“The Best Of Their Options”: Why Republicans Might Actually Put Merrick Garland On The Supreme Court
Today President Obama announced that Merrick Garland is his nominee to fill the seat of the late Antonin Scalia on the Supreme Court. This pick is something of a surprise, given Garland’s reputation as a moderate, and most importantly, his age — Garland is 63, meaning he would likely spend only 10 or 15 years on the Court if he is confirmed.
Of course, he may not be confirmed, since Republicans have made clear that they will refuse to hold hearings or votes on any nominee Obama offers, and have said they’ll even refuse to meet the the nominee. Mitch McConnell reiterated that again today. So there’s a clear political strategy behind this nomination on the White House’s part.
But there’s also a way in which Garland could end up actually making it to the Court — not because the White House managed to outmaneuver Republicans, but because they decided that confirming him was the best of their options.
First, let’s look at the White House’s thinking. Of course they’re going to say that this decision was made purely on Garland’s merits, and politics never entered in to it, that Garland was picked because he’s eminently qualified, and he’s well-respected by both Democrats and Republicans. Garland may have all the admirable qualities Obama spoke of today, but it’s also true that he is the hardest pick for Republicans to oppose. He’s probably the most moderate of the names that were mentioned, and when you combine that with his age (and the fact that he’s a white man), Republicans won’t be able to say that Obama is trying to appoint some radical leftist who will pull the Court far to the left for the next 30 or 40 years.
That means that Garland is the one whose appointment most clearly portrays Republicans as obstructionists when they refuse to consider him. That will not only help Hillary Clinton when she argues that Republicans are unreasonable and irresponsible, but it will also put some vulnerable Senate Republicans in uncomfortable positions, particularly Chuck Grassley of Iowa, Mark Kirk of Illinois, Kelly Ayotte of New Hampshire, and Pat Toomey of Pennsylvania, all of whom face tough challenges in the fall. So while it may not have a transformative effect on the election, Garland’s nomination could, at least by a bit, increase the chances both that Clinton is elected president and that Democrats will be able to take back the Senate.
The White House is also probably assuming that Republicans will oppose Garland, as they’ve promised. Garland has already had a full career and this is doubtless his last opportunity to ascend to the Supreme Court, so he may have been more willing than other potential nominees to go through this process, with the small chance that he will actually be confirmed.
But might he actually be confirmed? The answer is yes. Here’s how it might happen:
1. Hillary Clinton wins in November. Given that Donald Trump looks like he will be the nominee of the Republican Party, this looks like a strong possibility.
2. Democrats take back the Senate. Democrats need a net gain of four seats in order to get to 50, which was about an even bet before; with Trump leading the Republicans, that looks even more likely.
3. Democratic Senate leaders consider eliminating the filibuster for Supreme Court nominations. If Clinton were to win, Republicans could decide that they can live with an eight-member Supreme Court for four years, and simply refuse to confirm any Clinton nominee. If they do that, and if Democrats gain a majority, the Democrats would almost certainly get fed up enough to just take the final step and eliminate the filibuster for those nominations (they already eliminated filibusters for lower-court nominations in 2013). Indeed, they’re already considering it.
4. Republicans return after the election and confirm Garland. If Clinton wins and Democrats take the Senate, Republicans will face a choice between Garland and whoever Clinton would nominate — and that person would probably be more liberal, and far younger. So Garland, a moderate who might only spend 10 or 15 years on the Court, would suddenly look like easily the best option. So before the next Senate takes office in January, Republicans would quickly confirm Garland and cut their losses.
Liberals are reacting with a decided lack of enthusiasm over Garland’s nomination, both because of his moderation and his age. For them, the best of all scenarios is that Garland’s nomination flounders, Hillary Clinton gets elected, and appoints a younger and more liberal justice. They might get their wish — if Republicans don’t figure out what’s most in their interests first.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, March 16, 2016
“The Party Of ‘No Way!'”: G.O.P. Embraces The George Wallace Demagogues; Less Governing, More Gridlock
Perhaps the most important thing Washington will do this year is decide whether to approve President Obama’s nominee for the Supreme Court. But Republicans have already announced their decision: “No way!”
It’s rich for Republicans to declare pre-emptively that they will not even hold hearings on an Obama nominee, considering that they used to denounce (while their party held the White House) the notion that judges’ nominations shouldn’t proceed in an election year.
“That’s just plain bunk,” Senator Charles Grassley, an Iowa Republican, said in 2008. “The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president’s term.” His sense of reality has since changed.
Senator Lamar Alexander, a Tennessee Republican, said in 2008, “Just because it’s a presidential election year is no excuse for us to take a vacation.”
