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“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

February 16, 2016 Posted by | GOP, Mitch Mc Connell, Senate, U. S. Supreme Court | , , , , , , , , | Leave a comment

“Why McCain’s Shot Across Cruz’s Bow Matters”: In The Senate, ‘Assisting Mr. Cruz Would Amount To A Foreign Concept’

There was a fleeting moment around this point eight years ago in which some questioned John McCain’s eligibility for the presidency. The Republican senator, well on his way to becoming his party’s nominee, was born in the Panama Canal Zone in 1936, prompting some pointless questions about whether he was literally a “natural-born citizen.”

Few took those questions seriously; even McCain’s harshest critics dismissed the concerns out of hand; and the Senate quickly approved a resolution – written and sponsored by Democrat Claire McCaskill – declaring, “John Sidney McCain, III, is a ‘natural born citizen’ under Article II, Section 1 of the Constitution of the United States.” It passed without opposition.

The recent history adds a degree of irony to McCain’s comments about Ted Cruz yesterday.

Arizona Sen. John McCain said he doesn’t know if the Canadian-born Sen. Ted Cruz of Texas is eligible to be president, saying the Supreme Court might have to decide if Cruz is eligible to be president.

“I don’t know the answer to that,” said McCain on the Chris Merrill Show on KFYI550 on Wednesday of Cruz’s eligibility.

As the BuzzFeed report added, McCain went on to say, in reference to Cruz, “I think it’s worth looking into.” McCain added he thinks Cruz should try to get ahead of these eligibility issues, though without access to a time machine, how he’d go about doing this is a bit of a mystery.

It’s a genuine shame that Donald Trump has pushed this issue into the spotlight, because as best as I can tell, this entire line of attack is misguided. For all intents and purposes, natural-born citizens are those who were citizens at the time of their birth. This applies to Cruz. End of story.

I can think of about a thousand reasons to be concerned about a Cruz presidency, but his eligibility isn’t one of them.

What I find more interesting, however, is Cruz’s sudden need for friends in high places.

With the developments surrounding McCain in 2008 still in mind, the New York Times asked this morning, “Now the question is, will the Senate again weigh in to clarify the constitutional status of another one of its members and declare Mr. Cruz eligible to be president?”

The answer is, almost certainly not. Among senators from both parties, Ted Cruz is extremely unpopular. He’s gone out of his way to alienate his colleagues, pick fights with his own party leadership, and generally make as few friends in the chamber as possible during his tenure.

On the campaign trail, this serves as a point of pride. Cruz can, in complete honesty, boast to the Republican base that the GOP establishment inside the Beltway has nothing but disdain for him – and the feeling is mutual. John McCain himself once referred to Cruz as a “wacko bird,” which is why it’s not too surprising that the Arizona Republican was needlessly adding fuel to a foolish fire yesterday. He just doesn’t seem to like his colleague very much.

Right about now, Cruz would probably love to see the same level of Senate support McCain received eight years ago, but he shouldn’t hold his breath. As the Times added, for most senators in both parties, “assisting Mr. Cruz would amount to a foreign concept.”

 

By: Steve Benen, The Maddow Blog, January 7, 2016

January 11, 2016 Posted by | Birthright Citizenship, John McCain, Senate, Ted Cruz | , , , , , | Leave a comment

“How Pathetically Low Diversity Is On Capitol Hill”: The US Senate: The World’s Whitest Deliberative Body

In the last couple of years racial politics have dominated our political discourse. Regardless of party affiliation or racial identification, most Americans have probably grown to agree on at least one thing: There are no easy policy solutions for solving America’s racial discord and the inequality that fuels it. But I would go a step further and say this is even truer with the current Congress we have in place. While lack of bipartisanship gets most of the credit, or rather blame, for the ineffectiveness of the American Congress, new data highlight another culprit: lack of diversity among senior Senate aides.

A new report out from the Joint Center for Political and Economic Studies found that “(p)eople of color make up over 36 percent of the U.S. population, but only 7.1 percent of top Senate staffers.” While the numbers are not good for any ethnic minority population, they are abysmal for black Americans. According to the report, “African-Americans make up 13 percent of the U.S. population, but only 0.9 percent of top Senate staffers.” This is particularly troubling given how lacking in diversity the Senate already is. There are currently two African Americans serving in the U.S. Senate (Cory Booker of New Jersey and Tim Scott of South Carolina), one Asian American (Mazie Hirono of Hawaii), and two Hispanic Americans (Marco Rubio of Florida and Ted Cruz of Texas.)

