Shields, Brooks on Supreme Court 'High Tension,' Health Reform's Future

bjbjLULU JUDY WOODRUFF: And to the analysis of Shields and Brooks. That is syndicated
columnist Mark Shields and New York Times columnist David Brooks. Welcome, gentlemen,
on this Friday. So, this week, three days of hearings before the Supreme Court on the
president's health care reform law. David, what did you make of it all? DAVID BROOKS:
Well, it's -- I'm not a constitutional lawyer, but it certainly sent shockwaves through Washington.
People have been overconfident. I think the views of the conservatives have been under-reported
for months and months, and their views slighted. And it turns out there are serious concerns.
And I don't pretend to pass judgment, but it strikes me as a perfectly valid constitutional
issue. Basically, what the individual mandate does, it asks -- it compels people to enter
into a contract with an insurance company, which is not really in their best interest,
in order to subsidize other people who are forced to enter into that contract. That strikes
me as a very -- as a step forward in executive or governmental power. So it strikes me as
a perfectly legitimate thing to do. I can see why, morally, we are all responsible for
each other's health. We're not going to let somebody die on the street. But, constitutionally,
why the government should be compelling people to do this, that strikes me as a completely
valid concern, and the justices honed right in on that one. JUDY WOODRUFF: So, what did
you hear, Mark? MARK SHIELDS: What I heard, Judy, was a political discussion, a reminder
that a judge is a lawyer who is appointed to that office by a politician, and that it
struck me as rather remarkable to hear judges -- justices of the United States Supreme Court
reciting lines that were -- actually questions that were written by the Tea Party opposition
to the law. David's point is a legitimate one. It's a question -- I don't know it's
not to my advantage. I think it is to my advantage to have people, everybody in society covered
by health insurance, that it is now. If someone is forced to go to an emergency room, we do
cover all the expenses, and at a cost to everybody. And that's the right thing to do, to cover
it. But I think most of all, it hit me that -- the change in two years. I mean, there's
no question the political sea change with. . . JUDY WOODRUFF: You mean since the law
went into effect. MARK SHIELDS: Since the law was passed. There was a confidence on
the part of the administration and the White House that once people became aware of this,
there would be a change. And people like Ken Cuccinelli, who is the attorney general of
Virginia, and other conservatives saying, no, they're going to challenge this in the
Supreme Court, they were dismissed, they were treated with some disdain. And you could see
this grow to the point where it's not only possible, it may be plausible that this law
will be overturned, if not in entirety, in part. JUDY WOODRUFF: So, did you hear the
justices reciting Tea Party lines. . . DAVID BROOKS: Sometimes, yes. I mean, I ran into
some judges this week who said, it went on too long. There was no reason for it to go
on three full days -- or not full days, but three days. And so within -- on the fringes,
it's true there were some political statements made. There were some comments, inaccurate
comments, in summary of the bill. But -- and so that was there, no question. But at the
core, there was this core issue, does the government -- we all know that if you enter
into a relationship, the government has the power to regulate it. Does the government
have the power to compel you to enter into a relationship? And that strikes me as a purely
constitutional matter, a role of government matter. And there are many ways to get people
to have universal coverage. And it's worth remembering, when Barack Obama was running
for president, he was against the individual mandate because he thought it would be ineffective,
you could not enforce it. You could tax people and pay them. You could give people strong
economic incentives to get universal coverage. But compelling that mandate, which was the
most politically convenient, is far from the only way to get there. JUDY WOODRUFF: So you're
saying that that was the right argument to have, over the mandate, over the validity
of the mandate? Mark, I mean. . . MARK SHIELDS: Yeah, I think the argument, they went to the
point that is the vulnerability, and it was a point that Democrats didn't -- they came
to out of a sense of necessity, political necessity. The mandate had its origins, the
individual mandate, some 20 years ago when Bill Clinton and Hillary Rodham Clinton, the
president and first lady, a Democratic administration, came up with their health care plan, and this
was the Republican rebuttal. It was hatched at the Heritage Foundation, a Republican conservative
-- conservative think tank here in town. It was backed by Republicans. And this -- David's
absolutely right in his recitation of history, that candidate Obama opposed it. Most Democrats
opposed it. Most Democrats wanted a single-payer, at least the Democrats who were engaged and
involved in this. They couldn't pass it. They didn't have the votes to pass it. And this
was the compromise plan. DAVID BROOKS: And I would say, first, I'm for it as a matter
of policy. I think the mandate is something you need if you're going to have a good system.
