CBS 2 School

The 4th Estate is a formal name now attributed to the media.  It includes mainstream media outlets that now hold authority once considered privy to our branches government.  Bolstered by the 1st Amendment and ubiquitous status,  the media now exercises extraordinary power and privilege as primary gatekeeper of political discourse. The critical issue facing the 4th Estate today has become independence and objectivity.

Ironically, Henry Fielding, in Covent Garden Journal (1752), first recognized an additional estate, the Mob :

“None of our political writers... take notice of any more than three estates, namely, Kings, Lords, and Commons... passing by in silence that very large and powerful body which form the fourth estate in this community... The Mob.”

Some, today, might imagine he meant the media.  No none would deny that the modern media plays a critical role inside our political arena.  As gatekeeper, they frame our discussion.  As scorekeeper, they keep us abreast of winners and losers.  As watchdogs, they hold our public servants accountable.  Yet do they live up to their responsibility?  Many would say no.  The 24/7 news cycle has tunnel vision.  Horserace journalism loses sight of the issues, and reporters have become junk-yard-dogs looking only for scandal and personal aggrandizement.   Perhaps new mutations will incite better outcomes.

“... does not... the parliamentary debate go on... in a far more comprehensive way, out of Parliament altogether? Edmund Burke said that there were three Estates in Parliament, but in the Reporters' Gallery yonder, there sat a fourth Estate more important than they all.”
                            Thomas Carlyle

Do you remember playing Kick the Can when you were young?  The rules for Kick the Can varied from block to block.  Most games, however, required courage, strategy and nerve.  Yet regardless of your house rules, Kick the Can was a game about being “IT.”

This week Sarah Palin is IT.  She is the IT story.  And the new game in town is Kick the Palin.  Who will show the most courage, strategy and nerve in this game?  Will it be the mainstream press, the American people or Sarah Palin?

First let us review a little back-story.  Sarah Palin, the former Alaskan governor, was asked to be Republican candidate for President John McCain’s running mate in 2008.  The choice still evokes both shock and awe.  Palin’s qualifications were immediately questioned.  Sarah Palin’s comments during a CBS interview with Katie Couric made Dan Quayle sound like a Rhodes scholar.  Yet there was something about Palin that resonated with base Republican voters.  Whether it was her charm, her honesty or home grown likeability Palin did not cost McCain the election.  McCain cost McCain the election.  The rift between the two escalated after the election as Palin was painted as a scapegoat.

This muddled history, however, is being written by Palin not McCain.  Her political memoir, Going Rogue, came out this week.  It is already a best seller.  Regardless of your view of Palin, there is something compelling about her story.  

Many of the mainstream media outlets have chosen as their strategy to report Palin as a damaging wedge in the Republican Party. Google Sarah Palin this week and Barry Goldwater stories appear.  As Goldwater split the Republicans back in 1964 so too it is being argued that Sarah Palin will split the Party in 2012.

Sam Tenenhaus, in The Death of Conservatism, argues that the Republican Party is at war with itself.  He argues that whenever consensus politicians are pushed off the stage by the ideologues the end result is electoral failure.  So too the Party they represent.  His example is Barry Goldwater.  The media would like to extend that now to Sarah Palin.  The Left loves to kick Palin around.

President Obama would love to see Palin succeed.  Her personal negatives would appear to make it  impossible for her to ever beat him in a face-to-face election.  Obama does not mind being trumped this week by a rogue ideologue lacking the support from center-right Americans that dominate the electorate.  Winning campaigns is Obama’s specialty.  He would love to Kick Palin around for a while.  It keeps our attention off health care and Afghanistan.

Palin is finding opposition not only from the Left but from the moderate Right as well.  Consensus building Republicans worry that Sarah Palin cannot win in 2012.  They find her brand of populism embarrassing, inauthentic and politically opportunistic.  Moderate Republicans worry that the Palin traveling vaudeville show is an act of gold digging and mass exploitation.  Even some on Fox this week are enjoying the game Kick the Palin.

