“Republicans Have Crippled The Supreme Court”: America’s Highest Court Is Under Severe Strain Because Of The GOP
This is what a broken Supreme Court looks like.
Three weeks before the official end of the 2015-16 term, there are 22 cases still outstanding. On Monday, with several high profile cases eagerly anticipated by court-watchers, the Court only announced two relatively minor opinions. It looks likely that the Court will need to extend its own deadline.
And then, on the same day, the bizarre news that, Oops, one of the two issues the Court said it would hear in a death penalty case next fall – it won’t actually hear. Never mind!
That kind of sloppiness is rare. On the merits, it’s not that important, but procedurally, it’s a highly unusual screw-up.
It’s impossible not to see these events in the context of a short-handed Court, now four months without its full complement of judges, doing its best to stay on top of things. And not always succeeding. All of this, of course, is due to the completely unprecedented stonewalling by Senate Republicans of a perfectly qualified candidate to fill that vacancy.
In recent weeks, there have also been more subtle, but more destructive, consequences of the Senate’s oath-breaking, Constitution-scorning inaction.
Last week, the liberal advocacy organization People for the American Way published a report analyzing the effects of two tie decisions that have come down since February. In one, the Court left in place a split between the Sixth and the Eighth Circuits regarding spousal guarantees for bank loans. Despite all the resources invested in resolving this legal issue, federal law now remains uneven; requiring such guarantees is legal in some circuits, illegal in others. To be sure, bank loan guarantees is not a high-profile issue, but it is one that affects thousands of people every year.
More politically charged was the Frierichs case, which the Court left unresolved on March 29. That case was about whether public-sector unions could require non-union employees to pay a “fair share fee” to pay for collective bargaining and other costs. Without such fees, progressives argue, the unions might go out of business, ultimately hurting employees. With them, conservatives complain, they compel public employees to effectively join a union and support its political activities; that violates the First Amendment.
Who’s right? The Court was deadlocked, so we don’t know the answer.
Then there are the cases like Zubik v. Burwell, in which the Court, rather than decide a contentious issue about religious exemptions and Obamacare, proposed and ordered its own makeshift compromise, resolving the particular dispute but leaving key questions unresolved about religious exemptions, which is driving controversies in North Carolina, Texas, Tennessee, Indiana, and around the country.
It’s also quite possible the Court will either deadlock or punt on some of the major cases remaining this term, including Whole Women’s Health, a case about Texas’s abortion restrictions. Assuming Justice Kennedy votes to uphold the regulations, that will place the Court in a 4-4 split, and leave the Fifth Circuit’s decision – which mostly upheld the restrictive rules – in place.
But here’s where it gets even more complicated. Last June, the Supreme Court placed an injunction on enforcement of the law, pending the outcome of the case. So what happens if the Court deadlocks? Is that an “outcome,” or no outcome at all?
Functionally speaking, allowing the Fifth Circuit opinion to stand means the Texas law is Constitutional. And that, according to experts, would require the majority of abortion clinics in Texas to close. A 4-4 decision may sound like a tie, but there’s no tie when it comes to those clinics, and the women who use them. They’re either open or they’re closed – and it’s not at all clear why one side should prevail in a tie.
Worst of all, this supreme dysfunction may become the new normal. As Laurence Tribe and Joshua Matz wrote recently in the Washington Post, it’s quite plausible that confirmation stonewalling will become commonplace anytime there is divided government in Washington. It’s not as if the Democrats are just going to forgive and forget – they’ll fight fire with fire. (This, incidentally, is one of many reasons Fred Barnes’s ludicrous celebration of the anti-Garland stonewall was so myopic.)
And it’s not even just the Supreme Court; as we reported earlier, the Republican-created “judicial emergency” extends to lower courts as well, with a record number of vacancies going unfilled. Mainstream GOP leaders may be criticizing Donald Trump for attacking a Mexican-American judge, but they are attacking the entire judicial system.
So this is what a broken Supreme Court looks like: behind schedule, making careless mistakes, deadlocking, contorting itself to achieve consensus, and sometimes failing to fulfill its Cconstitutional responsibility to maintain the rule of law. Senate Republicans have acted like the Garland stonewall presents just a small inconvenience in the service of “letting the people decide.” But in fact, it is a full-on fiasco. Its only positive outcome would be the generation of enough rage to throw the bastards out.
Several years ago, a judge wrote that when, as in cases of recusal, “The Court proceeds with eight Justices,” it “rais[es] the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case” and “impairs the functioning of the Court.”
That judge was Justice Antonin Scalia.
