator of his era. To attempt to honor Ted Kennedy without striving to further his life's work is simply impossible.

When Paul Wellstone died they told us that we couldn't celebrate him him as a political actor, that to do so would be crass and opportunistic. But the entire reason we knew Paul Wellstone, the reason we were crushed by his passing, was his political activism. It would have been a lie not to celebrate that legacy. It would have been crass to act as if Paul Wellstone hadn't been first and foremost a progressive hero, to feign nonchalance over political concerns as we eulogized the man, and in so doing stripping him of his essence. Likewise, it would be a lie today to pretend that the reason we loved Ted Kennedy had nothing to do with his leadership for working people. And it would be crass to attempt to celebrate him with mere words, rather than the action he demanded from us in life. How can we not "politicize" his legacy? The man was who he was because of his wholehearted commitment to his politics. The real obscenity -- the real opportunism -- would be for his political opponents to now try and depoliticize a quintessentially political life.

...George Steph agrees: Kennedy would have ditched the public option. Amazing how Kennedy's beliefs, after his death, line up perfectly with the beliefs of the blow-dried commentariat, n'est-ce pas? Lawrence O'Donnell, by the way, has a different perspective:

"Senator Kennedy...is not an easy compromiser on health care reform. In 1994, I was in the room when he told the president that he believed the strategy should be a Democrats-only strategy and that we should not be trying to reach out and get Republican votes."

The McCain-Lieberman Show Is Back

If it's Sunday, it's two discredited Senators who should be irrelevant.

John McCain continued his dominance over the Beltway discourse yesterday by demanding that Obama drop the public option from his health care reform bill. That would be a precondition to Republican support, says McCain, despite the fact that Republicans have throughout the process showed no inclination to support a contention from Obama that the sky is blue and water is wet, let alone anything to do with health care. It's a brilliant strategy to try and fork Obama between his base of supporters and conservative Democrats in Washington, but on the merits it's a completely silly idea.

At least McCain's partner in crime, Joe Lieberman, is more honest. He doesn't want health care reform because... he doesn't want health care reform.

In case you were wondering, Joe Lieberman said this morning on John King's show that we need to concentrate on cost controls in the health care sector in order to bring down the deficit and forget about universal coverage. We just can't cover everyone, but we have to figure out a way to cut costs dramatically because health care is bankrupting the country.

Considering that Lieberman doesn't understand that universal coverage with everyone paying in will mitigate health care inflation, and that he considers cost control the most important thing, one can only assume that he's the guy who wants to off granny --- and you too, if you don't have insurance. After all, we know that people who aren't insured get some very expensive, inadequate care if they do get sick because we require that hospitals treat people in an emergency. If cutting the deficit is the point of health care reform, then you've got to go where the money is --- sick people.

Lieberman and Richard Lugar both agree that Obama shouldn't have put Health Care on the agenda at all because there is a recession. But, of course, if the recession was over you couldn't put health care on the agenda because Lieberman and Lugar would say it would hurt the recovery. And if the economy is rolling, everyone who is willing to work should be able to get covered, so there's no need for health care reform. It's funny how that works.

Later, Lieberman actually tried to use the civil rights movement as a model for doing almost nothing on health care this year. Now, Lieberman has, throughout his career, traded off his image of being a Freedom Rider in the early 1960s. I wasn't aware that, when he was in Mississippi signing up black people to vote, his goal was to do nothing substantial for a while until the country became more comfortable with black people. If so, he'd have been the only Freedom Rider with such a mentality. I think the "justice delayed is justice that's fine with me!" crowd had only one member.

The wanker caucus in the puffed-up US Senate is verging on a majority. And of course, that's the problem, one which Ross Douthat, of all people, comes close to nailing. Conservative Democrats really don't want to do much of anything with their majority, even though the cost of doing nothing could be fatal.

What’s more, health care reform is the Democratic Party’s signature issue. Its wonks have thought longer and harder about it than any other topic. Its politicians are vastly better at talking about the subject than Republicans: if an election is fought over health care, bet on the Democrat every time. And for all the complexity involved, it’s arguably easier to tackle than other liberal priorities. It’s more popular than cap and trade, it’s less likely to split the party than immigration and it’s more amenable to technocratic interventions than income inequality.