One cannot help but be reminded of Richard Nixon’s “last press conference” November 7, 1962.   The former Vice President and losing candidate uttered those famous last words “you will not have Richard Nixon to kick around anymore” and then he left the political arena.   Like Palin, we enjoyed kicking Nixon around.  It became a national pastime.

Nixon had the last laugh six years later when he was elected President.  As we enjoy another game of Kick the Palin the last laugh may not be ours.  Sarah Palin may be laughing all of the way to the bank and perhaps to the White House someday. 

Like Chicago Bears fans, the Framers of the Constitution had no idea that Jay Cutler could be this bad.  But it was the Framers’ protection of our access to information that still helps keep our elected officials (and even our sports teams) accountable to the masses.

It was no coincidence that the prohibition of infringing on the press was included in our Constitution’s First Amendment.   Our Founders knew that a healthy democracy depended on the ability of citizens to hold their public officials accountable through researching and reporting about governmental actions.

Newspapers were labeled as the Fourth Estate in the 19th century which--in the United States--means that our news media often acts as a fourth branch of government helping to check its overreaches and balance its errors.

In playing this role of watchdog by raising alarms about government excesses, it’s no coincidence that the news media increased its critical oversight of sports.

So as we learned about do-nothing legislators, we also got more reports about do-nothing defensive linemen.  As reporters told us stories of FEMA coordinators incapable of directing disaster management, we also heard more about offensive coordinators capable of directing disastrous running schemes.

Besides the First Amendment guarantees, several judicial rulings have helped to offer the news media a full range of protection…Jay Cutler would be jealous.

Libel and slander standards help protect reporters from lawsuits unless they use absolute malice to commit unnecessary roughness against government officials.
 
The Supreme Court case of New York Times v. U.S. protects news organizations from being censored through prior restraint.  Unless the news story will reveal information that causes danger to national security, the government cannot jump off sides to sack a story before it’s published.

And like NFL rules that mandate its players and coaches talk to the media, government also has laws to ensure a culture of transparency.  The Freedom of Information Act and the Open Meetings Act mandate that government officials allow reporters to peek inside their huddles to make it easier for us to evaluate winners and losers.

Cup and saucer is a metaphor used to differentiate the roles played by House of Representatives and Senate.  Its origin goes back to a supposed conversation between Thomas Jefferson George Washington. Thomas Jefferson once expressed his doubts about the usefulness of the Senate.  “Why did you pour that coffee into your saucer?” George Washington asked.  “To cool it,” Jefferson replied.  “Even so,” Washington declared, “we pour legislation into the senatorial saucer to cool it.”

Our bicameral legislature was divided for reasons other than compromising between big states and small states.  Each house represents the people, yet they also possess remarkably different responsibilities.  The House, modeled on the British House of Commons, represents the passions of the people.  The Senate, modeled on the British House of Lords, responds to these passions with reason.  James Madison saw the Senate as an “anchor,” a “necessary fence” against the “fickleness and passion” of the people.  The Senate is to “cool” House legislation just as a saucer was used to cool hot tea.  Today, with the advent of directly elected Senators and the 24/7 televised news cycle, it is more difficult to discern between the passions of the House and the Senate.  By not fulfilling their proper roles, our cups runneth over.  Who is going to clean up the mess?


The Congress of the United States
Comparing the House and the Senate

                                    House                                    
____________________________________

Terms                          2 years    
Members                    435            
Elections                    ALL every 2 years
Constituencies           Congressional districts
Unique Powers          Originate tax bills                   
                                   Bring Impeachment             
Debate on bills           Limited/Rules Commit.
Member prestige        Modest; smaller staffs 
Leadership                 Hierarchical 
Committees                20 standing/select 
                                   Each on about 5 
                                   Difficult to bypass

                                   Senate

Terms                          6 year
Members                    100
Elections                    1/3 every 2 years
Constituencies           States
Unique Powers          Advise and Consent to ratify treaties 2/3 vote                        
                                  Try impeachment charges             
                                  Confirm appointments
Debate on bills          Unlimited, except by unanimous consent or vote of cloture by 3/5
Member prestige       High; large staffs
Leadership                Less hierarchical
Committees              20 standing/select
                                  Each on about 7
                                  Easier to bypass

“Rubber ducky, you’re the one.  You make health care so much fun.”