By: Jay Michaelson, The Daily Beast, June 7, 2016
“NeverTrump’s White Knight Refuses The Call”: This Movement Has Suffered Its Last Gasp
Last week Bill Kristol tweeted that he had found a candidate to rescue the Republican establishment from Donald Trump. After a childish Twitter feud between Kristol and Trump, reports surfaced that Kristol’s knight in shining armor was none other than high-powered and well-connected but relatively unknown GOP lawyer David French.
After a some widespread and quiet derision, Mr. French has decided not to run after all–but before launching several jabs at Donald Trump:
Donald Trump also lies habitually (sometimes minute by minute), and changes position based on his moods. In one breath he claims to support working men and women, and then with the next breath he threatens to destroy our economy through trade wars or by playing games with the full faith and credit of the United States. He believes an American judge — a man born in Indiana who spent months hiding from drug cartels after they’d put a “hit” on him – can’t rule on a case involving Trump University because the judge’s parents emigrated from Mexico. His supporters believe it demonstrates “strength” when he mocks the disabled and bullies women. He has attracted an online racist following that viciously attacks his opponents and their families — including my wife and youngest daughter.
Given this reality, it would be tempting to say that when it comes to confronting this national moment, “somebody” stepping up is better than nobody. But somebody is not always better than nobody.
French and Kristol want to leave the door open for yet another independent candidate to run, but it’s difficult to see who would step up to heed the call at this date. Trump is consolidating GOP establishment support, and any independent conservative candidate would lose badly–only further demonstrating to the corporate Romney-Kristol-Rubio wing of the party how few loyal voters they actually have. Meanwhile, Trump’s rabid following would blame such a candidate for his general election defeat, putting themselves and their families in danger of their personal safety. I just don’t see it happening.
Try as it might to survive and stay relevant, it appears the Never Trump movement has suffered its last gasp.
By: David Atkins, Political Animal Blog, The Washington Monthly, June 5, 2016
“We Can’t Afford To Weaken Social Security”: President Obama Just Changed The National Debate On Social Security
Speaking in Elkhart, Indiana, President Obama made a significant policy statement, one that may get lost in all the talk of the campaign to replace him. He argued that Social Security not only shouldn’t be scaled back, as many believe, but that it should be expanded.
You can look at this as a move to the left. But here’s a better way to see it: as more like a digging in, a resistance to a decades-long effort to lay the groundwork for significant cuts to the program.
Now that Obama has taken this position, it makes it much more likely that most or all Democrats will adopt it as well, which could truly change a debate that up until now has been dominated by an alliance of Republicans and supposedly centrist advocates whose mission is to scale back the most successful social programs America ever created.
Here’s what Obama said in his speech:
But look, let’s face it — a lot of Americans don’t have retirement savings. Even if they’ve got an account set up, they just don’t have enough money at the end of the month to save as much as they’d like because they’re just barely paying the bills. Fewer and fewer people have pensions they can really count on, which is why Social Security is more important than ever. We can’t afford to weaken Social Security. We should be strengthening Social Security. And not only do we need to strengthen its long-term health, it’s time we finally made Social Security more generous, and increased its benefits so that today’s retirees and future generations get the dignified retirement that they’ve earned. And we could start paying for it by asking the wealthiest Americans to contribute a little bit more. They can afford it. I can afford it.
Here’s why this is important. For a long time now, the way you’ve shown you’re a Very Serious Person about fiscal matters is to gravely intone that Social Security is “going broke” and say that we must cut back benefits, either by reducing retirees’ payments or raising the retirement age. There’s an entire industry of think tanks and advocacy groups whose mission is to create the intellectual and political environment that will make such cuts possible.
Liberals have only been pushing back against that coalition in a serious way for a few years now. There are some high-profile voices debunking the myth that Social Security is “going broke,” most notably Paul Krugman’s (I won’t bother to go over again why it’s a myth, but if you’re interested I explained it here). But they’ve been hampered by the fact that so many Democratic politicians want to communicate that they too are Very Serious, so they accept some of the premises of the other side’s argument, ceding half the battle over the existence of the program.
And make no mistake: it is a battle over the existence of the program. Despite their assurances that they only want to “strengthen” Social Security, many Republicans would like nothing more than to see it disappear, for two reasons. The first is that they’re simply opposed to large social programs on ideological grounds. The second is that by virtue of its success and popularity, Social Security is an ongoing rebuke to conservative arguments about government. It’s awkward to say, “Government can’t do anything right and should be cut back as much as possible” to a voter who has health care because of Medicare and isn’t eating cat food because of Social Security — and thinks both programs are terrific.
So the political situation is this. Republicans can’t mount a direct assault on the program because it’s spectacularly popular, particularly with those who get checks every month (and who vote in large numbers). At the same time, their campaign against it has been extremely successful in shaping public opinion. Large portions of the public have been convinced that the program is in crisis and is about to go broke, and young people in particular think Social Security won’t exist by the time they retire. The hope of the anti-entitlement forces is that if they can convince enough people of that, when they propose a specific plan to cut back the program, people will say, “Sure, whatever — it’s going broke anyway, so we might as well.”
