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Interview with Andrew Koppelman

I was fortunate enough to interview Professor Andrew Koppelman. He is the John Paul Stevens professor of law at Northwestern University. We discussed the Affordable Care Act. We discussed the ridiculous notion that conservatives have been pushing for the last 12 months that somehow the individual mandate opens up a “slippery slope.” This will allow Congress to mandate all kinds of ridiculous things. His answer was thoughtful and right on point. We also discussed the notion of “activist judges.” In my opinion, this is one of the best interviews that I’ve conducted. Enjoy.

Prof. Koppelman has written about the Affordable Care Act here, here, here and finally, here.

By |2012-05-08T01:35:03-04:00April 7th, 2012|Healthcare, Obama administration, Podcasts|8 Comments

Supreme Court – Whom should we support?

There has been a lot of division within the progressive community about whom President Obama should pick for the Supreme Court. Much of the dust-up has surrounded Solicitor General and former Harvard Law School Dean Elena Kagan. Constitutional scholar Linda Monk has been an outspoken supporter of Ms. Kagan. (I consider Ms. Monk to be a friend.) On the other side of this debate is former civil rights attorney and premium blogger Glenn Greenwald, who has argued that for all that Ms. Kagan has accomplished we know very little about her thoughts on important issues which will face the court. (Glenn is also a friend. Both he and Linda have been on my radio show several times.)

I’m not sure that past performance is any guarantee for future Supreme Court voting. Conservatives have whined about John Paul Stevens and Sandra Day O’Connor. These were judges who were thought of as conservative but supported many liberal ideals while on the court. Plus, once you are on the court you might have different motivations than you did previously. An appointment for life to the highest court in the land can change one’s outlook on life and the law.

Ms. Monk has talked about the need for more consensus on the court. We need fewer 5-4 decisions. She mentions in a recent article on HuffPo that this kind of 5-4 decision “merely prolongs the dispute and creates more work for lawyers and political fundraisers.” I think she is right. Earl Warren worked to gain consensus on the Court. The Court stood united on some of the most contentious issues of the day. In my opinion, this is exactly what we need. We need someone who is used to mixing it up with conservatives and liberals, someone who can work the politics of the court and bring folks together. Ms. Kagan did help bring conservatives and liberals together at Harvard. This is a fact. Are 7-2 and 8-1 decisions possible with Alito, Roberts, Scalia and Thomas on the court? I don’t know. I do know that Kagan is well qualified. She maybe the prefect person to bring the court together. But whomever Obama chooses for the Court will not be the Chief Justice. Roberts has that job and he seems to have little or no interest in consensus.

I think that there are a few other things to consider. I do think that there needs to be a far left Supreme Court Justice to balance out Scalia. Almost nobody is to the right of Scalia on any Supreme Court decision. The left needs its own Scalia. Such a person would have to be extremely strong. I’m talking about an attorney for Greenpeace or the Sierra Club who drives a hybrid or, better yet, rides his/her bike to work and gives 50% of his/her money to a homeless shelter. I think that Obama’s aversion to confrontation and his willingness to find the middle of the road will make such a nomination very unlikely, but this is my post and that’s one of the things that I would like to see.

I would love for Emory graduate (I’m an Emory graduate) Leah Ward Sears to be on the Supreme Court. She is a former Chief Justice of the Georgia Supreme Court. A very conservative Democrat, she was originally appointed by Zell Miller. Someone who can be appointed by Zell Miller and supported by liberals has to be very savvy. She was elected to the Georgia Supreme Court in a statewide election – twice. I think that there is something very special about Leah Ward Sears. I don’t think, though, that she has has a chance of being nominated. Obama is not going to choose a black woman. I just don’t think he wants to go there. Not now. Maybe late in his second term if he has the opportunity.

I think that Obama will need to choose a senator. I think that a senator might have the best chance of being confirmed without a bruising battle. The problem is that most senators who are even concerned as outsider candidates come from states that have Republican governors – Shelton Whitehouse (RI) and Amy Klobachar (Mn). I like Klobachar better. She is relatively young and politically smart. She has a great background. I think that she would do very well in the back room discussions that the Supremes have.

