“Must Vow To Never, Ever, Betray The Conservative Cause”: GOP Candidates Will Now Have To Promise Supreme Court Litmus Tests
With two dramatic and far-reaching liberal decisions in as many days at the end of last week, the Supreme Court laid Republicans low, dashed their hopes and spat on their dreams, made them beat their breasts and shake their fists at the heavens. And in both cases, it was a conservative justice (or two) who joined with the liberals to do it. So while there will be a lot of discussion among Republicans about where they should go from this point forward on the issues of health care and gay rights, you can be sure that they’re also going to spend a great deal of time talking about how they can make sure this kind of thing never happens again. Conservatives already hated Anthony Kennedy, and now some have decided that John Roberts is a traitor as well. If you’re a Republican presidential candidate, you’d better have a strong argument for why whoever you’ll appoint to the Supreme Court will never, ever, ever betray the conservative cause.
In the first couple of days, the candidates reacted much as you think they might, with varying degrees of displeasure built on time-tested conservative cliches about judicial restraint and judges not legislating from the bench. Which was a little odd, since in one of two decisions (King v. Burwell), what they were hoping for was a little more judicial activism. Nevertheless, they’ve been saying those things for so long that it may be understandable. So when Hugh Hewitt asked Jeb Bush how he would avoid future betrayals like these, he said only, “You focus on people to be Supreme Court justices who have a proven record of judicial restraint.” Rick Perry said much the same, that he would “appoint strict Constitutional conservatives who will apply the law as written.” Marco Rubio reached farther back, arguing that “As we look ahead, it must be a priority of the next president to nominate judges and justices committed to applying the Constitution as written and originally understood.” Scott Walker issued a statement on his Facebook page about “five unelected judges” but passed on an opportunity to rail about them the next day. If you wanted a real denunciation of the Supreme Court that went beyond an objection to the substance of their decisions, you’d have to go to second-tier candidates like Ted Cruz, who proposed recall elections for Supreme Court justices, or Mike Huckabee, who loaded up his rhetorical musket to march at the Supreme Court redcoats. “I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch,” he said. “We must resist and reject judicial tyranny, not retreat.”
But guess what? That’s not going to be good enough for Republican voters anymore. Here’s what’s going to happen: At one town hall meeting after another, a Republican primary voter will stand up to the candidate before them and say, “What are you going to do about the Supreme Court?” Then everyone else will lean in to listen.
As well they should. Given the ages of the justices (four are over 76 years old) and the fact that the next president will probably have the chance to appoint a liberal to replace a conservative or vice versa for the first time since Clarence Thomas replaced Thurgood Marshall in 1991, there may be no single issue in the 2016 campaign of greater importance than the Supreme Court. If Hillary Clinton replaces a conservative justice, the court would swing to a liberal majority; if a Republican replaces a liberal justice, there would be a solid conservative majority with Anthony Kennedy no longer holding the swing vote.
Right now, conservatives are feeling like they’ve been betrayed. As conservative writer Matt Lewis noted on Thursday, “conservatives thought they had figured it out. The right created an impressive infrastructure and network to identify and promote conservative lawyers, clerks, and would-be judges,” and it was designed to keep these kinds of defections from happening. And Chief Justice Roberts was supposed to be the model for how it would work: a young, accomplished lawyer who did his apprenticeship in the Reagan Justice Department, where, like his colleague Samuel Alito, he imbibed the foundations of conservative legal thinking.
As it happens, the John Roberts whom Republicans are now denouncing as a traitor for his ruling in King v. Burwell is also the justice who engineered the unshackling of billionaires’ money in politics, the gutting of the Voting Rights Act, and the Court’s first declaration of an individual right to own guns — along with dozens of other extremely important and extremely conservative rulings in recent years. If anything, he’s an ideologue but not a partisan, meaning he sometimes does what’s in conservatives’ long-term interests, even if it isn’t what the Republican Party wants at the moment.
But the old Republican cry of “No more Souters!” may now be replaced by “No more Kennedys and Robertses!” Republican candidates are going to have make it very clear to primary voters that they have a whole list of litmus tests, and any lawyer or lower-court judge who fails to satisfy each and every one won’t be getting nominated to the Supreme Court. Vague words about judicial restraint and respecting the Constitution aren’t going to cut it.
I’ve argued before that litmus tests for Supreme Court appointments aren’t a bad thing — instead of having candidates pretend that they’re only interested in finding wise and humble jurists, and having the Court nominees themselves pretend that they have no opinions on any legal questions, we should just get everything out in the open so we can all know what we’re in for. In the past, Democrats have been more willing to discuss the litmus tests they have (particularly on abortion), while Republicans have insisted that they only want judges who will respect the Founders and interpret law, not make law. Of course, that isn’t really what they want — when the circumstances are right, they’re only too happy to have judges make laws (or overturn them) if it produces the outcome they prefer.