If the Congressional Democrats can’t get a health care package through, it won’t prove that President Obama is a sellout or an incompetent. It will prove that Congress’s liberal leaders are lousy tacticians, and that its centrist deal-makers are deal-makers first, poll watchers second and loyal Democrats a distant third. And it will prove that the Democratic Party is institutionally incapable of delivering on its most significant promises.

You'd think that the instinct for self-preservation would be some kind of impetus to getting something done. So far, it hasn't emerged.

Letting The Slip Show

When conservatives aren't employing the "yell louder" strategy at Congressional town halls, or injecting mountains of B.S. into the societal ether around health care, stuff that's hard to debunk once it's "out there" no matter how full of lies, every so often they let their guard down and explain what they really think:

GOP Rep. Pete King, on MSNBC this morning, said he doesn’t think that health care reform is that important to the American people — and national Dems are getting ready to pounce [...]

Asked whether health care reform is an important issue to voters, King said: “When you ask the American people what’s the most important issue to them health care reform does not rank high.”

Actually, when you ask the American people about the most important issue to them health care is consistently in the top 3 issues. Job creation and the economy is really the only issue that polls higher, which is to be expected in the midst of a recession.

But let's be clear what King is really saying. When he says "when you ask the American people" about health care as an important issue, he means "when you ask me." And King, like most Republicans, doesn't find the suffering and stress of millions of people without health insurance, the pain of millions of families in bankruptcy due to catastrophic medical bills, and the cost of trillions of dollars in health care without better outcomes relative to the rest of the world, as simply not that big a deal. After all, he has great health care and a good, stable job, so why should he worry?

It's a bigger political concern for Republicans to cover everyone in America than it is a moral concern for them not to do it.

However, and this is very important, conservatives are peripheral to this debate. They have no power to change outcomes, so they really should not have the attention they get from the media. Someone ask Ben Nelson if most Americans think health care reform is a key issue. Or Mary Landrieu. Or any of about 20 House Blue Dogs.

Centrist Democrats Harm Women's Rights In Health Care Reform

Anti-choice Democrats are deliberately trying to weaken the public option:

...we believe that a common ground solution is to include language in the final legislation that makes clear that no insurance company will be required to pay for an abortion except in extraordinary circumstances -- nor will they be prohibited from paying for an abortion, so long as health insurance plans offered in the exchange that choose to provide abortion coverage pay for those services with funds that are separate and distinct from any federal subsidies.

This solution maintains the current status quo in the private market – where insurance companies can choose whether to include this coverage in their plans and individuals can choose which plan (and what sort of coverage) fits their individual needs and values while ensuring that no federal funds are used to pay for abortions.

Lastly, we believe that health reform legislation should not preempt constitutionally permissible state laws that establish pre-requisites that a patient must satisfy before obtaining an abortion, such as parental consent and waiting period laws.

Sounds tolerable, essentially a status quo formulation (and the pro-choice community doesn't have the votes to overturn the Hyde Amendment at this time, sadly), except that the public option would probably fall, under this construction, into those services with "federal subsidies." I don't agree, considering that it's designed to be self-sufficient and paid for by premiums. But the word "public" will probably get centrists all squeamish and work anti-choicers into a lather about how tax dollars are paying for murder. And so abortion coverage would probably stay out of a public insurance option, even while most private insurance options cover it.

Poor women pay for their own reproductive choice through Medicaid, and that's what the public option would do as well, confining such choices to a ghetto. Dana Goldstein says:

None of the health reform bills in Congress would repeal Hyde, meaning that as Medicaid is expanded to cover all Americans within 133 percent of the poverty line, the poorest women will still need to pay out-of-pocket for abortion. (A first-trimester abortion costs between $300 and $400.) What reproductive rights advocates are hoping for from health reform is that the new public insurance option will offer some abortion coverage, just as most private insurance plans currently do. But with increasing numbers of Democrats allowing abortion opponents to frame the health reform debate, little short of an intervention from the White House can slow the roll of the abortion grandstanding. So far the administration has shied away from the issue. Here's hoping that in his televised speech tonight, President Obama indicates that he won't allow anti-family planning ideologues to delay reform.

