“How America Was Lost”: Maybe We Should All Start Wearing Baseball Caps That Say, “Make America Governable Again”
Once upon a time, the death of a Supreme Court justice wouldn’t have brought America to the edge of constitutional crisis. But that was a different country, with a very different Republican Party. In today’s America, with today’s G.O.P., the passing of Antonin Scalia has opened the doors to chaos.
In principle, losing a justice should cause at most a mild disturbance in the national scene. After all, the court is supposed to be above politics. So when a vacancy appears, the president should simply nominate, and the Senate approve, someone highly qualified and respected by all.
In reality, of course, things were never that pure. Justices have always had known political leanings, and the process of nomination and approval has often been contentious. Still, there was nothing like the situation we face now, in which Republicans have more or less unanimously declared that President Obama has no right even to nominate a replacement for Mr. Scalia — and no, the fact that Mr. Obama will leave soon doesn’t make it O.K. (Justice Kennedy was appointed during Ronald Reagan’s last year in office.)
Nor were the consequences of a court vacancy as troubling in the past as they are now. As everyone is pointing out, without Mr. Scalia the justices are evenly divided between Republican and Democratic appointees — which probably means a hung court on many issues.
And there’s no telling how long that situation may last. If a Democrat wins the White House but the G.O.P. holds the Senate, when if ever do you think Republicans would be willing to confirm anyone the new president nominates?
How did we get into this mess?
At one level the answer is the ever-widening partisan divide. Polarization has measurably increased in every aspect of American politics, from congressional voting to public opinion, with an especially dramatic rise in “negative partisanship” — distrust of and disdain for the other side. And the Supreme Court is no different. As recently as the 1970s the court had several “swing” members, whose votes weren’t always predictable from partisan positions, but that center now consists only of Mr. Kennedy, and only some of the time.
But simply pointing to rising partisanship as the source of our crisis, while not exactly wrong, can be deeply misleading. First, decrying partisanship can make it seem as if we’re just talking about bad manners, when we’re really looking at huge differences on substance. Second, it’s really important not to engage in false symmetry: only one of our two major political parties has gone off the deep end.
On the substantive divide between the parties: I still encounter people on the left (although never on the right) who claim that there’s no big difference between Republicans and Democrats, or at any rate “establishment” Democrats. But that’s nonsense. Even if you’re disappointed in what President Obama accomplished, he substantially raised taxes on the rich and dramatically expanded the social safety net; significantly tightened financial regulation; encouraged and oversaw a surge in renewable energy; moved forward on diplomacy with Iran.
Any Republican would undo all of that, and move sharply in the opposite direction. If anything, the consensus among the presidential candidates seems to be that George W. Bush didn’t cut taxes on the rich nearly enough, and should have made more use of torture.
When we talk about partisanship, then, we’re not talking about arbitrary teams, we’re talking about a deep divide on values and policy. How can anyone not be “partisan” in the sense of preferring one of these visions?
And it’s up to you to decide which version you prefer. So why do I say that only one party has gone off the deep end?
One answer is, compare last week’s Democratic debate with Saturday’s Republican debate. Need I say more?
Beyond that, there are huge differences in tactics and attitudes. Democrats never tried to extort concessions by threatening to cut off U.S. borrowing and create a financial crisis; Republicans did. Democrats don’t routinely deny the legitimacy of presidents from the other party; Republicans did it to both Bill Clinton and Mr. Obama. The G.O.P.’s new Supreme Court blockade is, fundamentally, in a direct line of descent from the days when Republicans used to call Mr. Clinton “your president.”
So how does this get resolved? One answer could be a Republican sweep — although you have to ask, did the men on that stage Saturday convey the impression of a party that’s ready to govern? Or maybe you believe — based on no evidence I’m aware of — that a populist rising from the left is ready to happen any day now. But if divided government persists, it’s really hard to see how we avoid growing chaos.
Maybe we should all start wearing baseball caps that say, “Make America governable again.”
By: Paul Krugman, Op-Ed Columnist, The New York Times, February 14, 2016
“The GOP’s Worst Nightmare SCOTUS Nominee”: Let America Watch Republicans Tie Themselves In Knots
Here’s a name you need to get to know: Tino Cuellar. Who is Tino Cuellar? The potential Supreme Court nominee who could tie the Republican Party in the most Gordian knots of any of them, and who could thereby alter the presidential race dramatically as well.
