This is a rush transcript from "The Journal Editorial Report," March 6, 2010. This copy may not be in its final form and may be updated.
PAUL GIGOT, FOX HOST: This week on the "Journal Editorial Report," President Obama gives Democrats the green light to ram health care through Congress. But can they overcome Nancy Pelosi's growing problems in the House?
And a Second Amendment showdown. The Supreme Court hears a case that could overturn gun bans in cities and states across the country.
And a Rhode Island school board fires the entire faculty at a failing high school. But in troubled districts across the country, tenure is keeping bad teachers in the classroom. We'll take a closer look at a broken system.
Welcome to the "Journal Editorial Report." I'm Paul Gigot.
President Obama signaled full speed ahead on his health care overhaul, telling Democrats that the time for talking is over.
(BEGIN VIDEO CLIP)
PRESIDENT BARACK OBAMA: Every idea has been put on the table. Every argument has been made. Everything there is to say about health care has been said — (LAUGHTER) — and just about everybody has said it. (LAUGHTER). So now is the time to make a decision.
(END VIDEO CLIP)
GIGOT: But with Nancy Pelosi's House in disarray, does the party have the votes to ram it through?
Joining the panel this week, Wall Street Journal columnist and deputy editor, Dan Henninger; senior editorial page writer, Joe Rago; and opinionjournal.com columnist, John Fund.
Well, Dan, in my experience, presidents don't make this kind of commitment this late in the game unless they have the votes. Does he have the votes? Why is Obama so optimistic?
DAN HENNINGER, COLUMNIST & DEPUTY EDITOR: Paul, I asked myself that all the time these days. Why is this man so optimistic? And I think it's reflected in the clip we just showed. There has never been a president possessed with as much self-confidence as this president, who believes, if he says, it will happen.
And it won't always happen. Exhibit A —
GIGOT: — light, there will be.
HENNINGER: The cap-and-trade bill. Look, that bill was going to hammer states that produce and use coal, and Democrats ended up voting against it. It's now dead in the water. A lot of people knew this even before he introduced that bill. And I think this is heading towards the same high water, Paul.
GIGOT: And cap-and-trade did pass in the House at the last minute. It's now stalled in the Senate.
GIGOT: But it did pass.
Joe, a month ago, this bill was dead. We thought it was dead after Scott Brown's election in Massachusetts. What has happened to make it suddenly live again?
JOE RAGO, SENIOR EDITORIAL PAGE WRITER: Part of it is the shock of Scott Brown has worn off.
GIGOT: Especially on Democrats.
RAGO: Well, certainly only on Democrats.
GIGOT: Only on Democrats.
RAGO: But you know, they've determined that this bill can't get any more popular. It can. I disagree.
GIGOT: You mean unpopular.
RAGO: Unpopular, excuse me. But also they've decided that this is the only — this is a once-in-a-lifetime political opportunity. They've got to get it done. This chance isn't going to come along for a generation until you just have the whole party machinery full speed ahead, ramming speed.
GIGOT: And John Fund, the big gain here is the House, right? Because that's where they're going to go first. They're going to try to get the Senate bill passed December 24th, Christmas Eve, and pass that through the House, but the House has now had some real problems, Nancy Pelosi. The three Ways and Means chairmen, just this week, because of Charlie Rangel's leave of absence, so, what do you — how do you give the prospects in the House?
JOHN FUND, OPINIONJOURNAL.COM COLUMNIST: Well, increasing number of Democrats no longer trust Nancy Pelosi's judgment and they're not sure whether or not they want to follow her off a potential cliff. Look, she told House Democrats in November, I'm willing to lose 20 seats to pass this bill. But now look at the polls, the House Democrats, and say, it could be 30, it could be 40. We could lose control. And there's also a bait-and- switch problem, Paul. What if the House passes the Senate bill, the Senate bill gets mired in reconciliation problems, so they can't amend it to may be the House feel better, and the president signs it into law? The House members will have been stuck voting for a bill that has federal funding for abortions, all of those horrible special-interest things like the cornhusker kick-back and a lot of unpopular things.