I doubt he'll even get the question, and he certainly won't provide a definitive answer. This looks like a lost debate.

Forward Movement By Staying In DC

Ron Wyden just said on Andrea Mitchell that he would be prepared to put off the August recess to get health care done. The President would not commit to that in his conference call with bloggers, but I think it's a good idea. The House doesn't want to vote before the Senate. I think that's clear. The Blue Dogs, who are meeting with the President today, don't want to take a tough vote that they might not have to take, depending on the Senate Finance Committee's proposals. At the same time, I think even Democrats who are essentially conservative understand that their days are numbered if nothing passes. The reason Jim DeMint's quote about "Obama's Waterloo" is so powerful, the reason that internal GOP memos calling on Republicans to "engage in every activity" to slow down a bill, with the concurrent notion that it would sink the Democratic agenda and the Democratic President, is because it's fundamentally correct. Certainly the President knows that, that's why he's using it as a rallying cry. And the lesson of 1994 is that, with an unpopular President, the first group to pay the price in midterm elections are the same moderate Democrats resisting passage.

There's another former congressman who was frequently associated with the centrists and who learned this lesson rather well. Before Rahm Emmanuel was Barack Obama's chief of staff, he was in Congress trying to get guys like Minnick elected. In September of 2007, he gave an interview to Politico on the lessons he learned from 1994. “You’ve got to have a plan for universal coverage," Emmanuel said. "But you also have to have some product at the end of the process you can deliver.” You may not win, in other words. But you cannot fail to pass a bill.

Emmanuel has carried that lesson with him into the Obama White House. "The only thing that's not negotiable is success," he likes to say. The worst outcome for the party -- in part because it's the worst outcome for its marginal members -- is defeat. Voters punish defeat. That's what happened to Minnick's Democratic predecessor in Idaho's First District, Larry LaRocco. LaRocco captured the seat in 1990 only to lose it in 1994, the last time Democrats failed to sign a health-care reform bill. It's possible, of course, that LaRocco would have lost his seat with or without health-care reform. But it's evidence that a bill not passing was not a great outcome for Idaho's lonely Democratic congressman. If you're a centrist in a district that doesn't like Democrats and events turn your constituents further against your party, your odds of survival are very poor.

This may mean that Democrats get a bill that isn't particularly good, which would eventually bite back at them as well, but over a longer time horizon and with the ability to tweak in the interim.

The best way to make everyone happy is to push back the deadline but keep everyone in Washington to work on it. It shows that Congress is diligent and willing to work out the details. If everyone's worried about reaction in the districts (which I think is a bit unfounded) during the recess, don't have one! Stay on schedule by continuing to work.

Wading Through The Concern Troll Maze

Nobody wants to kill health care reform. OK, I guess Bill Kristol does. But nobody else. They're just very concerned with the speed of the legislation, and some of the provisions and they just want to take the time, do it right, we can do it bay-bee.

You'd expect the RNC to weigh in on the side of the status quo. But Michael Steele is so clueless about the topic of health care that, as you can see from this compilation, he would probably be stumped if you asked him what a doctor does.



Later on, he didn't understand the individual mandate, only the central issue in the most intensely watched primary campaign in American history. He has found his metaphor, though, calling it a reckless and risky "experiment," both in his remarks and in this new ad, which I think makes the point that Barack Obama is experimenting on children.



Not really a new argument, nor is the idea that the new health care plan would "ration" care. Peter Orszag parries that nicely.

ORSZAG: This is the biggest canard that is floating throughout this debate. The fact of the matter is right now politicians and insurance companies are making decisions. We're saying we want doctors to be making decisions, and I think that will lead to a higher-quality, lower-cost system over time.

WALLACE: But when you say they're making decisions, they would be saying, you can have this treatment, you can't have that treatment.

ORSZAG: Do you think that politicians are currently rationing care, are insurance companies currently rationing care? There's no set of decisions that this commission would have that is not currently resting with either members of Congress or insurance companies.

WALLACE: So they would be rationing care.