Sesame Street has been producing educational programming for 40 year this week.  

From its inception, the innovative PBS show has used educational research to teach young children about numbers and the alphabet.  The show has also taught lessons in personal safety, social equality, and how to handle emotionally challenging situations.  From issues related to the economic recession to the acceptance of those with physical disabilities, Sesame Street has managed to make the complex simple and entertaining.

To kick off its newest season on air, we challenge Sesame Street to tackle the subject of health care reform.  So we would like to offer some suggestions about how Sesame Street can teach our youngsters about the intricacies of the legislative process.

Bert and Ernie
Like cup and saucer, Ernie and Bert symbolize the working relationship between the House and the Senate.

Well before Sesame Street, our founders envisioned a legislative process shaped by two contrasting characteristics.  The process in the House would be impulsive and fast.  Elected every 2 years, the House would quickly pass legislation favored by the majority in a happy-go-lucky way that Ernie would appreciate.

The Senate, meanwhile, would be used to temper the frivolous attitude of the House.  Stoic and stern—like Bert—the Senate would cool the passion to ensure a more deliberate process.

Ernie and Bert would feel very comfortable with the current status of health-care reform legislation.  

Because of the rules that empower the majority to act more quickly, the House has already passed a health care bill that is much more expensive and covers more uninsured Americans.  And, like Bert, the more cautious Senate will likely take much more time debating its more stodgy version of health-care reform.  

Oscar
The congressional Republicans can’t help but to take the stage as Oscar in this version of health-care reform.  

Yes, they’ve offered alternative versions of legislation.  But until these alternative plans guarantee a large reduction of the uninsured, the Republicans will be typecast as the grouches.

Big Bird
No bigger bird on this street than President Barack Obama.  Tall and skinny, Barack will also be up front as the captain of the health-care reform team.  And like a PBS fundraiser, Obama will likely be making more public appeals for support in order to push health-care reform through a very arduous legislative process.   

The Others
Slimey, Grover, Telly Monster.  We invite you to add your vision of how other Sesame Street characters can teach us about the legislative process.

Thomas Friedman has written that 11/9 is more important to America than 9/11.  Why?

On November 11, 1989 the Berlin Wall came tumbling down.

The symbol of the Cold War, the Berlin Wall, stood for decades as a stark reminder of the unsolvable, irreconcilable difference between the West and the East.  Any détente was temporary at best.  The immovable forces of democracy and communism were engaged in what seemed like a never-ending test of wills.  Neither would be moved.  Like the Berlin Wall, laws, economic principles and cultural norms separated the West and East.  Their hemispheres were clearly demarcated.  The Wall made what Churchill called “the iron curtain” a fixed image in reality.

That was of course until November 11, 1989.

History tells the tale of Reagan and Gorbachev as playing the leading role in the Wall’s collapse.  A closer look might surprise you.  Hungarian Prime Minister Miklos Nemeth played the true Cassandra role.

President Ronald Reagan did call on the Soviet leader to “tear down” the Wall in 1987.  American policies during the Reagan years had taken on an offensive posture.  Reagan replaced any hope of cooperation with a belligerent tone.  He called Russia “an evil empire.”

Russian General Secretary Gorbachev too deserves some credit.  His reform efforts inside the Soviet Union foreshadowed a different day.  The ideas of perestroika and glasnost brought openness and freedom albeit in small doses.  Gorbachev was a bellwether ahead of his time.

Yet before these seeds of reform could flower and bear fruit a real champion would need to emerge.  Though overshadowed by the events that followed him, Miklos Nemeth invited change in tangible ways.  The pressure he instigated helped to bring down the Berlin Wall.  He opened his Hungarian borders months earlier.  The encouragement to emigrate out of Germany to Hungary and then on to Austria only increased the economic strain already felt in the East.  Thousands of East Germans brought reform with their feet.  They were leaving behind jobs that needed to be filled and services that needed to be provided.

Something had to be done.