So if nothing else, the Republican candidates will have to be a more honest now. But they can’t be too honest. Tell everyone that you will tolerate only Supreme Court justices who will overturn Roe v. Wade, strike down the Affordable Care Act, restrict workers’ rights, roll back environmental regulations and get even more big money into politics, and you coulan, d run into trouble with general election voters. That makes it a tricky balance to strike, which is pretty much the story of the entire 2016 campaign for Republican candidates: Appealing too strongly to primary voters means potentially alienating the broader electorate, on almost every issue that comes up. As dramatic as the past week was, other issues will eventually push the ACA and gay marriage out of the headlines, at least for a while here and there. But in the short run, the candidates are going to face a lot of pointed questions about whom they plan to put on the Supreme Court.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, June 29, 2015
“A Cinder In The Public Eye”: Clarence Thomas Says Black NBA Players Give SCOTUS A Reason To Gut Anti-Discrimination Law
On Thursday, the Supreme Court saved a key interpretation of the Fair Housing Act—a historic 1968 law that prevents discrimination in the housing market—by ruling in a 5-4 decision that a complaint does not have to prove a policy was overtly or intentionally discriminatory to be valid. It upheld the “disparate impact” standard, which allows complainants to show a policy led to unequal results, no matter the original intention.
Conservative Justice Clarence Thomas dissented from the decision, penned by Justice Anthony Kennedy. He argued that “disparate-impact doctrine defies not only the statutory text, but reality itself.” To make his case, Thomas pointed out that minorities sometimes do quite well. His examples: The Jews in Poland and, in America, the success of black professional basketball players.
Racial imbalances do not always disfavor minorities. At various times in history, “racial or ethnic minorities . . . have owned or directed more than half of whole industries in particular nations.” These minorities “have included the Chinese in Malaysia, the Lebanese in West Africa, Greeks in the Ottoman Empire, Britons in Argentina, Belgians in Russia, Jews in Poland, and Spaniards in Chile—among many others.” “In the seventeenth century Ottoman Empire,” this phenomenon was seen in the palace itself, where the “medical staff consisted of 41 Jews and 21 Muslims.” And in our own country, for roughly a quarter-century now, over 70 percent of National Basketball Association players have been black. To presume that these and all other measurable disparities are products of racial discrimination is to ignore the complexities of human existence.” [Legal citations omitted].
And if that “racial balancing” is achieved through disparate-impact claims limited to only some groups—if, for instance, white basketball players cannot bring disparate-impact suits— then we as a Court have constructed a scheme that parcels out legal privileges to individuals on the basis of skin color.”
Sports was a popular example for the dissenting justices. Justice Sam Alito, who wrote a separate dissent, cited the NFL to make a slightly different point:
Of the 32 college players selected by National Football League (NFL) teams in the first round of the 2015 draft, it appears that the overwhelming majority were members of racial minorities […] Teams presumably chose the players they think are most likely to help them win games. Would anyone say the NFL teams made draft slots unavailable to white players “because of ” their race?
This is the same court that crippled civil rights legislation two years ago by striking down a key provision of the Voting Rights Act.
By: Rebecca Leber, The New Republic, June 25, 2015
“Dispensed With The Niceties”: Hillary Clinton’s Grand Strategy To Beat The GOP: Take Bold Positions Early And Often
For the better part of 20 years now, Bill Clinton’s presidency has been synonymous with a hazy political concept called triangulation. Since his advisers made the term famous, it has been used to describe everything from standard-issue compromise, to the willingness to confront reactionary elements in one’s own party (think Sister Souljah), to the appropriation of another political party’s policy ideas. The latter is as close to a proper definition as there is.
One big concern bedeviling progressives is that Hillary Clinton’s candidacy will mark the return of triangulation—the preemptive ceding of ideological turf, at a time when, thanks to partisan polarization, such concessions amount to outright victories for the Republican Party. But the early days of Hillary Clinton’s candidacy suggest these fears are overblown—that she is engaged in an entirely different kind of political positioning, one that carries the promise of significant progressive victories or at least of clarifying the terms of key policy debates dividing the parties.
The nature of the strategy involves staking out a variety of progressive issue positions that enjoy broad support, but it’s not as straightforward as simply identifying the public sentiment and riding it to victory. The key is to embrace these objectives in ways that makes standard Republican counterspin completely unresponsive, and thus airs out the substantive core of their ideas: Rather than vie for conservative support by inching rightward, Clinton is instead reorienting liberal ideas in ways that make the Republican policy agenda come into greater focus.
Most recently, Clinton has adopted an aggressive position in support of expanded voting rights. “We have a responsibility to say clearly and directly what’s really going on in our country,” she said in her latest campaign speech Thursday, “because what is happening is a sweeping effort to disempower and disenfranchise people of color, poor people, and young people from one end of our country to the other.”