But lack of racial diversity isn’t the only problem plaguing Congress. Last year, for the first time in history, the majority of members of Congress reported being millionaires. This in an age in which the median wealth of America’s middle class is just over $44,000.

Now I’m not here to argue that white millionaires should be excluded from Congress. But I am here to argue that they shouldn’t comprise most of Congress.

Why?

Well for starters, ideally we should have a legislative body reflective of the people it represents. But beyond idealism, there is a very real policy deficit we face as a country when we have people who have never experienced problems firsthand, tasked with crafting solutions for those problems.

For instance, for years there has been little done at a federal level to address the issue of racial profiling or police brutality. The reason is not hard to understand: For a white member of Congress who has likely been treated with respect and deference by most members of law enforcement he or she has come into contact with, it’s easy to fathom that he would not consider this a serious or prevalent issue.

Thanks to camera phones, now many elected officials know what black Americans have known all along: There are great members of law enforcement, but there are also far too many who abuse their power and position. Just think for a moment how many lives may have been saved if elected officials, either from their own experiences, or the experiences of their senior aides, had known to prioritize this issue years ago. It is not a coincidence that a black senator, Tim Scott, has been a driving force behind efforts to secure additional federal funding for body cameras for law enforcement to help address this issue.

Similarly, it is not a coincidence that President Obama has made college accessibility and affordability legislative priorities during his time in elected office. Neither he nor his wife came from wealthy backgrounds, and financial aid enabled them both to attend elite universities that allowed them entrée into the halls of power in which they now reside. Is it possible that another president could have been knowledgeable on this issue? Sure. But consider this: Gov. Mitt Romney, President Obama’s opponent in the last presidential election, came from a wealthy and prominent family, so he never endured the hardship of not knowing whether he would graduate college because of his financial status—something I and millions of other Americans have endured.

To be clear, the issue of diversity, or rather lack thereof, within the Senate is not party specific. The Joint Center report notes that while African Americans vote overwhelmingly Democratic, black Americans comprise just .7 percent of top Democratic Senate posts. It could be argued that lack of diversity among Senate aides is even more problematic than lack of diversity among elected officials because senior aides do much of the heaving lifting when it comes to actually writing legislation. So what can be done to change things?

For starters, elected officials and the parties that support them need to make a concerted effort to diversify their internship pools. As someone who started her career as an intern, I speak from experience when I say it is not uncommon to see the most plum internships for prominent candidates and in prominent offices become a resting place for the children of political donors and their friends. These internships can often serve as a pipeline to jobs in the Senate or the White House down the road.

Additionally, both major parties need to begin setting aside some of the money they reserve for attack ads on each other for money to be spent on well-paid racial and class diversity fellowships. Very few young people, except the children of wealthy donors or the wealthy period, can afford to work on campaigns for next to nothing and live with the financial instability early campaign life provides.

But I would say the real responsibility falls into the hands of those of us who claim we’re fed up with our do-nothing Congress. If we’re not happy with them, simply threatening to throw them out during the next election cycle is not enough. We should be asking them the right questions while they’re there representing us. But how many of us bother to ask who our elected officials hire once they get in office? And whether those people are representative of us and have our best interests at heart? In the same way we demand our elected officials keep us updated on their legislative accomplishments, why don’t we demand more regular transparency on who they are surrounding themselves with?

For anything to really change, more of us fed up non-millionaires need to be willing to run for office, or encourage someone we trust to. Or at the very least we need to tell as many bright, young people from underrepresented groups that we can that if they really want to make a difference instead of just expressing outrage on social media, they should become a Senate aide.

 

By: Keli Goff, The Daily Beast, December 27, 2015

December 28, 2015 Posted by | Diversity, Racial Inequality, Senate | , , , , , , , , | Leave a comment

“Republicans Take The Less Risky Path”: The Budget Passes! Has The GOP Congress Come To Its Senses?