ORSZAG: No! Because I don't think we're rationing care today, and similarly they would not be in the future. What they would be doing is setting reimbursement rates and moving towards a higher-quality system.

These arguments from the right are both silly and transparent. They are designed not to advance any debate about health care or create some alternative set of proposals. They are, as Orszag said on a different Sunday show, designed simply to kill any bill. They not only want to break health care, but break Obama, as Jim DeMint very clearly stated. Delay equals defeat in this case.

Which is why it's so disconcerting to see Democrats engage in the same tactics. For example, Gov. Brian Schweitzer of Montana criticized the expansion of Medicaid in the bill because it would leave an unfunded mandate for the states, but under the House bill, at least, the federal government picks up ALL of the costs for that expansion, at no cost to the states whatsoever. Schweitzer may consider this a slippery slope, and in that case, he should advocate for taking state participation out of Medicaid entirely. But instead, he's chipping away at Congress' bill, as are other governors of both parties, and eventually that tactic leads not to getting the policy right, but burying it.

If moderate Democrats have legitimate concerns with the bill, they have every opportunity to address them, but they seem more concerned with shooting arrows at it, which will only destroy the bill, and probably their political future as well.

But the question isn't whether Republicans understand the power of successful opposition. It's whether Democrats understand the dangers of failure. And that's most true for the Democrats who are most likely to weaken the effort: The Democrats who are cool to health-care reform because they fear the conservative tilt of their state are the Democrats who will lose their seats if Obama loses his momentum and the Democratic majority begins to lose on its major initiatives. Legislative defeats will not threaten Henry Waxman's seat. But it will imperil Mary Landrieu's. And Ben Nelson's.

Bill Kristol is right that defeating Obama's health-care plan is a first step for Republicans who want to pick off vulnerable Democrats in the 2010 midterms. But the converse is also true: Passing health-care reform is the first step for vulnerable Democrats who want to save their seats.

In the end, I'm not sure that those moderates really want universal health care. So they concern troll it and ask for delays and we eventually spend another couple decades with a broken system and no progress. I'm hopeful that isn't the case this time, as Obama steps to the front of this debate. But at this point, turning away from the sausage-making is probably best for my heart.

Pressure Works

Several weeks ago Digby and Blue America noticed that Blanche Lincoln, one of the few centrist Democrats facing re-election in 2010, was taking the side of the insurance companies over her constituents in the health care debate. She claimed that "if all Congress comes up with is a government-backed plan, then there will be very little incentive for the private industry to be able to be competitive perhaps in the plans they will be offering and the individuals they will be offering,” showing exactly where her sympathies lie - with those poor, henpecked insurance industry CEOs who scrape by on $14.9 billion dollars over five years.

So we decided to do something about it. Blue America kicked off the Campaign for Health Care Choice and produced three advertisements to press Lincoln on supporting a quality public insurance option to compete with private companies. Digby write the spots, John Amato helped with locations and logistics, I directed and edited them, Howie Klein managed the fundraising. Blue America held a contest to pick the best spot, and after raising $23,740, voters chose their favorite:



Today, we can announce that, before the spots even fully hit the airwaves in Arkansas, Blanche Lincoln is already hedging on her rejection of a public insurance option.

Lincoln, who’s getting hammered by ads demanding she commit to the public option, has now shifted towards supporting one, at least in rhetorical terms. In a piece for today’s Arkansas Democrat-Gazette, she says health care reform should include a public plan or a non-profit substitute.

Here’s the key graf from Lincoln (the piece is subscription only):

Health care reform must build upon what works and improve inefficiencies. Individuals should be able to choose from a range of quality health insurance plans. Options should include private plans as well as a quality, affordable public plan or non-profit plan that can accomplish the same goals as those of a public plan.

The assertion that reform “should” have a public plan or non-profit substitute is a shift from her previous position, which was only that she was “evaluating” a public plan or a substitute.