Yes, yes; Barack Obama should choose the person best qualified for the job with whom he is most intellectually comfortable. But should that person be Mariano Florentino Cuellar, there could be plenty of benefits aside from having a brilliant, young, Latino person on the Court.
Cuellar, 43, is an associate justice on California’s State Supreme Court. He was born in Mexico. He is a naturalized U.S. citizen. He grew up on the border, and his family moved to California’s Imperial Valley when he was a teenager. He was smart and decided he wanted an education. He got one, all right. Get this resume: undergrad, Harvard; law school, Yale; master’s and doctoral degrees, Stanford.
Here’s his full Stanford bio, so you can give it a gander, but it’s incredibly impressive. He worked at the White House, he worked in the Treasury Department, he taught law at Stanford. “He’s a brilliant guy,” says Samuel Bagenstos, a law professor at the University of Michigan who knows Cuellar. “He’d be the justice with the most wide-ranging intellect since William O. Douglas.” (Bagenstos asked me to note that he is backing no single candidate and thinks the president has many good choices.)
He was elevated to California’s high court by a unanimous bipartisan vote, and given the highest possible rating by the California Bar Association. He is married to a U.S. District Judge, Lucy Koh, who is a formidable intellect in her own right—the Senate confirmed her unanimously, 90-0, when Obama nominated her to that position in 2010. And they have two kids.
Now assuming there’s no skeleton in the old closet, suppose Obama sends Cuellar up to be nominated. Oh what fun it shall be.
We know almost to a certainty that the Republicans will oppose anyone. Mitch McConnell said it, all the presidential candidates said it, everyone says it, and everyone knows it. For a Republican senator to vote for Barack Obama’s replacement of the great Antonin Scalia would be as sure a form of instant political suicide as one can imagine in this country. There is just no way. And it may not even get to a vote. They’ll just sit on it, not even scheduling confirmation hearings, saying the American people deserve a voice in this nomination.
And Obama will say, as I noted yesterday, that I’m still the president and am going to be president for a while yet, and we have no modern precedent for letting the Court have an even number of members.
And then Americans will learn about Cuellar’s life story. The fancy universities, the four degrees, the testimonials to his intellect that will stream in. And of course he’d be not the first Latino, but still, the second out of nine, and the first Mexican-American (Sonia Sotomayor is Puerto Rican), who constitute by far the largest demographic group among American Latinos.
This is Reince Priebus’s perfect nightmare, is it not? Let America watch as old white-guy senator after old white-guy senator goes on TV to say “Oh, it’s nothing against Mr. Cuellar, it’s all about Obama, and the people’s voice.” And let America watch as nominee Donald Trump says the same thing. Or even Marco Rubio or Ted Cruz—in some ways that’s even worse for the GOP, to have a Cuban-American (or Cuban-Canadian-American) stand up and say this Mexican-American doesn’t belong on the Supreme Court. There are around 33 million Mexican-Americans in the country—and around 2 million Cuban Americans. How well do you think the math on that works for the GOP?
So Priebus, who in his silly little autopsy in 2013 insisted that Republicans were going to be the inclusive party and who still has the gall to talk like that today, even as his party’s voters convert a howling xenophobe into their front-runner, would have quite a situation on his hands. And we get to Election Day, and poor Cuellar has been sitting there for seven months after nomination without even having had the courtesy of a committee hearing.
What percentage of the Latino vote is the Republican nominee going to get then, if the party has precipitated a veritable constitutional crisis by refusing to perform its constitutional role and refusing to vote for this obviously qualified man? Maybe 12, 15, 18 tops? Tops. Remember, Romney got 27 percent, and it was considered a disaster. If the GOP nominee gets 18, winning Florida is an impossibility. And if winning Florida is an impossibility, then winning the White House is, too. Even Arizona is probably unwinnable for the Republicans with a number like that.
Now obviously, that is, as I said, Priebus’s worst nightmare. Things could be different. And again, I don’t think Obama should nominate Cuellar for these political reasons. But if he decided to nominate him, boy would it be great to see those people squirm.
By: Michael Tomasky, The Daily Beast, February 15, 2016
“Now That It’s 2016, New Heights Of Hypocrisy”: GOP Cynicism On The Supreme Court Reaches A New Low
A spokesman for Mitch McConnell said that the Senate should confirm judicial appointees through at least the summer. The cutoff for confirming judges in an election year, known as the ‘Thurmond Rule,’ “doesn’t need to be June, especially because we’re so far behind on the legislative calendar,” he said.
