The outcome of the battle over healthcare before the Supreme Court was preordained. The majority was going to rule against Obama because he called them out in an earlier State of the Union Address over the Citizens United decision. Readers may recall that Alito was shown on TV, sitting in the audience, shaking his head. The hostility of the judges in the way they phrased their questions was payback.

On the main issue in the case, the constitutionality of the individual mandate, I agree with those who say it is unconstitutional. I think it’s un-American for the government to force people to buy a specific product or pay a penalty for not doing so. Individuals should have the right not to engage in interstate commerce, if they so choose.

Is this a defeat for the Obama administration? Sure. But it is a cloud with a silver lining. As many news commentators have pointed out, the Democrats no longer have to play defense. They can go on the offense against a Supreme Court majority that is bent on imposing its ideology on the body politic. This puts Romney (assuming he is the nominee) in the tricky position of having to explain (again) his authorship of the bill that is the model for Obamacare. Meanwhile, the president and the Democrats are free to criticize a Court that gave us Citizens United and, no doubt, will have other unpleasant surprises in store for us.

On March 15, the Wall Street Journal’s law blog carried the results of a poll on the factors that would influence in the Court in reaching a decision. From the Journal’s story:

Everyone’s gearing up for the upcoming debate on the health-care law before the Supreme Court at the end of March. Turns out, not a lot of people have faith the case will be decided on its merits.

Three-quarters of Americans say the Supreme Court will be influenced by politics when it rules on the constitutionality of the 2010 Affordable Care Act, according to a Bloomberg National Poll.

Breaking down the results by political party, more Republicans than Democrats believe the court will be guided by politics, by 74% to 67%. Eighty percent of independents say the court won’t base its decision on just legal merits. The poll also noted that among Tea Party supporters, 81% said politics will play a role in the decision, the highest percentage of any subgroup. In the nine-month term that began October 2010, the justices divided along party lines in a dozen cases, Bloomberg noted.

This poll should be an alarm bell for the Court. That 75% of Americans believe it will be guided by politics indicates a deep cynicism about the majority among the electorate. Or perhaps it simply reveals the American people’s belief that politics is broken, and it is hardly a surprise that the Court is not immune from the general disgust toward politics today.

Romney holds a comfortable lead over Rick Santorum going into Tuesday’s primary election. Wisconsin does not have the profile of a state that is Santorum-friendly. I saw a graphic on TV on Friday showing that the percentage of  voters who are evangelicals is much smaller in Wisconsin than in Ohio, and Santorum didn’t do well in Ohio. In any event, Romney’s biggest threat isn’t Rick Santorum. It’s Mitt Romney. Folks don’t like him.

From the Washington Post:

A recent (March 14-18) Washington Post-ABC News poll was conducted by telephone among a random national sample of 1,004 adults, including users of both conventional and cellular phones. The results from the full survey have a margin of sampling error of plus or minus 3.5 percentage points. The results: 50% of adults and 52% of registered voters view Romney unfavorably.

The Post said this was the worst number for a leading presidential candidate since 1984, when Ronald Reagan won every state against Walter Mondale except Mondale’s home state of Minnesota.

The obvious danger for Republicans is that Romney’s high unfavorable rating jeopardizes the GOP’s effort to protect, much less extend, its majority in the U.S. House of Representatives, and to wrest the Senate majority from Democrats. I’m sure everybody is tired of hearing about a brokered convention, but if Romney goes into the convention with these numbers, will party honchos start looking around for an alternative? These developments indicate how prescient George Will was when he wrote recently that Republicans should focus on what was attainable–that is, taking back the Senate majority from the Democrats and increasing  the Republican majority in the House–instead of trying to defeat Obama.But are those scaled-down goals attainable with Romney as the party’s standardbearer? And if not Romney, then who? Suppose Romney’s numbers continue to tank. Does this resuscitate the possibility of a brokered convention?

From Michael Li’s “Texas Redistricting” Web site, earlier today:

The D.C. district court has set trial in Texas’ voter ID suit for July 9-13.

That’s nearly three weeks earlier than requested by the Justice Department and intervenors.

However, the court also directed that issues related to the constitutionality of section 5 of the Voting Rights Act be bifurcated from the main trial and said that those issues would “not be addressed unless the Court denies judicial preclearance of Senate Bill [14].”

Since that means that hearings on constitutional issues would take place only after a ruling on the preclearance claims (by definition some time after the July 13 end of trial), that would seem to make it less likely that the constitutional issues could be teed up in time to get them to the Supreme Court before the November elections.

The court’s scheduling order set a discovery cutoff of June 15 for both fact and expert testimony and directed that any dispositive motions (such as a motion for summary judgment) be filed by June 18.

Li is an indispensable resource on the topic of redistricting. I appreciate the opportunity to publish his report with his permission.