Prime Minister Nemeth knew he was challenging the old guard.  In the past such independence did not go unpunished.  Nemeth went face to face with Gorbachev over real reforms and the Soviet leader chose not to fight.  Nemeth’s policies in Hungary cast light onto a certain future, a future of a post communist Europe.

In the game of football your most successful teams win because of a strong starting quarterback.  In the long drive to bring down the communist symbol, the Berlin Wall, it would take strong leadership.  The unsung quarterback twenty years ago was a Hungarian Prime Minister by the name of Miklos Nemeth.

Few can match his courage and resolve to win against such great odds. 

Good teams, we are told, have good chemistry.

Good chemistry assumes players that get along.  A team with good chemistry works and lives on the same page.  Individuals on those teams sacrifice their own selfish ambition.  Team goals trump personal goals.  Teams with good chemistry act cohesively, with unified purpose and pointed energy.

The United States Supreme Court is not generally described using these terms.  Good chemistry is generally not the concern of our nine justices.  They act and serve as nine independent law firms.

Yet good chemistry, in the most literal of senses, is indeed involved in the make up of this Court and every Court.  Every justice on the United States Supreme Court before being confirmed by the Senate must pass a litmus test.

In chemistry, a litmus test is still used even though it is one of the oldest pH measurements.  The test involves the use of a litmus paper that can when introduced to an outside substance determine acidity.  According to chemists, “acids turn blue litmus paper red; bases turn red litmus paper blue.”  These red and blue litmus tests have taken place in chemistry labs for hundreds of years.

Testing for red or blue justices is almost as old.  When openings on the Court arise sitting presidents seek prospective jurors who agree in principle with the incumbent administration.  That is red Republican presidents look to pack the Court with red conservative leaning jurors.  Likewise blue Democrat presidents look for red leaning liberal jurors.  This kind of litmus test is as old as the Court itself.

Is this the type of chemistry we desire?  Would it not better serve the pursuit of justice if the good chemistry on the Court was likened more to that successful team that worked well together?  Do litmus tests raise serious political and ethical questions regarding the nomination process?

Back in 1937 when Franklin Roosevelt tried to dramatically change the chemical make up of the Supreme Court, he wanted to add six more blues, the American people said no.  Yet when subsequent presidents act no less politically, albeit one justice at a time, no one seems to object.

As the litmus test becomes more and more familiar and as the American people become less and less trustworthy of our legal system is it time for the doctors of our American political system to order up a different test?

Good chemistry may not be a win for us after all.

Illinois has discovered that changing abortion laws can be as complicated as it is controversial.

In 1995, the Illinois legislature passed a law intending for parents to be notified if their under-aged daughter was seeking to have an abortion.  The bill was signed into law by Gov. Jim Edgar (GOP) and allowed for several exceptions to the notification requirement.

But it has taken 14 years for the law to go into effect due to the intense controversy and legal complexities involving the issue of abortion.

For decades, abortion law was purely a state issue.  Before the landmark case of Roe v. Wade (1973) most states—including Illinois--banned abortion while just a few allowed abortions with certain regulations.

The U.S. Supreme Court’s decision in Roe v. Wade forever changed abortion law because the Court mandated that abortions in the first trimester of a pregnancy be made legal in all 50 states.

The majority claimed that a woman’s ability to seek a medical procedure from her doctor was protected by an implied right to privacy in the Bill of Rights.  Opponents of the decision claimed the Court used judicial activism to alter social policy through a judicial edict not by the legislative process.

Since then some states, like Illinois and New York, established very few barriers to the right of women to seek an abortion during a pregnancy.  Other states tried to place extra regulations on the practice of abortion including requirements for parental notification and parental consent when a minor is seeking to have an abortion.

As supporters of the parental notification law discovered in Illinois, any attempt to add new restrictions on abortion are met with a whole host of legal barriers.

Implementation of Illinois’s notification law was delayed for more than 10 years because of the Illinois State Supreme Court.  This Court refused to detail the how a minor could seek exemptions from the notification rule.  But three years ago, the State Supreme Court decided to detail how a minor could waive the notification rule including if she was the victim of abuse.

Even though the law would not allow parents to block an abortion, Federal courts placed an injunction on the implementation of the law due to questions about its constitutionality.