GIGOT: I think that could be a real possibility, Joe, that this is, in some sense, a bluff to the House.
GIGOT: Yes. Because the House — we know the White House would love the Senate bill. They think that's great, because they think it has more cost control measures than the House bill. But the House doesn't want to vote for the Senate bill unless there are some Senate fixes. And that's where we get into the reconciliation game where you're going to jam the fixes through the Senate on just 50 votes, plus Joe Biden. What are the chances this is in fact is a bluff.
RAGO: I think they're pretty good, actually. Reconciliation is going to be a bloody mess. It's an abuse of the Senate rules. But if it's just a sort of trick to get them to pass the Senate bill through the House, I think the White House would love that. Why not just one rip right off.
HENNINGER: Notice, Paul, the one word that's not come up in our conversation, Republican? They're over here. They're —
GIGOT: They're irrelevant.
HENNINGER: They're irrelevant. This is the Democratic Party coming very, very close to blowing itself up on behalf of this bill.
GIGOT: Well, we want to get at least one Republican in the game, Dan. Now, we've got to clip for you to show you Paul Ryan at the health care summit taking on the cost claims about Obama-care.
(BEGIN VIDEO CLIP)
REP. PAUL RYAN, R-WISC.: This bill does not control costs. This bill does not reduce deficits. Instead, this bill is a new health care entitlement at a time when we have idea how to pay for the entitlements we already have.
Now, let me go through why I say that. The majority leader says the bill scores as reducing the deficit $131 billion over the next ten years. First, a little about CBO. I work with them every single day, very good people, great professionals. They do their jobs well. But their job is to score what is placed in front of them. And what has been placed in front of them is a bill that is full of gimmicks and smoke and mirrors. What do I mean when I say that? Well, first off, the bill has ten years of tax increases, about a half a trillion dollars, with ten years of Medicare cuts, about a half trillion dollars, to pay for six years of spending. And so when you take a look at all of this, when you strip out the double counting and what I would call these gimmicks, the full ten year costs of this bill has a $460 billion deficit. The second ten year costs of this bill has a $1.4 trillion deficit.
(END VIDEO CLIP)
GIGOT: Devastating critique, Joe. Did the White House try to respond at all?
RAGO: No, not at all. Not at the summit, not subsequently, not after we wrote about it. But you know, who cares?
I mean, it —
GIGOT: What's a couple of trillion a month among friends.
So what you're saying is the merits at this stage do not matter.
GIGOT: This is about the presidency. This is about the Democratic Party. This is about showing there's accomplishments.
RAGO: Right. At this point, it's only about raw political power and the vote.
GIGOT: John, I want to ask you about the anti-abortion Democrats in particular, Bart Stupak, who says he won't vote for this unless the abortion language changes that's currently in the Senate bill. Is this a serious objection or is he going to be rolled.
FUND: I think it's a serious objection. And he has up to 12 other Democrats who agree with him. They're trying to negotiate a separate bill to take care of his concerns, but there's question as to whether or not they can get the votes in the Senate to pass that.
I think believe, right now, Bart Stupak has gone out on a limb. He knows that the American people will be angry at any Democrat who voted for abortion funding. It's unpopular. 80 percent of the American people oppose it.
GIGOT: Right. All right, John, thanks very much.
When we come back, the Supreme Court and Second Amendment. The justices take up the issue one more time in a case that could overturn handgun bans in cities and states across the country.
GIGOT: In perhaps the biggest case to come before the Supreme Court this term, justices heard arguments this week in a suit challenging the city of Chicago's 28-year-old handgun ban. The high court last took up the Second Amendment two years ago when it ruled, in District of Columbia vs. Heller, that the Constitution protects the individual right of D.C. residents to bear arms. The question now is whether that right extends to the rest of the country and whether state and local gun control laws interfere with it.
