RUSH: Grab sound bite 2 before we get to sound bites 23 and 24. This is last night. We’ll do a little timeline here involving Jeff Toobin. Last night on Chalie Rose, CNN legal analyst Jeffrey Toobin — who, by the way, for those of you old enough to remember, is the son of former network TV news reporter Marlene Sanders. He wrote a big book after the O.J. trial, and he’s been at CNN for quite a while. And Charlie Rose said, Jeffrey Toobin, “How big a deal is this Obamacare case at the Supreme Court?”
TOOBIN: Epic! Awesome! Enormous! Huge!
TOOBIN: This is the biggest case involving the power of the federal government since the New Deal. And if this law is struck down, the federal government is gonna look very different the next day. And lots of plans and lots existing programs are in jeopardy. So, I mean, as big as you think this case is, it’s actually bigger.
RUSH: Last night, Jeffrey Toobin accurately describes the size and scope of Obamacare. Today, it’s Politico “breaking news,” but we’ve got sound bites from CNN. Toobin, quote: “This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong… [I]f I had to bet today, Wolf, I would bet that this court is going to strike down the individual mandate.” Tom Goldstein, attorney and cofounder, center-left SCOTUS blog: “The individual mandate is in trouble, significant trouble.” Los Angeles Times’ Noam Levey: “Tuesday’s arguments may signal trouble for the mandate, widely seen as a cornerstone of the law’s program for achieving universal health care coverage for the first time in the nation’s history.”
Politico breaking news: “The conservative justices and potential swing vote Anthony Kennedy raised concerns Tuesday that forcing Americans to buy health insurance would open the door to other intrusive requirements from the federal government…” What was so hard to predict about this? This goes right to my point. What’s so hard to predict that this thing is unconstitutional? It is unconstitutional. And a Civics 101 student in junior high, after having the Constitution explained to them, would know this. And here come these legal experts: “There’s no way that justices are gonna strike this down! There ain’t no way.” And then after one day of oral arguments, these same experts (probably just as qualified as the economic experts at the Associated Press) say: My God, these justices, they don’t like the individual mandate! We’re in big trouble.
Here’s Jeff Toobin. He’s on CNN this afternoon. The coanchor, Ashleigh Banfield, said, “Tell me everything, Jeff. What happened today?”
TOOBIN: This was a train wreck for the Obama administration. This law looks like it’s gonna be struck down. Justice Kennedy, the swing vote, was enormously skeptical. Every comment Kennedy made — uh, at least that I heard — was skeptical of the law. The wild card in this argument was, uh, Chief Justice Roberts. Chief Justice Roberts actually asked a lot of hard questions. Roberts seemed like a much more likely vote to uphold the law than Kennedy was.
RUSH: See, he had to find something positive after saying today, “was a train wreck for the Obama administration.” And again he said, “I’m telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong… this court is going to strike down the individual mandate.” Wolf Blitzer then weighed in…
BLITZER: This is really huge! Uh, uh, uh, what you’re saying — and you’re an authority on the US Supreme Court — you’ve written the major book on the current Supreme Court — uh, The Nine. So you fully understand. But just because a justice is asking tough questions, let’s say of the government lawyer — Mr. Verrilli in this case — that doesn’t necessarily mean that that justice is gonna come down on the other side. Isn’t that right?
TOOBIN: It’s true, but it’s not very true, Wolf. Yes, it is true that sometimes we’re surprised by the justices’ votes after hearing their comments at oral argument. Most of the time — and it’s not all the time, but most of the time — the questions that the justices ask at oral argument are very good predictors of how they’re gonna vote.
RUSH: So the left is in panic! Wolf Blitzer is in panic, looking for a life preserver from Jeff Toobin, who didn’t give him one. And they’re shocked! This is what’s funny. They are shocked. We aren’t. Well, we might be because we’re surprised that the Constitution is actually being adhered to here, or appears to be.
RUSH: Ladies and gentlemen, I want you to temper your expectations on this. This is just oral argument, and we’re nowhere near the vote on this thing and we really don’t know how this is gonna go. All we have right now is palpable fear on the left. … This fascinates me, all of this shock and surprise on the left. The media, court watchers, leftist legal beagles. They are in a state of shock, a legitimate state of shock, folks. They really believed this was gonna sail through. And we have to always keep in mind how relatively young most of these people are, and thus how they’ve been educated. They didn’t get Constitution 101, like I did. They have been taught that the Constitution’s a flawed document that needs to be changed whenever it can be.
And this represents the greatest opportunity to do that that they have all ever had. The very fact that Obamacare became law against the objection of a majority of the American people — and the way it became law, basically under cover of darkness with every legislative trick under the sun being tried — didn’t matter. It didn’t matter that it might be illegal. It didn’t matter that it might be unconstitutional, because that’s precisely what this was about: Making it constitutional by virtue of changing the Constitution and using this law to do it. Then all of a sudden the oral arguments come up today, and the four conservative justices and the so-called swing vote, Anthony Kennedy, all have problems with the mandate.