This was the topic of a breakfast discussion yesterday, in which I participated. One of our group, a former legislator who served with Perry in the House, said it happened it 2002. Kay Bailey Hutchison was giving indications that she planned to run for governor against Perry, who had inherited the governorship when Bush became president. He was not at all popular at the time, and Hutchison was extremely popular. Always shrewd when it came to politics, Perry realized that his best, and perhaps only, chance to beat her was to move hard to the right. And that’s what he did. He won the support of the far right, Hutchison didn’t run, and the rest is history. That was the general trend of the discussion.

This does not fit my recollection of events. For one thing, the buzz about Hutchison taking on Perry never got past the talking stage. She lost her nerve. I think the transformation of Perry occurred much earlier, when he switched parties in 1989, ran for agriculture commissioner in 1990, and defeated Jim Hightower. The story I remember is that Phil Gramm told him that, as a party switcher, he had to move hard to the right and never budge. (Gramm, of course, had switched parties as well.) The point  is that Perry moved right, not out of conviction, but out of political necessity. He followed Gramm’s advice to the letter.

“Comptroller Combs has made it her personal mission to increase transparency in the finances of the Texas government,” said Jeff Morris, YCT State Chairman. “She is truly a hero to taxpayers who wish to see their money spent wisely and efficiently.”

Oh, I see. Like giving Formula 1 $25 million a year in tax dollars for ten years. Very wise. Very efficient. And the project has gone so smoothly, t0o.

John Bradley, Rick Perry’s choice to block the Forensic Science Commission’s investigation into the flawed arson science that led to the conviction and subsequent execution of Cameron Todd Willingham, is in a tough Republican Primary reelection battle with county attorney Jana Duty. Bradley has also been in the news recently over the nationally publicized Michael Morton case, in which Bradley refused to grant Morton’s lawyers’ request for DNA testing on a crucial piece of evidence. Only after a ruling from an appellate court did the testing go forward. Morton spent 25 years in prison before he was exonerated by DNA testing that Bradley had resisted for six years. As most readers know, the Morton case was featured last night on 60 Minutes.

A letter posted in the Round Rock Leader by criminal defense attorney Mark Brunner gave his insights into Williamson County justice, John Bradley-style. This is an excerpt:

In Williamson County, it is common practice that felony plea bargains are given to defense counsel and their clients on a “one-day-only” basis — meaning, taking it today, or the deal gets worse.

And that “today” is often the first day the attorney and client have ever been in court. Many, many times a request for additional evidence (oftentimes something as simple as a lab report or a DWI videotape of a client being stopped by the police) will be denied by Mr. Bradley’s prosecutors with the veiled warning that if a deal is not speedily taken, the stakes for the client could get much worse.

While I routinely advise my clients to ignore such attempts at bully brinksmanship and wait patiently until I can secure all the evidence, it puts my clients in an awful bind.

They are made to choose between a plea bargain right now, when I have not had a chance to fully evaluate their case, or suffer a worse bargain later, after I have had the chance to do my ethical best to collect all the evidence in the state’s hands.

In the last reporting period, at the end of December, Duty had raised $83,211.09 to Bradley’s $38,604.06. Shortly thereafter, the Statesman reported that Duty had raised an additional $30,000 and Bradley $20,000.

From Duty’s Web page:

The job of the District Attorney is to seek justice. The people of Williamson County deserve a D.A. who understands this and who puts the public interest above their political career and that of their friends.

Unfortunately there is a cloud hanging over the District Attorney’s office.  John Bradley represents all that is wrong with our political system today.  Instead of seeking justice, Bradley aggressively fought against DNA testing for a man who was wrongfully imprisoned for over two decades for murder. The whole time the real killer remained on the loose.

Grits for Breakfast has covered the race extensively, including this report on an issue that Bradley could use against Duty:

Duty’s vulnerability in this race is that she was reprimanded by the State Bar of Texas. She’s been in a big feud with the good-ol’ boy crowd at the county commissioners court, which hired an outside attorney over her objections – ironically the attorney who was the second chair prosecutor at Michael Morton’s original trial. The State Bar of Texas upheld a complaint against Duty for revealing information she learned in executive session of the commissioners court.

Bradley gave a long interview to the Jarrell Star Ledger about the Morton case. The interview began with this question, “Would you like to comment on the Michael Morton case?” Bradley replied:

“The media has not reported all the details connected to our decision on DNA testing. AThe results from those tests seemed to confirm Morton’s guilt. Then, we looked at whether to test a bandanathat had been found 100 yards away from the crime scene by a family member. There were two major problems: (1) the chain of custody on how it was collected was unclear because it was not collected by the police, and (2) the bandana had possibly been contaminated with blood from the crime scene when a family member brought it from the home. Based on these problems, Judge Billy Ray Stubblefield denied the request for DNA testing.