In fairness, Democrats have also been hypocritical. In 1992, when George Bush was president, then-Senator Joe Biden said an election-year vacancy should wait to be filled the next year.
A pox on all their houses!
Let’s tune out politicians’ rhetoric in both parties and look at the merits of the arguments. Supreme Court justices rarely die in office, and in recent decades they have mostly chosen to step down before election years. But despite what Republican senators would have you believe, there have been a number of Supreme Court vacancies filled in election years.
In the 20th century we had six:
■ In 1912, the Senate confirmed Mahlon Pitney, nominated by William Howard Taft.
■ In 1916, the Senate confirmed both Louis Brandeis and John Clarke, nominated by Woodrow Wilson.
■ In 1932, the Senate confirmed Benjamin Cardozo, nominated by Herbert Hoover.
■ In 1940, the Senate confirmed Frank Murphy, nominated by Franklin Roosevelt.
■ In 1988, the Senate confirmed Anthony Kennedy, who had been nominated by Ronald Reagan the previous November.
A counterexample is Abe Fortas, whose nomination to be elevated from associate justice to chief justice in the summer of 1968 was killed by a filibuster by Republicans and Southern Democrats. But that’s a horrifying bit of history for Republicans to rely upon, because the main reasons for opposition to Fortas were that he favored civil rights and was Jewish. His ethical lapses mostly emerged later.
Republicans suggest that it’s standard for a Supreme Court vacancy to be held over when it occurs during an election year. Since 1900, I can find only one example of something close to that happening: In the fall of 1956, after Congress had adjourned and Senate confirmation was impossible, William Brennan received a recess appointment, then in 1957 was nominated and confirmed.
It’s ironic that this tumult should bedevil a replacement for Antonin Scalia, who emphasized the constitutional text. The Constitution gives no hint that the Senate’s “advice and consent” for nominations should operate only in three out of four years.
If Republicans block Obama’s nomination, Scalia’s vacancy will last more than a year, compared with a historical average of resolving nominations in 25 days. To date, the longest Supreme Court nomination in American history lasted 125 days, and it looks as if we will easily break that record this year.
The larger issue here is obstructionism. When I was growing up, the G.O.P. was the serious, prudent, boring party, while the Democrats included a menagerie of populists, rascals and firebrands. Today it’s the G.O.P. that embraces the George Wallace demagogues, and its aim is less to govern than to cause gridlock. That’s not true of everyone — the House speaker, Paul Ryan, seems to have genuine aspirations to legislate. But to be a Republican lawmaker today is too often to seek to block appointments, obstruct programs and shut down government. Politics becomes less about building things up than about burning them down.
Both parties are open to expanding the earned-income tax credit, to early childhood programs, to better approaches to heroin addiction, to supporting women with obstetric fistula, to reducing violence against women worldwide. Yet practical measures to address these issues stall in Congress. The party of Lincoln is now the party of “No,” refusing even to invite the president’s budget director to testify on an Obama budget, as is customary. Congress is expected to accomplish next to nothing this year.
Donald Trump and Ted Cruz are the apotheosis of this disregard for governing. Cruz’s entire congressional career has involved antagonizing colleagues and ensuring that nothing gets done. And Trump barely bothers with policies, just provocations.
All this is ineffably sad. I expect politicians to exaggerate and bluster. But I also expect them to govern, and that is what many in the Grand Old Party now refuse to do.
In that case, should they really be paid? Just as we have work requirements for some welfare recipients, maybe it’s time to consider work requirements for senators.
By: Nicholas Kristof, Op-Ed Columnist, The New York Times, February 26, 2016
“The Enemy Of Strategic Success”: Obama’s 2005 Blog Post On SCOTUS Good Advice For Today’s Republicans
Regular readers of that fine online watering hole for all things Supreme, the SCOTUSblog, were probably startled Wednesday morning by a guest post from a former constitutional scholar named Barack Obama. On reflection, it makes sense he chose this wonky but accessible venue to lay out his talking points on the criteria he will use in selecting a Supreme Court nominee whom Senate Republicans have already announced they will block.
This is not, however, Obama’s first blog post, or even his first blog post about Supreme Court nominations. Back in 2005, during his first year in the Senate, he took to the virtual pages of Daily Kos to address progressive activists who were angry at Democratic senators who did not go to the mattresses to stop the confirmation of John Roberts as chief justice. Obama himself voted against Roberts, but did not choose to support a filibuster. So he was partially defending himself against the then-common netroots charge (still popular among many Bernie Sanders supporters) that Democrats in Washington were surrendering to the evil right-wing foe without a real fight.