In this op-ed, Lincoln makes absolutely no mention of an employer mandate to provide coverage to their workers, which Wal-Mart, America's largest employer and a virtual kingmaker in Arkansas, signed onto this week. Instead, Lincoln goes out of her way to support a public insurance option in competition with private insurance. There are weasel words there, of course - note the "non-profit plan that can accomplish the same goals." And I don't doubt that Wal-Mart's general support of something called health care reform played a role. But in the final analysis, two events happened to Blanche Lincoln in health care recently - Wal-Mart's sign-on to the employer mandate and the prospect of Blue America running ads in her state ($25,000 can go a fairly long way on cable in Arkansas, by the way). She chose to specifically align herself with the element of health care policy that Blue America endorses.

But she's not all the way there, so we plan to keep pushing. But this should be a valuable lesson - every small thing you do to advance solutions to the health care crisis can make a difference. The political animals in the Senate know that on this high-profile vote, defying the public on a popular plank will cause them some difficulty. It's up to us to make sure of that.

Please support the Campaign for Health Care Choice so we can continue to raise the pressure on the ConservaDems who want to hijack this crucial policy goal.

Insurance That Doesn't Insure

The New York Times basically goes where Michael Moore went in his film SiCKo, finding that the problems with the health care system are just as bad for those who have insurance as those who don't. Insurance companies have the financial incentive to deliver as little on their promises of coverage as possible - it's as simple as that:

Health insurance is supposed to offer protection — both medically and financially. But as it turns out, an estimated three-quarters of people who are pushed into personal bankruptcy by medical problems actually had insurance when they got sick or were injured.

And so, even as Washington tries to cover the tens of millions of Americans without medical insurance, many health policy experts say simply giving everyone an insurance card will not be enough to fix what is wrong with the system.

Too many other people already have coverage so meager that a medical crisis means financial calamity.

The real stories in this piece will break your heart. Families forced into bankruptcy because insurers found a way to exclude their medical treatment from their coverage. Insurers selling coverage that is essentially worthless. Plans that cap reimbursement for an operation at $5,000, when most operations cost several times that at the very least.

The crack solution from Republicans and conservaDems to this issue of insurers issuing worthless insurance is to create a monopoly for their industry, pay subsidies to people to funnel over to them, and not allow any public insurance option to compete for fear that it would actually lower prices for consumers. That's literally their concern:

(Lieberman's) two key objections are:

"If we create a public option, the public is going to end up paying for it."

"My fear is...[health care providers] would end up getting levels of reimbursement from the public plan...comparable to what they get today from Medicaid."

He thinks that Medicare/Medicaid bargaining rates are insulting to providers, but rising health care costs are OK for working stiffs. Lieberman, by the way, promised universal health care during his 2006 campaign for Senate. Of course, in practice, he's tried to kill universal health care ever since 1993. And insurance companies dominate Connecticut.

This is part of a general strategy by Republicans and moderates to reward the very people who caused the problems that "reform" legislation seeks to solve. It makes sense for the corporations pulling the strings, but nobody else.

Trigger'd

We're nearing a real fulcrum point in the health care debate. The sensible centrists and the corporate whores are trying to sink the public option by instead suggesting that it only be achieved through a "trigger" that would be pulled if the insurers didn't provide a base level of care and access.

As a starting point for his bill, Mr. Kennedy favors a public plan that looks like Medicare, the government-run program for older Americans created in 1965, when he was a young senator.

By contrast, Senator Max Baucus, the Montana Democrat who is chairman of the Finance Committee, has been working for months with the panel’s senior Republican, Charles E. Grassley of Iowa, in the hope of forging a bipartisan bill, which would probably play down the option of a public plan.

Mr. Grassley opposes creation of a new government insurance program and says “we cannot afford the public health plan we have already,” referring to Medicare.

President Obama has championed a public plan, saying it would help “keep the private sector honest,” though he has indicated he will be flexible on the details.

House Democratic leaders, including three committee chairmen drafting the House bill, are close to Senator Kennedy’s position.

Democrats on the Finance Committee said Mr. Baucus was exploring a possible compromise. Under this proposal, the public plan would be created only if private insurance companies had not made meaningful, affordable coverage available to all Americans within several years.

Senate Democrats said they believed that Mr. Baucus might settle for this “fallback plan,” which could win some support on both sides of his committee, from people like Senator Ron Wyden of Oregon, a Democrat, and Senator Olympia J. Snowe of Maine, a Republican.