Until recently, the debate around Social Security consisted of one side saying it was going broke and needed to be slashed, and the other side not disputing those basic assertions too strongly, but saying that we shouldn’t do anything rash. What we are moving toward, however, is the Democratic side saying not only that the program is essentially healthy, but that instead of cutting it we should be expanding it. That’s a profoundly different debate, one that produces an entirely different set of policy options.
Right now you have the president of the United States taking that position, as well as the two leading Democratic presidential candidates. Hillary Clinton has proposed some targeted expansions of Social Security benefits, for widow/ers facing a benefit cut when a spouse dies and for those whose benefits are smaller because they spent time out of the workforce raising children or caring for other family members. Bernie Sanders advocates an increase for all recipients: “expand benefits by an average of $65 a month; increase cost-of-living-adjustments; and lift more seniors out of poverty by increasing the minimum benefits paid to low-income seniors.”
With the exception of Donald Trump, all the Republican presidential candidates this year signed on to some form of Social Security cuts, either through increasing the retirement age or cutting benefits. Trump, however, said we just shouldn’t touch it. In one debate, he said, “It’s my absolute intention to leave Social Security the way it is. Not increase the age and to leave it as is.” Trump doesn’t say how he’d pay for the program, which should undercut the idea that his position somehow challenges conservative orthodoxy; in reality, all Trump is saying is that he’ll make everyone so rich that we won’t have to make tough choices about such things.
By contrast, Democrats feel an obligation to explain how they’re going to pay for the benefits they propose. Obama described “asking the wealthiest Americans to contribute a little more.” That isn’t very specific, but there are a couple of ways you could do that, the most obvious of which is to raise the payroll tax cap. Right now you pay Social Security taxes only on the first $118,500 of your income, which means that beyond that level the wealthy pay a lower portion of their income than poor and middle-class people do.
Hillary Clinton says she would pay for increased benefits by “asking the highest-income Americans to pay more, including options to tax some of their income above the current Social Security cap, and taxing some of their income not currently taken into account by the Social Security system.” That would probably mean applying payroll taxes to investment income and not just wage income as it is now. Sanders wants to do that too, and is more specific about the cap: he would remove it entirely, though he would include a doughnut hole between the current cap of $118,500 and $250,000; you wouldn’t start to pay more payroll taxes until you reached that higher income.
Unfortunately, it’s a little hard to tell exactly how much in greater benefits we could afford with these kinds of measures, because how much the system takes in is heavily dependent on things we can only guess at, like what income growth, inflation, and immigration levels are going to be 10 or 20 or 50 years from now. But now that the most prominent Democrats in the country all agree that we should be expanding Social Security and not cutting it back, we could have a whole new debate on the issue.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, June 2, 2016
“No Good Deed Goes Unpunished”: National Enquirer Lends Its Credibility To Dick Morris
On the very eve of a Democratic National Convention 20 years ago, at the very peak of Dick Morris’s one period of true political power, he was knocked from his pedestal by a story in the Star tabloid detailing his romps with a prostitute that included not just toe-sucking and other unusual carnal delights, but the sharing of material from White House political briefings.
It somehow seems appropriate, then, that at the tail end of his long career in politics and punditry, Morris has signed on with another tabloid:
The National ENQUIRER today announced that renowned Author and Political Commentator Dick Morris would be joining the magazine in the role of Chief Political Commentator & Correspondent. The appointment of Morris to the editorial team further establishes The ENQUIRER as one of the leading voices of this political season.
For his part Morris made it clear what sort of perspective he would lend to the Enquirer‘s political coverage:
As this critical election approaches, I am thrilled to have a perch from which to tell the unvarnished truth, particularly about Hillary Clinton — facts other publications just don’t print because it doesn’t fit.
What’s most interesting about the Enquirer hire is that the tabloid is almost certainly more credible than Morris. In 2012 he lost whatever small shred of authority he had left with predictions — right up to Election Day — that Mitt Romney and the GOP weren’t just going to win, but were going to win big. To call him a laughingstock after Obama won is an understatement.
Old folks may recall that Dick Morris would have never had his famous White House career had Hillary Clinton not encouraged her husband to bring him in after the Democrats’ 1994 electoral debacle — but whatever. No good deed goes unpunished in this quintessentially nasty man’s world.
By: Ed Kilgore, Daily Intelligencer, New York Magazine, June 3, 2016
“Wallowing In Self-Pity”: Can Trump Whine His Way To The White House With Complaints About “Biased” Media Coverage?
That was quite a temper tantrum Donald Trump threw at his press conference this week.