That injunction expired this fall, but the issue hasn’t been officially settled. The law is set to be implemented only after an Illinois board approves final details of how the law will be enforced.

So the law’s 14 year legal journey, a process very indicative of the complexities regarding the abortion issue, will wait at least a few more days.

Would you believe our first big dose of hopium was twelve months ago?  The historic Obama presidential victory was one year ago.  It was a year that flew by.  Obama promised change and change he delivered.

Has it been the right change?  And why is it we don’t feel so good?

An energized electorate had hoped for a fundamental change in the way politics is practiced.  Red and Blue America was to be replaced by the United States of America.  We hoped for a post racial America.  An energized generation of newcomers and outsiders was to replace the in-crowd.  We were told no more troops in Iraq, new jobs and comprehensive healthcare and energy policy.

What happened?

Has Obama caught Potomac fever?  Has he exchanged an outsider campaign for an insider presidency?  Or is governing that much more difficult than campaigning?  

Historic trends for all sitting presidents is to lose public support, except when they run for reelection, throughout their four-year term.  Honeymoon periods have become short weekends, for Obama too.

Can presidents be inoculated from this apparent inevitable slip in public confidence?  Has our presidency grown into what LBJ self described as a “pitiful helpless giant”?  What can Obama do to overcome our bellyaching?

First he must fight the temptation to spin this week’s elections as a proxy vote for or against his presidency.  Political science teaches us “all politics is local.”  If Korzine loses in New Jersey or Deeds in Virgina, the pundits will be out in force blaming the failed policies of Obama.  Avoid the rush to judgment.  Get a second opinion.

Second Obama better hope an economic recovery bears fruit by next year’s midterm elections.  If the next twelve months plays déjà vu this president will be in seriously sick.  Whether policy choices or circumstance make the difference, Obama cannot afford increasing unemployment numbers.  Healing cannot be discussed it must be felt.

Most importantly, President Obama must listen first and foremost to those who got him elected.  The audacity of hope resided in his soul not those inside the Capitol who claim to be his soul mates.  The politics inside of Congress looks increasingly like old bandaged remedies.  The problems we face today require new treatments.  

After Tuesday’s election there will be many who will declare the Obama presidency as sickly.  It would be premature under any circumstances let alone the depth of the crises faced by this administration.  Yet if today’s symptoms persist for another twelve months, Obama and the Democrats will be really sick.

Then Republicans will make the only House calls.

(n) the manner in which courts make decisions.  The science or philosophy of law.


What is the basis of Supreme Court decisions?  Ralph Lerner has described the Supreme Court as a "republican schoolmaster" whose responsibility it is to "transfer to the minds of the citizens the modes of thought lying behind legal language and the notions of right fundamental to the regime," (Ralph Lerner, "The Supreme Court as Republican Schoolmaster," in 1967 Supreme Court Review. Chicago:  University of Chicago Press, 1967, pp. 127-128. ).  Conservative justices tend to reserve their judgments to the original intent of the Framers, thus practicing judicial restraint.  Liberals opt for a more activist jurisprudence.  This approach recognizes the Constitution as a living document and whose spirit must be adapted to contemporary issues.   These varying views regarding jurisprudence make for interesting gamesmanship on today’s highest court.


“Without justice being freely, fully, and impartially administered, neither our persons, nor our rights, nor our property, can be protected.”    Joseph Story


Today’s Supreme Court
Box Score

Chief Justice:

John Roberts                (G.W. Bush, 2005) CB

Associate Justices:

John Paul Stevens        (Ford, 1975) LB
Antonin Scalia               (Reagan, 1986) CB
Anthony M. Kennedy     (Reagan, 1988) CB – S
Clarence Thomas          (H.W. Bush, 1991) CB
Ruth Bader Ginsburg    (Clinton, 1993) LB
Stephen G. Breyer        (Clinton, 1994) LB
Samuel Alito                  (G.W. Bush, 2005) CB
Sonia Sotomayor          (Obama, 2009) LB

(President/Year Appointed) CB =Conservative Bloc, LB= Liberal Bloc,  S = Swinger (often determines majority)