Obama met with both Kennedy and Baucus today before leaving for the Middle East. (UPDATE: Dodd sat in for Kennedy)

A trigger mechanism is simply absurd. The insurers have had decades to provide decent coverage and have demurred every time. They have shown themselves to be untrustworthy that entire time, including just last month, when they backpedaled on the cost controls they vowed to offer. Mike Lux, who has seen these battles up close, senses that this is the big proxy fight right now.

The insurance lobby has had multiple tactics for stopping the public option idea, which they despise because they know if regular folks have choice to go to a public option, insurance companies won't have the same ability to treat their customers like garbage when they get sick. The first tactic was just to try to kill the public option outright, and the good news is that they appear to have failed at that. This so-called trigger proposal is the second tactic: the idea is to write a "trigger" that will allow for a public option only under certain conditions, but write the legislation so that those conditions would never get met in the real world. It's a classic DC tactic, right up there with calling for a commission to study something. Olympia Snowe is carrying the insurance industry water on their trigger proposal, proposing triggers that would only get tripped in some fairyland none of us have ever visited.

The great thing for the insurance companies in a tactic like this is that it gives "centrist" Senators (centrist in Washington, DC usually means those who have taken massive amounts of campaign contributions from the affected industry) an excuse to help the insurance industry while looking like they are open to the public option that their constituents have been demanding.

Barack Obama and Democrats in Congress have gotten some good things done so far, and are building real momentum in getting us moving in the right direction on health care. But if conservative Democrats force the adoption of the trigger, it will destroy Democratic unity and doom health care reform, because progressives will start attacking Democrats rather than insurance companies. We really are at a critical moment.

Baucus himself stayed away from dozens of town hall meetings on health care out in Montana in the last week, mainly because constituents were openly hostile to his vision of sham reform. Most everyone at these meetings argued in favor of single-payer, and Baucus obviously has no interest in that. But adding this trigger would shut off the only way for a single-payer system to flourish, through a robust public option that can be scaled up. Lux describes it perfectly.

The Progressive Caucus in the House has really stepped up, declaring their votes on health care only available in the event of a public option. But they have not determined what form that public option will take. The public needs to demand action without Washington compromises. This is worth calling your Congresscritter about.

...I remain convinced that health care will really hit the rocks when we start determining how to pay for reform, but I'll leave that for a later post.

...The Maryland Women's Coalition for Health Reform is calling on AARP to support a public plan. Advocacy groups like this would be vital in this fight. It's yet another pressure point.

Not A Liberal Lion?

The demonization of Sonia Sotomayor on the right should not comfort liberals that Obama has necessarily made a perfect choice. It can sometimes work to choose allies based on whether or not they have the right enemies, but conservatives would have opposed Ted Olson if Obama appointed him (after all, that guy's down with the homosexual agenda). We must do our own work, our own due diligence on Sotomayor, and decide for ourselves whether she is a solid candidate for the bench. And the early analysis of that work raises some concerns that she may be absolutely qualified and worthy of the seat, but also a fairly narrow moderate technocrat.

According to the White House’s experts, President Obama’s just chosen an extremely cautious, legalistic nit-picker.

“She’s a lawyer’s lawyer,” said Paul Smith, a partner at Jenner & Block who participated in the call.

“She’s someone who cares about the craft, about the details of facts,” he said. “She’s a cautious lawyer….who was a corporate lawyer herself….She reads statutes narrowly.”

Harvard Law Professor Martha Minow described Sotomayor’s decision in a securities case that turned on the how Sotomayor read the word “buyer.” In fact, she read the law so literally that the Supreme Court reversed her, said Minow: “they said, ‘let’s be not so stingy’ ” about it.

Sotomayor’s opinions, according to Kevin Russell, a partner at Howe & Russell who writes for SCOTUSblog, reveal a “judicial modesty” that’s “very respectful of precedent.” In a case brought by the Center for Reproductive Law and Policy, for example, she rejected a challenge to President George W. Bush’s “global gag rule,” which prevented foreign organizations receiving U.S. funding from using their own money to provide abortions or abortion assistance.