So, in summary, I think that Glenn is arguing over something that is not reality. I don’t think that we can predict how a Supreme is going to vote on a given issue. This is my two cents. Both Glenn and Linda are lawyers. They both have studied this issue more than I have. I would like to look past the front runner to an outsider. I really like Klobachar and Sears. I think that either one can and would do an excellent job on the Supreme Court.

By |2010-05-01T14:25:47-04:00May 1st, 2010|Party Politics, Supreme court|Comments Off on Supreme Court – Whom should we support?

Grab Bag — Saturday (Updated)

  • The third round of the Masters has started. Lee Westwood, who has been playing some really good golf over the last two years, is tied for the lead. My golf instructor told me to watch Fred Couples. He had problems yesterday with 16, 17 and 18 and had a disappointing round of 75. Today he is three under through eight holes and is in fourth place. Not bad for a 50-year-old man. Tom Watson is in 11th place and he is 60. Everyone is watching Tiger Woods, who is playing the kind of up-and-down golf that he sometimes plays. He is clearly in the hunt. The weather is perfect. There should be some great golf today.
  • With Judge John Paul Stevens stepping down from the Supreme Court, SCOTUSBlog had a really nice piece yesterday discussing on how the “Kennedy court” will be shifting.
  • When is the Catholic Church going to simply hold a press conference and come clean? When are they going to stand up for the people they say they serve?
  • I hope that everybody realizes that the health-care debate is not over. There’s still a lot of work that needs to be done.
  • There’s an excellent article in the New England Journal of Medicine about the public opinion of healthcare reform at the time that reform passed. It’s kind of interesting when you drill through the numbers. 90% of the population thought that is a good idea to have tax breaks for small businesses to help cover workers and make healthcare more affordable. 36% of Americans thought it was a good idea to reduce Medicare payments to doctors and hospitals. Of the stuff that was asked but not in the bill, 69% of Americans thought that was a great idea to allow Americans to buy prescription drugs from Canada. By the way, where was that in the final bill?
  • Finally, a lot of Americans are really upset over the individual mandate. I’m not sure I understand their objections, but their argument goes something like how can Congress force me to buy a product? The problem with healthcare is that if you do not have health insurance and get sick it is possible for you to run up a bill that you can never pay off ($500,000 – $2,000,000 in some cases). That’s the problem. To me, the individual mandate forces us to join the largest insurance pool possible. This in turn drives down costs for all of us. I guess you can look at it the other way. Suppose you are a 20-year-old healthy male and decide that you’re not buying into any insurance plan. In your early 30s you develop hypertension but don’t take your medication and still don’t go to a doctor or join a health-care plan. In your 40s, as your kidneys begin to fail, should you be allowed then to join the health-care pool? Individual mandate should help premiums stay low for all of us.
  • Has anybody seen any new movies? Anything good out there?


  • Phil Mickelson powered behind back-to-back eagles is six under today and has taken the lead at the Masters. Tiger Woods started off strong but has been struggling most of the day.
  • When is Sarah Palin‘s five minutes of fame going to be over? Snake oil science? Did she go to school? I mean, did she even go to high school? Man, I find her irritating.
  • Polish president, Lech Kaczynski, died in a plane crash. Wow, this is weird.
  • Michael Steele holds the key to the Republican hopes in November, or so he says. Do you think that he has a head injury? Is that why he acts the way that he does?
  • Republican restraint and fiscal responsibility. Don’t laugh.
  • Is it legal for the President of the US to order to have someone killed? What if that someone were a radical Muslim cleric living in Yemen? What if this cleric were an American citizen with ties to two people who were known terrorists?
By |2010-04-10T15:42:36-04:00April 10th, 2010|Healthcare, Sports, Supreme court, Terrorism|Comments Off on Grab Bag — Saturday (Updated)
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