“Later a court of appeals reversed that ruling and we tested for DNA. I deeply regret the delays that occurred from that process, but we all made reasonable arguments based on the best information we had at the time. It wasn’t an arbitrary decision. It was based on the best information we had at the time. I now know different things, some of which I can’t share with you until after this other trial is over, and it certainly changed my opinion about the case. The county attorney (Ms. Duty) seems to suggest that somehow I am a bad person because a decision in the Morton case turned out to be incorrect. I would ask the public to look at that from a broader point of view. First, they ought to know that the county attorney officially defended our decision in the Morton case. The county attorney defended myself and the sheriff when the Innocence project asked a federal judge to intervene and require DNA testing. She expressly argued that the district attorney and the sheriff made reasonable arguments and had been fair and appropriate in how they investigated this case. The federal judge agreed and ended up dismissing the case. So it seems that the county attorney is hypocritical by changing her positions now that she needs a political advantage in running for D.A. I don’t think voters will appreciate and support that kind of political opportunism. I believe they will recognize that a mistake was made, acknowledged, and corrected. The question is whether we learn from our mistakes.”

The thing Mr. Bradley leaves out of his explanation is that he fought the Innocence Project’s efforts to establish Mr. Morton’s innocence every step of the way. That should haunt him to the end of time, though it did not dissuade him from running for reelection.

As you might expect, this has been a nasty race. The Wilco Watchdog, a blogger, and a very good one, wrote about a campaign event in which Duty was booed by a woman in the audience when she attempted to speak about the Morton case. The Williamson County Sun, widely read in the county, identified the woman who booed as Linda Berglund, but it did not identify Berglund as the sister of Round Rock attorney Mike Davis. But Wilco Watchdog knew who she was.

Perhaps the public has the right to know that Linda Berglund is the sister of Round Rock attorney Mike Davis, second chair in the Michael Morton case and the attorney whom District Attorney John Bradley refused to investigate for possibly illegally billing the county while Davis represented Don Higginbotham, a former judge who was accused of sexually harassing his employees. Perhaps it really doesn’t matter. But given the set of circumstances, in the interest of full disclosure, we felt that since the Sun did not inform the readers who Ms. Berglund is, we thought we’d let them decide the motives behind the “boos” and comments to the Sun.

Looking at endorsements in the case, Bradley is doing very well, as you might expect. Virtually the entire political establishment is in his corner–County Judge Dan Gattis Sr., his son (the former state rep), former Round Rock mayor Nyle Maxwell, 150 former grand jurors, a number of Republican precinct chairs, and so on. Duty has won the endorsements of the Cedar Park Police Association, the statewide Texas Fraternal Order of Police, and the two district attorneys who preceded Bradley. It is significant that Duty has raised twice as much as Bradley; however, in a local race where everybody knows the players and their histories, money may not be the decisive factor. Duty’s supporters, or, if you prefer, Bradley’s opponents, have placed bandanas on his signs, emblematic of the article of clothing on which the exculpatory DNA evidence was found.

The political implications of the story are clear. First, the clearing of Morton may give renewed life to an investigation of the Willingham case by the Forensic Science Commission. However, Attorney General Greg Abbott has given Perry cover by ruling that the commission cannot investigate any matters that arose before its creation. The attorney general cannot issue an opinion unless one is requested. Guess who requested it? John Bradley.

I think this is a lousy ruling. Injustice is injustice. Bad science is bad science. You can’t understand the present until you understand the past. The commission should be allowed to go on with its investigation into faulty arson science. As for Bradley, the Senate refused to confirm him as chairman after he called Willingham a “guilty monster.”

I watched the morning news shows today. The most interesting comment I heard was on Morning Joe, and it was that from Obama’s perspective, losing the case is not all bad. The White House can blame nine folks in black robes. FDR mastered the strategy during the New Deal. The Supreme Court is very likely to make a number of controversial decisions in the coming months, on such subjects as health care, affirmative action in college admissions, Voter ID, and redistricting, all of which could go against the left. If that occurs, the White House will have a lot to say about it at election time.

The Statesman has a good story on Sunday, by Tim Eaton, about Attorney General Abbott’s efforts to prevent twelve state legislators involved in Voter ID legislation from giving depositions to officials with the Department of Justice.

Abbott increasingly acts like a politician instead of a lawyer. His move this week to ask a Washington, D.C. court to allow the legislators involved in the battle over the Voter ID to avoid giving deposition testimony is really putting a thumb on the scales of justice. This is a lawsuit. Why shouldn’t DOJ, as one of the parties, have the right to depose witnesses? What are the federal rules of civil procedure for, if not this? Abbott would scream bloody murder if the shoe were on the other foot and he was attempting to depose witnesses.