What makes Obama’s 2005 essay interesting now, however, is a certain through-the-looking-glass quality. Substitute Republican for Democrat and conservative for progressive in his post, and he’s offering the very Republicans pre-rejecting his own SCOTUS nominee some pretty good advice:
There is one way, over the long haul, to guarantee the appointment of judges that are sensitive to issues of social justice, and that is to win the right to appoint them by recapturing the presidency and the Senate. And I don’t believe we get there by vilifying good allies, with a lifetime record of battling for progressive causes, over one vote or position. I am convinced that, our mutual frustrations and strongly-held beliefs notwithstanding, the strategy driving much of Democratic advocacy, and the tone of much of our rhetoric, is an impediment to creating a workable progressive majority in this country….
According to the storyline that drives many advocacy groups and Democratic activists – a storyline often reflected in comments on this blog – we are up against a sharply partisan, radically conservative, take-no-prisoners Republican party. They have beaten us twice by energizing their base with red meat rhetoric and single-minded devotion and discipline to their agenda. In order to beat them, it is necessary for Democrats to get some backbone, give as good as they get, brook no compromise, drive out Democrats who are interested in “appeasing” the right wing, and enforce a more clearly progressive agenda. The country, finally knowing what we stand for and seeing a sharp contrast, will rally to our side and thereby usher in a new progressive era.
In case you don’t recognize it, Obama is accurately portraying — again, in a mirror — the “theory of change” that Ted Cruz articulates every day.
A plausible argument can be made that too much is at stake here and now, in terms of privacy issues, civil rights, and civil liberties, to give John Roberts the benefit of the doubt. That certainly was the operating assumption of the advocacy groups involved in the nomination battle.
I shared enough of these concerns that I voted against Roberts on the floor this morning. But short of mounting an all-out filibuster — a quixotic fight I would not have supported; a fight I believe Democrats would have lost both in the Senate and in the court of public opinion; a fight that would have been difficult for Democratic senators defending seats in states like North Dakota and Nebraska that are essential for Democrats to hold if we hope to recapture the majority; and a fight that would have effectively signaled an unwillingness on the part of Democrats to confirm any Bush nominee, an unwillingness which I believe would have set a dangerous precedent for future administrations — blocking Roberts was not a realistic option.
As you may know, Obama went on to support a filibuster against the confirmation of Bush’s second justice, Samuel Alito — a step he now says he regrets. But that doesn’t necessarily undercut his 2005 argument that tactical rigidity is the enemy of strategic success.
[T]o the degree that we brook no dissent within the Democratic Party, and demand fealty to the one, “true” progressive vision for the country, we risk the very thoughtfulness and openness to new ideas that are required to move this country forward. When we lash out at those who share our fundamental values because they have not met the criteria of every single item on our progressive “checklist,” then we are essentially preventing them from thinking in new ways about problems. We are tying them up in a straightjacket and forcing them into a conversation only with the converted.
And that’s the sort of reasoning that movement conservatives denounce as RINOism when it is articulated — a rare thing these days — among Republicans.
By: Ed Kilgore, Daily Intelligencer, New York Magazine, February 24, 2016
“The Trouble With Bernie Sanders’s Revolution”: Little Chance Of Getting His Agenda Through Congress
We’ll know Monday night whether Bernie Sanders has taken the first step toward the revolution he has promised, but we can already say that his campaign has achieved stunning success, more than almost anyone thought was possible. Now that the voting is beginning and Democratic voters have to make their choice, we should take a good hard look at what Sanders wants to do and how he wants to do it. Whatever the results of the Iowa Caucuses, he’s a serious candidate, and his candidacy should be engaged on serious terms.
If there’s one word that Sanders uses more than any other when describing what he wants to do (other than “billionaires”), it would have to be “revolution.” He uses it in two different ways, both to describe the movement for change he wants to lead in the campaign, and the substantive change that movement will produce. So his revolution will both overthrow the old order and replace it with something new.
Even if Sanders began this race by trying to make a point, he’s now trying to win. So it’s worth taking the goals of his revolution, like single-payer health insurance, free college tuition, and a $15-an-hour minimum wage, and asking what the process will be between him being elected and those goals being achieved.
By now, Sanders has been asked the logical question—This is pretty ambitious stuff, how are you going to pass it through Congress?—many times. The answer he gives is always some version of Because this is going to be a revolution. In other words, his candidacy will so mobilize the American people that Congress will be forced to acquiesce to the public’s desire to see his agenda enacted.
But let’s get more specific than Sanders does. If his revolution is to succeed, it must do so through one of two paths:
- It elects so many Democrats that the party regains control of both the House and the Senate, and those Democrats support Sanders’s policy agenda with enough unanimity to overcome any opposition; or
- It so demonstrates the public demand for Sanders’s agenda that even congressional Republicans go along with it.