The news that the House passed a budget that will fund the government through next fall, and the Senate quickly followed suit, is in and of itself a big deal. But the fact that the bill passed so easily — on a vote of 316-113 in the House, with Republicans voting in favor of it by a margin of 150-95 — may be the really interesting story here.

Is the GOP Congress not what we thought it was? Is the way liberal commentators (myself included) have characterized the Republican caucus in the House over the last couple of years, as a group dominated by extremists who are willing to burn down everything in their path, an oversimplification?

It just may be. But let’s look at some competing explanations for why this budget passed so easily:

Paul Ryan is a genius. Perhaps this is all Paul Ryan’s doing, so deftly did he work his members to corral support for this bill. There’s something to that — there were specific steps he took to make all his members feel like they had a voice in the process, and even some of the most conservative members have praised his openness to their input.

But there are a couple of reasons to think that this explanation is incomplete at best. First, it suggests that the crises and intra-Republican battles of the last few years occurred only because John Boehner was inept at managing the more restive parts of his caucus. While no one is going to suggest that Boehner was some kind of legislative sensei, the members who forced those crises weren’t doing it just because they disliked Boehner. They were acting out of their own ideological and electoral interests, many because they saw their political fortunes in their own districts tied to the idea that they would be uncompromising in fighting both Barack Obama and their party’s leadership.

Second, this bill really was a compromise. It doesn’t defund Planned Parenthood, it doesn’t reduce the size of government, and it gives Democrats plenty of other things they wanted as well. Republicans in the House weren’t going to go along with it for no reason other than the fact that they got to sit down with the new Speaker and voice their complaints. So while they may feel better about Ryan than they did about Boehner, that can’t be the whole story.

They realized that making a fuss only raises expectations. The key dynamic in Republican politics these days comes from voter dissatisfaction with the party’s leaders, who have repeatedly promised to fight President Obama to their dying breath but has been unable to deliver on any of their substantive goals, like repealing the Affordable Care Act. Smarter Republican members may realize that shutdown crises only serve to increase this dissatisfaction, because they inevitably end in defeat for the conservatives. Even the angriest tea partier could eventually face a primary challenger who points out that the congressman didn’t succeed in stopping the march of socialism, no matter how often he shook his fist at his party’s leadership. So the less risky path might be to let the bill pass, keep the government running, and hope that nobody takes much notice of it.

There’s a silent (or at least relatively quiet) majority of Republicans in the House. Let’s not forget that 95 Republicans did vote against the bill, including the most conservative ones. In the past, the conservatives (or the tea partiers, or the Freedom Caucus, or however you want to refer to them) were only able to create crises and shutdowns because they were able to bring slightly less crazy members along with them. So it isn’t that the extreme conservatives have gotten any less extreme; what made the difference this time is that the merely very conservative members were no longer willing to set fire to the Capitol.

Those members in the ideological middle of the caucus (which, to be clear, is a very conservative place) can sound like tea partiers when the situation demands, but they are also realistic enough to know that some battles aren’t worth fighting. They certainly feel pressure from their right, but they may have learned from the mistakes of the past. And right now, as we move into 2016, the calculation of which risks are worth taking has changed. Which leads us to the final explanation:

The presidential race has changed everything. As I’ve been arguing since the last midterm election, congressional Republicans didn’t really need to “show they can govern.” What they needed to do was avoid screwing things up for their eventual 2016 presidential nominee. The reason is simple: if a Republican wins the White House next year, 2017 will see a bacchanal of conservative legislating that will leave no Republican desire unfulfilled. Trying to extract a few concessions from Barack Obama today is spectacularly foolish if it makes Republicans look bad and thereby reduces the chances of electing a Republican president by even the tiniest amount. The best strategy for congressional Republicans is to do no harm, and be patient.

With the presidential primary campaign now in full swing, that reality may be hitting home for more and more members of Congress. So even the most conservatives ones aren’t going to try to force a shutdown. Instead, they’ll vote against the budget bill, and when a reporter asks they’ll say, yes, of course it’s a surrender to Obama and a betrayal of conservative values, blah blah blah. But in their hearts, they probably realize that at this particular moment, passing the budget is the smart move.