This is standard Democratic boilerplate, but in service of something new. Most Democrats have been engaged for some time now in rearguard actions to protect voters from disenfranchisement efforts, and promote a remedy to the damage the Supreme Court did to the Voting Rights Act. These are important efforts, but easily countered. It isn’t unpopular to argue that voters should have to show ID, for instance, or to rail against phantom voter fraud, and it’s easy to gloss over the complex nature of the Voting Rights Act in ways that obscure the real goal of these policies, which is to systemically reduce turnout among disproportionately Democratic constituencies—the poor, the young, and ethnic minorities.
Clinton’s plan, by contrast, demands clarity from her opponents. She has proposed that every American, except those who opt out, be automatically registered to vote when they turn 18, and that every state offer at least 20 days’ worth of early voting. Republicans can’t easily oppose this—and oppose it they must—without being explicit about the fact that they want to keep the voting rolls as trim as possible.
Most Democrats likewise support President Barack Obama’s administrative efforts to liberalize immigration enforcement, and want to create a citizenship track for unauthorized immigrants. Republicans oppose both aims, but have been able to muddle that fact using vague procedural language. Generally speaking, it’s not the liberalization of immigration law they oppose, but the unilateral nature of Obama’s actions. They oppose amnesty, but keep the door to a nebulous “legal status” ajar. Both positions are malleable enough to allow the Republican presidential nominee to tack dramatically left in the general election, and gloss over the hostility the GOP has shown to immigrants since promising to liberalize after Obama’s reelection.
For over a year, Democrats humored the GOP’s wordplay in order to preserve the possibility of striking a legislative compromise that includes something Republicans could call “legal status.” Now that the immigration reform process has collapsed, Clinton has dispensed with the niceties. In promising to preserve Obama’s immigration policies, she called out “legal status” as a ruse. “When [Republicans] talk about legal status,” she said, ’“that is code for second-class status.” She has taken the standard Democratic position and weaponized it. Republicans can’t pretend there’s no daylight between their views and Democrats’ views, because Clinton has defined the Republican position for them, by contrast.
Because this kind of obscurantism pervades the GOP’s substantive agenda—through tax policy, social insurance reforms, workplace regulation—Clinton should be able to deploy the tactic across a wide array of issues. Seizing the first-mover advantage is one of the undiscussed upsides of Clinton’s dominance in the Democratic primary field. It doesn’t guarantee her victory over a Republican opponent, but it will assure that the debate between the two of them occurs mostly above board.
By: Brian Beutler, Senior Editor, The New Republic, June 6, 2015
“The Goal Is To Limit Representation”: The Conservatives Who Gutted The Voting Rights Act Are Now Challenging ‘One Person, One Vote’
Ed Blum, who brought the case that led to the gutting of the Voting Rights Act in 2013, is now going after the historic principle of “one person, one vote.” The Supreme Court decided on Tuesday to hear Evenwel v. Abbott, Blum’s latest case, which challenges the drawing of state Senate districts in Texas. The obscure case could have major ramifications for political representation.
Blum first began attacking the Voting Rights Act after losing a Houston congressional race to a black Democrat in 1992 and founded the Project on Fair Representation in 2005 to challenge the constitutionality of the VRA. The Evenwel case doesn’t deal directly with the VRA but on how districts should be calculated. Since the Supreme Court’s 1964 Reynolds v. Sims decision, districts have been drawn based on the total population of an area. Blum instead wants lines to be drawn based only on eligible voters—excluding children, inmates, non-citizens, etc. from counting toward representation.
If that happened, legislative districts would become older, whiter, more rural, and more conservative, rather than younger, more diverse, more urban, and more liberal. “It would be a power shift almost perfectly calibrated to benefit the Republican party,” explains University of Texas law professor Joey Fishkin. “The losers would be urban areas with lots of children and lots of racially diverse immigrants. The winners would be older, whiter, more suburban, and rural areas. It would be a power shift on a scale American redistricting law has not seen since the 1960s. While not nearly as dramatic as the original reapportionment revolution, it would require every map in every state to be redrawn, with the same general pattern of winners and losers.”
Demographically, the gap between Republicans and Democrats is wider than it has ever been. “House Republicans are still 87 percent white male, compared to 43 percent of House Democrats—the widest gap we’ve ever seen,” explains Dave Wasserman, House editor of the Cook Political Report. “In terms of composition of districts, the median GOP district is 76% white, while the median Dem district is 49% white—again, the widest gap we’ve ever seen. Overall, the median House district is 68% white, compared to 63% for the nation as a whole.”
This representation gap explains why Republican officials are pushing new voting restrictions like voter ID laws and cuts to early voting, which disproportionately impact minority voters and seek to make the electorate smaller and whiter. A victory for Blum’s side in Evenwel would make districts across the country even less representative of the country as a whole.
