Hypothetical Matchups: A Gaffe-ing Matter

The Republican primaries have turned this year into probably the longest-ever season of the gaffe. Even if we leave out the verbal missteps of Michelle Bachmann, Rick Perry, Herman Cain and Newt Gingrich, we still have had an outpouring from Rick Santorum and Mitt Romney. There are websites dedicated to ​“the dumbest quotes” from each of them. 

But one group seems to get off scot-free when it comes to the gaffe: Supreme Court justices. All these gaffes are important to review, and remember – the 24/7 news cycle hurls so much at us so quickly that it is easy to forget what happened last week. 

It’s hard to pick a favorite from Santorum, whose campaign is now over. There was his declaration in Illinois that ​“I don’t care what the unemployment rate’s going to be. Doesn’t matter to me.” Or, ​“Higher-income people don’t have to pay taxes if they don’t want to.” For Puerto Rico to become a state, it would have to ​“comply with federal law” and mandate that English be its ​“principal language.” (There is no such law and no such requirement in order for a territory to become a state.) And then a gaffe Fox News had a field day with: that if he isn’t the nominee, America would be better off with Obama than Romney. 

Which leads to my very favorite polling question: the ​“hypothetical matchup” between Obama and a GOP presidential candidate. All sorts of domestic and international disasters and surprises can occur between now and November, but let’s imagine a ​“matchup” with Romeny, the presumptive nominee. Perhaps the former Massachusetts governor will repeat one of the following statements in a nationally televised debate: ​“Corporations are people, my friend”; ​“I like being able to fire people who provide services to me”; ​“I should tell my story. I’m also unemployed”; ​“I get speaker’s fees from time to time, but not very much” (e.g., only $374,000 last year); “[My wife] drives a couple of Cadillacs”; ​“I’m not concerned about the very poor”; ​“You know, I think [income inequality] is about envy. I think it’s about class warfare.” What if in a debate he sees a bug scuttling across the floor and squashes it, proclaiming, ​“Oh look at that, look at that little guy, there. Got him,” as he did in Mississippi? How clueless is Romney about self-presentation? 

But in the season of the gaffe, it is surprising that Supreme Court justices don’t get the same scrutiny. During the court arguments about the constitutionality of the Affordable Care Act, Justice Antonin Scalia likened the requirement that all Americans have healthcare to forcing everyone to buy broccoli. That’s an analogy? Scalia also expressed surprise that he should actually have read the law. ​“You really want us to go through these 2,700 pages?” he demanded, to laughter. ​“Or do you expect us to give this function to our law clerks?” Well, actually, yeah. Isn’t that what you’re supposed to do – read the laws you’re ruling on? 

Then, in the court’s chilling decision upholding the constitutionality of strip searches even for those arrested for minor offenses, Justice Stephen Breyer dissented using actual examples of people arrested for driving with a noisy muffler or failing to use a turn signal, who were later strip-searched. Justice Anthony Kennedy countered with hypothetical examples, arguing that “[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals.” He went on to note that Timothy McVeigh was stopped for speeding prior to the attacks. The point being: You never know who or what is underneath those clothes, so let’s strip-search them all! But really, now, in what body cavity would McVeigh have been hiding all that fertilizer? And, where, exactly, was that hijacker hiding his box cutter? 

Yes, gaffes are funny. But when they signal a disdain for everyday people and facts, not to mention a distinct lack of logic, we must remember them as we move into the general election season – and remember that presidents pick Supreme Court justices, with whom we are stuck for a very long time.