So which one of these explanations is the right one? The answer may be different for different members, but I’m pretty sure they all played a role.

 

By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, December 18, 2015

December 21, 2015 Posted by | Budget, GOP Establishment, House Freedom Caucus, Senate | , , , , , , , | 2 Comments

“The GOP House In A Landslide”: House Of Representatives Is So Firmly In The GOP’s Hands

On the Republican side, at the very least, this may be the year for political scientists and analysts to try to forget everything that they think they know. But we still need to have some rational basis for what we’re saying, right? I mean, who can fault David Wasserman over at the Cook Political Report for using the presidential blowouts of 1964, 1972, and 1984 to try to guesstimate how a 2016 blowout might affect control of the House of Representatives? It’s as good a place to start as I can think of, so why not take a look?

Indeed, there’s nothing wrong with looking at the best precedents we have, and it can even be described as basic due diligence. But I think you have to go a little deeper than just looking at raw numbers.

To begin with, any scenario in which the Democratic Party enjoyed the benefit of the Solid South is simply not applicable to the present. The 1964 election, which came right on the heels of LBJ signing the Civil Rights Act, was pretty much the starting point of the realignment that over the next fifty years methodically flipped the South into a Republican stronghold. I’d argue that this process wasn’t really complete until the 2010 midterms, although the 2002 midterms wiped out a half dozen southern Democratic senators. It took decades for the South to stop voting for the Democratic Party on the state and local level. Even in the 1992 election where Clinton, despite some successes, lost most southern states, southern Democrats did quite well in the congressional elections. Today, this type of ticket-splitting is extremely rare.

By the time we get to the 1972 landslide, things are slightly more familiar, but it still basically holds true that the South chose Nixon for president and the Democrats in the down-ticket races. The corollary today would be the South voting uniformly for Hillary Clinton while returning almost all of their Republican senators and representatives to Congress. I don’t see that happening, although I can foresee Clinton winning a few southern states. Obama won Virginia and Florida twice, North Carolina once, and was within spitting distance in Georgia. It remains to be seen how the people of Arkansas feel about their royal family in our present climate, but I have my doubts that it will even be a competitive state.

Still, we’re talking about a hypothetical landslide election in which the Republicans nominate someone so divisive and controversial that they wind up losing supposedly safe red states. It’s probably true that in that kind of scenario, the House seats would tend to split. Senate seats would be more vulnerable, but I don’t see Richard Shelby losing in Alabama no matter how badly Trump or Cruz or Carson do at the top of the ticket.

The 1984 election seems almost modern compared to 1964 and 1972. At least the modern Democratic coalition was beginning to take form. But even in 1984 the Democrats still enjoyed a lot of stubborn southern support on the congressional level.

What’s more relevant today is the way party support has been split between urban/suburban and suburban/exurban/rural. This, in combination with aggressive (mainly Republican-controlled) gerrymandering, has resulted in very few true swing districts in Congress. It’s also resulted in a situation where the Democrats can win the overall congressional popular vote by a substantial margin and still not even come close to controlling House of Representatives.

Also interesting is just how persistent the disbelief is in the idea that Donald Trump might be the nominee. Wasserman refers to “the remoteness of a scenario in which Trump would face Hillary Clinton in a one-on-one contest.” Over at the Washington Examiner, Tim Carney assures us that Trump will lose Iowa, thereby become a “loser” himself, and wind up getting his butt handed to him in New Hampshire.

They could certainly be right, but I think they’re a little over-confident personally. I also think a landslide election is just as much of a possibility with Cruz as with Trump. And a brokered convention is a real wildcard. It could wind up preventing a landslide by cutting off the nomination of a Trump or a Cruz, but it could also be just the thing that makes a landslide possible. After all, this isn’t the year that the Republican base will tolerate having the Establishment step in and pick a nominee that they haven’t voted for.

But, it’s true. The House of Representatives is so firmly in the GOP’s hands, that even a landslide defeat on the presidential level might not be enough to wrench control away from them.

It wouldn’t hurt, though.

 

By: Martin Longman, Political Animal Blog, The Washington Monthly, December 14, 2015

December 16, 2015 Posted by | House of Representatives, Republicans, Senate | , , , , , , | 1 Comment

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