Start with Number 1. Let’s imagine Sanders is the Democratic nominee. What would it take for his coattails to deliver both houses back to Democratic control? Taking the Senate first. At the moment, a Democratic takeover looks difficult, but possible. The Republicans have a 54-46 advantage, and they are defending 24 seats this year, while Democrats are defending only ten (the imbalance is because the senators elected in the Republican sweep of 2010 are up for re-election). That looks great for Democrats, were it not for the fact that most of those seats are not competitive at all. No matter how revolutionary the Democratic candidate is, Republicans are still going to hold on in places like Idaho and Oklahoma. Most of the experts who follow these races obsessively (see here or here) rate only nine or ten of these races as even remotely competitive.
But it’s certainly possible that Democrats could sweep most of them and take back the Senate. What is not possible is for Democrats to win so many that they’d have the 60-seat margin necessary to overcome Republican filibusters. And there would be filibusters on all of the items on President Sanders’s agenda. So on the Senate side, the revolution would seem to require both a Democratic sweep and a willingness of the Democrats to destroy the filibuster. Might they do that? Sure. Will they? Probably not.
But that’s not the biggest problem. The biggest problem is the House, where redistricting and a more efficient geographic allocation of voters (there’s an explanation of that here) have left Republicans with a structural advantage that will make it particularly hard in the near future for Democrats to take back control. The overwhelming majority of seats in the House are not at all competitive, with one party or the other all but guaranteed to win the seat no matter whom the party nominates for president. As election analysts Charlie Cook and David Wasserman recently noted, “Today, the Cook Political Report counts just 33 seats out of 435 as competitive, including 27 held by Republicans and six held by Democrats. That means that even if Democrats swept every single competitive seat, they would still fall three seats short of a majority.”
That doesn’t mean it’s completely impossible for Bernie Sanders to win such a dramatic victory that he pulls in a Democratic House behind him, just that it’s very, very unlikely. And if it did happen, many of those newly elected Democrats would be from conservative districts. He’d have to not only hold their votes, but hold them on intensely controversial reforms. It might be worth remembering how hard it was for Barack Obama to keep Democrats together on things like the Affordable Care Act, which Sanders argues was a change that didn’t go nearly far enough.
That brings us to the second possibility for Sanders’s revolution, which he hints at without going into detail: that public support for his agenda will be so overwhelming that congressional Republicans, fearing for their political careers and helpless in the face of political reality, will have no choice but to get behind it.
There’s a reason Sanders doesn’t get too specific about the idea that Republicans will vote for things like single-payer health care: It’s absurd. No one who is even vaguely familiar with today’s Republican Party—a party that has grown more conservative with each passing year, and which has come to view any compromise with Democrats as a betrayal, no matter the substance of the issue in question—could think there are any circumstances short of an alien invasion that would make them support a Democratic president (and maybe not even then).
I’m sure some of Sanders’s more enthusiastic fans will say that in looking at his idea of a revolution this way, I’m either shilling for Hillary Clinton or I’m some kind of apologist for the the prevailing corporate-dominated order. I doubt I could convince them otherwise, though I will say that I’ve been extremely critical of Clinton on any number of issues for years, and I’ve been a strong supporter of single-payer health care for just as long. But whatever you think about Clinton or about the substance of Sanders’s ideas, the challenge of passing Sanders’s agenda remains the same.
One can also say, “Well, Hillary Clinton doesn’t have much of a plan for how she’ll get anything passed through Congress either.” And that would be true—she faces the same congressional problem, and Republicans will fight her more modest program with just as much energy and venom as they would Sanders’s. I have little doubt that if Clinton becomes president, much of what she’s now advocating will fall by the wayside, not because she isn’t sincere about it but because she won’t find a way to pass it. That’s a problem that she needs to address for Democratic voters, but it doesn’t change Sanders’s responsibility to address the practical difficulty his program presents.
Eight years ago, Barack Obama was elected on a campaign notable for its lofty rhetoric about hope and change. But his actual policy agenda was, if not modest, then certainly firmly in the mainstream. Among other things, he wanted to end the war in Iraq, use government spending to alleviate the misery of the Great Recession, and pass market-based health-care reform. None of these were radical ideas. But he had to fight like hell to pass them, in the face of a Republican Party that sincerely believed he was trying to destroy America with his socialist schemes.
Unlike Obama, Bernie Sanders is advocating radical change. Which means his revolution would face obstacles even greater than Obama did. It’s a long way from here to there.