Irked that news reports raised questions about his promised donations to American veterans and their charities, Trump responded by denouncing the political press as “disgusting” and “among the most dishonest people that I’ve ever met.” Trump even dismissed one ABC News reporter as “a sleaze,” and mocked another from CNN as “a real beauty.”
Trash talking the press is hardly new for Trump. During the primary season, he routinely set aside time at rallies to denigrate journalists as “scum” and “disgusting”; attacks his supporters often amplified in person and online.
What made Trump’s meltdown this week so noteworthy, and probably what shocked the Beltway media, was that it came during the general election campaign season, where these kinds of vicious, personal attacks coming directly from the presumptive nominee are unheard of.
“Mr. Trump, the presumptive Republican presidential nominee, assailed those reporting on his candidacy with a level of venom rarely seen at all, let alone in public, from the standard-bearer of a major political party,” The New York Times reported. (GOP media bashing is most often handled by surrogates and by Republican allies in the press.)
Yes, some previous Republican nominees have chastised the press, sometimes with glee and sometimes with genuine disdain. “Annoy the Media: Re-elect Bush” bumper stickers were a favorite among Republicans during George H.W. Bush’s 1992 re-election run. Sen. John McCain’s campaign denounced The New York Times for an article it published in 2008 detailing McCain’s closeness to a lobbyist. (Many people read the article as an implication of an affair between McCain and the lobbyist, but the paper eventually updated it with a “Note to Readers” saying it “did not intend to conclude” that the lobbyist had “engaged in a romantic affair” with McCain.)
But overall, McCain enjoyed warm relations with reporters during his 2008 run, and those previous press attacks weren’t nearly as ferocious and personal as Trump’s are today. (Can you imagine Bush Sr. calling an ABC reporter a “sleaze” during a 1992 press conference?) Those attacks were never seen as being a pillar of a November campaign, the way Trump is promising his media insults will continue in coming months.
What Trump’s doing is employing a right-wing talk radio dream strategy, where whining about the so-called liberal media is elevated and presented as a pressing issue facing America.
And that’s why Rush Limbaugh was so ecstatic in the wake of Trump’s public tantrum. “That was the kind of press conference Republicans voters have been dying to see for who knows how many years,” the talker gushed. “Trump felt the need to correct the record today and did so in his own inimitable way, which basically attacked the media for dishonesty and corruption.”
Fox News’ Peter Johnson Jr. was equally animated. He cheered Trump for “saying, ‘I have a message, you may not like it, but you’re not going to take me down. I will be heard fair and square. I will either win or lose. But I will not lose because of an unfair media.’”
Obviously, there’s nothing wrong with questioning the press and holding journalists accountable. But that’s not what Trump’s doing. He’s wallowing in self-pity without producing any proof of media malfeasance. Trump can’t point to any factual errors in the reporting on his charitable giving; the story that set off his most recent anti-media screed.
Complaining about so-called liberal media bias has been a hallmark of the conservative movement for decades, and has sometimes been featured as a sidebar during presidential campaigns. Trump now wants to move it to the main stage. But hurdles appear on the horizon.
First, he’s already won the Republican primary, which is more likely the season to energize hardcore supporters with allegations of media manipulation. That’s why this same anti-press crusade worked so well last November in the aftermath of the contentious Republican Party primary debate hosted by CNBC. Virtually all the candidates and most of the conservative media joined forces and issued indignant denunciations of CNBC’s allegedly dishonest debate moderators. The swarm served as a unifying ritual of outrage for the conservative movement.
Trump’s now in the general election and needs to expand his base beyond the true believers. To be successful in November, he’s trying to lure voters who have likely voted Democratic in the past and who don’t identify as Fox News fanatics. It’s less likely those types of crossover voters will be motivated by allegations that the press is out get Trump.
Secondly, a sizeable portion of the conservative media infrastructure isn’t supporting Trump. In fact, in a bizarre flip of the script previously documented by Media Matters, during the primary season some key conservative media voices have actually criticized the Beltway press for being too soft on the Republican nominee. So if there are Republican-friendly pundits on the record saying the press needs to be tougher on Trump, that obviously blunts the candidate’s claim that the “biased” media’s being too tough on him.
There’s also the issue of temperament and the fact that most voters think Trump is severely lacking in that area. A Fox News poll last month indicated 65 percent of voters don’t think Trump has the “temperament” to serve as president, and a CNN poll in May found the number was even higher: 70 percent.
Regularly staging campaign press conferences in coming months to pick fights with reporters is unlikely to improve Trump’s standing there.
Already committed to running a completely unorthodox campaign, Trump’s now gambling that press attacks can produce votes in November.
By: Eric Boehlert, Media Matters For America, June 3, 3016
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