Similarly, Senator Jeff Sessions (R-AL) said, “Let me say this about the Thurmond Rule. It is a myth. It does not exist. There is no reason for stopping the confirmation of judicial nominees in the second half of a year in which there is a Presidential election.”
Even a Bush spokesperson said that the “only thing clear about the so-called ‘Thurmond Rule’ is that there is no such defined rule.”
Of course, all that was in 2008, when George W. Bush was the lame-duck president and Democrats controlled the Senate.
Now that it’s 2016, and the tables are turned, McConnell has said he’d be shocked, shocked if President Obama nominated a Supreme Court justice as late as February of his final year in office.
In fact, while there’s hypocrisy on both sides of the aisle, a review of recent history reveals more of it on the Republican side.
Let’s begin at the beginning. For 166 years, Supreme Court confirmations used to be a matter of course, with rare exceptions. In the 19th century, they usually took only a few days. The current process of Judiciary committee hearings began only in 1955, in the wake of Brown vs. Board of Education, with segregationists and other conservatives outraged at the “activist” Warren Court.
The custom of not confirming judges in a presidential election year began with the avowed segregationist Strom Thurmond, who opposed LBJ’s appointment of Abe Fortas as Chief Justice back in 1968. (Notice, by the way, the “Thurmond Rule” wasn’t even about filling a vacancy – it was about moving Fortas from Associate to Chief Justice.)
Prior to that time, Supreme Court nominations in election years were par for the course. Justice Frank Murphy was nominated in 1940, Cardozo in 1932, Clarke and Brandeis in 1916, and Pitney in 1912.
But there were many reasons for conservatives to oppose Fortas. As an associate justice, he had maintained an unusually close relationship with LBJ (allegedly, Fortas helped write one of LBJ’s State of the Union speeches). There was a minor scandal involving speaking fees. There was Fortas’s religion – it was one thing to have a “Jewish seat” on the Supreme Court, but quite another to have a Jew as Chief.
But mostly, it was ideology. Fortas was a full-fledged member of the Warren Court, extending due process rights to minors, and writing the opinion that effectively banned creationism from public schools.
The tactic worked. The Fortas appointment was withdrawn, and the position of chief justice has been held by a conservative for the last 46 years (Burger, Rehnquist, Roberts).
Since then, the “Thurmond Rule” has been understood as holding that lifetime appointments of all types should not be made in the final six months of a president’s term in office.
In practice, however, the “Thurmond Rule” could best be described as the “Sore Loser’s Rule,” since it is wielded by whichever party doesn’t hold the White House at the moment. In July, 2004, Republican Senator Orrin Hatch said there was no such thing. And Republican Senator John Cornyn threatened in 2008 that if Democrats invoked the Thurmond Rule, Republicans would go nuclear: “We could require 60 votes on every single motion, bill and procedural move before the Senate,” he said at the time.
Now, it’s the Republicans’ turn to invoke the rule, and Democrats’ turn to be outraged.
But some hypocrisy is more equal than others.
First, the Thurmond Rule has never been extended back this far. In 2008, Democrats didn’t invoke it until the late summer; Senator Dianne Feinstein said it kicks in after the first party convention. It’s February now, and even the longest Supreme Court confirmation in history – that of Justice Brandeis, in 1916 – took 125 days. (Brandeis was called a “radical” and bitterly opposed by conservatives, with antisemitism even more overt than Fortas later faced.) So this would be an unprecedented expansion of the “Rule.”
Second, the ‘Rule’ has never been applied to Supreme Court vacancies. On the contrary, when President Reagan nominated Anthony Kennedy to the court, he was confirmed 97-0 on February 3, 1988, with Senator McConnell voting in favor.
Now, in fairness, Kennedy was nominated in November, 1987, after the Bork-Ginsburg controversies had left the court with eight justices for five months – seven months counting Kennedy’s confirmation. It was arguably a special case. Moreover, Kennedy was a consensus nominee who has emerged as the swing vote over the last decade precisely because he votes equally with conservatives (as in Citizens United) and liberals (as in the same-sex marriage cases).
But if no justice were confirmed now, the vacancy would be even longer: twelve months at least.
Third, the statistics cut sharply against Republicans.