Opinionjournal.com editor, James Taranto; and senior editorial writer, Colin Levy, join us with more.
Colin, you followed the argument at the Supreme Court this week. Are the Justices prepared to extend the Second Amendment to the states?
COLIN LEVY, SENIOR EDITORIAL WRITER: I think they're definitely prepared to extend the Second Amendment to the states. The real question is how they're going to do it. And what they're going to use is the 14th Amendment and it just depends which part of the 14th Amendment. And this is a real good topic for legal wonks here. There's two arguments. One is —
GIGOT: Like Taranto, a legal wonk, that's why we got him.
LEVY: There's two parts of the 14th Amendment that can be used. One is the due process clause, which has been used to incorporate most of the Bill of Rights. And the Second Amendment is noticeably missing from that group. And the other is a long sort of doorman clause called the Privileges and Immunities Clause. That is something that a lot of Libertarians have been very interested in seeing revised here, in which this was a big opportunity to look at.
GIGOT: All right.
There isn't much doubt, James, based on the oral argument I've heard that would apply to the states. In fact, it would be odd if it didn't, given the fact that most of the rest of the Bill of Rights do apply.
JAMES TARANTO, OPINIONJOURNAL.COM EDITOR: It's not even a difficult question. You're right.
GIGOT: So that will happen. It'll be interesting. So the five majority — there was only a 5-4 vote in Heller for the — it was — the liberals voted against making, declaring the right to bear arms a fundamental right.
TARANTO: Well, what they did, they said it's an individual right, and then they proceed to argue it into a nullity.
GIGOT: So the conservatives will apply it to the states. What about the liberals? Where do you think they'll come out?
TARANTO: I think they'll come out on the same side.
TARANTO: Once it's established as a right, there's not much argument to say it doesn't apply to the states, that the individual rights can be abrogated by the states, so only the people in the District of Columbia have the right to own guns. But the real question down in future years and decades is going to be, what regulations are acceptable, what is the content of this right. And so the liberals argue for a much narrower interpretation.
GIGOT: That's the way you see it, Colin?
LEVY: Well, I think there's no question that there's a liberal interest here, particularly in reviving the Privileges and Immunities Clause. I think this was something that created some skepticism among the conservatives on the court. Particularly Justice Scalia and Chief Justice Roberts were rather leery of reviving the Privileges and Immunities Clause, even though most liberals and conservatives acknowledged it was wrongly decided, sort of wrongly erased, rather, way back in 1873.
GIGOT: Well, Justice Scalia, I think, worries that this is going — if you do that, it's a 12-lane highway for finding other rights, like the right to welfare.
HENNINGER: Yes, well —
HENNINGER: Justice Scalia put it aptly. He called this part of the Constitution, the darling of (inaudible). Now, you have to be a real wonk to understand what he meant by that. But what he did means is, if you read the academic literature, the array of rights that you can discover that they would like to embed in the Constitution, is almost limitless.
I think the danger here is that if we ever went down that route, you are virtually risking a kind of civil war in this country, because so many people out in the public do not want to go down that road.
GIGOT: The Second Amendment is —
LEVY: I think it —
GIGOT: Go ahead, Colin.
LEVY: I think it's a dangerous territory when you have Justices who consider themselves originalists, not willing to take on part of the Constitution just because they're afraid sort of what will happen with it. I don't think that's really appropriate for the spirit of those conservatives on the court.
TARANTO: As a matter of practical jurisprudence, Justice Scalia is right, because whatever hypothetical effects reviving the Privileges and Immunities Clause would have, it would have two very clear effects. It would incorporate the Seventh Amendment and the Fifth Amendments' grand jury proceedings — grand jury requirement against the states, which would mean that states would have to change the way their court systems operate. Now, that may be a legitimate type of thing to do. Maybe the Constitution does require that. But there's no reason that the court needs to reach that question in a case involving gun rights.
