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Caller Theories on Obama and the Court

BEGIN TRANSCRIPT

RUSH: We've gotta get some phone calls here. We'll start out on Long Island with George. Great to have you on the program, George. Hi.

CALLER: Hi. (silence)

RUSH: Yeah. Hi, George, we're on the air.

CALLER: Yeah, hello. Can you hear me?

RUSH: I hear you fine. Otherwise I couldn't answer your questions.

CALLER: Oh, okay. I called to ask why, if the president thinks that the Supreme Court can't overturn a law because it was passed by a democratically elected Congress, then how can the president veto it?

RUSH: Well, of course. Right. (sigh) The instances of the Supreme Court overturning laws or the example I just gave: The judge in Prop 187 in California just throwing it out. After the people of California had voted in favor of Prop 187, the judge says, "Ah, that's unconstitutional. You can't do it." The Ninth Circuit Court of Appeals is constantly doing this stuff. He can veto legislation. Of course none of this is unconstitutional. Again, what Obama is doing here is... I don't like to use the word "threat" because it conjures too many thoughts that I don't intend to convey here. But he's clearly trying to make these justices, particularly Anthony Kennedy and the conservative justices, feel guilty.

He's trying to ladle guilt on these people by telling them what all they're gonna be taking away from people if they find his law unconstitutional, all these people that have health insurance now who didn't, and all these people who now have insurance with preexisting conditions who didn't, and, "Look what you're about to do." So he's warning them: "I think the justices should understand what I expect out of them." That's what he's saying. He's lobbying. You see he's clearly trying to intimidate them. There's no question. Not threaten. I'm not saying the word "threaten," but here's clearly trying to intimidate them. And he is lobbying them at the same time. Now, he can veto legislation 'cause he was elected. It's in the Constitution. It's not a problem. George, thanks.

Michael in Northridge, California. Hi. Great to have you on the program, sir.

CALLER: Thanks, Rush. I believe that for a number of reasons that we've discussed -- you've discussed, we've read, watched on TV and so forth -- Obama and the rest know the Supreme Court's gonna overrule. I heard that faux pas too. That was more Freudian than it was faux  pas. They're gonna strike the mandate and more Obamacare down. I just think that what he's trying to do is position himself for why he needs to be elected, "Whether or not you like Obamacare, you gotta vote for me, m'okay? So I can put a liberal justice if and when the opportunity comes up in the next four years. So I'm there to put a liberal justice on the Supreme Court. We don't want to have happen again what happened during Obamacare."

RUSH: Well, that's fine. There's nothing really wrong with that. The idea of judicial appointments is a huge campaign point that people of both parties make. But you're right. It was a Freudian slip, even though Freud would say there are no Freudian slips.

CALLER: (chuckling) By the way, Rush, it wasn't the Ninth Circuit judges that we elected. We elected Gray Davis, who decided not to appeal 187, just like Jerry Brown and before him Schwarzenegger, who won't even defend Prop 8.

RUSH: Exactly right.

CALLER: So we voted for a governor, two times, who decided against the people's will --

RUSH: Exactly right.

CALLER: -- not to even show up in court.

RUSH: Now, Michael, one thing, though. You sound veeeery confident because of the Freudian faux pas that the judges on the Supreme Court are gonna overturn the mandate and maybe the whole thing. Am I right? You think that?

CALLER: No. No. (chuckling) I'm 57 years old, and I know that you can't predict the court.

RUSH: No, I thought you said that it's going down.

CALLER: I believe it's going down. I believe they believe it's going down. But am I "confident," to use your word? Um, if you told me I had to bet right now?

RUSH: Yeah.

CALLER: Scalia's argument of, "Do you want us to read 2,700 pages?" was like: "Okay, we're gonna vote this thing to be constitutional without having read 2,700 pages?" If I had to vote or had to take a position whether they're going to approve or strike down, I'd have to say they're gonna strike down. But you know that this thing could go the other way.

RUSH: Well, that's what I was going to say. This vote that was held on Friday is just the first. And I have mentioned on many occasions that I've been told by people very close to this (not this case, but the court) that they don't sit in a room and argue with each other and try to change each other's mind. But they do pass around their opinions, and Anthony Kennedy --

CALLER: And they change over time.

RUSH: Pardon?

CALLER: They have changed. They have been known, historically, to change their minds.

RUSH:  Yeah, Kennedy has changed his mind. I forget what the case was, but it's well known.  He changed his mind after opinions got passed around.  So this isn't over. (interruption)  No.  No.  Snerdley just asked me if I'm confident because Kennedy was asking some of the most critical questions.  At the end of oral arguments Kennedy also made points that made it perfectly clear he thinks the whole thing is constitutional.  He covered the spectrum. He gave himself latitude and leeway to go either way on this.  You have to read the whole transcript. 

The first couple of days, if that's all you rely on, his mind was made up.  He's gonna vote to strike down the mandate.  But later on he constructed a scenario where he could be convinced that this is constitutional because the health market already exists. The government's not creating it.  The market's already there.  People are already buying health insurance.  The government's not making them do that.  Only now they're just gonna say everybody has to.  They're not creating a market.  So he gave himself an out there.  By no means can we take what happened Friday as the end of the road here.  But you could assume, based on Obama yesterday, that somebody has... no, you couldn't assume.  You could guess that he knows the outcome of Friday's vote, and it wasn't favorable, and therefore he went on this little mission yesterday to ladle some guilt on these guys. 

Okay, so the question's on the table. It's a good question.  If you, folks, if you were on the Supreme Court, and you're undecided on this thing, and the president comes out and says what he says yesterday, and spells out all the pain you're going to be causing if you strike down his law, would you vote to uphold it just to avoid that criticism?  Would you vote to find the mandate unconstitutional and then have it said about you that you don't care about people losing their coverage with preexisting conditions or losing their health care coverage or whatever?  The way to answer the question is to say that the media in Washington constantly attempts to influence the outcome of Supreme Court decisions by virtue of promising fawning coverage in the Style section.  They'll do that before a vote. They'll do it after a vote that they like, for the next time around.  Whether it works, only a guess will suffice 

No justice is ever gonna come out and say, "I voted because I didn't like what they were saying about me at the Washington Post."  And no justice is ever gonna say, "Yeah, I heard what the president said, and it really changed my mind."  So there's no way you really know if this stuff works.  Obama clearly thinks he's the one. He clearly thinks that he has the charisma and the overall presence to change these guys' minds on things that have nothing to do with the law.  But I tell you, the New York Times has had some very fawning articles on Justice Kennedy recently.  You can see them, and you know the purpose. 

We don't know what the vote was on Friday.  Everybody's just assuming and guessing here based on what has happened since.  Now, most of the time, the preliminary vote ends up being the final vote.  It's not common that justices change their opinions frequently and often throughout the whole process.  Oftentimes, the first vote is how it ends up, but that's, again, not recorded.  That's simply from people who have been close to it and have written about it, describing the way the court works. Not addressing specific cases, that isn't done, but in recounting how things happen.  So we're all just gonna have to wait.  It's driving the media crazy.  They're begging for a leak.  Another reason why they think Obama might have gotten one.

END TRANSCRIPT

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