Russell added that Sotomayor has also shown herself to be very deferential to the judgments of government agencies. When passengers were bumped from a flight by an airline and claimed it was due to racial discrimination, Sotomayor ruled that the anti-discrimination laws are trumped by the international Warsaw Convention, which regulates the liability of airlines in international flights.

“Judge Sotomayor is not the sort of judge who sees it as her role to reverse every decision she disagrees with,” said Russell.

If you believe that judges should display a narrow reading of the law and rely heavily on precedent, Sotomayor looks to be your kind of judge. If you're worried about losing the fundamental rights of women to make medical decisions, you may become alarmed (although respect for precedent would seemingly include Roe, and I don't think that the evidence in the article comes down on either side definitively).

The evidence points to Sotomayor as a somewhat moderate textualist who will respect precedent and find her opinions in the law. In other words, pretty much like Souter. You can consider that a missed opportunity for Obama, but you'd have to expect him to do something different, which I pretty much don't.

...E.J. Dionne's really down on her:

And even though they should support her confirmation, liberals would be foolish to embrace Sotomayor as one of their own because her record is clearly that of a moderate. It is highly unlikely that she will push the court to the left. Indeed, on many issues of concern to business, she is likely to make the Chamber of Commerce perfectly happy [...]

They want to turn Obama’s argument on its head and claim that Sotomayor would show bias in favor of those who share her background—and never mind that they dismiss such assertions when they are raised with respect to white, conservative, male nominees.

The problem is that this approach is untrue to who Sotomayor has been and has little relationship to the decisions she has actually rendered as a judge. News accounts from the 1990s consistently described her as a “centrist” in her politics. Her lead sponsor when she was first named as a judge, the late Sen. Daniel Patrick Moynihan, was hardly a conventional liberal. Obama may have found himself an empathetic judge, but she practices her empathy from the middle of the road.

A careful analysis of her record by Business Week, for example, concluded that she is a “moderate on business issues” and would fit the court’s current alignment of such questions.

The reference to business issues really disappoints me because this is where the Court as currently constructed is at its worst.

Ben Nelson Looks Forward To Learning

A noncommital, tepid response to the Supreme Court announcement by the Senate's most conservative Democrat:

"President Obama is to be commended for selecting a nominee with a significant breadth and depth of legal experience to replace retiring Justice David Souter. I look forward to learning more about Judge Sonia Sotomayor's background, record and qualifications -- and to meeting with her to discuss her judicial philosophy -- as this important United States Supreme Court nomination moves forward. "During my tenure as Nebraska's governor, I appointed 81 judges, including the entire Nebraska Supreme Court and Court of Appeals. As Nebraska's senator since 2001, I have voted on numerous judicial nominees. In each case, I nominated or supported judicial nominees who convinced me they would follow the law, rather than manipulate the law to promote an activist agenda. While my personal views differed from some nominees, I applied no litmus test to them on issues. My main test has always been and remains: Will the nominee follow the law and not make law to fit his or her views?

"Concerning Judge Sotomayor's nomination, I look forward to examining her entire record and commitment to upholding the law and Constitution of the United States in the coming weeks."

This actually represents a step forward for Nelson, who over the weekend said that Gitmo shouldn't be closed and torture's OK with him. Brian Beutler has a bunch more. Nelson has seen the vacuum for a moderate that can hijack the Presidential agenda and stepped right into it - giving himself a lot of glory and cable news appearances. He's like a force of nature, as well as a creature of the peculiar institution of the Senate.

Compromise of the Art

Paul Krugman writes today about the watered-down climate bill, but more specifically the difficulty among the progressive movement to figure out the tipping points in the face of all the compromising and atom-splitting:

In a way, it was easy to take stands during the Bush years: the Bushies and their allies in Congress were so determined to move the nation in the wrong direction that one could, with a clear conscience, oppose all the administration’s initiatives.

Now, however, a somewhat uneasy coalition of progressives and centrists rules Washington, and staking out a position has become much trickier. Policy tends to move things in a desirable direction, yet to fall short of what you’d hoped to see. And the question becomes how many compromises, how much watering down, one is willing to accept.