According to the Statesman, The U.S. Department of Justice, which is facing off against Abbott’s office in a case in which the Attorney General seeks to have Texas’ voter ID law go into effect for the upcoming elections, has asked to depose or question under oath the Senate author of the voter ID bill, Troy Fraser; the House sponsor, Patricia Harless; and other lawmakers. What is Abbott’s justification for keeping key legislators from being deposed? State’s rights, of course: “an unwarranted intrusion into the operations of the Texas Legislature.” Let me see if I understand this. Requiring legislators to give testimony about the passage of a bill is an unwarranted intrusion into the operations of the Legislature. What does the Legislature do other than pass legislation? What else is “the operations of the Legislature?”

The state makes three arguments:

(1) A determination of whether a discriminatory purpose exists must be made by examining publicly available sources — such as legislative history, floor debates, and the historical background of the decision.” These are good sources, but they are not the only sources. In a normal lawsuit, parties are deposed about the conversations they have had that might shed light on the parties’ intent. Why is a lawsuit on Voter ID any different, especially since the crucial issue from DOJ’s perspective is the intentions of the members. Their private intentions should not be regarded as any more sacred than their public intentions.

(2) The state, however, regards DOJ’s request as a violation of a protected legislative privilege. The Texas Constitution protects what legislators say in debate, but it offers no protection for personal communications among members. If Senator A speaks ill of Senator B on the floor, it is protected speech. If Senator A has a private conversation with Senator B about legislation, no privilege attaches.

(3) Abbott argues that allowing litigants to “traipse through every communication of those legislators simply by alleging that a state law was enacted with an impermissible purpose, then state lawmakers will be chilled from engaging in the communications necessary to perform their jobs properly.” A lawsuit is a lawsuit. In the normal course of litigation, the court can deal with the issue of which communications are privileged and which are not. There is no reason why a lawsuit over Voter ID should be tried under different rules than any other lawsuit.

I’m probably guilty of overusing the word “crazy” these days, but sometimes there is no other word to describe what is going on in Republican circles. FreedomWorks, a Washington-based group chaired by former U.S. House Majority Leader Dick Armey, has set its sights on defeating Dewhurst and Straus, the newspaper reports. Matt Kibbee, the organization’s president, says, “The citizens of Texas want to see real reform. They look at other states that are doing more, and they ask: ‘Why not Texas?’”

And what does FreedomWorks regard as “real” reform? It’s–the (s0rry, but there’s no other word for it) craziest bill ever to be debated by the Texas Legislature: David Simpson’s attempt to criminalize invasive searches by Transportation Security personnel. This was an attempt by a state to override federal agents carrying out their lawful duties. A U.S. attorney in San Antonio wrote a letter threatening to shut down Texas airports or cancel flights, leading Senate sponsor Dan Patrick to say, “I don’t cave in to heavy handed threats by the federal government.” So I guess Patrick thinks it is just fine for the feds to shut down Texas air travel. He’ll show them.

From the Texas Tribune story of May 24, 2011:

Two TSA officials visited Patrick at the Capitol earlier today to discuss the legislation. They warned him that the legislation “could close down all the airports in Texas,” he said. After their departure, U.S. Attorney John E. Murphy sent a letter to Speaker of the House Joe Straus and Lt. Gov. David Dewhurst saying the bill would “conflict directly with federal law” and that if it became law, “TSA would likely be required to cancel any flight or series of flights for which it could not ensure the safety of passengers and crew” until the agency could seek a court order stopping the measure from being carried out….Straus said that the bill would have made Texas a laughingstock.

Okay, I won’t say it’s crazy. How about “plumb loco?”

UPDATE: 9:16 p.m. The margin currently stands at 50%-32% (9:16 p.m.), down slightly from  54%-27%. Some commenters posted last week, after the vote in Alabama, that much of the Republican vote in Illinois was downstate. I didn’t buy that at the time, and I don’t buy it now. Illinois is an urban state; the Chicago metro area is a huge source of votes, and there’s no way Santorum, who relies on rural voters, could compete in Illinois. He didn’t have the organization to get himself on the ballot in several congressional districts. If there is any certainty in politics, it is that Romney is going to own the urban areas in the Republican nominating contest. Santorum will probably do well in Texas, with its large rural area, and in its cities that are populated with people whose roots are rural. I think Santorum will win the state, but Houston and Dallas have large contingents of establishment voters. Louisiana, the next state where the two GOP frontrunners will square off, is going to be interesting. The political divide in Louisiana is the redneck Protestant north  vs. the Catholic Cajun south with the establishment vote in New Orleans as the determining factor.

The magnitude of Romney’s victory is very impressive. I have thought all along that he would be the GOP nominee, and I see no reason to back off that view.