According to a detailed study by the Brookings Institute, the Senate has already slowed down the pace of judicial confirmations to record levels. In the case of Reagan, Clinton, and Bush, confirmations didn’t slow down until the second half of the presidents’ eighth year in office. In their seventh years, the Senate confirmed 23, 17, and 29 judges, respectively. In Obama’s seventh year? 10.
In other words, the two-term Republican presidents fared almost twice as well as the two-term Democrat presidents, with Obama faring the worst by far.
Moreover, the “Thurmond Rule” has rarely been applied with the orthodoxy Republicans now are claiming. An exhaustive 2008 report by the non-partisan Congressional Research Service unearthed a goldmine of historical information that belies the current majority’s claims:
In 1980, the Republican-led Senate confirmed 10 out of 13 judges nominated by President Carter in September, with Senator Thurmond himself coming under fire for trying to block some of them.
In October, 1988, the Democratic-led Senate Judiciary committee led by Joe Biden confirmed 11 out of 22 of Ronald Reagan’s judicial appointees. In October, 1992, the same committee confirmed 11 of George H.W. Bush’s.
In 2000, the Republican-led Senate confirmed 31 of President Clinton’s 56 nominations. And the 2004 Senate (narrow Republican majority, Republican president) confirmed a whopping 80% of nominees—despite claims that the Democrat minority was obstructing them.
In 2008, a Brookings Institute review found that George W. Bush’s confirmation rate was 58% for circuit court nominations, 43% for district courts—in other words, roughly the same.
In short, until this one, an opposing-party Senate has never observed the Thurmond Rule. Not in 1980, not in 1988, not in 1992, not in 2000. There are typically slowdowns in confirmations, but never a standstill. And the rule has never been invoked before the summer, let alone before the cherry blossoms bloom. Perhaps unsurprisingly, we’re in new territory this year, and at new heights of hypocrisy.
By: Jay Michaelson, The Daily Beast, February 16, 2016
“Fulfilling Their Constitutional Duties”: On SCOTUS, Pressure Falls On Endangered GOP Senators
All corners of the Republican Party have made themselves very clear: they intend to, in Donald Trump’s words, “delay, delay, delay” the confirmation of Antonin Scalia’s replacement on the Supreme Court until after the 2016 election. Ted Cruz has signaled his intention to lead a blockade, and Mitch McConnell intends to run a blockade.
All of this would be unprecedented, despite conservative protestations to the contrary. Conventional wisdom seems to suggest that McConnell can hold the Supreme Court nomination hostage for the whole year. But is that true?
It’s not necessary for the entire GOP to confirm the nominee. It only requires a few GOP Senators to join with the Democrats to fulfill their Constitutional duties. And as it turns out, there are quite a few Republican Senators in blue states who would be pilloried as intransigent obstructionists if they refused to confirm commonsense consensus nominees.
Among these Senators would be Senator Mark Kirk in Illinois, who is already Democrats’ primary target for a Senate takeover. Wisconsin’s Ron Johnson is less ideologically likely to cross the aisle, but with Russ Feingold already seeming likely to defeat him in November, it’s not clear that Johnson can afford to give Democrats yet another cudgel with which to attack him. The same goes for Senator Kelly Ayotte in New Hampshire, Pat Toomey in Pennsylvania and Rob Portman in Ohio.
President Obama will certainly nominate a number of popular, reasonable and consensus nominees, from recently confirmed Homeland Security Secretary Jeh Johnson to D.C. Circuit Court of Appeals Judge Sri Srinivasan. With each attempted and withdrawn nomination the Republican Party would look worse as a whole, but the careers of the specifically imperiled Senators would be particularly threatened–and with them the Republican Senate majority itself.
Will Ayotte, Kirk and their colleagues kowtow to McConnell and Cruz and likely eliminate their ability to hold their seats, or will they do the right thing, perform their constitutional duty and protect their Senate careers?
Time will tell.
By: David Atkins, Political Animal Blog, The Washington Monthly, February 14, 2016
“A Perfect Storm Of Indecisiveness”: There Are Only Two Paths Left For The GOP: Chaos Or Catastrophe
Coming out of New Hampshire, the Republican Party faces two possible scenarios: chaos or catastrophe.
Right now, either looks equally possible.
Let’s start with the chaos.