As a matter of constitutional law, that's sort of different. And so we do have to respect
the Constitution. One other thing I did want to say, and I have heard this from a lot of
people, is we got to see the justices in a more high-tension setting than we normally
do. And I can't tell you how many conservatives have told me this week, we were opposed to
Sotomayor, but she's really good. And they were really impressed with her. I thought
Roberts was very good. I think Scalia is always flamboyant, but also super-smart. But Sotomayor
and Kagan I think really showed on that public, or the newest justices, how smart they are.
JUDY WOODRUFF: What was your take on the justices? MARK SHIELDS: I think -- I can't make an assessment
of the judges. I just -- I didn't listen in its entirety. I dropped in and out and listened
to our summaries. But I do want to say this one thing about the court. And that is, at
a time when American institutions are under siege -- Gallup poll last year had the favorable
or unfavorable evaluation of these falling institutions -- the court had been up pretty
high, had been 61 percent favorable. And after the Citizens United decision, when they opened
up corporate contributions, unlimited corporate contributions, for the first time in 100 years
in American politics by a 5-4 vote, the court has dropped, and a decision that 80 percent
of Americans when polled opposed. The court's favorability has dropped to 46 percent. And
I think the court is in danger of becoming very much a political institution. The reality
has been in the past. . . JUDY WOODRUFF: Political institution. MARK SHIELDS: A political institution
that s become politicized as part of the political campaign. Fifty years ago, Judy, it was not
uncommon to see cars with bumper stickers on them, "Impeach Earl Warren," who was the
chief justice, at a time when the court expanded civil liberties and civil rights and upset
established order. JUDY WOODRUFF: So are you saying you expect a political decision? MARK
SHIELDS: I expect a political reaction to the decision, if in fact -- I think the losing
side in this kind of a decision, high-profile, high-intensity decision, is where the political
energy lies. I think the initial reaction, if the mandate is overturned, if the law itself
is overturned, there ll be a celebratory victory lap by the part of the conservatives who prevailed,
and disdain for the president, the constitutional professor who didn't understand the Constitution.
I think after that settles in, I think what you will see is political energy on the Democratic
side to -- because once these rights and these -- those changes have been repealed. JUDY
WOODRUFF: But just to make sure I hear you right, Mark. . . MARK SHIELDS: Sure. JUDY
WOODRUFF: . . . you're not saying the court is making -- is injecting politics into this?
You're saying. . . MARK SHIELDS: Oh, I think that it will be seen very much as a political
decision, I mean, based upon the questioning. JUDY WOODRUFF: Okay. MARK SHIELDS: You got
Charles Fried, who was Ronald Reagan's solicitor, I mean, a very conservative Harvard professor,
you know, say he just couldn't believe some of the questions, that they sounded like they'd
been written by the Tea Party. I think it does become part of the political -- you would
then have the Citizens United decision, the Bush v. Gore decision, and this decision in
the space of, what, 11 years, 12 years, that are serious political decisions that have
all come down on one side. JUDY WOODRUFF: How do see you the politics? DAVID BROOKS:
Well, and then that happened the opposite -- Roe v. Wade, both sides were pretty energized
after that one. I don't see this having that kind of scope, a Roe v. Wade, which has gone
on forever. What I frankly think what's going to happen, a lot of people on the left, the
champions of the bill, will be furious, no question, if it's struck down. We should emphasize
we don't know what is going to happen. But as for the country at large, it's worth remembering
the bill -- the law is unpopular. And the latest study, and I think the best study,
suggested that 25 Democrats in the House lost their seats because of this law, aside from
the economy in 2010. So I think what is going to happen for most of the country is, they
will say, fine. I'm not saying this majority -- minority. And I think, on the electoral
effect, it will actually help the Democrats, because the Republicans are losing the economy
as an issue as it improves. They are settling on health care as their number one issue.