GIGOT: And Chief Justice Roberts is going to probably take the most judicially restrained route to applying the Second Amendment.
I'm with you here, James. I think the real game here for the liberals is to try to narrow the decision in the sense of saying, you can regulate guns pretty strictly, even if you have a fundamental right.
TARANTO: Well, Heller — Heller left that open.
GIGOT: That's right.
TARANTO: And I think that that's going to be — I mean Second Amendment jurisprudence is 2 years old. It's in its infancy. A lot remains to be decided.
GIGOT: All right, James, thank you.
When we come back, teacher tenure and the failure of America's public schools. We'll take a closer look at a system that is keeping the country's most troubled districts from implementing real reform.
GIGOT: A school board in Rhode Island grabbed headlines recently when it voted to fire all 27 teachers in its failing high school. It's a move President Obama praised this week, calling it an example of accountability. But if you think getting rid of sub-par instructors is simple, think again. Across the country, tenure has been a major obstacle to getting bad teachers out of the classroom.
Two years ago, Chancellor Joel Klein launched an effort to root out incompetent teachers in New York City's public schools. So far, officials have managed to fire just three. In Los Angeles, where the high school drop-out rate is 35 percent, less than two percent of teachers are denied tenure, a lifetime job guarantee that is granted after just two years in the classroom.
I recently talked to Dan Henninger, Jason Riley and Bill McGurn about the politics of teacher tenure.
GIGOT: Why can't teachers be hired and fired for performance just like the rest of us?
JASON RILEY, EDITORIAL BOARD MEMBER: Well, it's because of the tenure rule, these iron clad job protections that teachers get after a very short period of time in the classroom.
GIGOT: Why do they exist? Are they part of union contracts, negotiated with —
RILEY: Typically, they're passed by state legislators, actually. And then rules are, through the collective bargaining agreements, augment them. But typically, the state of New York of the state of California state legislature will pass tenure rules. And that's how they get enacted. In most states, it's three years. In some states, like California, as you mentioned, it's just after two years.
GIGOT: So you put two years in and then and the scrutiny before granting tenure —
RILEY: It's almost nonexistent.
GIGOT: Is non —
RILEY: And then, once these teachers get in, it's almost impossible to fire them for performance. Out in Los Angeles, the Los Angeles school district spent ten years trying to fire seven teachers for poor performance. It was successful in only four of the cases.
GIGOT: Wow. So if a teacher — if the school closes, Bill —
BILL MCGURN, CHIEF EDITORIAL WRITER: Right.
GIGOT: — and the teacher that is out of work goes back into the pool of teachers, the principal at another school in a big system like L.A. or New York, has the ability to say — to hire them at the schools. But if the principals don't want them — and some of these teachers have reputations for not being terribly competent — they sit there, but they still get paid.
MCGURN: Right. Well, look, the public school system we have in the big cities is not a school system, it's a jobs program. It's a lifetime jobs program. Jason rightly mentioned the legislatures. Center for American Progress, in every state, except Wisconsin, mandates tenure. And only two states, Iowa and New Mexico, link that tenure to any kind of classroom performance.
Even when these people do get fired after a lot of expensive litigation, it's almost never for just failing in the classroom. It's usually for some egregious violation, sexual harassment or something — some wildly inappropriate behavior.
GIGOT: Or gross misconduct.
RILEY: And the amazing thing here is that the teachers unions, who push the rules, almost try to align their interests with that of the kids.
RILEY: Publicly. But how does making it impossible to fire a bad teacher help kids? It clearly doesn't.
GIGOT: The costs are significant here, too, Dan. $100 million, Joel Klein says, in New York City a year, just to keep paying teachers who don't teach.
GIGOT: And that's in addition — and that's a part — that's just the teachers that nobody wants to hire. There's also more money for these so- called rubber rooms where people — teachers stay, who are accused of some kind of misconduct.