Perhaps the biggest question going into the New Hampshire primary was whether Donald Trump would match, fall short of, or surpass his polling numbers. He fell several points short in Iowa, leading many analysts to conclude that his support could be soft, with voters willing to express enthusiasm for Trump to pollsters, but balking at the prospect of actually voting for him.
New Hampshire failed to make it a trend. Trump finished with about 35 percent of the vote — which is pretty much at or slightly above where he’d been polling over the past week. And that might indicate that his considerable support in upcoming states is solid. If so, Tuesday’s victory will be followed by several more over the coming weeks.
But that’s exactly what most analysts and pundits have been predicting for quite a while — even many of those who have remained broadly bearish on Trump’s chances. So what else is new?
This: complete disarray among the other candidates. Had Cruz come in a strong second — say, around 30 percent to Trump’s 35 — that would have combined with his victory in Iowa to make him the clear alternative to Trump. Likewise, had Rubio given Trump a run for his money, that would have built on his surprisingly strong third-place showing in Iowa to make him, if not the definitive non-Trump option, then at least a strong contender to battle Cruz for that distinction in the upcoming Nevada caucus, South Carolina primary, and beyond.
Instead, the GOP ended up with a perfect storm of indecisiveness. Besides Trump, no candidate inspires as much derision among rock-ribbed conservatives as John Kasich, who came in a wan second place with 16 percent, fewer than half as many votes as Trump. Then came last week’s wunderkind, Ted Cruz, who barely managed to come in ahead of Jeb “Please Clap” Bush and everyone’s favorite robot, Marco Rubio.
It already looks like Chris Christie’s sixth-place showing is going to drive him from the race. The same will soon likely be true of Carly Fiorina and Ben Carson, who brought up the rear. But the top five finishers? It’s hard to see why any of them would quit on the basis of their performances so far.
Cruz can pin his hopes on the South, and especially his delegate-rich home state of Texas, which votes on March 1. Rubio can continue to believe that despite the scorching humiliations of the last week, he’s the frontrunner-in-waiting that so many establishment Republicans desperately want him to be and thought they saw emerging on the night of the Iowa caucuses.
Kasich, meanwhile, certainly won’t quit after ending up the runner-up. And that leaves Bush, who won’t quit either — not after besting Rubio, his one-time protégé and present-moment bête noir. Bush still has money and a flush super PAC on his side. Had he finished in the basement in New Hampshire, he would have quit in abject embarrassment. But now he’ll have a chance, if not to win, then at least to bow out later on with a smidgen of his honor intact.
And that, my friends, is a perfect storm of chaos: Trump riding high, but not high enough to best the non-Trump vote, while the non-Trump vote remains badly splintered, with no movement at all toward clarifying which single candidate might emerge to challenge him, and the various options training their fire (and tidal waves of negative ads) on each other.
For the past several months, the smartest of the Trump doubters have based their case on Trump’s relatively low ceiling of support. Yes, he’s leading the polls in a very crowded field, but that ceiling (never higher than the mid-30s) is unlikely to go much higher, and certainly not past a majority in any state. As soon as the non-Trump vote falls in behind an establishment candidate, he’ll be beaten.
But what if that doesn’t happen before the GOP primaries become winner-take-all in mid-March? In that case, Trump is going to start piling up an awful lot of delegates, even if his share of the popular vote never rises above 40 percent. That might not be enough to clinch the nomination, but it would be enough to give us the most riveting political convention in a very long time.
Who would emerge from the chaos in Cleveland? Trump? Cruz? Rubio? Bush? Paul Ryan? Mitt Romney? It could be any of them. Or someone else not currently on anyone’s radar screen.
But there is, of course, another possibility: the catastrophe of Donald Trump winning the nomination outright and competing head-to-head with the Democratic nominee to become president of the United States.
For that to happen, he’d probably need several of the non-Trump options to remain in the race through March, a significant number of their supporters to pull the lever for him when their first choice does drop out, and (most ominously) substantial numbers of Democrats to vote for him in those states that have open primaries (including South Carolina, Alabama, Georgia, Tennessee, Texas, Vermont, Virginia, Michigan, Illinois, Missouri, Wisconsin, and Indiana).
The first scenario looks likely. The second and third somewhat less so. But we just don’t know.
Just as we don’t know the outcome of a general election contest that pitted a demagogic megalomaniac against Hillary Clinton or Bernie Sanders.
Or what he would do once elected to the most powerful job in the world.
By: Damon Linker, The Week, February 10, 2016
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