We can apply this to a lot of legislation coming out of Washington, but Krugman specifically looks at the climate bill. We all knew that the initial Waxman-Markey bill would represent the leftward bound of the policy. Predictably, coal-state Dems reacted unfavorably, and sought concessions, the most important being the softening of both the cap on carbom emissions and the renewable energy standard, as well as the inclusion of emissions allowances to polluters, instead of selling off all allowances 100% at auction. Not only will this giveaway to polluters push more of the costs of implementation onto the poor and give a windfall to groups like coal plant executives, but it won't stop electricity producers from raising their prices even though that's the entire point of the allowances. What's more, this doesn't seem to be enough for Senate Democrats:

Another senior aide said Waxman’s “pragmatic approach … will be appreciated in the Senate” but cautioned that the deal is unlikely to fully satisfy Senate moderates who are looking to temper the bill even more.

“Rick Boucher does not equal Evan Bayh does not equal Debbie Stabenow,” the senior Senate Democratic aide said of the Democratic Senators from Indiana and Michigan, respectively. Bayh and Stabenow have expressed reservations about cap-and-trade provisions, which would cap emissions and allow industries to trade for pollution permits.

“There are a substantial number of moderate Democrats who are uneasy at best,” the knowledgeable Senate Democratic aide noted.

Basically, plenty of Democrats would rather see absolutely nothing pass.

Given all of that, as long as the cap is hard and cannot be gamed, this will drive down emissions, coupled with the new fuel economy standard for cars, not to mention all of the initiatives on energy efficiency and renewable standards in the bill). And if anyone can shepherd through a bill of this magnitude and make sure it doesn't get totally de-fanged, it's Henry Waxman. His policy style is to keep working on an idea and taking small victories until the full flower of the policy is realized. Obviously it's an open question whether Waxman-Markey will amount to enough of a victory to support.

And that's really the fault line in this debate. If you accept that voters care about climate change, and want to see real action, a light-as-a-feather bill could alienate the young voters who care about it the most, and frustrate those who see no way for Congress to deal with such an abstract yet devastating issue, especially given all the special interests seeking the destruction of the legislation (This, by the way, is why Republicans are backing a carbon tax, because they know it's politically impossible and an attempt to stop the main bill cold). Where is the tipping point, where do progressives draw the line? And since we really do have a short window for dealing with mitigating climate change until we're powerless to stop it, if the subsequent bill would fail to reach its intended goals, wouldn't it be used as a symbol of Democratic failure?

There are strategic issues in addition to policy issues at work here. It's hard to figure what's right.

Getting Involved

President Obama, seeing support for his preferred climate policies slipping away, will meet with the House Energy and Commerce Committee tomorrow to discuss the bill.

The session comes at a critical juncture for Obama's energy and environmental agenda. Democratic leaders last week postponed plans for a markup because they did not have enough votes to pass the legislation out of subcommittee, and closed-door talks since then with about a dozen conservative and moderate Democrats from districts with strong ties to industry have yet to yield an agreement.

Like this year's successfully enacted stimulus package and budget resolution, Obama has not given specific legislative language to the Congress to meet his goals on climate change and energy. Instead, he has left the details for lawmakers to work out among themselves.

One key Energy and Commerce Committee Democrat said he expect no major departure in the administration's legislation strategy as he heads this week to meet with Obama at the White House.

"I think what he's going to do is say, 'Please, don't vote no. Let's see what we can work out,'" said Rep. Gene Green (D-Texas), who will also visit today with Obama during a White House event to celebrate Cinco de Mayo -- a day earlier than the actual holiday.

I wrote last Friday that the climate bill was hanging by a thread, so this is a good time for the White House to make their priorities known. We are starting to see some pushing from outside groups like MoveOn to get lawmakers to sign on, but so far the real trouble comes from conservative Democrats on the panel. As the Times article notes, only Mary Bono Mack (R-CA) has a shot to vote for the bill from the GOP. The undecided moderates and Blue Dogs have competing interests from the corporate polluters they represent, be it coal or oil or whoever.

Repower California has started running TV ads to get Bono Mack and others to support the climate and energy bill. We have an inside/outside effort to counteract the interests of polluters and finally set a national energy policy for the 21st century.