Blum claims to be fighting for race neutrality but he’s often done the bidding of the most powerful figures in the conservative movement and Republican Party. As I reported in 2013:
His Project on Fair Representation is exclusively funded by Donors Trust, a consortium of conservative funders that might be the most influential organization you’ve never heard of. Donors Trust doled out $22 million to a Who’s Who of influential conservative groups in 2010, including the American Legislative Exchange Council (ALEC), which drafted mock voter ID laws and a raft of controversial state-based legislation; the Americans for Prosperity Foundation, the Koch brothers’ main public policy arm…Donors Trust has received seven-figure donations from virtually every top conservative donor, including $5.2 million since 2005 from Charles Koch’s Knowledge and Progress Fund. (The structure of Donors Trust allows wealthy conservative donors like Koch to disguise much of their giving.)
From 2006 to 2011, Blum received $1.2 million from Donors Trust, which allowed him to retain the services of Wiley Rein, the firm that unsuccessfully defended Ohio’s and Florida’s attempts to restrict early voting in federal court last year. As a “special program fund” of the tax-exempt Donors Trust, Blum’s group does not have to disclose which funders of Donors Trust are giving him money, but he has identified two of them: the Bradley Foundation and the Searle Freedom Trust. The Wisconsin-based Bradley Foundation paid for billboards in minority communities in Milwaukee during the 2010 election with the ominous message “Voter Fraud Is a Felony!”, which voting rights groups denounced as voter suppression. Both Bradley and Searle have given six-figure donations to ALEC in recent years, and Bradley funded a think tank in Wisconsin, the MacIver Institute, that hyped discredited claims of voter fraud to justify the state’s voter ID law.
The challenge in Evenwel isn’t so different from the gutting of the VRA or new laws restricting voting rights. The goal is to limit representation, make it harder for some to participate in the political process and to widen the gap between the haves and have-nots.
CORRECTION: Blum says, “The Project on Fair Representation hasn’t been affiliated with Donors Trust for nearly 6 months; we are now a 501 (c) (3) so our donors will be disclosed according to the regulations that apply to all public charities.”
By: Ari Berman, The Nation, May 28, 2015
“The Rand Corporation”: Old-School Southern Segregationist’s Who Still Believe Negroes Should Know Their Place
Hey, wait a minute–didn’t Rachel Maddow already disqualify Rand Paul as a serious presidential candidate five years ago?
It appears the Beltway has long since forgotten about Paul’s disgusting May 2010 interview with Maddow, during which he made clear his belief in separate and unequal treatment for people of color in the private sector. Back then, I was horrified to see Paul defend his 21-century segregationist views, and was convinced that the man would be a clear and present danger to American democracy if he were elected to the United States Senate.
At the time, I was also surprised that prominent figures on the right didn’t stand up to denounce Paul’s views in the name of being logically consistent. After all, the right’s thought leaders had long pushed the idea that Republicans were the real leaders on civil rights. Consider this 1997 letter to the New York Times from conservative Harvard professor Stephan Thernstrom:
”Political Right’s Point Man on Race” (news article, Nov. 16) describes Clint Bolick of the Institute for Justice as typical of a generation of white Republicans who ”readily say their party was on the wrong side” in the civil rights struggles of the 1960’s. This equates the Republican Party with Barry Goldwater, its 1964 Presidential candidate, who opposed the Civil Rights Act of 1964.
But 80 percent of House Republicans voted for the 1964 legislation, as did 82 percent of Republican senators. In the House, three of four votes cast against the bill came from Democrats, as did four of five votes in the Senate. Likewise, 82 percent of House Republicans and 93 percent of Senate Republicans backed the Voting Rights Act the next year.
Now, you would figure that the “Republicans-were-the real-party-of-colorblindness!” crowd would rise up and denounce Paul for suggesting that the Republicans who voted for the 1964 Civil Rights Act voted for an unconstitutional piece of legislation. Of course, the right’s thought leaders—with rare exceptions—gave Paul a pass, and largely denounced the “liberal media” for making a big deal about Paul’s abhorrent remarks.
Nothing I’ve seen out of Rand Paul’s mouth in the past five years has changed my view that in his heart, he is an old-school Southern segregationist who believes Negroes should know their place, and that the white man should be in a place above them. In Rand Paul’s America, business owners could still have signs on their doors saying, “We Do Not Serve Coloreds.” In Rand Paul’s America, black people would have no rights that white people must respect.
Speaking of respect, Rachel Maddow deserves our continued respect for ripping the mask right off Paul’s face five years ago and exposing him as the bigot’s best buddy… and Paul deserves nothing but our continued contempt.
By: D. R. Tucker, Political Animal Blog, The Washington Monthly, April 18, 2015