05/18/2010 06:44 am ET | Updated May 25, 2011

A Referendum on Referendums

We have a new referendum on Obama's presidency, the nomination of Elena Kagan to the Supreme Court. Depending on who you listen to, she is either a great choice because she brings a fresh perspective to the court, not having been a judge -- or she is a bad choice, not qualified, because she hasn't been a judge. To put this into context, 40 of the 111 justices who have been seated on the Supreme Court were never judges, 10 of those were Chief Justices. There are legitimate questions about Kagan, but that isn't one of them.

Barak Obama has been involved in more "referendums" on him, his policies, his background and his party than any other president in modern times. Just as the "gate" in Watergate became the vernacular for all scandals and became the suffix for all alleged wrongdoing, "referendum" has become the term for all issues/people/decisions the opposition parties hope will be overturned. Watergate was Watergate, a hotel in Washington D.C. "Gate" has no intrinsic legal meaning, it's essentially slang. Referendum is a direct election, not an indicator of popular opposition. The only referendum Obama has faced was the presidential election.

However, it started before Obama was elected. He was considered too inexperienced, out of touch with the American people, too arrogant, had no core beliefs, weak on international issues and national security. Republicans tried to paint Obama as untested and unready for the presidency. Pollsters told us that half of the likely voters wondered if Obama would be a good president while only a quarter of the voters had that question about McCain. The election would be a referendum on Obama's shortcomings.

The Obama campaign worked to shift the perception, making the election a referendum on Bush's policies that would be continued by McCain; an unwanted war and a collapsing economy. McCain tried to distance himself from Bush, knowing a referendum against Bush would translate into a referendum against him.

That didn't work. McCain was behind in the polls. The GOP saw it having only one chance to turn the election in their favor: divert the electorate's attention from the real issues about the economy, the war and spiraling healthcare costs and make the campaign a referendum on Obama's character.

On August 29, 2008, McCain began his rapid devolution from "Maverick" to party hack by accepting Sarah Palin as his running mate. All his arguments about Obama being untested, inexperienced, weak on international issues and devoid of national security experience were no longer credible. His own candidate had less of all those. What she did have was a charisma that captured the media and catered to a base that believed what they wanted to believe despite any facts to the contrary.

McCain not only lost the election, he lost his identity to the point that he has denied he ever considered himself a "maverick" despite all the video and print, including his autobiography, Worth The Fighting For: The Education of an American Maverick and the Heroes Who Inspired Him.

The Republicans lost; however, it's hard to accept loss if you won't accept facts. We are living in a world where facts don't necessarily matter if you can get enough media attention for your opinions. Repetition and volume replace actual discourse.

If you can't accept loss, you don't accept the referendum and continue to create new ones that will yield the outcome you hope for.

Soon after the election, Obama's birth certificate became a major media flare-up. The "Birthers" tried to make it a referendum on the legitimacy of Obama's presidency. Rep. Bill Posey (R-Fla.) introduced a bill that would require presidential campaigns to provide "a copy of the candidate's birth certificate." Nine other members of Congress signed it. It became an embarrassment for the Republicans, but it wasn't over. As recently as April 21, 2010, Arizona's new immigration law included an amendment that would make it necessary for presidential candidates to establish their citizenship by presenting documents to prove that they "are a natural born citizen" before they would be allowed on the Arizona ballot. The amendment got yanked once they realized this violated national election law and was not a state's prerogative. Florida and Oklahoma had tried to do the same thing.

Obama's first appointee to the Supreme Court, Sonia Sotomayor was most certainly going to be a referendum on his administration. The "wise Latina" raised the hackles of many conservatives. Blocking her nomination would send a strong message that Obama was not in charge. In a Twilight Zone moment, Rush Limbaugh and Newt Gingrich both called her a "racist". She was approved on August 8, 2009.

Congressional elections held last fall in New York, New Jersey and Virginia were hailed as referendums on Obama. The Democratic candidate won in New York. According to CBS exit polls, 55 percent of voters in Virginia and 60 percent of voters in New Jersey said Obama had no impact on their vote. No referendum, however, that did not stop the parade of alleged referendums. Ted Kennedy's Senatorial seat in Massachusetts was up for grabs. If the Republican challenger, Scott Brown won, that would surely be considered a referendum on Obama and healthcare reform, which Brown promised to help defeat. Brown won - so did healthcare reform. No referendum there either.

From the bank bailouts to the partial takeover of the auto industry, to healthcare, all the issues that were supposed to be part of these referendums that would hobble the administration happened.

Now we have the newest referendum, the nomination of Elena Kagan to the Supreme Court. The criticisms of her are the same as those again Obama; untested, inexperienced, don't know her core beliefs, etc. If she is confirmed, there are more referendums waiting; the mid-term primaries, then the mid-term elections. We'll have the next few months to be told what it all means, even if nobody knows, which has been the case so far. Is the Congressional race in West Virginia a referendum against Obama? What about the Kentucky race? Pennsylvania? Arkansas? Maybe there will be a referendum on incumbents or corruption or incompetence or change. Maybe there will be a referendum on referendums.