Winners & Sinners / Health Care Reform Edition

Overnight is a long time in politics; a week is forever.
–FCP’s favorite American Political Proverb

    The Obama administration was spiritually and substantively reborn yesterday when Barack Obama use twenty-two pens to sign the most important piece of legislation into law in four decades.  (why did Stolberg and Pear say “20” in the Times??)

As always, the media did a wildly un-even job of understanding and explaining the significance of this extraordinary moment.

The Biggest Winner: David Leonhardt got right to the heart of matter, with a point I didn’t see made anywhere else: “The bill that President Obama signed on Tuesday is the federal government’s biggest attack on economic inequality since inequality began rising more than three decades ago… Beyond the health reform’s effect on the medical system, it is the centerpiece of his deliberate effort to end what historians have called the age of Reagan…The bill is the most sweeping piece of federal legislation since Medicare was passed in 1965. It aims to smooth out one of the roughest edges in American society — the inability of many people to afford medical care after they lose a job or get sick. And it would do so in large measure by taxing the rich.”  Of course, FCP believes it doesn’t do nearly enough to tax the rich–but at least it is a beginning.

The Biggest Sinner: Brian’s Williams’ NBC Nightly News last night devoted 53 seconds to a favorable account of the president’s bill signing–followed by 3 minutes and 7 seconds of Republican soundbites attacking the bill, 1 minute and 50 seconds about the Republican Attorneys General who have filed an almost-certainly doomed suit to overturn the law in Federal Court–and 1 minute and 55 seconds to an utterly clueless small business owner and his wife, who admitted they had no idea whatsoever how the bill would affect them–but still managed to repeat several of the most well-worn Republican sound bites.   And if you actually wanted to know anything about what was in the bill?  “Go to our website”–that was the anchor’s sole contribution to his viewers’ knowledge about that.  One of the shoddiest reports about an historic event FCP has ever seen on a network newscast.

Winner: ABC’s World News with Diane Sawyer, which not only managed a much more balanced report, but also was the only network evening newscast to report the most relevant poll result of the day: Gallup found that 49 percent of Americans believed the bill was a good thing, and only 40 percent  did not.   On the other hand, the ABC broadcast reported just one Democratic congressional or party  office had been vandalized; on MSNBC,  the always much-more-thorough Rachel Maddow found five sites of vandalism across the country, as well as the ex-militia man in Alabama who claimed credit for inciting all of the violence.

Winner:  The CBS Evening News (Harry Smith was sitting in for Katie), which actually managed to describe some of the specifics in the bill–including tax savings of up to 4 percent for small businesses.

Sinner: The always-awful Kathleen Parker for repeating the bold-faced lie that the health care bill “expands public funding for abortion” and then attacking Bart Stupak for finally doing the right thing by voting for the bill.  Parker wrote that the Congressman “will forever be remembered as the guy who Stupaked health-care reform and the pro-life movement.”

Winner:  FCP’s  colleague, fellow Hillman Prize Judge Harold Meyerson, for writing the clearest column in The Washington Post about the president’s action:  “With the enactment of health-care reform, the often hapless, sometimes hopeless Democrats have transformed themselves into something America has not seen in decades: a governing party. By passing the most significant social legislation since the ’60s, they have ended the policy gridlock dating to the middle of Ronald Reagan’s presidency. They have revalidated the almost quaint notion that – despite the ever greater role of money in politics – elections have consequences, too…Obama and Pelosi became a legislative force that Democrats have not seen since Lyndon Johnson. Pelosi’s contribution, no less than Obama’s, is one for the history books.” 

Then Meyerson laid out the rest of the necessary road to victory in the fall:

“To continue as a governing party beyond November, Democrats must apply the lessons of their health-reform victory to more popular causes. They need to establish a powerful consumer protection agency and rein in bank speculation – causes that some congressional Democrats decline to embrace. They must pressure those Democrats relentlessly, as they did those who wavered over health reform. They need more job legislation, beginning with California Rep. George Miller’s bill to save the teaching and public safety jobs on numerous states’ chopping blocks, and with Connecticut Rep. Rosa DeLauro’s bill to establish an infrastructure bank to revive our construction sector.

Sinner: Ruth Marcus, also in The Washington Post, for boldly stating the obvious–we don’t know exactly how the one of the most complicated pieces of legislation ever enacted is going to work–and then casting doubt on its effectiveness with this factoid: “A study… by Richard Kronick, a former health-care adviser to President Bill Clinton, found ‘little evidence to suggest that extending insurance coverage to all adults would have a large effect on the number of deaths in the United States.’

Note to Marcus and Kronick:  Nothing will ever have any effect on the “total number of deaths in the United States”–except for the total number of births, and immigrants.

 Above the Fold

    David Boies and Theodore Olson came to The New York Times headquarters in Manhattan this week to discuss the constitutional challenge they have brought against California’s Proposition 8, which outlawed marriage equality in that state at the end of 2008, after 18,000 same-sex couples had been married there.

    The left-leaning litigator and the right-leaning appellate lawyer, who squared off against each other in Bush v. Gore back in 2000, now seem like old acquaintances who suddenly realized how much they liked each other when they reached late middle age.  

    When they first announced their federal suit nine months ago, with the clear intention of litigating it all the way to the Supreme Court, they caused a quiet uproar within the gay legal establishment, which had made a collective decision to keep the marriage issue out of the federal appellate courts, at least until there was a greater national consensus in favor of marriage equality, or another conservative justice was replaced by an Obama appointee–or both.