HENNINGER: Well, I think the easiest way to understand this is that we're talking about the teachers unions. A teacher's union is public- sector union no different than any other city union. Down in Washington D.C., the superintendent there, Michelle Reed, is fighting the biggest fight in America to get control of the teacher's unions. But they have 50 union contracts in Washington D.C., which apply to 15 different unions.
The teachers union is no different than the sanitation workers, the transportation workers, the firemen and the cops. And leaders of one union are not going to give on something like tenure, because they know that the managers in the city will try to do it for the other union. And those unions give 95 percent of their political contributions to Democratic politicians, who have no incentive to do anything about this problem.
GIGOT: Bill, let's — tell us what happened in Rhode Island and is this firing a whole school, is this really the kind of radical solution we need?
MCGURN: I'm not sure it's the solution. I think it's the only alternative they had. There's a failing school. You've got kids not at level— I think you have half the children there in 11th grade failing every subject. So they have various proposals for reform. The one that the teachers rejected would have required them to do something like an extra 25 minutes a day, spend some time in the lunch room once a week with the kid. And they rejected these things.
And it's — as Dan mentioned, it's a public-sector union and that's the mentality. You think of all the private-sector people in these hard times. People have been taking pay cuts, been working longer hours. And this is just — just not on in these places.
GIGOT: Jason, what do we do about it?
RILEY: It's hard to say. What — one thing we need are more superintendents, like the one in Rhode Island, who's willing to stand up to the—
GIGOT: Willing to stand up.
RILEY: But for public officials, the teachers unions are brutal. They can be — they can be very effective in opposing changes to these rules. It can make them millions of dollars to protect tenure, to weaken valuations of teachers. Arnold Schwarzenegger in California, the governor, a few years back, tried to extend the tenors to five years, say a teacher had to be working five years instead of two before they get a job for life. The teachers union threw $50 million at stopping that proposal, and did it successfully.
GIGOT: And the secretary of education, Arne Duncan, praised the decision in Rhode Island. Are they doing anything to help on this front, on the teacher front?
RILEY: They've stressed pay for performance. and the race for the top money they're going to be doling out to states, they've said, we're going to give a lot of weight to states that are moving in a for pay-for-performance direction and away from a seniority-based pay system.
GIGOT: We have to take one more break. When we come back, our "Hits and Misses" of the week.
GIGOT: Time now for "Hits and Misses" of the week.
Colin, first to you.
LEVY: Paul, I'm going to give a hit to Goldman Sachs, which this week listed, in the annual report to investors, the fact that it's getting a lot of negative publicity and that that's a material threat to their business and operations. You know, politicians have become very fond of using Goldman Sachs and a convenient pinata during the financial crisis. And that does pose a real risk to the firm's reputation. And Goldman's warning to investors is a sign that they're not willing to be a passive bystander to political grandstanding.
GIGOT: All right, Colin.
RAGO: A hit this week, Paul, to New Jersey Governor Chris Christie, who gave a good, but grim speech this week about how to prevent his state from becoming the next Greece.
He said, in order to prevent what he called the ruination of the New Jersey economy, he's frozen 375 out 378 programs, needs to bring public- sector spending in line with the private economy. It's a model of how to — it's a model of fiscal responsibility without raising taxes.
GIGOT: All right, Joe Rago?
TARANTO: Paul, slug this story, uncivil suit. O.J. Simpson's former agent and the man whose son O.J. was acquitted of murdering, thought they reached a settlement in a 13-year dispute over the closed Simpson war in court. The approved a plan to donate them to the Smithsonian. The Smithsonian said, no, thanks, this is inappropriate. A hit to the Smithsonian for upholding some standard of taste and decency.
GIGOT: We will not go below some level.
All right, James.
That's this week's edition of the "Journal Editorial Report."
Thanks to my panel and especially to all of you for watching.
I'm Paul Gigot. We hope to see you right here next week.
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