And if that's taken away from them, it's tougher to run the sort of campaign they want to run.
JUDY WOODRUFF: So you're saying there wouldn't be the backlash or the reaction from. . . DAVID
BROOKS: I think among real champions of the bill -- of the law, it will be there. MARK
SHIELDS: I think -- I disagree with David on Roe v. Wade. I think the energy on Roe
v. Wade was on the losing side. That's been kept alive by -- that led to an entire political
movement. JUDY WOODRUFF: Anti-abortion, pro-life. MARK SHIELDS: Yes, the pro-life/anti-abortion
movement, and in part because it was seen that the court interrupted what had been the
legislative and political process, and that this would be a case of the court for the
first time in, what, 70 years, overturning a legislative act of this nature. JUDY WOODRUFF:
Just one other thing I want to ask you about. We're on the edge of our seats on this, and
that is the budget. The House, Mark, overwhelmingly rejected the president's budget proposal.
MARK SHIELDS: Yes. JUDY WOODRUFF: And then they turned around and passed, along party
lines, David, the Paul Ryan budget. What -- what is -- it's not a shock that this happened.
But what's the next step here? What happens? DAVID BROOKS: We have an election. JUDY WOODRUFF:
Does it matter? It's March. DAVID BROOKS: We have an election. We wait until December,
which is the cataclysm month, when all sort of things, bad fiscal things happen all at
once. But I give Ryan credit. I don't agree with all parts of it, but he's taken a step
forward. One of the saddest things that has happened this week is Jim Cooper, a Democrat
from Tennessee, and others put together a Simpson-Bowles bill, sort of an outline, and
had them vote on that. I think it got like 38 votes in the House. And so we're going
to end up there eventually. I don't know when, before or after a fiscal crisis. We ll end
up with something like Simpson-Bowles. But you see the two parties not wanting to get
there yet. JUDY WOODRUFF: Including tax increases. DAVID BROOKS: Right. Exactly. JUDY WOODRUFF:
But the Republicans aren't ready. DAVID BROOKS: Right. And neither are the Democrats, apparently.
Almost nobody voted for this thing. JUDY WOODRUFF: Mark. MARK SHIELDS: The rejection of the Simpson-Bowles
approach is proof that bipartisanship is no longer on life support. It's dead in this
city. I think the Ryan budget, which I think is indefensible in a social sense, in a social
justice sense, with a $394,000 tax cut for the average millionaire, I think -- I think
what it is, is the blueprint that House Republicans are laying down right now for the lame-duck
session that follows the election. They have staked out their position, so that this is
their negotiating position. Let the White House and the Democrats try and come up with
theirs. But I think that's what they're doing. And, plus, what they have done is they have
stopped any cuts in the military that were agreed to last summer in the grand budget
agreement last year, 2011. JUDY WOODRUFF: And just quickly, real consequences of this.
Do people just say, oh, there goes Washington again? DAVID BROOKS: Well, we see what they
-- the parties believe in. We don't see what they're going to do. So, if you're looking
for the practical consequences, zero. MARK SHIELDS: I think there could be political
consequences in the election. I think some of the cuts that the Republicans have voted
for could become issues in certain House races. JUDY WOODRUFF: Well, we are always thrilled,
our hearts race when you're here. (LAUGHTER) MARK SHIELDS: Oh, my goodness, Judy. (LAUGHTER)
JUDY WOODRUFF: Mark Shields, David Brooks, thank you both. urn:schemas-microsoft-com:office:smarttags
State urn:schemas-microsoft-com:office:smarttags City urn:schemas-microsoft-com:office:smarttags
place JUDY WOODRUFF: And to the analysis of Shields and Brooks Normal Microsoft Office
Word JUDY WOODRUFF: And to the analysis of Shields and Brooks Title Microsoft Office
Word Document MSWordDoc Word.Document.8