    Some people were so skeptical of what seemed like Olson’s very sudden conversion to a left-wing position, they accused him of purposely trying to undermine the fight for marriage equality by pressing the case in Federal Court prematurely.  But Olson’s moving public declarations in favor of same-sex marriage–as well as his brilliant performance at trial before Federal Judge Vaughn Walker–gradually obliterated the doubts about his sincerity.

    New York Times Supreme Court correspondent Adam Liptak was a superb moderator at the Times confab, and he went straight to the controversy over the timing of the lawsuit. 

   Why now? asked Liptak.

   “You never know exactly what the right time is,” David Boies replied.  “But there were three things that made us think this was the right time:”

* We have clients who want to get married

* I think it’s very hard to sustain Prop 8 on any legal basis

* This suit was going to be brought by someone, somewhere, and we thought it was best to bring it with the best possible resources (which included at least thirty lawyers and assorted support staff from the firms of Boies and Olson).

    After the initial shock of the gay legal establishment, it gradually decided to embrace the Boies-Olson effort–and it ended up supplying many of the expert witnesses who helped the lawyers build such a brilliant record at trial.

    The lead lawyer on the other side of the case was Charles Cooper, with whom Olson had actually served in Ronald Reagan’s Justice Department.  Judge Walker had repeatedly asked Cooper exactly what damage would be done to the institution of marriage by allowing same-sex couples to marry, and Cooper persistently avoided answering.  Finally, Cooper conceded, “I don’t know”–and Olson clearly viewed that as an important turning point in the trial.  Judge Walker’s decision in the case is expected sometime later this year.  From there the case will go to the Ninth Circuit Court of Appeals, and then, almost certainly, to the highest court in the land.

   The most unlikely fact about this case so far: according to a report last month in the San Francisco Chronicle, Judge Walker, a Republican appointee of President Geoge H.W. Bush, is gay.

    The first action the Supreme Court took in this case was to deny the trial judge’s request to allow the proceedings to be televised–by a 5 to 4 vote.  But Boies and Olson insisted it was a mistake to see that vote as predictive of the final outcome of the case.  They believe the Justices were merely reaffirming their longstanding opposition to cameras in their courtroom under any circumstances, and they were not about to establish any precedent that might undermine their determination to keep things that way–forever.

    To skeptics who can’t see how this particular Supreme Court could ever endorse same-sex marriage, Olson emphasized that the Court had repeatedly held marriage to be “the most fundamental right of associational freedom”–a right which applies to everyone, including even prisoners who have no chance of ever living with their spouses.

    What was even more remarkable than the spectacle of a Reagan appointee making a full-throated defense of marriage equality was the atmosphere in which this confab took place.  Most of those present were gay and lesbian New Yorkers invited to the event.  But in the third row sat New York Times publisher and chairman Arthur O. Sulzberger Jr. , and six rows behind him was Andy Rosenthal, the editor of the Times editorial page.

    Thirty years ago, their fathers, Arthur “Punch” Sulzberger and Abe Rosenthal, were running this newspaper, and they shared such antipathy for homosexuals that gay employees of the newspaper believed that their careers depended on keeping their sexual orientations a secret.

    But as the younger Sulzberger began his ascension through the paper’s corporate ranks, he did a  remarkable thing: he made it clear to every single person who worked for him that he would not tolerate an iota of prejudice based on sexual orientation. 

   Practically overnight, he transformed what had been a relentlessly homophobic place into one of the most gay-friendly institutions in the world.  

    And when Sulzberger went against his father’s wishes and started publishing same-sex wedding announcements in the newspaper in 2002, he did at least as much as any state legislature could to legitimize the idea of marriage equality.

    Not at all coincidentally, Andy Rosenthal’s editorial page has published more brilliant editorials in defense of equal rights for gay people than any other editorial page in the world.

    What a difference a new generation can make!

    The Times photographer for this week’s event was Sara Krulwich, a founding member of the New York Chapter of the National Lesbian and Gay Journalists Association.  In the audience sat Krulwich’s partner, Lynn Paltrow, and their 17-year-old twins, Allen and Samantha.

    Adam Liptak called on Allen Paltrow-Krulwich to ask the final question, and the senior at The Bronx High School of Science, who is also vice president of the school’s Speech & Debate Team, highlighted another difference between the generations.

    “My name is Allen and my two moms are here,” he said.  “And we have a split in our family–they’re skeptical about bringing this case right now.  But I don’t agree with them.  I personally think that even the worst case scenario leaves all the [other] political strategies in place” to advance the cause of gay marriage.

    David Boies said it was a “great question,” and he agreed with Allen enthusiastically that even a defeat at the Supreme Court would do nothing to undermine the other strategies for equality.

    If indeed that worst-case scenario should come to pass, and this Supreme Court rules against marriage equality–and assuming that Allen Paltrow-Krulwich decides to go to law school–look for him to be the lead lawyer on the next marriage equality case which reaches the top Court, perhaps twenty years from now.

    That case will surely culminate in the next great judicial victory for gay Americans in the Twenty-First Century.

    That eventual outcome is certain, because every new generation of Americans is dramatically more tolerant of sexual diversity than the one that preceded it.

    In our time, that is especially true, because of the example of families like Sara and Lynn and Samantha and Allen.
 

                                                                             -30-

For the best guess about what will happen next in this case, see the typically brilliant analysis of ACLU LGBT Project Director Matt Coles.

The Boies-Olsen team introduced this anti-gay marriage ad made by the National Organization for Marriage, because they believed it made their opponents’ position look so ridiculous.

The ad’s most important effect was to inspire Stephen Colbert to do his own version: the single best piece of satire of 2009.

Boies and Olson previously debated the prospects for marriage equality with Bill Moyers. Read the transcript of that program here.