And they’re literally shocked, A, that everybody doesn’t have the same worldview of this that they do; and, B, that there is any objection to it at all. Remember for these people the government is the end. It’s the be-all, end-all. Government is the final authority. Government is where everything important happens and every important decision happens for everybody. But it didn’t go that way today in the case of oral arguments and so now they’re scratching their heads and they’re genuinely surprised. Jeffrey Toobin is genuinely surprised. The CNN legal guy predicted this would sail through, and they probably were looking at this court’s actions on campaign finance law, McCain-Feingold. “Well, if that sailed through, this will.”
So where we are with this is the left now blogging incessantly their fears and their hopes at the same time. There is a left-wing blog called SCOTUSblog, Supreme Court of the United States. And this is a very relevant post on that blog: “Towards the end of the argument the most important question was Justice KennedyÂ’s. After pressing the government with great questions, Kennedy raised the possibility that the plaintiffs [i.e., the government] were right that the mandate was a unique effort to force people into commerce to subsidize health insurance, but the insurance market may be unique enough to justify that unusual treatment.”
So they take all of Kennedy’s questioning here, which indicated to Toobin: This thing’s dead, this thing is a “train wreck.” One question by Kennedy at the end has now given them hope that he might see this as so unique that he would vote for the mandate. A reporter at the Huffing and Puffington Post is saying that it’s, quote, “almost entirely unequivocal that a majority of the court thinks Obamacare is unconstitutional.” They are scared to death. Lyle Denniston used to be the court reporter for the Baltimore Sun. He posts this:
“If Justice Anthony M. Kennedy can locate a limiting principle in the federal governmentÂ’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him,” and therefore give us a huge winning majority. “But if [Kennedy] does not, the mandate is gone. That is where TuesdayÂ’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandateÂ’s savior.” A lot of these blogs are being critical of the solicitor general, the government’s lawyer, Mr. “Virility.”
One blog is saying: “I can’t believe how poorly prepared this guy was on the mandate! I can’t believe they sent him up there and he had no idea how to answer these very obvious questions on the mandate.” So apparently the government’s lawyer didn’t do a good job. The left can’t believe he wasn’t prepared any better. Well, how do you defend the indefensible? What is this guy gonna say? When that burial analogy comes up, he’s dead. When the “broccoli” analogy comes up, he’s dead. If you’re up arguing before the Supreme Court that the government has the right to require us to buy health insurance, then why not burial insurance? Why not broccoli?
This guy had no answer for that other than a bunch of gobbledygook. And all of his supporters watching this know what a poor job he did, and so now they’re worried, and they’ve just go for a little carrot. Anthony Kennedy gave ’em a little carrot dangling there at the far end of the mine. It’s right down there next to the canary. He might find a way. This situation is so unique and we’re talking about health care, so maybe this could be okay. That’s what they’re desperately hoping. But their instincts tell them that it was a “train wreck” today. And I must tell you, I still find it… I don’t know, I guess I shouldn’t, ’cause I know how they were educated (which was poorly). I’m still struck by the fact that they’re surprised, that they’re shocked.
What world do they live in?
This could not have been the first day in their lives that they’ve heard these objections to the mandate. But what if it is? What if they live in such a close-knit circle and they hang around only with each other? What if it actually was the first time they’ve heard these objections? That can’t be! These objections, these arguments, against the mandate have been made throughout the media everywhere. So I guess they just locked in on the idea that it doesn’t have a prayer of losing. But like so much of liberalism, and like so many liberals, they live in their cloistered world of the faculty lounge. They sit around and they talk theory all day. They don’t understand dynamism. Everything is static to them.
And then they get confronted with reality one day and it’s like a cold shower or a slap upside the head and they are bewildered. And it still amazes me that people who are reputed to be so intelligent and so smart can be so surprised when they hear arguments — logical arguments — that make it obvious this is unconstitutional. But, again, I fall back on something we must never forget, and that is: This is not about health care and it’s not about the mandate per se. It’s about changing the Constitution. Not piecemeal with this one. This is huge. If you have it codified as the law of the land that the government can make you buy something? Then, my friends, the Constitution has finally been defeated — and that’s what they can taste. In fact, it’s in their grasp, but it’s a little slippery and they can’t hold onto it.
But it’s right there.
RUSH: Wolf Blitzer was in hysterics a moment ago on CNN. He had the congressional correspondent Kate Bolduan on. They had this exchange. We already heard Toobin. Blitzer is beside himself with what happened today on oral arguments.
BLITZER: Kate, you were inside the courtroom! The solicitor general, uh, Donald Verrilli, uh, was he sort of stumbling? Did he not have the right answers? Uh, did he seem unprepared and overly nervous in responding to the conservative justices’ tough questioning?
BOLDUAN: It’s hard to get into his mind. But I can say, if you compare it to yesterday, he did appear to stumble more; almost seem apologetic for some of the answers that he was giving.
RUSH: Yeah. Yeah. So now it’s time to dump on “Virility” here, the government lawyer. Blitzer: “[W]as he sort of stumbling? Did he not have the right answers? Did he seen unprepared…?” Wolf, you go defend this law up there and see how you do. There isn’t anybody who can! Obama’s not even trying to defend it. Pelosi’s only defense is, “What do you mean ‘unconstitutional’? Don’t be silly!” Nobody can defend this. Nobody. It isn’t constitutional.