By: Paul Waldman, Senior Writer, The American Prospect, February 1, 2016
“Wrong Then, Wrong Now”: What Cheney Left Out Of Iran Speech: His Own Record
Former Vice President Dick Cheney accused the Obama administration of giving Iran everything it needs to wage a nuclear war on the U.S.
What Cheney left out was that Iran made significant advances with its nuclear program while he was in office.
With a nuclear accord with Iran all but guaranteed to survive a challenge from congressional Republicans, Cheney escalated the blame game between President Barack Obama’s White House and some former members of President George W. Bush administration over responsibility for spiraling turmoil in the Middle East.
“This deal gives Iran the means to launch a nuclear attack on the U.S. homeland,” Cheney said. “It is madness.”
Cheney, one of the chief architects of the 2003 U.S. invasion of Iraq, said the agreement negotiated by the U.S. and five other world powers with Iran would “accelerate nuclear proliferation” in the Mideast and enable the Islamic Republic to attack the U.S. or its allies.
While criticizing Obama’s handling of Iran, Cheney has struggled to explain the advancement of the Islamic Republic’s nuclear program during the Bush administration. Iran had about 6,000 uranium centrifuges installed at its Natanz nuclear research facility at the start of the Obama administration in 2009, up from zero eight years earlier, according to the International Atomic Energy Agency.
Iran’s Centrifuges
“I think we did a lot to deal with the arms control problem in the Middle East,” Cheney said Sunday on “Fox News Sunday,” without specifically responding to a question from host Chris Wallace about Iran’s centrifuges.
Before Cheney began speaking Tuesday at the American Enterprise Institute in Washington, the White House sought to preempt his argument with a video, distributed via social media, of Cheney’s past statements about the Iraq war titled: “Wrong Then, Wrong Now.”
Cheney’s warnings before the invasion that former Iraqi president Saddam Hussein was developing weapons of mass destruction were wrong, and since leaving office he has frequently predicted devastating attacks on the U.S. by hostile nations or terrorist groups that have never materialized.
Iraq Justification
He again defended the Iraq war on Tuesday: “To argue that we should not have gone after Saddam Hussein is to argue that he still should be in place today,” he said.
He also said the Iraq invasion led to Libya’s former dictator, Muammar Qaddafi, offering to surrender his own nuclear program.
Cheney’s speech was interrupted by a protester from Codepink, an anti-war group that protested the Iraq invasion and is planning a series of events this week in support of the Iran deal.
“Dick Cheney’s a war criminal!” a young woman shouted before she was forcibly removed from the event. “Try diplomacy not war.”
Cheney did not address the woman, only saying “thank you,” after she was escorted out by security.
Cheney’s speech on Tuesday came 13 years to the day after the New York Times reported that Iraq was trying to obtain thousands of “aluminum tubes” to construct uranium centrifuges. Cheney confirmed the report — initially attributed to anonymous Bush administration sources — later that day in an appearance on NBC’s “Meet the Press” program.
Ten days later, Bush delivered a speech to the United Nations General Assembly labeling Iraq “a grave and gathering danger” and citing the tubes as one piece of evidence for a nuclear program.
Aluminum Tubes
The Iraq Survey Group, which investigated Hussein’s alleged weapons programs after the invasion, determined that the tubes were most likely intended to build conventional rockets. No evidence ever emerged that Iraq tried to reconstitute a nuclear weapons program.
Obama has argued that opposition to the Iran accord has been drummed up by many of the same people who supported the ill-fated invasion of Iraq.
“VP Cheney was wrong on Iraq, and now he’s making false claims about the #IranDeal,” Eric Schultz, the White House’s deputy press secretary, said on Twitter as Cheney spoke.
Cheney’s speech comes as several presidential candidates prepare to make public statements about the Iran deal. Republican Senator Ted Cruz of Texas is expected to join Donald Trump at a rally for opponents of the agreement on Wednesday at the U.S. Capitol. Former Secretary of State Hillary Clinton is scheduled to speak on the deal Wednesday.
Congress returns to Washington on Tuesday after a five-week recess and lawmakers have until Sept. 17 to act on the agreement. As of Tuesday, 41 Democrats in the Senate have announced they will support the deal when Republicans, who have majorities in the House and Senate, attempt to advance a resolution of disapproval.
The Democratic support means that if the disapproval passes, Republicans won’t have enough votes to override a promised veto by Obama. Democrats also may have sufficient votes to filibuster such a resolution in the Senate, preventing it from ever reaching the president’s desk.
It isn’t clear if all 41 senators who have said they support the deal would also support blocking a vote on the disapproval resolution.
By: Toluse Olorunnipa, Bloomberg Politics, September 8, 2015
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